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Regional instruments

Regional legal and policy frameworks also mandate legislative action to address harmful practices.

Africa

  • Article 18(3) of the African Charter on Human and Peoples’ Rights stipulates that “the State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.” 
  • The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) (The Maputo Protocol) provides much more detailed guidance to States on their obligations in this regard, mandating States Parties to “…adopt such other legislative, administrative, social and economic measures as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women.” Article 4. This Protocol also specifically directs States Parties to prohibit and eliminate harmful practices, explicitly including the practice of FGM: 

Article 5 - Elimination of Harmful Practices
States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognized international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including:

In addition, the Protocol requires States Parties to enact legislation to guarantee free and full consent to marriage and to establish 18 years as the minimum age of marriage for women. (Article 6) Articles 20 and 21 address the rights of widows, stating: 

Article 20 – Widows’ Rights
States Parties shall take appropriate legal measures to ensure that widows enjoy all human rights through the implementation of the following provisions:  

a)   that widows are not subjected to inhuman, humiliating or degrading treatment;  

b)   a widow shall automatically become the guardian and custodian of her children, after the death of her husband, unless this is contrary to the interests and the welfare of the children;  

c)   a widow shall have the right to remarry, and in that event, to marry the person of her choice.

 Article 21 - Right to Inheritance

 1.   A widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it.

2.   Women and men shall have the right to inherit, in equitable shares, their parents' properties.

  • The African Charter on the Rights and Welfare of the Child (1990) prohibits discrimination and protects children’s rights to survival, protection, privacy, and physical, mental, and spiritual health. Articles 3, 5(2), 10, 14(1). Article 16 prohibits all forms of torture, inhuman or degrading treatment, including physical, sexual or mental abuse from neglect or maltreatment. Article 21 requires Member States of the Organization of African Unity to:

[T]ake all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular:

those customs prejudicial to the health or life of the child; and

those customs and practices discriminatory to the child on the grounds of sex or other status. Article 21(1). 

Europe

In recent years, the European regional system of human rights protection has paid increasing attention to state obligations to end harmful practices. 

3. Urges the Member States to take appropriate measures concerning men's violence against women in their respective national law, in particular:

 (b) not to accept any reference to cultural practice as an extenuating circumstance in cases of violence against women, crimes of honour and genital mutilation;

(d) to ensure victims' right to safe access to justice and effective enforcement, including by providing for compensation;

9.   Calls on the Member States to take appropriate measures to stop female genital mutilation; stresses that preventing and banning female genital mutilation and prosecuting perpetrators must become a priority in all relevant European Union policies and programmes; points out that immigrants residing in the Community should be aware that female genital mutilation is a serious assault on women's health and a violation of human rights; calls in this context on the Commission to devise a comprehensive strategic approach at European level with the aim of putting an end to the practice of female genital mutilation in the European Union;

10. Urges Member States to define acts of female genital mutilation as an illegal act of violence against women, which constitutes a violation of their fundamental rights and a serious aggression against their physical integrity; regardless of where or in which country this act occurs against EU citizens or residents, it remains illegal;

11. Calls on Member States to either implement specific law provisions on female genital mutilation or to adopt such laws and to prosecute each person who conducts genital mutilation;

12. Calls for doctors who conduct genital mutilation of young women and girls not only to be prosecuted but also to have their practicing license withdrawn;

13. Calls on these Member States to ensure that parents are held legally liable when such acts of genital mutilation occur on minors;

14. Calls on the Member States to ensure that genital mutilation be considered a reasonable argument for an asylum claim in order to protect the asylum seeker from inhuman treatment;

42.  Affirms that no forms of violence against children in any setting, including the home, can be justified and that all violence must be condemned; therefore calls for Community legislation that prohibits all forms of violence, sexual abuse, degrading punishment and harmful traditional practices; condemns all forms of violence against children including physical, psychological and sexual violence, such as torture, child abuse and exploitation, child abduction, trafficking in or sale of children and their organs, domestic violence, child pornography, child prostitution, pedophilia, and harmful traditional practices such as female genital mutilation, forced marriages and honour crimes; [and]

46.  Urges the Member States to raise medical practitioners’ awareness of harmful traditional practices and to ensure that crimes are punished consistently under the legislation in force, with particular attention being paid to vulnerable groups including immigrant girls and women, those from ethnic minorities and disabled girls;. . .

 

26.  Calls on the Member States to take appropriate measures to stop female genital mutilation; points out that immigrants residing in the Community should be aware that female genital mutilation is a serious assault on women's health and a violation of human rights; calls on Member States either to implement specific legal provisions on female genital mutilation or to adopt such laws and prosecute all persons who conduct genital mutilation;

For the purposes of this recommendation, the term “violence against women” is to be understood as any act of gender-based violence, which results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life. This includes, but is not limited to, the following:

a.  violence occurring in the family or domestic unit, including, inter alia, physical and mental aggression, emotional and psychological abuse, rape and sexual abuse, incest, rape between spouses, regular or occasional partners and cohabitants, crimes committed in the name of honour, female genital and sexual mutilation and other traditional practices harmful to women, such as forced marriages;

b.  violence occurring within the general community, including, inter alia, rape, sexual abuse, sexual harassment and intimidation at work, in institutions or elsewhere trafficking in women for the purposes of sexual exploitation and economic exploitation and sex tourism;

c.  violence perpetrated or condoned by the state or its officials;

d. violation of the human rights of women in situations of armed conflict, in particular the taking of hostages, forced displacement, systematic rape, sexual slavery, forced pregnancy, and trafficking for the purposes of sexual exploitation and economic exploitation.

(Appendix to Recommendation Rec (2002)5 (emphasis added)) 

  • In 2003, the Parliamentary Assembly Council of Europe adopted Resolution 1327 (2003) on so-called “honour crimes” expressing its concern with “the increase in so-called “honour crimes”, committed against women in the name of honour, which constitute a flagrant violation of human rights based on archaic, unjust cultures and traditions.”

13.1. ratify the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, if they have not yet done so;

13.2. ratify the 1979 Convention on the Elimination of All Forms of Discrimination against Women and the amendment and protocol thereto, if they have not yet done so;

13.3. ensure their compliance with Council of Europe Committee of Ministers’ Recommendation Rec(2002)5 on the protection of women against violence.

14. The Assembly urges the national parliaments of the Council of Europe member states to:

14.1. renegotiate, discard or denounce any sections of international agreements and rules of international private law contrary to the fundamental principles of human rights, particularly as regards personal status;

14.2. adapt their domestic legislation, if appropriate, so as to:

14.2.1. fix at or raise to 18 years the minimum statutory age of marriage for women and men;

14.2.2. make it compulsory for every marriage to be declared and entered by the competent authority in an official register;

14.2.3. institute an interview between the registrar and the bride and groom prior to the celebration of the marriage and allow a registrar who has doubts about the free and full consent of either or both parties to summon either or both of them separately to another meeting;

14.2.4. refrain from recognising forced marriages and child marriages contracted abroad except where recognition would be in the victims’ best interests with regard to the effects of the marriage, particularly for the purpose of securing rights which they could not claim otherwise;

14.2.5. facilitate the annulment of forced marriages and possibly automatically annul such marriages;

14.2.6. lay down a maximum period of one year, in so far as practicable, to investigate and rule on an application for annulment of a forced marriage or a child marriage;

14.3. regard coercive sexual relations victims are subjected to within forced marriages and child marriages as rape;

14.4. consider the possibility of dealing with acts of forced marriage as an independent criminal offence, including aiding and abetting the contracting of such a marriage.

  • The Council of Europe Parliamentary Assembly Report Doc. 12350, 26 July 2010, Gender-related claims for asylum pushes member states to “ensure that gender-based violence and gender-related persecution is appropriately taken into account in any asylum determination process. They are also called upon to set up their asylum system in such a way as to ensure gender sensitivity. The Assembly also calls on the Committee of Ministers to, inter alia, instruct the appropriate inter-governmental body in the Council of Europe to carry out a study on the approach of member states to gender-related claims in the asylum process and provide them with guidelines.” The report sets forth draft recommendations and direction for incorporating gender-based violence into asylum determination procedures.
  • The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is the first legally-binding instrument in Europe on violence against women and domestic violence. It obliges states to reform laws, implement practical measures to aid victims, and, importantly, allocate adequate resources for an effective response to violence against women and domestic violence. In addition states must involve all relevant actors in the implementation of the Istanbul Convention, including national parliaments and institutions and non-governmental and civil society organizations. The Convention will enter into force once ten countries have ratified it. Eight of the ten ratifying countries must be Council of Europe member states. As of January, 2013, 25 nations have signed the Istanbul Convention, but only Turkey has ratified it. Available here in 28 languages.

12 Steps to Comply with the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention).

Asia

  • The Declaration on the Elimination of Violence Against Women in the ASEAN Region, (2004), sets forth eight measures to enhance regional collaboration to eliminate violence against women. Although the Declaration does not specifically address harmful practices as a form of violence against women or result of discrimination, it does call on the parties to agree to the following measure: 

To enact and, where necessary, reinforce or amend domestic legislation to prevent violence against women, to enhance the protection, healing, recovery and reintegration of victims/survivors, including measures to investigate, prosecute, punish and where appropriate rehabilitate perpetrators, and prevent re-victimisation of women and girls subjected to any form of violence, whether in the home, the workplace, the community or society or in custody…” Section 4.

Americas

  • The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belem do Para) (1994) affirms the right of women to be free from violence and requires states to impose penalties and enact legal provisions to protect women from harassment and other forms of violence. Article 6(b) affirms that a woman’s right to be free from violence includes her right “to be valued and educated free of stereotyped patterns of behavior and social and cultural practices based on concepts of inferiority or subordination.” In addition, the Convention places a broad scope of duties on States Parties, including, among others, the following items: 

Article 7

The States Parties condemn all forms of violence against women and agree to pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate such violence and undertake to:

a. refrain from engaging in any act or practice of violence against women and to ensure that their authorities, officials, personnel, agents, and institutions act in conformity with this obligation;

b. apply due diligence to prevent, investigate and impose penalties for violence against women;

c. include in their domestic legislation penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures where necessary;

d. adopt legal measures to require the perpetrator to refrain from harassing, intimidating or threatening the woman or using any method that harms or endangers her life or integrity, or damages her property;

e. take all appropriate measures, including legislative measures, to amend or repeal existing laws and regulations or to modify legal or customary practices which sustain the persistence and tolerance of violence against women;

f. establish fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures;

g. establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies; and

h. adopt such legislative or other measures as may be necessary to give effect to this Convention. (Emphasis Added). 

See:  Second Hemispheric Report on the Implementation of the Belém do Pará Convention, Organization of American States (OAS) and Follow-up Mechanism to the Belém do Pará Convention (MESECVI), 2012.