12 februarie 2012

Universality of human rights and cultural relativism in the context of the burqa ban




Author: Norbert Pal and Andrei Palade


The first operative paragraph of the Vienna Declaration and Programme of Action asserts that the universal nature of human rights and freedoms is beyond question.[1] However, having in mind France’s ban on the full face veil (which went into effect last year) we can see that things are not so simple.

The veil/burqa/niqab is an outer garment worn by women in some Islamic traditions to cover their bodies in public places. While some women wear this garment as an expression of their belief, some are forced to wear facing harsh punishments in case of disobedience. First, I will try to argue why it is bad to ban such garments and then vice versa.

On the one hand, the International Covenant on Civil and Political Rights guarantees everyone the right to freedom of thought, conscience and religion, as well as the freedom to manifest his or her religion or belief[2] „alone and in private, in community with others or in public.”[3] This freedom encompasses the right to wear religiously distinctive clothing and banning this veil would tantamount to violation of this right.

On the other hand, women and men are equally entitled to all human rights and fundamental freedoms.[4] The goal of the UN is “to reaffirm faith in fundamental human rights, (…) in the equal rights of men and women”.[5] Furthermore, the principles of non-discrimination on the basis of sex and equality are internationally recognized.[6] Accordingly, states must take measures in order to modify or abolish all customs, including religious ones, which discriminate against women.[7] Such customs which are defended in the name of religion at the expense of women’s human rights and equality are the compulsory restrictive dress codes[8] such as the wearing of the veil/burqa/niqab. In the context of women’s rights and the niqab, not only its existence per se is the problem, but the coercive circumstances under which some women are compelled to wear it and are denied their full spectrum of human rights.[9] A woman’s autonomous consent to such an oppressive dress code is vitiated due to the possibility of harsh penalties.[10] Moreover, individual consent to a discriminatory practice may not be feasible where these girls are not yet adult.[11] Which approach is right? It’s hard to tell and also state practice is scarce and contradictory in this regard[12]

As illustrated above cultural relativism poses serious challenge to the universality of human right and much is at stake, because according to some publicists: what hangs in the balance is the legitimacy of human rights.[13]

This was only one example when the universality of human rights is vitiated by cultural relativism. There are also several Asian and African values which are incompatible with internationally recognized human rights.[14]


[1] Donnely, p. 288.

[2] ICCPR, art. 18.

[3] General Comment No.22, Article 18 CCPR/C/21/Rev.1/Add.4.;

[4] CEDAW, art 2(a); ICCPR, art. 3.

[5] UNCh, Preamble and art 1(3).

[6] CEDAW, art. 1; ICCPR, arts 2,4,24,26; UDHR, arts 1,2,7.

[7] CEDAW, arts 2(f), 5(a).

[8] Raday, p.669.

[9] Kapur, p.217.

[10] Raday, p.686.

[11] Raday2, p.2794.

[12] Begum; Sahin.

[13] Goodhart, p.185

[14] Donnelly, p.290


BIBLIOGRAPHY

Treaties

1. Charter of the United Nations, 26 June 1945, Can TS 1946 No 7, hereinafter: UNCh.

2. Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 UNTS 13, hereinafter: CEDAW.

3. International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, hereinafter: ICCPR.

4. Universal Declaration of Human Rights, GA Res 217(III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948) 71, hereinafter: UDHR.

Jurisprudence

1. Leyla Şahin v. Turkey [2004], ECHR, hereinafter: Sahin.

2. R (Begum) v Governors of Denbigh High School [2006], UKHL 15, hereinafter: Begum.

Articles

1. J. Donnely, “The Relative Universality of Human Rights”, 29 Human Rights Quarterly (2009), hereinafter: Donnely.

2. Frances Raday, “Culture, Religion, And Gender” (2003) 1 I.Con No 4 663, hereinafter: Raday.

3. Frances Raday, “The Challenge of Local and Global Fundamentalism: Gender and Religion: Secular Constitutionalism Vindicated” (2009) 30 Cardozo L Rev 2769, hereinafter: Raday2.

4. M. Goodhart, 'Neither Relative nor Universal: a Response to Donnely', 30 Human Rights Quarterly (2009), hereinafter: Goodhart.

5. Ratna Kapur, ”Un-Veiling Women’s Rights in the ’War on Terrorism’ ” (2002) 9 Duke J Gender Law & Pol’y 211, hereinafter: Kapur.

Other

1. General Comment No. 22, Article 18 CCPR/C/21/Rev.1/Add.4, hereinafter: General Comment.

Un comentariu:

  1. It is a great pleasure for me to read the article! Of course, always we have the duty to past through only one opinion! So, the relativism appears something like a compromise!

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