Cultural Relativism and Improving the Lives of Women - Essay Example

Cultural Relativism and Improving the Lives of Women Introduction Cultural relativism dictates that the contravention of women’s rights is justified in the advancement of tradition, social cohesiveness, religion, moral codes or some other cultural value.1 The Convention on the Elimination of all Forms of Discrimination Against Women 1979 (CEDAW) intended to define and eliminate discrimination of women globally.2 However, a majority of its contracting states registered reservations to important provisions of the 1979 Convention.3 Ironically, universality has been able to transcend social identity in the name of international trade. However, as demonstrated by the overwhelming number of reservations to CEDAW there is an underlying reluctance to part with social and cultural traditions.4 This study assesses the problem of cultural relativism as a barrier to improving the lives of women by reference to weakness of the implementation and enforcement mechanisms of CEDAW. I. Cultural Relativism Cultural relativism takes the position that there is no universally accepted standard for judging all cultures. This is especially unfair to feminists who attempt to draw attention to all forms of gender discrimination and oppression among diverse cultures.5 Cultural relativism is characterized as a “doctrine” that recognizes that there are some moral codes and social institutions are different and are “exempt from legitimate criticism by outsiders” and such a doctrine is “supported by notions of communal autonomy and self-determination”.6 There are two diametrically opposed views on cultural relativism. One view is referred to as radical cultural relativism and this view holds that culture provides the only validity for proffering a moral rule. The other view is radical universalism which takes the position that culture is not relevant for validating moral rules because they are “universally valid”.7 Be that as it may, the reality is that individuals are aligned to groups within a society and they become conditioned by and identified by those social groups. As Coomaraswamy explains: …people are categorized and identified by a social identity, especially as it is expressed in religious, ethnic, or tribal terms. These group-based identities often help determine our position in the social and political hierarchy of a society and also condition people’s attitudes and perceptions toward us as we go about our daily business.8 For a number of women, they derive their respective identities from their experiences within specific settings that are dominated by males. Even so, the way that they perceive themselves emanates from how women are treated and quite often they confront levels of discriminatory treatment within their social settings. As it is some groups require that women accept discriminating laws and practices and participate in practices that ascribe to women a “subordinate status” according to their religious, tribal or ethnic identity.9 The fact is, women accept these discriminating actualities because they perceive their social identity as “the most significant aspect of their lives”.10 For those who oppose these practices and laws they suffer a degree of shaming and negative labeling often blamed for bringing disgrace on their social groups.11 II. Cultural Relativism Provisions within CEDAW CEDAW purports to be entirely universal in its application and interpretation making no allowances for cultural differences. Article 2 bears this out by providing that contracting states shall: Take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.12 CEDAW is therefore neutral in terms of culture and universal in its application. Although CEDAW purports to call for the protection of women’s rights and to eliminate all forms of gender discrimination, it approaches the human rights of women “by using a male standard for determining these rights”.13 Having been drafted and prepared primarily by men, CEDAW requires that contracting state take measures to “ensure to women, on equal terms with men, the right to vote in all elections”14, to “participate in the formulation of government policy”15, and to “participate in non-governmental organizations and associations”.16 Other rights include the right to control their own nationality in the same manner as men can, 17equal education,18 equal employment treatment and opportunities,19 equal access to healthcare with special attention during pregnancy,20the right to family benefits and the right to obtain loans and mortgages.21 In addition women are to be accorded equal treatment in adjudication processes and the equal right to change residence.22 Article 16 encompasses perhaps the greatest threat to cultural relativism as it requires contracting states to take measures calculated to ensure that women are treated equally to men in “all matters relating to marriage and family relations”.23 While Article 6 addresses human trafficking in women,24 an international problem for all women, there is nothing in CEDAW that addresses other problems that could be fostered by the operation of cultural relativism. These problems include rape, domestic violence or “other forms of gender-based violence”, abortion, female genital mutilation, female infanticide, forced childbirth, veiling or “other forms of abusive cultural or religious practices”.25 The farthest the CEDAW goes in this regard is provided for in Article 5 which provides that contracting states shall take steps as follows: To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.26 Article 5 is limiting in that it only provides for the elimination of customs that are based on stereotyping or are based on concepts of gender inferiority or superiority. Obviously from Western perspectives female genital mutilation, domestic violence and gender-specific violence and treatment are not only degrading but an expression of the inferiority of women.27 Other cultures however, regard these traditions as having moral validity and that they are not based on concepts of inferiority or superiority of gender.28 III. The Reporting System and its Effectiveness Contracting states are legally bound to implement the provisions contained in CEDAW. Each four years they are required to furnish the Committee for CEDAW with national reports every four years. These reports contain the measures that they have taken to comply with their CEDAW obligations.29 However, the reporting system permits the registering of reservations to provisions as well as the explanation for any difficulties relative to implementation of any of the provisions contained in CEDAW. In other words, the reporting system under to CEDAW can be seen as providing contracting states with a forum for rejecting any of its provisions. Article 18(2) of CEDAW permits contracting states to list any factors and/or difficulties that impact the implementation of its provisions.30 CEDAW Committee’s guidelines only asks that the reporting state’s report: Should explain the nature and extent of, and reasons for every such factor and difficulty, if any such exist; and should give details of the steps taken to overcome them.31 Similarly, any declarations or reservations relative to an article in CEDAW should be “explained and its continued maintenance justified”.32 Moreover, the exact effect of a reservation or declaration in the context of national policies or law “should be explained”.33 The use of the word “should” clearly indicate that the reporting state does not have a mandatory obligation to report the reasons for a declaration or reservation. Nor are they under a duty to explain the difficulties and factors they may encounter in implementing any part of CEDAW. If state policies adhere to practices, customs and policies that discriminate women they may merely refuse to implement those parts of CEDAW or simply register a declaration or reservation. IV. The Lack of Individual Communications/Optional Protocol The Optional Protocol addresses the weakness of its monitoring system which is intrinsically based on the country reports received from contracting states.34 The Optional Protocol permits individual communication and inquiry against discriminatory treatment. These communications may be submitted by individuals or “groups of individual, under the jurisdiction of a State Party” who claim to “be victims of a violation of any of the rights” contained in CEDAW “by that State Party”.35 However, CEDAW’s Committee will not consider an individual communication if it is against a contracting state that registered a reservation to the Optional Protocol. In the event the Committee investigates an individual communication it can request rather than command the offending state to take “interim measures” to repair or avoid further harm to the victim.36 The committee merely acts as a mediator rather than an enforcer. Once again, cultural relativism can act as an obstacle to an individual lodging a complaint on the grounds of discriminatory treatment pursuant to the provisions in CEDAW. Presumably, a party to CEDAW not wishing to be bound by any one or more of the provisions contained in CEDAW will likely register a reservation to the Optional Protocol. Therefore any female disenchanted with cultural practices that are degrading or places her in a situation where she is treated as inferior may not have any recourse if that treatment is grounded in cultural relativism. The fact is, where cultural relativism shapes laws, policies and customs, it is expected that the state exhibiting these traits will register reservations to some provisions and will likewise register reservations to the Optional Protocol with the result that individual communication have no effect. V. The Number of Reservations Reservations to CEDAW can be seen as an expression of cultural relativism. CEDAW has the largest number of reservations when compared to other international instruments on human rights. A vast majority of these reservations relate to provisions that call for equality in domestic matters and the reformation of customs, policies and practices that permit women to be discriminated against. These reservations are expressed in terms that indicate that the provisions contravene cultural or religious beliefs and values. For instance, Tunisia, Libya, Bangladesh and a number of other Islamic states claim that the provisions coincide with Islamic codes.37 So far, Bangladesh, Colombia, Cuba and Belize have registered declarations and reservations against the Optional Protocol.38 By the year 2007 there were 185 states subscribing to CEDAW and at least 62 of those states continued to hold reservations over at least one Article under the 1979 Convention.39 These reservations speak to the influence of cultural relativism and how effectively it can render the universal protection of women’s rights futile. The original number of reservations to CEDAW was larger but some states eventually withdrew their reservations.40 Even so, 65 is a large number of reservations and indicates that cultural relativism remains a barrier to the protection of women against discriminatory practices in at least 65 countries. Conclusion Cultural relativism functions as an obstacle to the elimination of discriminatory practices against women. Nowhere is this more evident than in the implementation and enforcement of CEDAW. The reservations registered indicate that cultural relativism functions as a justification of the perpetuation of discriminatory treatment of women. Moreover, CEDAW’s reporting and monitoring system relies on country reports and does not impose upon states a mandatory duty to explain failure to implement or take appropriate measures to eliminate discriminatory laws, customs or practices. In other words, cultural relativism rather than universal principles dictate the extent to which women can escape discriminatory treatment. Bibliography Textbooks Handmaker, J. Advancing Refugee Protection in South Africa. (Berghahn Books 2008). Howland, C. Religious Fundamentalisms and the Human Rights of Women, (Palgrave MacMillan 2003). Kabeer, N. Inclusive Citizenship: Meanings and Expressions. (Zed Books 2005). Ross, S. Women’s Human Rights: The International and Comparative Law Casebook.(Vantage Press 2008). Shivdas, M. and Coleman, S. Without Prejudice: CEDAW and the Determination of Women’s Rights, (Commonwealth Sectariat 2010). Sweetman, C. Gender, Development, and Citizenship, (Oxfam 2004). Articles/Journals Afkhami, M. ‘Gender Apartheid, Cultural Relativism, and Women’s Human Rights in Muslim Societies,’ cited in M. Agosin (Ed) Women, Gender and Human Rights: A Global Perspective, (Rutgers University Press 2001). Bong, S. ‘Going Beyond the Universal-versus-Relativist Rights Discourse and Practice: The Case of Malaysia.’ Cited in S. Bahun-Radunovic and V. Rajan (Eds) Violence and Gender in the Globalized World: The Intimate and the Extimate, (Ashgate Publishing 2008). Coomaraswamy, R. ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women.’ (2002-2003) 34 George Washington International Law Review, 483. Donnelly, J. ‘Cultural Relativism and Universal Human Rights.’ (1984) 6(4) Human Rights Quarterly, 400-419. Southard, J. ‘Protection of Women’s Human Rights under the Convention on the Elimination of all Forms of Discrimination against Women’. (Winter 1996) 8(1) Pace International Law Review, 1-90. United Nations, ‘Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties: Guidelines issues by the Committee on the Elimination of Discrimination against Women’ (31 December 2002) HRI/GEN/2/Rev.1/Add 2.5 May 2003. Treaties/Conventions Convention on the Elimination of all Forms of Discrimination Against Women 1979. Optional Protocol to CEDAW 1999. Internet Sources UN Treaty Collection (2010). http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8-b&chapter=4&lang=en (Retrieved 11 November 2010). Read More