DUE DILIGENCE PROJECT’S THE DUE DILIGENCE PRINCIPLE AND THE ROLE OF THE STATE: DISCRIMINATION AGAINST WOMEN IN FAMILY AND CULTURAL LIFE Zarizana Abdul Aziz and Janine Moussa, Co-Directors, Due Diligence Project Submission to the United Nations Working Group on Discrimination Against Women in Law and in Practice January 2015 Table of Contents Heading Page I. Introduction 1 a. Situational context 1 b. Purpose of Submission 3 c. Concepts and terminology 3 II. Contributions to discourse 4 1. Due Diligence Framework and the Role of the State 4 2. Culture 5 a. Basic premise 5 b. Factors that influence culture 8 c. Sites and actors 11 3. Family 16 a. Various Forms of Family 16 b. Rights and violations experienced within the family 19 c. Plural legal systems 22 III. Recommendations and State Obligation 23 a. On Culture 25 b. On Family 27 c. On Plural Legal Systems 28 i I. Introduction The Due Diligence Project1 (DDP) welcomes the UN Working Group thematic focus on Discrimination against the Women in Family and Cultural Life. The purpose of this contribution is to highlight new and innovative thinking beyond the current language and discourse in understanding and conceptualizing discrimination against women in family and cultural life, to critically examine crucial basic concepts which adds to this understanding and to look at discrimination against women in family and cultural life through the lens of the State Obligation. The lens of State Obligation is presented through the Due Diligence Framework developed by the Due Diligence Project.2 a. Situational context There is a growing wave of conservatism, in the name of culture and religion, threatening to repudiate women’s human rights norms and standards. At the national level, States are passing laws and by-laws restricting women’s rights, agency and mobility. For example, Buddhist Women’s Marriage Bill (Myanmar) which restricts Buddhist women’s rights to marry or cohabit with men of other faiths. The Bill is based on a petition presented by a coalition of nationalist Buddhist monks known as the Organization for the Protection of Race, Religion, and Belief. 3 Another example is the Anti-Pornography Law (Indonesia) which definition of pornography includes women’s dressing “that violates the moral values of society”. The anti-pornography law was promoted by a small group of Islamist parties, and passed by parliament in October 2008.4 At the international level, Human Rights Council resolutions on Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind,5 Combating defamation of religions6 and Protection of the Family7 all draw on ‘traditional and cultural values’ to mediate human rights norms. 1 The Due Diligence Project (DDP) is a global project which explores and unpacks the international legal principle of ‘due diligence’ in the context of violence against women. www.duediligenceproject.org 2 Zarizana Abdul Aziz and Janine Moussa, The Due Diligence Framework: Framework on State Accountability to Eliminate Violence against Women, International Human Rights Initiative, 2014. The Due Diligence Framework contains guidelines in the five areas of State Obligation, namely prevention, protection, prosecution, punishment and provision of redress and reparation. Available at www.duediligenceproject.org/Resources.html 3 Zarni Mann, Monk Conference Backs Bills to Restrict Interfaith Marriage, Rohingya Voting, The Irrawaddy, 16 January 2014, available at http://www.irrawaddy.org/burma/monk-conference-backs-bills-restrict-interfaith- marriage-rohingya-voting.html. Last visited 15 January 2015. 4 Olivia Rondonuwu, Indonesia's constitutional court defends pornography law, Reuters, 25 March, 2010, available at http://www.reuters.com/article/2010/03/25/us-indonesia-pornography-idUSTRE62O28R20100325 (last visited 15 January 2015) 5 Human Rights Council resolution A/HRC/RES/16/3 (2012) Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind. 6 Human Rights Council, Resolution A/HRC/RES/13/16 (2010) Combating defamation of religions. 7 Human Rights Council resolution A/HRC/26/L.20/Rev.1 (2014) Protecting the family. 1 Gender stereotypes are reinforced and legitimised by the traditional roles of men and women said to have their basis in conservative interpretations of culture and religion. Women’s human rights claims are rejected as being not part of “our culture”. This is compounded by the global north’s essentialisation of gender discrimination as “the others’ culture” deserving of non-interference. Although these stereotypes permeates all facets of women’s lives, often supported by constitutional and legal systems, women’s human rights are particularly threatened in the realm of the family, and are often regulated by what is known as personal laws on marriage and divorce, guardianship of children (and at times, of women) and succession as well as violence against women in particular sexual violence and intimate partner violence.8 Cultural rights are essential to the recognition and respect of human dignity and must include non-discrimination and equality principles. Whereas the right to express and enjoy one’s culture and religion is protected by international human rights law9, it cannot be fulfilled at the expense of other fundamental human rights, nor at the expense of the fundamental rights of others (irrespective of whether they are from the same or different culture or religion).10 The right to culture also includes the freedom to contribute in the creation of culture and its replication in everyday life. Culture is neither static nor monolithic. The State has a role to play in mediating these competing and, at times complementary, interests. Article 5 of the Convention on All Forms of Discrimination against Women (CEDAW) reaffirms this by declaring that States have an obligation to “take all appropriate measures 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”. State responsibility has further expanded over the years to include not only the State obligation not to violate human rights, but its obligation to exercise due diligence to ensure that violations of human rights, whether committed by State actors or non-State actors are eliminated. In examining the relationship between discrimination against women, culture and religion, the due diligence principle is all the more important as States have tremendous power, ability and interest in moulding, tolerating, encouraging and developing values and culture. States should take measures to protect women and girls against negative social and cultural practices that are harmful to their well-being, dignity and health. 8 Guardianship of women requires that a woman is I perpetual need of a male guardian (wilayat). 9 See HRC resolution A/HRC/10/23 (2009) reaffirming “that cultural rights are an integral part of human rights, which are universal, indivisible, interrelated and interdependent”, para. 1. 10 Ibid, “[N]o one may invoke cultural diversity to infringe upon human rights guaranteed by international law.”, para. 4. See also UNESCO Universal Declaration on Cultural Diversity (2001), Article 4. 2 b. Purpose of submission Discrimination against women in family and cultural life has stood out as one of the underlying causes in the Due Diligence Project’s extensive three year research-advocacy on violence against women. Likewise, the role of the State as the entity ultimately responsible for preventing and addressing human rights abuses has also been a central approach to the work of the Due Diligence Project. Given this and the current socio-economic context, the DDP convened an expert group meeting on 2-3 December 2014 on the Role of the State and Discrimination against Women in Family and Cultural Life.11 The meeting brought together experts from diverse religious and cultural backgrounds with expertise in the area of women’s human rights to critically explore, analyse, and formulate strategies on human rights and its intersections with culture and religion with particular attention to their impact on the family through the lens of State obligation. Outcomes of this expert meeting as well as independently conducted research in the area by the DDP are contained in this document. The document is offered as a contribution to the discourse on this critical and complex issue and to the UN Working Group for consideration in its 2015 annual thematic report on Discrimination against Women in Family and Cultural Life. c. Concepts and terminology For purposes of this report, the following terms should be taken to mean : ▪ Discrimination against ‘women’ should be taken to include discrimination against lesbians, bisexual women and transgendered individuals. ▪ ‘Cultural life’ also has an expansive and amorphous meaning. It includes the space within which we live, work, and play and encompasses the realms of religion, traditions, custom, arts, sports and education. ▪ ‘Family’ is the basic unit of society which can take diverse forms12 requiring both recognition and protection by the State, when in line with international human rights norms and standards. 11 The meeting was hosted by The Robert F Kennedy (RFK) Center for Justice and Human Rights and supported by Association for Women’s Rights in Development (AWID), United Nations Development Fund (UNDP), UN Women Asia-Pacific, The Carter Center and the Office of the High Commissioner of Human Rights (OHCHR). 12 See section II (3), p. 16 infra. 3 II. CONTRIBUTIONS TO DICSOURSE 1. Due Diligence Framework and the Role of the State The ‘due diligence principle’, as it is commonly termed, holds States accountable for human rights abuses committed not only by the State or State actors, but also by non-State actors. Discrimination against women is perpetrated by both State and non-State actors.