第18號一般性意見書-有害的措施(英)
2014.11.14
Committee on the Elimination of Discrimination against WomenCommittee on the Rights of the Child
Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2019) on harmful practices*
I. Introduction
1.The Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child contain legally binding obligations that relate both in general and specifically to the elimination of harmful practices. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child have consistently drawn attention to those practices affecting women and children, primarily girls, in the execution of their monitoring mandates. It is by virtue of that overlapping mandate and the shared commitment to prevent, respond to and eliminate harmful practices, wherever and in whichever form they occur, that the Committees decided to develop the present joint general recommendation/generalII. Objective and scope of the joint general recommendation/ general comment
2.The objective of the present joint general recommendation/general comment is to clarify the obligations of States parties to the Conventions by providing authoritative guidance on legislative, policy and other appropriate measures that must be taken to ensure full compliance with their obligations under the Conventions to eliminate harmful practices.3.The Committees acknowledge that harmful practices affect adult women, both directly and/or owing to the long-term impact of practices to which they were subjected as The present joint general recommendation/general comment therefore further elaborates on the obligations of States parties to the Convention on the Elimination of All Forms of Discrimination against Women with regard to the relevant provisions for the elimination of harmful practices that affect the rights of women.
4.Moreover, the Committees recognize that boys are also the victims of violence, harmful practices and bias and that their rights must be addressed for their protection and to prevent gender-based violence and the perpetuation of bias and gender inequality later in their lives. Accordingly, reference is made herein to the obligations of States parties to the Convention on the Rights of the Child regarding harmful practices stemming from discrimination that affect boys’ enjoyment of their rights.
5.The present joint general recommendation/general comment should be read in conjunction with the relevant general recommendations and general comments issued by the Committees, in particular general recommendation 19 on violence against women, of the Committee on the Elimination of Discrimination against Women, and general comment No. 8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and general comment No. 13 on the right of the child to freedom from all forms of violence, of the Committee on the Rights of the Child. The content of general recommendation No. 14 on female circumcision, of the Committee on the Elimination of Discrimination against Women, is updated by the present joint general recommendation/general comment.
III. Rationale for the joint general recommendation/ general comment
6.The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child consistently note that harmful practices are deeply rooted in social attitudes according to which women and girls are regarded as inferior to men and boys based on stereotyped They also highlight the gender dimension of violence and indicate that sex- and gender-based attitudes and stereotypes, power imbalances, inequalities and discrimination perpetuate the widespread existence of practices that often involve violence or coercion. It is also important to recall that the Committees are concerned that the practices are also used to justify gender-based violence as a form of “protection” or control of women[1] and children in the home or community, at school or in other educational settings and institutions and in wider society. Moreover, the Committees draw States parties’ attention to the fact that sex- and gender-based discrimination intersects with other factors that affect women[2] and girls, in particular those who belong to, or are perceived as belonging to, disadvantaged groups, and who are therefore at a higher risk of becoming victims of harmful practices.7.Harmful practices are therefore grounded in discrimination based on sex, gender and age, among other things, and have often been justified by invoking sociocultural and religious customs and values, in addition to misconceptions relating to some disadvantaged groups of women and Overall, harmful practices are often associated with serious forms of violence or are themselves a form of violence against women and children. While the nature and prevalence of the practices vary by region and culture, the most prevalent and well documented are female genital mutilation, child and/or forced marriage, polygamy, crimes committed in the name of so-called honour and dowry-related violence. Given that those practices are frequently raised before both Committees, and in some cases have been demonstrably reduced through legislative and programmatic approaches, they are used herein as key illustrative examples.
8.Harmful practices are endemic to a wide variety of communities in most Some are also found in regions or countries in which they had not been previously documented, primarily owing to migration, whereas in other countries where such practices had disappeared they are now re-emerging as a result of such factors as conflict situations.
9.Many other practices having been identified as harmful practices are all strongly connected to and reinforce socially constructed gender roles and systems of patriarchal power relations and sometimes reflect negative perceptions of or discriminatory beliefs regarding certain disadvantaged groups of women and children, including individuals with disabilities or The practices include, but are not limited to, neglect of girls (linked to the preferential care and treatment of boys), extreme dietary restrictions, including during pregnancy (force-feeding, food taboos), virginity testing and related practices, binding, scarring, branding/infliction of tribal marks, corporal punishment, stoning, violent initiation rites, widowhood practices, accusations of witchcraft, infanticide and incest. [3] They also include body modifications that are performed for the purpose of beauty or marriageability of girls and women (such as fattening, isolation, the use of lip discs and neck elongation with neck rings)[4] or in an attempt to protect girls from early pregnancy or from being subjected to sexual harassment and violence (such as breast ironing). In addition, many women and children increasingly undergo medical treatment and/or plastic surgery to comply with social norms of the body, rather than for medical or health reasons, and many are also pressured to be fashionably thin, which has resulted in an epidemic of eating and health disorders.
IV. Normative content of the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child
10.Although the issue of harmful practices was less known at the time of drafting of the Conventions, both include provisions that cover harmful practices as human rights violations and oblige States parties to take steps to ensure that they are prevented and In addition, the Committees have increasingly tackled the issue when examining States parties’ reports, in the ensuing dialogue with States parties and in their concluding observations. The issue has been further developed by the Committees in their general recommendations and general comments. [5]11.States parties to the Conventions have a duty to comply with their obligations to respect, protect and fulfil the rights of women and They also have a due-diligence obligation[6] to prevent acts that impair the recognition, enjoyment or exercise of rights by women and children and ensure that private actors do not engage in discrimination against women and girls, including gender-based violence, in relation to the Convention on the Elimination of All Forms of Discrimination against Women, or any form of violence against children, in relation to the Convention on the Rights of the Child.
14.Given that the requirement to effectively address harmful practices is among the core obligations of States parties under the two Conventions, reservations to the relevant articles, [8] which have the effect of broadly limiting or qualifying the obligations of States parties to respect, protect and fulfil the rights of women and children to live free from harmful practices, are incompatible with the object and purpose of the two Conventions and impermissible pursuant to article 28 (2) of the Convention on the Elimination of All Forms of Discrimination against Women and article 51 (2) of the Convention on the Rights of the child.
V. Criteria for determining harmful practices
15.Harmful practices are persistent practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or The harm that such practices cause to the victims surpasses the immediate physical and mental consequences and often has the purpose or effect of impairing the recognition, enjoyment and exercise of the human rights and fundamental freedoms of women and children. There is also a negative impact on their dignity, physical, psychosocial and moral integrity and development, participation, health, education and economic and social status. The practices are therefore reflected in the work of both Committees.16.For the purposes of the present joint general recommendation/general comment, practices should meet the following criteria to be regarded as harmful:
(a)They constitute a denial of the dignity and/or integrity of the individual and a violation of the human rights and fundamental freedoms enshrined in the two Conventions;
(b)They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential;
(c)They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors;
(d)They are imposed on women and children by family members, community members or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.
VI. Causes, forms and manifestations of harmful practices
17.The causes of harmful practices are multidimensional and include stereotyped sex- and gender-based roles, the presumed superiority or inferiority of either of the sexes, attempts to exert control over the bodies and sexuality of women and girls, social inequalities and the prevalence of male-dominated power structures. Efforts to change the practices must address those underlying systemic and structural causes of traditional, re-emerging and emerging harmful practices, empower girls and women and boys and men to contribute to the transformation of traditional cultural attitudes that condone harmful practices, act as agents of such change and strengthen the capacity of communities to support such processes.18.The efforts to combat harmful practices notwithstanding, the overall number of women and girls affected remains extremely high and may be increasing, including, for example, in conflict situations and as a result of technological developments such as the widespread use of social Through the examination of State parties’ reports, the Committees have noted that there is often continued adherence to harmful practices by members of practising communities who have moved to destination countries through migration or to seek asylum. Social norms and cultural beliefs supporting such harmful practices persist and are at times emphasized by a community in an attempt to preserve its cultural identity in a new environment, in particular in destination countries where gender roles provide women and girls with greater personal freedom.
A. Female genital mutilation
19.Female genital mutilation, female circumcision or female genital cutting is the practice of partially or wholly removing the external female genitalia or otherwise injuring the female genital organs for non-medical or non-health reasons. In the context of the present joint general recommendation/general comment, it is referred to as female genital Female genital mutilation is performed in every region and, within some cultures, is a requirement for marriage and believed to be an effective method of controlling the sexuality of women and girls. It may have various immediate and/or long-term health consequences, including severe pain, shock, infections and complications during childbirth (affecting both the mother and the child), long-term gynaecological problems such as fistula, psychological effects and death. The World Health Organization and the United Nations Children’s Fund estimate that between 100 million and 140 million girls and women worldwide have been subjected to a type of female genital mutilation.B. Child and/or forced marriage
20.Child marriage, also referred to as early marriage, is any marriage where at least one of the parties is under 18 years of age. The overwhelming majority of child marriages, both formal and informal, involve girls, although at times their spouses are also under 18 years of age. A child marriage is considered to be a form of forced marriage, given that one and/or both parties have not expressed full, free and informed consent. As a matter of respecting the child’s evolving capacities and autonomy in making decisions that affect her or his life, a marriage of a mature, capable child below 18 years of age may be allowed in exceptional circumstances, provided that the child is at least 16 years of age and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity, without deference to culture and tradition.21.In some contexts, children are betrothed or married very young and, in many cases, young girls are forced to marry a man who may be decades In 2012, the United Nations Children’s Fund reported that almost 400 million women between 20 and 49 years of age around the world had been married or had entered into a union before reaching 18 years of age. [9] The Committees have therefore been paying particular attention to cases in which girls have been married against their full, free and informed consent, such as when they have been married too young to be physically and psychologically ready for adult life or to make conscious and informed decisions and thus not ready to consent to marriage. Other examples include cases in which guardians have the legal authority to consent to marriage of girls in accordance with customary or statutory law and in which girls are thus married contrary to the right to freely enter into marriage.
22.Child marriage is often accompanied by early and frequent pregnancy and childbirth, resulting in higher than average maternal morbidity and mortality rates. Pregnancy-related deaths are the leading cause of mortality for girls between 15 and 19 years of age, whether married or unmarried, around the Infant mortality among the children of very young mothers is higher (sometimes as much as two times higher) than among those of older mothers. In cases of child and/or forced marriage, in particular where the husband is significantly older than the wife, and where girls have limited education, the girls generally have limited decision-making power in relation to their own lives. Child marriage also contributes to higher rates of school dropout, especially among girls, forced exclusion from school and an increased risk of domestic violence, in addition to limiting the enjoyment of the right to freedom of movement.
23.Forced marriages are marriages in which one and/or both parties have not personally expressed their full and free consent to the They may be manifested in various forms, including child marriage, as indicated above, exchange or trade-off marriages (i.e. baad and baadal), servile marriages and levirate marriages (coercing a widow to marry a relative of her deceased husband). In some contexts, a forced marriage may occur when a rapist is permitted to escape criminal sanctions by marrying the victim, usually with the consent of her family. Forced marriages may occur in the context of migration in order to ensure that a girl marries within the family’s community of origin or to provide extended family members or others with documents to migrate to and/or live in a particular destination country. Forced marriages are also increasingly being used by armed groups during conflict or may be a means for a girl to escape post-conflict poverty. [10] Forced marriage may also be defined as a marriage in which one of the parties is not permitted to end or leave it. Forced marriages often result in girls lacking personal and economic autonomy and attempting to flee or commit self- immolation or suicide to avoid or escape the marriage.
24.The payment of dowries and bride prices, which varies among practising communities, may increase the vulnerability of women and girls to violence and to other harmful practices. The husband or his family members may engage in acts of physical or psychological violence, including murder, burning and acid attacks, for failure to fulfil expectations regarding the payment of a dowry or its size. In some cases, families will agree to the temporary “marriage” of their daughter in exchange for financial gains, also referred to as a contractual marriage, which is a form of trafficking in human beings. States parties to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography have explicit obligations with regard to child and/or forced marriages that include dowry payments or bride prices because they could constitute a sale of children as defined in article 2 (a) of the[11] The Committee on the Elimination of Discrimination against Women has repeatedly stressed that allowing marriage to be arranged by such payment or preferment violates the right to freely choose a spouse and has in its general recommendation No. 29 outlined that such practice should not be required for a marriage to be valid and that such agreements should not be recognized by a State party as enforceable.
C. Polygamy
25.Polygamy is contrary to the dignity of women and girls and infringes on their human rights and freedoms, including equality and protection within the family. Polygamy varies across, and within, legal and social contexts and its impact includes harm to the health of wives, understood as physical, mental and social well-being, the material harm and deprivation that wives are liable to suffer and emotional and material harm to children, often with serious consequences for their welfare.26.While many States parties have chosen to ban polygamy, it continues to be practised in some countries, whether legally or Although throughout history polygamous family systems have been functional in some agricultural societies as a way of ensuring larger labour forces for individual families, studies have shown that polygamy actually often results in increased poverty in the family, especially in rural areas.
27.Both women and girls find themselves in polygamous unions, with evidence showing that girls are much more likely to be married or betrothed to much older men, increasing the risk of violence and violations of their rights. The coexistence of statutory laws with religious, personal status and traditional customary laws and practices often contributes to the persistence of the In some States parties, however, polygamy is authorized by civil law. Constitutional and other provisions that protect the right to culture and religion have also at times been used to justify laws and practices that allow for polygamous unions.
28.States parties to the Convention on the Elimination of All Forms of Discrimination against Women have explicit obligations to discourage and prohibit polygamy because it is contrary to the [12]The Committee on the Elimination of Discrimination against Women also contends that polygamy has significant ramifications for the economic well-being of women and their children.[13]
D. Crimes committed in the name of so-called honour
29.Crimes committed in the name of so-called honour are acts of violence that are disproportionately, although not exclusively, committed against girls and women because family members consider that some suspected, perceived or actual behaviour will bring dishonour to the family or Such forms of behaviour include entering into sexual relations before marriage, refusing to agree to an arranged marriage, entering into a marriage without parental consent, committing adultery, seeking divorce, dressing in a way that is viewed as unacceptable to the community, working outside the home or generally failing to conform to stereotyped gender roles. Crimes in the name of so-called honour may also be committed against girls and women because they have been victims of sexual violence.30.Such crimes include murder and are frequently committed by a spouse, female or male relative or a member of the victim’s Rather than being viewed as criminal acts against women, crimes committed in the name of so-called honour are often sanctioned by the community as a means of preserving and/or restoring the integrity of its cultural, traditional, customary or religious norms following alleged transgressions. In some contexts, national legislation or its practical application, or the absence thereof, allows for the defence of honour to be presented as an exculpatory or a mitigating circumstance for perpetrators of such crimes, resulting in reduced sanctions or impunity. In addition, prosecution of cases may be impeded by unwillingness on the part of individuals with knowledge of the case to provide corroborating evidence.
VII. Holistic framework for addressing harmful practices
31.Both Conventions contain specific references to the elimination of harmful States parties to the Convention on the Elimination of All Forms of Discrimination against Women are obliged to plan and adopt appropriate legislation, policies and measures and ensure that their implementation responds effectively to specific obstacles, barriers and resistance to the elimination of discrimination that give rise to harmful practices and violence against women (arts. 2 and 3). States parties must, however, be able to demonstrate the direct relevance and appropriateness of the measures that have been taken, ensuring first and foremost that the human rights of women are not violated, and demonstrate whether such measures will achieve the desired effect and result. Furthermore, the obligation of States parties to pursue such targeted policies is of an immediate nature and States parties cannot justify any delay on any grounds, including cultural and religious grounds. States parties are also obliged to take all appropriate measures, including temporary special measures (art. 4 (1)) [14] 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 that are based on the idea of the inferiority or the superiority of either sexes or on stereotyped roles for men and women (art. 5 (a)) and to ensure that the betrothal and the marriage of a child will have no legal effect (art. 16 (2)).32.The Convention on the Rights of the Child, on the other hand, obliges States parties to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children (art. 24 (3)). In addition, it provides for the right of the child to be protected from all forms of violence, including physical, sexual or psychological violence (art. 19) and requires States parties to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a)). It applies the four general principles of the Convention to the issue of harmful practices, namely protection from discrimination (art. 2), ensuring the best interests of the child (art. 3 (1)), [15] upholding the right to life, survival and development (art. 6) and the right of the child to be heard (art. 12).
33.In both instances, the effective prevention and elimination of harmful practices require the establishment of a well-defined, rights-based and locally relevant holistic strategy that includes supportive legal and policy measures, including social measures that are combined with commensurate political commitment and accountability at all The obligations outlined in the Conventions provide the basis for the development of a holistic strategy to eliminate harmful practices, the elements of which are set out herein.
34.Such a holistic strategy must be mainstreamed and coordinated both vertically and horizontally and integrated into national efforts to prevent and address all forms of harmful practices. Horizontal coordination requires organization across sectors, including education, health, justice, social welfare, law enforcement, immigration and asylum and communications and media. Similarly, vertical coordination requires organization between actors at the local, regional and national levels and with traditional and religious authorities. To facilitate the process, consideration should be given to delegating responsibility for the work to an existing or specifically established high-level entity, in cooperation with all relevant stakeholders.
35.The implementation of any holistic strategy necessarily requires the provision of adequate organizational, human, technical and financial resources that are supplemented with appropriate measures and tools, such as regulations, policies, plans and In addition, States parties are obliged to ensure that an independent monitoring mechanism is in place to track progress in protecting women and children from harmful practices and in realizing their rights.
36.Strategies aimed at eliminating harmful practices also need to involve a wide range of other stakeholders, including national independent human rights institutions, health, education and law enforcement professionals, members of civil society and those who engage in the practices.
A. Data collection and monitoring
37.The regular and comprehensive collection, analysis, dissemination and use of quantitative and qualitative data are crucial to ensuring effective policies, developing appropriate strategies and formulating actions, as well as evaluating impacts, monitoring progress achieved towards the elimination of harmful practices and identifying re-emerging and emerging harmful practices. The availability of data allows for the examination of trends and enables the establishment of the relevant connections between policies and effective programme implementation by State and non-State actors and the corresponding changes in attitudes, forms of behaviour, practices and prevalence Data disaggregated by sex, age, geographical location, socioeconomic status, education level and other key factors are central to the identification of high-risk and disadvantaged groups of women and children, which will guide policy formulation and action to address harmful practices.38.Such recognition notwithstanding, disaggregated data on harmful practices remain limited and are seldom comparable by country and over time, resulting in limited understanding of the extent and evolution of the problem and identification of adequately tailored and targeted measures.
39. The Committees recommend that the States parties to the Conventions:
(a)Accord priority to the regular collection, analysis, dissemination and use of quantitative and qualitative data on harmful practices disaggregated by sex, age, geographical location, socioeconomic status, education level and other key factors and ensure that such activities are adequately Regular data collection systems should be established and/or maintained in the health- care and social services, education and judicial and law enforcement sectors on protection-related issues;
B. Legislation and its enforcement
40.A key element of any holistic strategy is the development, enactment, implementation and monitoring of relevant legislation. Each State party is under the obligation [16]to send a clear message of condemnation of harmful practices, provide legal protection for victims, enable State and non-State actors to protect women and children at risk, provide appropriate responses and care and ensure the availability of redress and an end to impunity.
41.The enactment of legislation alone is, however, insufficient to combat harmful practices In accordance with the requirements of due diligence, legislation must therefore be supplemented with a comprehensive set of measures to facilitate its implementation, enforcement and follow-up and monitoring and evaluation of the results achieved.
42.Contrary to their obligations under both Conventions, many States parties maintain legal provisions that justify, allow or lead to harmful practices, such as legislation that allows for child marriage, provides the defence of so-called honour as an exculpatory or mitigating factor for crimes committed against girls and women or enables a perpetrator of rape and/or other sexual crimes to avoid sanctions by marrying the victims.
43.In States parties with plural legal systems, even where laws explicitly prohibit harmful practices, prohibition may not be enforced effectively because the existence of customary, traditional or religious laws may actually support those practices.
44.Prejudices and weak capacity to address the rights of women and children among judges in customary and religious courts or traditional adjudication mechanisms and the belief that matters falling within the purview of such customary systems should not be subjected to any review or scrutiny by the State or other judicial bodies deny or limit the access to justice of victims of harmful practices.
45.The full and inclusive participation of relevant stakeholders in the drafting of legislation against harmful practices can ensure that the primary concerns relating to the practices are accurately identified and Engaging with and soliciting input from practising communities, other relevant stakeholders and members of civil society is central to this process. Care should be taken, however, to ensure that prevailing attitudes and social norms that support harmful practices do not weaken efforts to enact and enforce legislation.
46.Many States parties have taken steps to decentralize government power through devolution and delegation, but this should not reduce or negate the obligation to enact legislation that prohibits harmful practices and is applicable throughout their Safeguards must be put in place to ensure that decentralization or devolution does not lead to discrimination with regard to protection of women and children against harmful practices in different regions and cultural zones. Devolved authorities need to be equipped with the human, financial, technical and other resources necessary to effectively enforce legislation that aims to eliminate harmful practices
47.Cultural groups engaged in harmful practices may contribute to spreading such practices across national boundaries. Where this occurs, appropriate measures are needed to contain the spread.
48. National human rights institutions have a key role to play in promoting and protecting human rights, including the right of individuals to be free from harmful practices, and enhancing public awareness of those rights.
49.Individuals providing services for women and children, especially medical personnel and teachers, are uniquely placed to identify actual or potential victims of harmful practices. They are, however, often bound by rules of confidentiality that may conflict with their obligation to report the actual occurrence of a harmful practice or the potential for it to occur. This must be overcome with specific regulations that make it mandatory for them to report such incidents.
50.Where medical professionals or government employees or civil servants are involved or complicit in carrying out harmful practices, their status and responsibility, including to report, should be seen as an aggravating circumstance in the determination of criminal sanctions or administrative sanctions such as loss of a professional licence or termination of contract, which should be preceded by the issuance of Systematic training for relevant professionals is considered to be an effective preventive measure in this regard.
51.Although criminal law sanctions must be consistently enforced in ways that contribute to the prevention and elimination of harmful practices, States parties must also take into account the potential threats to and negative impact on victims, including acts of retaliation.
52.Monetary compensation may not be feasible in areas of high In all instances, however, women and children affected by harmful practices should have access to legal remedies, victim support and rehabilitation services and social and economic opportunities.
53.The best interests of the child and the protection of the rights of girls and women should always be taken into consideration and the necessary conditions must be in place to enable them to express their point of view and ensure that their opinions are given due weight. Careful consideration should also be given to the potential short-term and long-term impact on children or women of the dissolution of child and/or forced marriages and the return of dowry payments and bride prices.
54.States parties, and in particular immigration and asylum officials, should be aware that women and girls may be fleeing their country of origin to avoid undergoing a harmful practice. Those officials should receive appropriate cultural, legal and gender-sensitive training on what steps need to be taken for the protection of such women and girls.
55. The Committees recommend that the States parties to the Conventions adopt or amend legislation with a view to effectively addressing and eliminating harmful practices. In doing so, they should ensure:
(a)That the process of drafting legislation is fully inclusive and participatory. For that purpose, they should conduct targeted advocacy and awareness-raising and use social mobilization measures to generate broad public knowledge of and support for the drafting, adoption, dissemination and implementation of the legislation;
(b)That the legislation is in full compliance with the relevant obligations outlined in the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child and other international human rights standards that prohibit harmful practices and that it takes precedence over customary, traditional or religious laws that allow, condone or prescribe any harmful practice, especially in countries with plural legal systems;
(c)That they repeal without further delay all legislation that condones, allows or leads to harmful practices, including traditional, customary or religious laws and any legislation that accepts the defence of honour as a defence or mitigating factor in the commission of crimes in the name of so-called honour;
(d)That the legislation is consistent and comprehensive and provides detailed guidance on prevention, protection, support and follow-up services and assistance for victims, including towards their physical and psychological recovery and social reintegration, and is complemented by adequate civil and/or administrative legislative provisions;
(e)That the legislation adequately addresses, including by providing the basis for the adoption of temporary special measures, the root causes of harmful practices, including discrimination on the basis of sex, gender, age and other intersecting factors, focuses on the human rights and needs of the victims and fully takes into account the best interests of children and women;
(f)That a minimum legal age of marriage for girls and boys, with or without parental consent, is established at 18 When a marriage at an earlier age is allowed in exceptional circumstances, the absolute minimum age must not be below 16 years, the grounds for obtaining permission must be legitimate and strictly defined by law and the marriage must be permitted only by a court of law upon the full, free and informed consent of the child or both children, who must appear in person before the court;
(g)That a legal requirement of marriage registration is established and effective implementation is provided through awareness-raising, education and the existence of adequate infrastructure to make registration accessible to all persons within their jurisdiction;
(h)That a national system of compulsory, accessible and free birth registration is established in order to effectively prevent harmful practices, including child marriage;
(i)That national human rights institutions are mandated to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by women and children, in a confidential, gender-sensitive and child-friendly manner;
(j)That it is made mandatory by law for professionals and institutions working for and with children and women to report actual incidents or the risk of such incidents if they have reasonable grounds to believe that a harmful practice has occurred or may occur. Mandatory reporting responsibilities should ensure the protection of the privacy and confidentiality of those who report;
(k)That all initiatives to draft and amend criminal laws must be coupled with protection measures and services for victims and those who are at risk of being subjected to harmful practices;
(l)That legislation establishes jurisdiction over offences of harmful practices that applies to nationals of the State party and habitual residents even when they are committed in a State in which they are not criminalized;
(m) That legislation and policies relating to immigration and asylum recognize the risk of being subjected to harmful practices or being persecuted as a result of such practices as a ground for granting asylum. Consideration should also be given, on a case-by-case basis, to providing protection to a relative who may be accompanying the girl or woman;
(n)That the legislation includes provisions on regular evaluation and monitoring, including in relation to implementation, enforcement and follow-up;
(o)That women and children subjected to harmful practices have equal access to justice, including by addressing legal and practical barriers to initiating legal proceedings, such as the limitation period, and that the perpetrators and those who aid or condone such practices are held accountable;
(p)That the legislation includes mandatory restraining or protection orders to safeguard those at risk of harmful practices and provides for their safety and measures to protect victims from retribution;
(q)That victims of violations have equal access to legal remedies and appropriate reparations in practice.
C. Prevention of harmful practices
1. Establishing rights-based social and cultural norms
57.A social norm is a contributing factor to and social determinant of certain practices in a community that may be positive and strengthen its identity and cohesion or may be negative and potentially lead to It is also a social rule of behaviour that members of a community are expected to observe. This creates and sustains a collective sense of social obligation and expectation that conditions the behaviour of individual community members, even if they are not personally in agreement with the practice. For example, where female genital mutilation is the social norm, parents are motivated to agree to its being performed on their daughters because they see other parents doing so and believe that others expect them to do the same. The norm or practice is often perpetuated by other women in community networks who have already undergone the procedure and exert additional pressure on younger women to conform to the practice or risk ostracism, being shunned and stigmatization. Such marginalization may include the loss of important economic and social support and social mobility. Conversely, if individuals conform to the social norm, they expect to be rewarded, for example through inclusion and praise. Changing social norms that underlie and justify harmful practices requires that such expectations be challenged and modified.58.Social norms are interconnected, meaning that harmful practices cannot be addressed in isolation, but within a broader context based on a comprehensive understanding of how the practices are linked to other cultural and social norms and other This indicates the need to adopt a rights-based approach that is founded on recognition that rights are indivisible and interdependent.
60. The Committees recommend that the States parties to the Conventions ensure that any efforts undertaken to tackle harmful practices and to challenge and change underlying social norms are holistic, community based and founded on a rights-based approach that includes the active participation of all relevant stakeholders, especially women and girls.
61.States parties have an obligation to challenge and change patriarchal ideologies and structures that constrain women and girls from fully exercising their human rights and For girls and women to overcome the social exclusion and poverty that many experience, which increase their vulnerability to exploitation, harmful practices and other forms of gender-based violence, they need to be equipped with the skills and competencies necessary to assert their rights, including to make autonomous and informed decisions and choices about their own lives. In this context, education is an important tool for empowering women and girls to claim their rights.
62.There is a clear correlation between the low educational attainment of girls and women and the prevalence of harmful practices. States parties to the Conventions have obligations to ensure the universal right to high-quality education and to create an enabling environment that allows girls and women to become agents of change (Convention on the Rights of the Child, 28-29; Convention on the Elimination of All Forms of Discrimination against Women, art. 10). This entails providing universal, free and compulsory primary school enrolment and ensuring regular attendance, discouraging dropping out, eliminating existing gender disparities and supporting access for the most marginalized girls, including those living in remote and rural communities. In implementing the obligations, consideration should be given to making schools and their surroundings safe, friendly to girls and conducive to their optimal performance.
64.For out-of-school girls, non-formal education is often their only route to learning and should provide basic education and instruction in life skills. It is an alternative to formal schooling for those who did not complete primary or secondary school and may also be made available through radio programmes and other media, including digital media.
65.Women and girls are enabled to build their economic assets through training in livelihood and entrepreneurship skills and benefit from programmes that offer an economic incentive to postpone marriage until 18 years of age, such as scholarships, microcredit programmes or savings schemes (Convention on the Elimination of All Forms of Discrimination against Women, 11 and 13; Convention on the Rights of the Child, art. 28). Complementary awareness-raising programmes are essential to communicating the right of women to work outside the home and challenging taboos about women and work.
66.Another means of encouraging the empowerment of women and girls is by building their social This can be facilitated through the creation of safe spaces where girls and women can connect with peers, mentors, teachers and community leaders and express themselves, speak out, articulate their aspirations and concerns and participate in decisions affecting their lives. This can help them to develop self-esteem and self-efficacy, communication, negotiation and problem- solving skills and awareness of their rights and can be particularly important for migrant girls. Given that men have traditionally held positions of power and influence at all levels, their engagement is crucial to ensuring that children and women have the support and committed engagement of their families, communities, civil society and policymakers.
67.Childhood, and early adolescence at the latest, are entry points for assisting both girls and boys and supporting them to change gender-based attitudes and adopt more positive roles and forms of behaviour in the home, at school and in wider This means facilitating discussions with them on social norms, attitudes and expectations that are associated with traditional femininity and masculinity and sex- and gender-linked stereotypical roles and working in partnership with them to support personal and social change aimed at eliminating gender inequality and promoting the importance of valuing education, especially girls’ education, in the effort to eliminate harmful practices that specifically affect pre-adolescent and adolescent girls.
68.Women and adolescent girls who have been, or are at risk of being, subjected to harmful practices face significant risks to their sexual and reproductive health, in particular in a context where they already encounter barriers to decision-making on such issues arising from lack of adequate information and services, including adolescent-friendly services. Special attention is therefore needed to ensure that women and adolescents have access to accurate information about sexual and reproductive health and rights and on the impacts of harmful practices, as well as access to adequate and confidential services. Age-appropriate education, which includes science-based information on sexual and reproductive health, contributes to empowering girls and women to make informed decisions and claim their To this end, health-care providers and teachers with adequate knowledge, understanding and skills play a crucial role in conveying the information, preventing harmful practices and identifying and assisting women and girls who are victims of or might be at risk of being subjected to them.
69. The Committees recommend that the States parties to the Conventions:
(a)Provide universal, free and compulsory primary education that is girl friendly, including in remote and rural areas, consider making secondary education mandatory while also providing economic incentives for pregnant girls and adolescent mothers to complete secondary school and establish non- discriminatory return policies;(b)Provide girls and women with educational and economic opportunities in a safe and enabling environment where they can develop their self-esteem, awareness of their rights and communication, negotiation and problem-solving skills;
(c)Include in the educational curriculum information on human rights, including those of women and children, gender equality and self-awareness and contribute to eliminating gender stereotypes and fostering an environment of non-discrimination;
(d)Ensure that schools provide age-appropriate information on sexual and reproductive health and rights, including in relation to gender relations and responsible sexual behaviour, HIV prevention, nutrition and protection from violence and harmful practices;
(e)Ensure access to non-formal education programmes for girls who have dropped out of regular schooling, or who have never enrolled and are illiterate, and monitor the quality of those programmes;
(f)Engage men and boys in creating an enabling environment that supports the empowerment of women and girls.
3.Capacity development at all levels
70.One of the primary challenges in the elimination of harmful practices relates to the lack of awareness or capacity of relevant professionals, including front-line professionals, to adequately understand, identify and respond to incidents or the risks of harmful practices. A comprehensive, holistic and effective approach to capacity-building should aim to engage influential leaders, such as traditional and religious leaders, and as many relevant professional groups as possible, including health, education and social workers, asylum and immigration authorities, the police, public prosecutors, judges and politicians at all They need to be provided with accurate information about the practice and applicable human rights norms and standards with a view to promoting a change in the attitudes and forms of behaviour of their group and the wider community.
71.Where alternative dispute resolution mechanisms or traditional justice systems are in place, training on human rights and harmful practices should be provided to those responsible for their Furthermore, police officers, public prosecutors, judges and other law enforcement officials need training on the implementation of new or existing legislation criminalizing harmful practices to ensure that they are aware of the rights of women and children and are sensitive to the vulnerable status of victims.
72.In States parties in which the prevalence of harmful practices is primarily limited to immigrant communities, health-care providers, teachers and childcare professionals, social workers, police officers, migration officials and the justice sector must be sensitized and trained in how to identify girls and women who have been, or are at risk of being, subjected to harmful practices and which steps can and should be taken to protect them.
73. The Committees recommend that the States parties to the Conventions:
(a)Provide all relevant front-line professionals with information on harmful practices and applicable human rights norms and standards and ensure that they are adequately trained to prevent, identify and respond to incidents of harmful practices, including mitigating negative effects for victims and helping them to gain access to remedies and appropriate services;(b)Provide training to individuals involved in alternative dispute resolution and traditional justice systems to appropriately apply key human rights principles, especially the best interests of the child and the participation of children in administrative and judicial proceedings;
(c)Provide training to all law enforcement personnel, including the judiciary, on new and existing legislation prohibiting harmful practices and ensure that they are aware of the rights of women and children and of their role in prosecuting perpetrators and protecting victims of harmful practices;
(d)Conduct specialized awareness and training programmes for health- care providers working with immigrant communities to address the unique health-care needs of children and women who have undergone female genital mutilation or other harmful practices and provide specialized training also for professionals within child welfare services and services focused on the rights of women and the education and police and justice sectors, politicians and media personnel working with migrant girls and women.
4. Awareness-raising, public dialogue and manifestations of commitment
74.To challenge sociocultural norms and attitudes that underlie harmful practices, including male-dominated power structures, sex- and gender-based discrimination and age hierarchies, both Committees regularly recommend that States parties undertake comprehensive public information and awareness-raising campaigns that are part of long-term strategies to eliminate harmful practices.
75.Awareness-raising measures should include accurate information from trusted sources about the harm caused by the practices and convincing reasons as to why they should be In this respect, the mass media can perform an important function in ensuring new thinking, in particular through access by women and children to information and material aimed at the promotion of their social and moral well-being and physical and mental health, in line with obligations under both Conventions that help to protect them from harmful practices.
76.The launching of awareness-raising campaigns can provide an opportunity to initiate public discussions about harmful practices with a view to collectively exploring alternatives that do not cause harm or violate the human rights of women and children and reaching agreement that the social norms underlying and sustaining harmful practices can and should be The collective pride of a community in identifying and adopting new ways to fulfil its core values will ensure the commitment and sustainability of new social norms that do not result in the infliction of harm or violate human rights.
77.The most effective efforts are inclusive and engage relevant stakeholders at all levels, especially girls and women from affected communities and boys and Moreover, those efforts require the active participation and support of local leaders, including through the allocation of adequate resources. Establishing or strengthening existing partnerships with relevant stakeholders, institutions, organizations and social networks (religious and traditional leaders, practitioners and civil society) can help to build bridges between constituencies.
78.Consideration could be given to the dissemination of information on positive experiences that followed the elimination of harmful practices within a local or diaspora community or within other practising communities from the same geographical region with similar backgrounds, as well as to the exchange of good practice, including from other regions. This may take the form of local, national or regional conferences or events, visits of community leaders or the use of audiovisual tools. In addition, awareness-raising activities need to be carefully designed so that they accurately reflect the local context, do not result in backlash reactions or foster stigma and/or discrimination against the victims and/or the practising communities.
79.Community-based and mainstream media can be important partners in awareness-raising and outreach regarding the elimination of harmful practices, including through joint initiatives with Governments to host debates or talk shows, prepare and screen documentaries and develop educational programmes for radio and The Internet and social media can also be valuable tools for providing information and opportunities for debate, while mobile telephones are increasingly being used to convey messages and engage with people of all ages. Community-based media can serve as a useful forum for information and dialogue and may include radio, street theatre, music, art, poetry and puppetry.
80.In States parties with effective and enforced legislation against harmful practices, there is a risk that practising communities will go into hiding or go abroad to carry out the States parties hosting practising communities should support awareness-raising campaigns regarding the harmful impact on the victims or those at risk, as well as the legal implications of the violation, while at the same time preventing discrimination and stigma against those communities. To this end, steps should be taken to facilitate the social integration of such communities.
81. The Committees recommend that the States parties to the Conventions:
(a)Develop and adopt comprehensive awareness-raising programmes to challenge and change cultural and social attitudes, traditions and customs that underlie forms of behaviour that perpetuate harmful practices;(b)Ensure that awareness-raising programmes provide accurate information and clear and unified messages from trusted sources about the negative impact of harmful practices on women, children, in particular girls, their families and society at Such programmes should include social media, the Internet and community communication and dissemination tools;
(c)Take all appropriate measures to ensure that stigma and discrimination are not perpetuated against the victims and/or practising immigrant or minority communities;
(d)Ensure that awareness-raising programmes targeting State structures engage decision makers and all relevant programmatic staff and key professionals working within local and national government and government agencies;
(e)Ensure that personnel of national human rights institutions are fully aware and sensitized to the human rights implications of harmful practices within the State party and that they receive support to promote the elimination of those practices;
(f)Initiate public discussions to prevent and promote the elimination of harmful practices, by engaging all relevant stakeholders in the preparation and implementation of the measures, including local leaders, practitioners, grass- roots organizations and religious communities. The activities should affirm the positive cultural principles of a community that are consistent with human rights and include information on experiences of successful elimination by formerly practising communities with similar backgrounds;
(g)Build or reinforce effective partnerships with the mainstream media to support the implementation of awareness-raising programmes and promote public discussions and encourage the creation and observance of self-regulatory mechanisms that respect the privacy of individuals.
D. Protective measures and responsive services
82. Women and children who are victims of harmful practices are in need of immediate support services, including medical, psychological and legal services. Emergency medical services may be the most urgent and obvious, given that some of the harmful practices covered herein involve the infliction of extreme physical violence and medical intervention may be necessary to treat severe harm or prevent death. Victims of female genital mutilation or other harmful practices may also require medical treatment or surgical interventions to address the short-term and long-term physical consequences. The management of pregnancy and childbirth in women or girls who have undergone female genital mutilation must be included in pre-service and in-service training for midwives, doctors and other skilled birth attendants.
84.When a woman or a girl who was subjected to or refused to undergo a practice leaves her family or community to seek refuge, her decision to return must be supported by adequate national protection mechanisms. In assisting her in making this free and informed choice, the mechanisms are required to ensure her safe return and reintegration based on the principle of her best interest, including avoiding Such situations require close follow-up and monitoring to ensure that victims are protected and enjoy their rights in the short term and the long term.
85.Victims seeking justice for violations of their rights as a result of harmful practices often face stigmatization, a risk of revictimization, harassment and possible retribution. Steps must therefore be taken to ensure that the rights of girls and women are protected throughout the legal process, in accordance with articles 2 (c) and 15 (2) and (3) of the Convention on the Elimination of All Forms of Discrimination against Women, and that children are enabled to effectively engage in court proceedings as part of their right to be heard under article 12 of the Convention on the Rights of the Child.
86.Many migrants have a precarious economic and legal status, which increases their vulnerability to all forms of violence, including harmful practices. Migrant women and children often do not have access to adequate services on an equal basis with citizens.
87. The Committees recommend that the States parties to the Conventions:
(a)Ensure that protection services are mandated and adequately resourced to provide all necessary prevention and protection services to children and women who are, or are at high risk of becoming, victims of harmful practices;(b)Establish a free, 24-hour hotline that is staffed by trained counsellors, to enable victims to report instances when a harmful practice is likely to occur or has occurred, and provide referral to needed services and accurate information about harmful practices;
(c)Develop and implement capacity-building programmes on their role in protection for judicial officers, including judges, lawyers, prosecutors and all relevant stakeholders, on legislation prohibiting discrimination and on applying laws in a gender-sensitive and age-sensitive manner in conformity with the Conventions;(d)Ensure that children participating in legal processes have access to appropriate child-sensitive services to safeguard their rights and safety and to limit the possible negative impacts of the proceedings. Protective action may include limiting the number of times that a victim is required to give a statement and not requiring that individual to face the perpetrator or Other steps may include appointing a guardian ad litem (especially where the perpetrator is a parent or legal guardian) and ensuring that child victims have access to adequate child-sensitive information about the process and fully understand what to expect;
(e)Ensure that migrant women and children have equal access to services, regardless of their legal status.
VIII. Dissemination and use of the joint general recommendation/ general comment and reporting
88.States parties should widely disseminate the present joint general recommendation/general comment to parliaments, Governments and the judiciary, nationally and It should also be made known to children and women and all relevant professionals and stakeholders, including those working for and with children (i.e. judges, lawyers, police officers and other law enforcement officials, teachers, guardians, social workers, staff of public or private welfare institutions and shelters and health-care providers) and civil society at large. It should be translated into relevant languages and child-friendly/appropriate versions and formats accessible to persons with disabilities should be made available. Conferences, seminars, workshops and other events should be held to share good practice on how best to implement it. It should also be incorporated into the formal pre-service and in-service training of all relevant professionals and technical staff and should be made available to all national human rights institutions, women’s organizations and other human rights non-governmental organizations.
89.States parties should include in their reports under the Conventions information about the nature and extent of attitudes, customs and social norms that perpetuate harmful practices and on the measures guided by the present joint general recommendation/general comment that they have implemented and the effects thereof.
IX. Treaty ratification or accession and reservations
90.States parties are encouraged to ratify the following instruments:(a)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women;
(b)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography;
(c)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict;
(d)Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
91.States parties should review and modify or withdraw any reservations to articles 2, 5 and 16, or their subparagraphs, of the Convention on the Elimination of All Forms of Discrimination against Women and articles 19 and 24 (3) of the Convention on the Rights of the The Committee on the Elimination of Discrimination against Women considers reservations to those articles in principle incompatible with the object and purpose of the Conventions and thus impermissible under article 28 (2) of the Convention on the Elimination of All Forms of Discrimination against Women.
*The joint general recommendation/general comment on harmful practices was initially adopted in 2014. It was subsequently revised by the Committee on the Elimination of Discrimination against eightieth session.
[1] Committee on the Elimination of Discrimination against Women general recommendation No. 19, para. 11; Committee on the Rights of the Child general comment No. 9 on the rights of children with disabilities, paras. 8, 10 and 79; and Committee on the Rights of the Child general comment No. 15 on the right of the child to the enjoyment of the highest attainable standard of health, paras. 8 and 9.
[2]Committee on the Elimination of Discrimination against Women general recommendation No. 28 on the core obligations of States parties under article 2 of the Convention, para. 18.
[3] See Committee on the Elimination of Discrimination against Women general recommendation No. 19, para. 11, and Committee on the Rights of the Child general comment No. 13, para. 29.
[4] See A/61/299, para. 46.
[5] To date, the Committee on the Elimination of Discrimination against Women has referred to harmful practices in nine of its general recommendations: No. 3 on the implementation of article 5 of the Convention, No. 14, No. 19, No. 21 on equality in marriage and family relations, No. 24 on women and health, No. 25 on temporary special measures, No. 28 on the core obligations of States parties under article 2 of the Convention, No. 29 on the economic consequences of marriage, family relations and their dissolution and No. 30 on women in conflict prevention, conflict and post-conflict situations. The Committee on the Rights of the Child provides a non-exhaustive list of harmful practices in its general comments Nos. 8 and 13.
[6] Due diligence should be understood as an obligation of States parties to the Conventions to prevent violence or violations of human rights, protect victims and witnesses from violations, investigate and punish those responsible, including private actors, and provide access to redress for human rights violations. See Committee on the Elimination of Discrimination against Women general recommendations Nos. 19, para. 9; 28, para. 13; 30, para. 15; the views and decisions of the Committee on individual communications and inquiries; and Committee on the Rights of the Child general comment No. 13, para. 5.
[7] Committee on the Elimination of Discrimination against Women general recommendation No. 28, para. 38 (a), its concluding observations and Committee on the Rights of the Child general comment No. 13, para. 40.
[8] Convention on the Elimination of All Forms of Discrimination against Women, arts. 2, 5 and 16, and Convention on the Rights of the Child, arts. 19 and 24 (3).
[9] See www.apromiserenewed.org.
[10] Committee on the Elimination of Discrimination against Women general recommendation No. 30, para. 62.
[11] See also art. 3 (1)(a)(i).
[12] Committee on the Elimination of Discrimination against Women general recommendations Nos. 21, 28 and 29.
[13] Committee on the Elimination of Discrimination against Women general recommendation No. 29, para. 27.
[14] Committee on the Elimination of Discrimination against Women general recommendation No. 25, para. 38.
[15] Committee on the Rights of the Child general comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration.
[16]See Convention on the Elimination of All Forms of Discrimination against Women, arts. 2 (a)-(c), 2 (f) and 5, and Committee on the Rights of the Child general comment No. 13.
資料來源：UN Treaty Body Database