Module 4

Explore the issues – Is it a breach?

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Consider the examples of laws listed below. For each of them, determine whether you think the law might be in breach of a human right that is protected in international law.

Then click on the answer to see if the practice is in breach of international human rights standards.

1. The laws in a country with a strong religious tradition criminalize same sex relationships.

Is it a breach of human rights?

Answer: Yes. Although discrimination on the grounds of sexual orientation is not explicitly prohibited in any UN treaty, both the UN Human Rights Council and the UN Human Rights Committee (that monitors the ICCPR) have said that equality, non-discrimination, and other guarantees in the ICCPR mean that states cannot criminalize same sex relations between consenting adults.

2. Customary law in a largely agrarian society provides that at death a man’s property, including his land, passes to his male offspring or relatives, not his wife (though there is also a duty on those male offspring relatives to ensure the widow is cared for).

Is it a breach of human rights?

Answer: Yes. The UN Convention on the Elimination of Discrimination against Women (CEDAW – see Art. 16(h)) explicitly prohibits discrimination between men and women in respect to property rights and inheritance. And further, CEDAW requires states to take proactive steps to change discriminatory customary or traditional practices.

3. A country with a largely Catholic population refuses to allow women to choose to have an abortion, except in the extreme cases of rape or where the pregnancy poses serious risk to the mother’s health.

Is it a breach of human rights?

Answer: No. No UN human rights treaty provides for an unrestricted right to choose an abortion. Some of the UN supervisory bodies have recommended this right be recognized in limited circumstances, such as the ones cited in this example.

4. A strongly secular society passes a law banning the wearing of any clothing in a public place that covers a person’s face; it is widely seen as intended to prevent Muslim women from wearing the burka and/or niqab (face-covering) in public.

Is it a breach of human rights?

Answer: No. At least not according to the European Court of Human Rights which in 2014 upheld such a law enacted in France in 2010. But a number of human rights groups continue to argue the law is discriminatory.

Were you surprised by any of the answers? Do you think international law should permit states some degree of flexibility in these examples, so that the scope of the right might be limited to take account of local cultural, religious and/or social practices?