Reconciling indigenous rights to culture and self-determination with state responsibility under international law to ’modify or abolish’ cultural practices that discriminate against women

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dc.contributor.author Hope, David (David Andrew) en
dc.date.accessioned 2009-03-12T00:26:47Z en
dc.date.available 2009-03-12T00:26:47Z en
dc.date.issued 2005 en
dc.identifier THESIS LT 05-031 en
dc.identifier.citation Dissertation (LLB(Hons))--University of Auckland, 2005. en
dc.identifier.uri http://hdl.handle.net/2292/3423 en
dc.description Restricted Item. Print thesis available in the University of Auckland Library or may be available through Interlibrary Loan. en
dc.description.abstract This essay aims to highlight that in the majority of circumstances, indigenous women's right to equality can be guaranteed without harming indigenous culture. The potential for conflict between women's and cultural rights, or individual and collective rights, has been overemphasised, and it is necessary to reframe the deb.ltc in order to highlight the possible methods for resolution of the tensions that may arise, instead of focusing on the inevitability of conflict. This essay argues that “instead of reifying the opposition between 'culture' and 'human rights’", we must first recognise that human rights include cultural rights, and as such, human rights must be 'combined and recast in diverse legal cultures'. It is important to highlight that, as Thomas Isaac has written, '[t]he protection of individual rights, such as those of Aboriginal women, does not imply the weakening of collective rights. The two types of rights can coexist'. One need look no further than how tensions between individual rights are resolved to demonstrate the veracity of this assertion. Just as conflicting individual rights are weighed against each other to reach a balanced solution, so too can collective and individual rights be weighed in order to reconcile competing rights. This weighing process highlights the fact that neither collective nor individual rights are absolute, and instead they must be qualitatively, and not merely quantitively assessed. A purely utilitarian approach under which individual rights must be automatically sacrificed in the face of competing collective demands is unacceptable, as it makes a mockery of the very concept of individual rights. Yet as has been argued, asserting automatic primacy of individual rights over collective rights is equally unsatisfactory, because of the detrimental effect such a dismissive approach has upon collective cultural rights. We must reject the false dichotomy of cultural rights versus women's rights and recognise that 'there is no choice to be made but an unstable balance to uphold' , or more accurately, rather than merely upholding an unstable balance, a new, inclusive balance must be forged. What is required is a nuanced. 'contextual approach' which carefully considers the nature of the rights and interests in question. en
dc.publisher ResearchSpace@Auckland en
dc.relation.isreferencedby UoA1497432 en
dc.rights Restricted Item. Print thesis available in the University of Auckland Library or may be available through Interlibrary Loan. en
dc.rights.uri https://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm en
dc.title Reconciling indigenous rights to culture and self-determination with state responsibility under international law to ’modify or abolish’ cultural practices that discriminate against women en
dc.type Thesis en
thesis.degree.grantor The University of Auckland en
thesis.degree.level Masters en
dc.subject.marsden Fields of Research::390000 Law, Justice and Law Enforcement en
dc.rights.accessrights http://purl.org/eprint/accessRights/ClosedAccess en


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