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Amid Cultural Relativism and Human Rights Universalism. the Case of Fgm/C: a Cultural Practice and a Human Rights Violation

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Amid Cultural Relativism and Human Rights Universalism. the Case of Fgm/C: a Cultural Practice and a Human Rights Violation AMID CULTURAL RELATIVISM AND HUMAN RIGHTS UNIVERSALISM. THE CASE OF FGM/C: A CULTURAL PRACTICE AND A HUMAN RIGHTS VIOLATION. Spina Aleksandra Snr 2001765 Anr 277328 July 2017 Amid cultural relativism and human rights universalism. The case of FGM/C: A cultural practice and a human rights violation. To defend in front of Supervisor Dr. A.K. Meijknecht Second Reader Dr. N.M.C. Jägers On 22 July 2017 At 13:00 LL.M. International and European Law Faculty of Law Tilburg University The Netherlands Acknowledgments Table of Contents List of Acronyms Chapter I. Introduction 1-5 1.1. Introduction. 1 1.2. Structure. 4 1.3. Methodology. 5 Chapter II. Terminology 6-13 2.1. Introduction. 6 2.2. Definition. 6 2.3. Types of FGM/C 8 2.4. Elements. 9 2.5. Conclusions. 12 Chapter III. Theoretical Challenges 14-29 3.1. Introduction. 14 3.2. Human rights and Human Rights Universalism. 15 3.3. Cultural rights and Cultural Relativism. 1 6 3.4. Historical perspective. 19 3.5. FGM/C in the context of Religious Relativism. 25 3.6. Conclusions. 28 Chapter IV. Universalism in practice: the International Legal Framework 3 0 - 4 0 4.1. Introduction. 30 4.2. International Legal Framework. 30 4.3. Convention on the Elimination of All Forms of Discrimination against Women. 31 4.4. The UN Declaration on the Elimination of Violence against Women. 33 4.5. The Convention on the Rights of the Children. 33 4.6. The African Charter on Human and Peoples’ rights. 34 4.7. Maputo Protocol. 35 4.8. African Charter on the Rights and Welfare of the Child. 36 4.9. The Convention Relating to the Status of Refugees. 37 4.10. Conclusions. 40 Chapter V. Cultural Relativism in Practice: the Domestic Legal Framework 41-64 5.1. Introduction. 41 5.2. No legal measures. 42 5.3. Monologue measures exclusively. 45 5.4. Monologue and Dialogue measures concurrently. 54 5.5. Conclusions. 63 Chapter VI. Conclusion 65-70 Bibliography Acknowledgments Her name was Alem. Whether it was a first or last name, is unknown and will possibly remain one of the myriads of unanswered questions that surrounded her existence. I met her at the age of six when she moved alone in our small Italian city in a fateful summer of 2001. She was old and jaded, that was my first impression, yet I do not think that she was more than 40. She was lonely, I think. Desperately lonely. Filled with sorrows and melancholy as a balloon is filled with air, though she never spoke of them. There are people who will always be question marks. She was one of them. No one knew where she was from, whom or what she left behind and why sometimes her eyes would glaze as if recalling memories of past. What she lacked in answers, Alem made up with her kindness and gentleness. I cannot remember her face, yet her rough, scarred hands and the perpetual smell of sandalwood are ingrained in my memory. She used to tell us, the kids of the blocks, stories of long forgotten gods, of the cunning Anansi and Elegua, the God of opportunities and second chances. She spoke of fairytalesque places, where rivers are to be placated before being crossed and trees are so high that they can touch the sky. We were awed by this mysterious, brand new world. Yet Alem warned us about the dangers lurking in it, ingeminated repeatedly how we were lucky not to be born in it. And I, with my innocence and ignorance of a child, could not fathom why. How can behind these beautiful tales hide a sinister, much darker story? After her passing in 2012, my grandmother told me the truth. She told me the tale of the Lady of Sorrow1, the mutilated woman from a small village in Ghana, who left behind everything in order to find medical treatment and peace. That was the turning point after which I started my research on the subject in order to bring resolution not only for myself, but for Alem as well. To Alim and all the women affected by FGM/C, whose stories we will never hear and whose names and living memory ceased to exist. This thesis is a commemoration, a late apology for never learning their stories. I would like to offer my deepest thanks to Dr. A.K. Meijknecht, not only for her incredible and titanous support but also for her patience and . Moreover, I would like to thank Dr. N.M.C. Jägers for her suggestions and feedback, which shaped my Master Thesis in what is it now. As a foreword, I would like to mention that the discussion on FGM/C is a sensitive issue and should be perceived that way by the readers too. Aleksandra Spina Tilburg, July 2017. 1 De Quincey T., Levana and Our Ladies of Sorrow, English Essays: Sidney to Macaulay, The Harvard Classics, 1909, pp. 14. List of Acronyms ACHPR African Commission on Human Rights and Peoples’ Rights AfCHPR African Commission on Human Rights and People’s Rights AU African Union CEDAW Convention on the Elimination of All Forms of Discrimination against Women CPSO College of Physicians and Surgeons of Ontario CoE Council of Europe CRC Convention on the Rights of the Child DEVAW Declaration on the Elimination of Violence against Women ECHR European Convention of Human Rights ECOSOC Economic and Social Council ECtHR European Court of Human Rights FGC Female genital cutting FGM Female genital mutilation FGM/C Female genital mutilation/cutting GR General Recommendation HTP Harmful Traditional Practices ICCPR International Covenant on Civil and Political Rights ILO International Labour Organization MGM Male genital mutilation NGO Non-governmental organization SRS Sex reassignment surgery UDHR Universal Declaration of Human Rights UNICEF United Nations Children's Fund UNFPA United Nations Population Fund WHO World Health Organization Chapter I. Introduction. «Although it is a symbol of life, the female body is unfortunately not rarely attacked and disfigured, even by those who should be its protector and life companion. » Pope Francis2 Envision yourself being the parent of a young girl, born into a culture that performs a medically “senseless” and excruciatingly painful, yet culturally recognized procedure in order to avoid harassment, shame, and social ostracization for failing to undergo a commonly practiced tradition. The execution of this “rite” is a guarantee that your daughter would avoid the abovementioned, yet it comes with a price, such as medical complications, mental and emotional anguish, and deprivation of her bodily integrity3. Regrettably, in several parts of the world that perform FGM/C, parents are constrained to make this tough decision for their daughters4. Female genital mutilation/cutting (FGM/C) is a traditional practice that can result in severe health consequences for girls and women.5 This rite of diaspora communities is widespread around the world, mostly concentrated across large parts of Africa, to be exact in 29 African countries, certain ethnic groups in South Asia (e.g. India, Indonesia, Malaysia, Pakistan, and Sri Lanka), some countries in the Middle East (e.g. Oman, the United Arab Emirates, Yemen, Iraq, Palestine, and Israel), and South America (e.g. Colombia, Ecuador, and Peru). While the exact number of girls and women subjected to FGM/C is unknown, it is estimated that a whopping 100 to 140 million women and girls living today underwent this procedure. There is no age limit. Girls are subjected to FGM/C when they are newborn, or during childhood, at the time of puberty, before the wedding, during pregnancy or after giving birth. Although the age range differs, it is estimated that most girls are between 0 and 15 2 Pullella P., Powell S., Pope condemns female mutilation, domestic violence against women, Thomson Reuters Foundation Canada, 7 February 2015. 3 Ballenger T., Female Genital Mutilation: Legal and Non-Legal Approaches to Eradication, Journal of Law & Social Challenges, Vol. 9, 2008, pp. 84. 4 Ibid, pp. 90. 5 The United Nations Children's Fund, Female Genital Mutilation/Cutting: A statistical exploration, UNICEF, 2005, pp.1. 1 years when they undergo this operation6. Hence, the fact that this procedure is normally carried out on minors, raises doubts on whether they are capable of giving informed consent. Moreover, a common inaccuracy is to attribute this practice exclusively to the abovementioned countries, which is erroneous as FGM/C is increasingly becoming more prominent due to the steady globalization. The increase in immigration movements spread this practice all over the world. The expatriates from African and Asian communities that migrated to European countries kept performing FGM/C on their daughters after settling in Europe. As an example, a study conducted by Karolinska Instituted, a Swedish university, established that approximately a third of families migrated from places, where FGM/C is actively performed and ingrained in the culture, wanted to continue practicing and executing FGM/C in their new countries.7 Ceterum, with the crisis refugee of the last years, more and more cases surface in countries, where this practice was previously uncommon. As provided by Kashmira Gander a case of FGM/C is reported in England every 109 minutes8 amounting in more than 1200 cases recorded in the period of September-November 2016.9 In 2017, Ferguson stated that one case of FGM/C is reported every hour in the UK10. In Australia, as stated by the non-profit organization No FGM Australia, 3 girls a day are at risk of being forced to undergo FGM/C11. A recent case, in March 2016, is a prime example of the danger of FGM/C in every country.
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