Female genital mutilation: a discussion of international human rights instruments, cultural sovereignty and dominance theory.

• Author: Trueblood, Leigh A.

"African women, now and throughout history, have developed analyses and strategies for action to take control of our own lives in those areas that we have collectively determined for redress."(1)

1. INTRODUCTION

   The foundation of international human rights law is the principle that every State has an obligation to respect the human rights of its citizens.(2) Additionally, the international community has a right and responsibility to protest if there is a violation of this obligation.(3) Inherent in this principle is the concept that there are, in fact, universal human rights.(4) However, most of the rights enumerated as "universal" are based on Western values, and can be traced directly to the experiences of France, England, and the United States rather than Islamic, Eastern, and African cultures.(5) Many international law scholars acknowledge "the meaning of human rights depends upon the specific cultural context."(6)

   Another tenet of international law is the concept of State sovereignty.(7) The concept of sovereignty means a State is "subject to no higher power."(8) Sovereignty not only refers to a States physical border, but also to its choice of political, social, economic, and cultural systems.(9) Connected with the doctrine of sovereignty is the concept of Nonintervention.(10) Nonintervention means that one State should not interfere with the internal relations of another State out of respect for its sovereignty.(11) Therefore, according to basic international law principles, States should respect the politics, religions, social structures, and cultures of other States and refrain from interfering with such sovereign rights.

   This conflict between international human rights and the doctrine of cultural sovereignty is ongoing and controversial. Critics of international human rights law argue that "the international community utilizes treaties to loosen sovereignty's rule of restraint."(12) Some of the most controversial treaties involve the rights of women and children encompassing all aspects of a woman's life, which differs according to culture.(13)

   Today, this conflict exists between societies that practice Female Genital Mutilation (FGM) and the numerous States and Non-Governmental Organizations (NGOs) that protest the practice.(14) In addition to the existing political conflict between States, there exists an immense cultural conflict where victims of FGM support the practice.(15) There is abundant legal support against the practice including the United Nations Charter,(16) the Universal Declaration of Human Rights(17), and the Convention on the Elimination of All Forms of Discrimination Against Women.(18) However, there is also legal support for the practice based upon the concept of cultural sovereignty.(19) Thus, the conflict centers on the fine line between respecting one's fundamental human rights and the recognition of a State's cultural sovereignty.(20)

   This article addresses the conflict between the recognition of international human rights and the principle of cultural sovereignty through an analysis of the cultural, social, and political implications surrounding FGM. Section two introduces the torturous practice of FGM, including the reasons given to justify it, as well as the resulting complications and effects. Section three addresses and evaluates existing international legal instruments that protest FGM. Section four considers the arguments of both FGM proponents and opponents. Section five addresses enforcement mechanisms of international law concerning FGM, and proposes solutions to rectify these issues. In a day and age where it should be commonplace for society to respect women of all cultures and for all women to have the opportunity to make meaningful choices in their lives, the conflicting issues raised in this article show the difficulty women face daily, simply to obtain their freedom.

2. DEFINING THE PROBLEM OF FEMALE GENITAL MUTILATION

   Female Genital Mutilation is a general term for a variety of surgical operations performed on girls and women primarily in twenty-eight African countries and among some minorities in Asia.(21) FGM is the partial or total removal of the female external genitalia including the clitoris, labia, mons pubis (the fatty tissue over the pubic bone), and the urethral and vagina openings.(22) The practice is often referred to as `female circumcision', implying that it is similar to male circumcision. However, the cutting is much more severe and extensive, often impairing a woman's sexual and reproductive functions.(23) It is an ancient custom, which is estimated to affect 130 million girls and women around the world, with a rate of increase of about 2 million new cases a year.(24) Recently, the practice has also begun to surface within immigrant communities in Europe, Australia, Canada, and the United States.(25)

   Most girls undergo FGM when they are between seven and ten years old.(26) However, FGM seems to be occurring at earlier ages in several countries because parents want to reduce the trauma to their children and avoid government interference and/or resistance from their children.(27)

   In 1995, the World Health Organization (WHO) defined four types of FGM: (I)Type 1- Clitoridectomy,(28) (II) Type 2- Excision,(29) (III) Type 3-Infibulation,(30) (IV) Type 4- Unclassified, but includes all operations performed on the female genitalia.(31) Eighty-five percent of genital mutilations are Type I and Type II operations.(32) Type III (Infibulation) is common in Djibouti, Somalia and Sudan and in parts of Egypt, Ethiopia, Kenya, Mali, Mauritania, Niger, Nigeria, and Senegal.(33)

   1. Complications and Effects of Female Genital Mutilation

   The consequences of FGM on women's health are extensive and range from repeated urinary infections to death.(34) The actual number of girls who die because of FGM is unknown, however, the highest maternal and infant mortality rates are in FGM practicing regions.(35) A major reason for death is the unsanitary and crude method used by the practitioner combined with the unavailability of antibiotics.(36) Female family members in non-sterile conditions often perform the procedure with instruments including razor blades or broken glass.(37) In regions of West Africa, dirt, ashes, or pulverized animal feces are thrown into the wound to stop the bleeding and contributes to severe infection, shock, and uncontrolled hemorrhaging.(38)

   The consequences of FGM on women's health include both short and long-term consequences. Immediate physical problems related to FGM include: intense pain and/or hemorrhaging,(39) wound infection, including tetanus,(40) damage to adjoining organs from the use of blunt instruments by unskilled practitioners, and urine retention from swelling and/or blockage of the urethra.(41) A more recent concern focuses on the possible transmission of the human immuno-deficiency virus (HIV) as a result of using one instrument in multiple operations or the damage to tissue from anal intercourse.(42) However, the connection between HIV and FGM has yet to be fully explored.

   The long-term consequences of FGM encompass psychological as well as physical ailments. Long-term consequences of FGM include: painful or blocked mensus,(43) recurrent urinary tract infections,(44) abscesses, cysts, and hardened scars,(45) increased risk of maternal and child morbidity due to obstructed labor,(46) infertility, and sexual dysfunction.(47) In addition to these physical problems, mutilated women also suffer psychological consequences.(48) These consequences may be submerged deep in the child's subconscious and may trigger behavioral disturbances. These female children may lose their trust and confidence in caregivers and, in the long run, may suffer anxiety, incompleteness, depression, chronic irritability and frigidity.(49) Additionally, victims are rarely able to enjoy the physical and mental aspects of sexual intercourse, which may result in marital dysfunction.(50) Research in Sudan revealed that fifty percent of women who had undergone FGM say that they do not enjoy sexual intercourse, but rather they accept it as their duty.(51)

   B Reasons for Supporting FGM

   There are various rationales in favor of FGM. The reasons can be classified as religious, sociological, aesthetic, mythical, and psychosexual. Supporters of FGM argue the concept of cultural relativism -- that FGM is an essential part of their culture. As such, FGM should be preserved, and members of FGM practicing States should be allowed to continue with this cultural practice without interference from other States.

   1. Religious Reasons

      It is a common misconception that FGM is an exclusively Muslim practice. FGM is also practiced by many secular and religious groups; including Egyptian Christians,(52) Ethiopian Jews, and non-believers.(53) In fact, FGM predates Islam.(54) Some Muslim communities practice FGM because they believe that their faith demands it.(55) However, religious scholars have confirmed that there is no mention of FGM in the Koran. There are no final statements (fatwas)(56) about FGM from an Islamic point of view, only that it is a rnakrama, a "third or fourth order duty".(57) This does not, however, stop many religious and secular leaders from claiming that it does have a place in Islam.(58) In 1994, the Sheikh of Al-Azhar, Sunni Islam's highest authority, persuaded the Egyptian Ministry of Health to issue a decree, which permitted hospitals in Egypt to perform the procedure.(59) However, three years later, the Sheikh changed his opinion on the issue, and "reaffirmed" his support for the Egyptian Health Ministry's ban on FGM.(60) Sheikh Mohammed Sayyed Tantawi also made a statement in support of the ban, "I support the Health Ministry's decision to ban excision because it is a medical and not a religious matter."(61) The Sheikh added, "[a]ll the hadith on excision are weak," a reference to the sayings of the prophet Mohammad, one of the foundations...