In the Loophole of International Human Rights Law Echoes a Scream of a Little Girl

As just as laws may seem, they could be a safe haven for abuses. Legal systems are full of loopholes that create a home for violations. Female Genital Mutilation (FGM), the crime of ripping girls off their physical integrity by “intentionally altering or causing injury to the female genital organs for non-medical reasons” is still being practiced (WHO). Till this day, more than 125 million girls and women alive have been cut in 29 countries in Africa and Middle East where FGM is concentrated (WHO).

In social systems that recognize more than one source of law, pluralism arises. Norms, values and principles develop till they coexist with the rule of law. In such societies, customary law, religious law, state law and local norms compete for supremacy while gender relations sit at the intersection of them all (United Nations Rule of Law).

There are two main distinctions of legal systems; there is the state legal system and the non-state legal system. The first one highlights the laws and institutions of a state while the second one is a system that is a recipient of cultural and religious norms. In a battle between the rule of customs and the role of the law, the winner would never be determined unless we distinguish what the sources of authority are. There is a significant distinction between power and authority. Laws have authority to prohibit certain actions but they do not have the power to ensure implementation (Besson, 345).

Gender equality manifests the dichotomy between state and non-state legal systems as it highlights the contrast between the two systems. The role of international law is emphasized in the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Egypt ratified the CEDAW but it added a reservation to article 2 that states the following: “the Arab Republic of Egypt is willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Shari’a. ” The legal regime governing reservations to international treaties is rooted in the 1969 Vienna Convention of the Law of Treaties (VCLT), which specifies that a reservation must not be “incompatible with the object and purpose of the treaty.”

Structuring female sexuality is embedded in social and cultural practices. Not only do the practices of one country indicate its human rights profile, but countries’ violations are also a strong monitor to the human rights scene. Many African countries still practice Female Genital Mutilation (FGM) which is the partial or total removal of the external female genitalia that leaves the girls in emotional trauma and physical harm. Although international law overrules domestic law, there are many violations that happen under the umbrella of cultural norms. According to the World health Organization (WHO) 90% of women experience the horrific practice of FGM.

There are so many legal instruments that recognize human rights such as the Universal Declaration of Human Rights, the UN Covenant on Civil and Political Rights, The UN Covenant on Economic, Social and Cultural Rights in addition to the Convention on the Rights of the Child. These instruments complement each other.

Although laws recognize women’s rights to physical freedom, privacy and protection from violence, there is no specific article that prohibits the practice of FGM. Legislation should be recreated in a way that encompasses fundamental rights and government duties: the duty to modify custom, the duty to abolish a practice that is harmful to children and women and the duty to ensure health care in addition to ensuring a social order where rights can be realized.

There is a direct relation between the reservations made by states and the status of women. Status of women is usually measured in terms of health profiles, literacy, per capita income, subjects of violence and participation in public life. While reservations reflect the cultural pattern of a society, they go to the heart of women’s legal capacity, participation in public life and their effective engagement in the society.

There is nothing more empowering than having a law that supports your status in a society. And there is nothing less demeaning than having one’s own state silencing your voice and ripping you of your rights just for being who you are.

In human rights law, not only do states have the right to go to courts, but individuals as well are guaranteed the right to bring claims in courts for violations of human rights. Although legislation has been compatible with the Universal Declaration of Human Rights, there is still traditional and cultural resistance in many societies to practice FGM. According to the World Health Organization (WHO) integrity statement on eliminating FGM, several mechanisms have been developed to put an end to FGM such as criminal laws, child protection laws and even Asylum and immigration protection in gender based violence issues. Although all human rights mechanisms condemn the practice of FGM, behavioral and social change saturated with health and sexual awareness of women rights is indispensable to the success of the legal efforts. In reality, at the remote village in the midst of Africa where poverty spreads vigorously and ignorance rules, you still hear girls’ screams during an FGM practice. International law only creates a framework for the development of women rights, yet a culturally oriented society could be a hostile environment for legal supremacy. Raising awareness of women rights is the only way to decrease the socio-legal gap. In an attempt of the legal systems to enhance the legal framework for women, they created what is known as protective laws.

In conclusion, the law is not a perfect system, just like the people who made it, it is biased. The efforts of the civil society organizations are the mechanism that would lead to real change on the grounds. It is important to have words on papers, only when they are supported by actions of the ground.

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3 Responses to In the Loophole of International Human Rights Law Echoes a Scream of a Little Girl

  1. A lot of people pro FGM argue that it is comparable to male circumcision, and should be allowed. Of course it is not comparable, but the real problem with FGM is actually that it is illegal, leaving unqualified women afflicting these mutilations to little girls. Later on, they can develop infections and so on. First, it should, just like heroin in some countries, not be legal, but if practiced, it should be by qualified nurses in a sterilized environment.
    Secondly, it is hard to, at the international level, to deal with issues such as FGM. Who would be held accountable? How would we know if it is still practiced or not (no official documents or real numbers)? Even if treaties such as the CEDAW try to address such issues, no real measures can be taken. Only domestic law and the government can take real measures to stop FGM.

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  2. dabouelnour says:

    International law through the Montevideo Convention only recognizes a state if it possesses a government, population, internal and external sovereignty and recognition. These criteria, in my opinion, are debatable in the modernized world of today, particularly external sovereignty, which is “ the capacity of the state to relate itself with other states in pursuing its interests” (Paterno). Doesn’t economic coercion conflict with this notion? Periphery states are relentlessly controlled by core states both overtly and subliminally in their economic spheres. In that regard, their external sovereignty is breached and they technically shouldn’t be recognized as states.
    I believe that if we take the literal description of every tier of state recognition, the majority of today’s states would not constitute as states. Because of this international law should revise and modernize its perception of ‘state recognition’ in addition to revising the presence of veto powers in acknowledging states, as Palestine will forever be inhibited from becoming a full, functioning state because of United States’ veto.

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  3. dabouelnour says:

    I would like to clarify that in 2007, “Al-Azhar Supreme Council of Islamic Research, the highest religious authority in Egypt, issued a statement saying FGM/C has no basis in core Islamic law or any of its partial provisions and that it is harmful and should not be practiced” (UNICEF). I believe that CEDAW should be modified to address female genital mutilation. Egypt’s reservation will therefore be incompatible with both international law and domestic law and it would be obliged to raise awareness and punish those who continue to practice this emotional and physical abuse. Female genital mutilation is not only practiced in Islamic countries, but also in African countries and by adopting laws to ban this destructive tradition, women worldwide would be saved from harm.

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