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3. FGM: an internationally recognized human rights issue

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3.1 International policy and law

FGM has been condemned by numerous international and regional bodies, including the United Nations Commission on Human Rights, the United Nations International Children Emergency Fund (UNICEF), the Organization of African Unity and the World Medical Association. In addition to the broader issues of health and human rights of the child, FGM is gender-specific discrimination related to the historical suppression and subjugation of women that is unique to women and female children.

In various African countries where the procedure is performed, comprehensive action plans were developed by women's groups to attempt to eliminate the practice, but overall, progress has been slow. FGM has been outlawed in Sudan since 1946, but it continues to be widely practised. In Burkina-Faso and Egypt, resolutions were signed by the respective Ministers of Health in 1959, recommending that only partial clitoridectomy be allowed, and decreeing that it be performed only by doctors. In 1978, as a direct result of the efforts of the Somali women's movement, Somalia established a Commission to abolish infibulation.

The issue of FGM was raised at the United Nations for the first time in 1952. However, it took some 20 years before the United Nations began official discussion of the issue. It was not until the 1970s, at the instigation of non-governmental organizations, that United Nations agencies were pushed to address the multitude of problems related to the practice. In July 1980, the World Conference of the United Nations' Decade for Women was held in Copenhagen on the sub-themes of health, education and employment. In 1984, participants from 20African countries, as well as representatives of international organizations attending a seminar in Dakkar on "Traditional Practices Affecting the Health of Women and Children", recommended that the practice be abolished. States acknowledged that there was a need to establish strong, on-going education programmes for meaningful progress towards elimination of the practice.

FGM was again addressed by the 1993 United Nations World Conference on Human Rights. A Conference declaration stated:

The World Conference supports all measures by the United Nations and its specialized agencies to ensure the effective protection and promotion of human rights of the girl-child. The World Conference urges States to repeal existing laws and regulations and remove customs and practices which discriminate against and cause harm to the girl-child.[10]

In 1995, the Platform for Action of the World Conference on Women in Beijing included a section on the girl-child and urges governments, international organizations and nongovernmental groups to develop policies and programmes to eliminate all forms of discrimination against the girl-child including FGM.[11]

Canada plays a prominent role in the international arena as a supporter and promoter of women's human rights. In 1995, at the 9th United Nations Congress on the "Prevention of Crime and the Treatment of Offenders," Canada introduced a resolution on the "Elimination of Violence Against Women" (Agenda Item 6: Cairo Egypt, April 29 – May 8, 1995). The resolution, which was passed by the Congress, strongly urged States, among other things, to take measures to:

... prevent, prohibit, eliminate and impose effective sanctions against rape or sexual assault, sex abuse and all practices harmful to women and girl children, including female genital mutilation [emphasis added].

International conventions, covenants and declarations that Canada has signed recognize that human beings have the inherent right to life,[12] equality,[13] freedom and security,[14] the right not to suffer discrimination,[15] the right to the best possible state of physical and mental health,[16] and the right not to be subjected to torture or to cruel and degrading punishment or treatment.[17]

3.2 FGM and gender discrimination

FGM has implications for the human rights of women as directly reflected in several international instruments, including the United Nations Convention on the Elimination of All Forms of Discrimination against Women.

The United Nations Declaration on the Elimination of Violence Against Women defines "violence against women" as encompassing, among other things, "female genital mutilation and other traditional practices harmful to women."[18] In Europe, legislation prohibiting the practice of FGM exists in Sweden, France and Great Britain where the procedure carries a penalty of imprisonment.

The legal obligation to eliminate all forms of discrimination against women is described as a "fundamental tenet of international human rights law."[19] Sex is a prohibited ground of discrimination under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and three regional human rights conventions: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights and the African Charter on Human and People's Rights. The most comprehensive instrument, the Convention on the Elimination of All Forms of Discrimination against Women,[20] constitutes an international "bill of rights" for women and sets out an agenda for nations to take action to end discrimination based on sex.

Article 5 of the Universal Declaration of Human Rights provides that no one shall be subjected to torture, nor to cruel, inhuman or degrading treatment. However, many signatory countries continue to violate that article through tolerance of the practice of FGM. Renée Bridel, of the Fédération Internationale des Femmes de Carrières Juridiques, noted:

One cannot but consider Member States which tolerate these practices as infringing their obligations as assumed under the terms of the Charter [of the UN].[21]

3.3 FGM and the rights of the child

FGM is a violation of the rights of the child guaranteed in treaties adopted by the United Nations and the Organization of African Unity. The Convention on the Rights of the Child has direct implications for the human rights of the child. The Convention was adopted by the UN General Assembly in 1989 and ratified by Canada in 1990.

That Convention asserts that children should have the possibility to develop physically in a healthy and normal way with adequate medical attention, and to be protected from all forms of cruelty. The Convention establishes the rights of children to gender equality (Art. 2), to freedom from all forms of mental and physical violence and maltreatment (Art.19.1) and to the highest attainable standard of health (Art. 24.1). Article 24.3 of the Convention explicitly requires States to take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children.

3. 4 FGM and health rights

The physical and psychological health complications resulting from genital mutilation of women have been extensively documented. The partial or complete loss of sexual function constitutes a violation of a woman's right to physical integrity and mental health. Health rights are guaranteed by the International Covenant on Economic, Social and Cultural Rights (Art. 12), the Convention on the Rights of the Child (Art. 2.4) and the African Charter on Human and People's Rights (Art. 16). The equal right to health care is further guaranteed by the Convention on the Elimination of All Forms of Discrimination against Women (Art.12).

[10]Declaration and Program of Action adopted in Vienna on June 25, 1993, the World Conference on Human Rights, quoted in Human Rights Are Women's Rights (London: Amnesty International, 1995) at 132.
[11]Female Genital Mutilation: UNITED NATIONS ACTION, World Health Organization, August 1996, AND DISTRIBUTION(8 December 2000).
[12]International Covenant on Civil and Political Rights, Art.6; International Convention on the Elimination of all Forms of Racial Discrimination, Art. 2.
[13]International Covenant on Civil and Political Rights, Art. 26.
[14]Universal Declaration of Human Rights, Art. 3; International Covenant on Civil and Political Rights, Art. 9; International Convention on the Elimination of all Forms of Racial Discrimination, Art. 5(b).
[15]International Covenant on Civil and Political Rights, Art. 26.
[16]International Covenant on Economic, Social and Cultural Rights, Art. 12.
[17]Universal Declaration of Human Rights, Art. 5; International Covenant on Civil and Political Rights, Art. 7; Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
[18]Declaration of the United Nations General Assembly on the Elimination of Violence Against Women, Plenary Session A/Res./48/104, December 20, 1993.
[19] Cook, Introduction: The Way Forward, in Cook, ed., supra, note 1 at 10.
[20] Ratified by Canada on December 10, 1981; date of entry into force in Canada, was January 10, 1992. There are several provisions of the Convention which require States parties to take action against such practices as FGM, namely:

  1. to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (Art 2.f.)
  2. to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women (Art. 5.a.)
  3. States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care to ensure, on a basis of equality of men and women, access to health care services including those related to family planning (Art. 12).

[21] See E. Dorkenoo, Female Genital Mutilation: Proposals for Change (1992) Minority Rights Group Report at 16, Renée Bridel, L'enfant Mutilé, presented on behalf of the F.I.F.C.J. to the U.N., Geneva,1978.

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