#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)

 

This is the fourth blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Evelyn Strutynski. Evelyn is  currently reading the LLM in International Law at the University of Edinburgh. She also obtained a Bachelor of Arts degree in Political Science and Law at the Ludwig-Maximilians-Universität München in Germany.

#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)

Over the last decades, much has been achieved to reduce the prevalence of FGM around the world. In 2015, the UN announced new development goals, including the initiative to completely eliminate FGM by 2030. Nonetheless, the procedure still is a highly salient issue. In 2021, more than four million girls are at risk of undergoing FGM and, overall, approximately 200 million girls and women alive today have been subjected to the practice in 31 countries. This blog post will examine the relationship between FGM and international human rights law as well as the global efforts to eliminate FGM.

What is female genital mutilation?

The WHO defines FGM as “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons”. The procedure is predominantly carried out by traditional circumcisers who use scissors, razor blades or broken glass. Increasingly, trained health care providers perform FGM (‘medicalisation’). The WHO has identified four different types of FGM; one of them is called infibulation which narrows the vaginal opening with a covering seal by, for instance, repositioning the labia minora or stitching.

FGM affects girls and women worldwide, the majority of them are cut before their 15th birthday. It is predominantly practised in Africa; furthermore, it occurs in countries in the Middle East and Asia, and in certain communities in South America. The practice is nearly universal in Somalia, Guinea and Djibouti where more than 90% of girls and women have undergone FGM. The practice is cultural rather than religious, since no religion requires it; nonetheless, religion is often used as a justification. Other reasons for FGM are, inter alia, psychosexual, for example, to control women’s sexuality, or sociological/cultural, to guide a girl into womanhood. FGM causes severe health issues; they range from infections, mental health or menstrual problems to the need for surgeries or even death.

FGM photo

Photo by UNFPA/George Koranteng

The relationship between FGM and international human rights law

FGM “violates a number of recognized human rights protected in international and regional instruments”[1]. Kandala and Komba identified five rights that are breached by the practice:[2]

  1. Child rights – Most girls and women undergo FGM before their 15th birthday. Art. 16 of the Convention on the Rights of the Child, for instance, prohibits any interference with the privacy of children; furthermore, Art. 24 (3) urges states to adopt “measures with a view to abolishing traditional practices prejudicial to the health of children”.
  2. Right to health – FGM causes serious health issues, which breaches, inter alia, Art. 12 (1) of the International Covenant on Economic, Social and Cultural Rights. The provision guarantees the right to the highest attainable standard of physical and mental health.
  3. Right of women to be free from discrimination – According to an Interagency Statement, the procedure is a “manifestation of gender inequality that is deeply entrenched in social, economic and political structures” and it “represents society’s control over women”. Hence, Art. 1 of the Convention for the Elimination of all Forms of Discrimination Against Women is applicable, as well as Art. 2, which urges states to fight discrimination.
  4. Right to life and physical integrity – FGM violates Art. 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to liberty and security of a person.
  5. Right to be free from torture – FGM might also amount to torture, which is prohibited by, inter alia, Art. 7 of the ICCPR. The Convention Against Torture has a high threshold for torture; this fact might be problematic, as not all FGM procedures legally qualify as torture.[3]

Supporters of FGM point out that the right to culture, religious freedom and the rights of minorities justify the practice.[4] However, the breaches of the aforementioned human rights are more severe, since FGM undeniably harms the bodily integrity of girls and women and intensifies gender inequality. Furthermore, the conflicting rights are not absolute and may be limited[5] in order to protect girls and women. Generally, there is a lack of jurisprudence regarding FGM and human rights[6]; many cases, such as M.N.N v. Denmark or M.J.S. v. The Netherlands, focus on the risk of undergoing FGM in the event of a deportation.

International response to FGM

A range of international organisations and institutions takes part in the effort to eliminate FGM. For instance, the UN General Assembly adopted Resolution 67/146, which emphasises that FGM is an “irreversible abuse that impacts negatively on the human rights of women and girls”. The UN Secretary-General published a report, which demands that states should, inter alia, implement legislation that criminalises the procedure. Furthermore, the Committee on the Elimination of Discrimination against Women published General Recommendations Nos. 14, 19, 24 with regard to FGM. In 2020, the UN Human Right Council adopted Resolution 44/L.20, which urges States to condemn all harmful practices that affect women and girls, in particular female genital mutilation”.

#Act2EndFGM logo

UN Photo

Are human rights enough?

The universal recognition that FGM undoubtedly breaches international human rights law is an important step in order to eliminate the practice. Because of human rights, FGM is now part of a broader social justice agenda and of an increasing effort to hold governments accountable[7]; additionally, FGM is “viewed through a prism that recognizes the complex relationship between discrimination against women, violence, health and the rights of the girl child”[8].

However, this recognition alone is not sufficient, the law must be implemented and enforced on a national level. Furthermore, since FGM is such a deeply entrenched practice, a deep-seated social change within each community is needed; the Interagency Statement suggests initiatives like ‘empowering’ education, public dialogue or using alternative rituals. Overall, the efforts so far have been at least partly successful, as the prevalence of FGM declines steadily; however, the progress needs to be ten times faster in order to reach the 2030 goal. Population growth and COVID-19 are further impediments to meeting the target.

 

[1] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 20.

[2] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 190-192.

[3] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 192.

[4] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 31.

[5] Ibid., 38.

[6] Ibid., 20.

[7] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 39.

[8] Ibid.

Human Insecurity: COVID-19 and Women’s Rights

Photo of the authorThis is the first blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Alexandra Oancea. Alexandra is current reading the LLM in Human Rights at the University of Edinburgh. She is from Brussels, Belgium, and holds an LLB in European Law from Maastricht University, the Netherlands.

 

COVID-19 and Women’s Rights: The Negative Impact of the Pandemic on Women’s Access to Sexual and Reproductive Health Services

As evidenced by previous global health crises such as Zika and Ebola, pandemics exacerbate pre-existing gender inequalities, and the COVID-19 outbreak is no exception to this trend. The United Nations was warning governments as early as April of 2020 that the impacts of COVID-19 were disproportionately falling on women and urged them to adopt a gender-sensitive response to the crisis. In the field of healthcare, as resources are being diverted and lockdown restrictions tightened, women’s access to adequate health services is being heavily threatened. Within this context, this post will disclose how the current pandemic is endangering women’s access to sexual and reproductive health (SRH) services, how this in turn contravenes their fundamental human right to health, and why a gender-sensitive response to the pandemic is therefore required.

COVID-19 and Women’s Access to SRH Services

While ensuring access to SRH services to women has always been a challenge, COVID-19 intensifies the issue in many ways. As acknowledged by the World Health Organisation, following the outbreak, health systems around the world became overloaded, causing governments and health facilities to prioritise certain health services, while scaling back others. This has led to a reallocation of funding and resources for SRH services to the pandemic response. For example, in countries such as Romania and Slovakia, the breakout of the pandemic led governments to deprioritise abortion services, no longer deemed as essential. Furthermore, the measures imposed by States to limit the propagation of the virus meant that women in various contexts were no longer able to physically access time-sensitive services. Indeed, travel restrictions and stay-at-home orders deprived women

Two women in facemasks

Photo by Tim Douglas

and girls of family planning services, and in countries where abortion is illegal or strongly restricted, prevented women and girls from travelling to neighbouring countries to undergo a procedure.[1] According to Marie Stopes International, a NGO providing contraception and abortion services around the world, the pandemic has prevented 1.9 million women to access their services between January to June 2020. The pandemic also disrupted supply chains, resulting in shortages in contraceptive products and unavailability in pharmacies. Additionally, the pandemic has been leveraged in some countries to limit access to services such as abortion.[2] In Poland and Texas, lockdown was used to introduce abortion restrictions and ban procedures.[3]

These recent developments highlight the lack of attention that is currently afforded to SRH services by governments around the world. This neglect has dire consequences for women’s health: it can lead to a rise in maternal and new-born mortality, unwanted pregnancies, sexually transmitted diseases such as HIV, and unsafe abortions.[4] In addition, a failure to address women’s SRH needs goes against States’ international human rights law (IHRL) commitments, and more specifically their obligation to protect, respect, and fulfil women’s right to health and provide them with adequate access to healthcare.

Access to SRH Services as a Fundamental Human Right

The right to health is protected under various IHRL documents being widely ratified. For example, the United Nations International Covenant on Economic and Social Rights (ICESCR) recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further reiterates the importance of this right by placing a duty on states to eliminate discrimination against women in the field of healthcare. According to the CEDAW Committee, the body monitoring the implementation of CEDAW, this duty requires states to ensure that women have timely and affordable access to healthcare services, including SRH, and to eliminate barriers in accessing such services. Considering the developments outlined above, such duty seems to have been disregarded by governments when fighting COVID-19. However, while states are allowed to derogate from some of their human rights obligations in emergency situations such as the current pandemic, there are limitations. Under international law, emergency measures must, among others, reflect the principles of equality and non-discrimination. In other words, states are under a duty to provide women with access to SHR services, and this is true even during a global pandemic. Failing to do so would be discriminatory and would run counter to states’ international law commitments. In order to fully observe women’s rights, states therefore need to be mindful of this legal framework when designing measures to stop the spread of the virus. As evidenced below, this will require them to incorporate a gender-sensitive perspective into their COVID-19 responses.

The Way Ahead: A Gender-Sensitive Approach to Tackling the Virus

As declared by the United Nations, “states have a responsibility to ensure that everyone is protected from the virus and its impact” and “this may require special measures and protection for particular groups most at risk or disproportionately impacted”. In the context of women, protecting them requires governments around the world to integrate a gender perspective within their COVID-19 responses, something advocated by the World Health Organisation. This would allow states to better understand women’s needs and the negative impacts they experience during this pandemic. To do so, UN Women recognises the need for governments to issue policies protecting women’s SRH rights. One step in that regard is making sure that SRH services are identified as high-priority categories when deciding which services will be prioritised during the pandemic. Additionally, in order for women to physically access those services despite lockdown and travel restrictions, various measures could be taken by governments. Those include allowing women in need

Women holding a sign reading 'The future is equal'

Photo by Flavia Jacquier

of SRH services to be temporarily exempted from travel restrictions in order to ensure access. Furthermore, legal barriers to telemedicine services and at-home abortion pills should be removed, and their use should be promoted by States.[5] This step has been taken in the United Kingdom where women are now able to receive tele-consultation and to self-administer abortion drugs at home. Another way to promote women’s SRH rights is to remove any unnecessary requirements to access SRH services such as multiple provider authorisation, waiting periods and third-party consent for abortion procedures.[6] Finally, states need to include women at the decision-making table. Indeed, as reiterated by the UNFPA, women are more likely to have less decision-making power regarding the policies and decisions taken to respond to the pandemic, leading their SRH needs to be largely unmet. It is therefore essential for them to be included and to ensure their equal participation in all policy and decision-making regarding the crisis, something that was stressed by the CEDAW Committee in its Guidance Note on COVID-19.

However, the above-mentioned proposed measures merely constitute short-term ways to alleviate the issues women are facing during this pandemic, and it is still essential for States to engage in larger-scale reforms. In fact, the inequalities discussed in this post were already prevalent pre-COVID-19 and were simply exacerbated during the pandemic. In this way, the current situation reinforces the call for government to not only adopt a gender-sensitive response to the current global health threat, but also to develop a well-developed system to fight similar crises in the future in a way that is mindful of women’s experiences. Only this approach, which ensures the inclusion of women and acknowledges the different ways they experience the pandemic, can ensure that States will design measures impacting both men and women in an equal and non-discriminatory way, in accordance with their obligations under IHRL. While promising gender-sensitive practices are emerging, they are far from being uniform, and as lockdown measures and COVID-19 restrictions remain the norm around the globe, it is essential for States to take more active steps to acknowledge and respond to women’s specific needs.

 

[1] Julia Konowrocka, ‘Let’s Talk About Sexual and Reproductive Health and Rights Not Fully Implemented Before Covid-19 & Suspended during the Pandemic’ (Equinet, 14 September 2020) <https://equineteurope.org/2020/lets-talk-about-sexual-and-reproductive-health-and-rights/> accessed 26 February 2021.
[2] Center for Reproductive Rights, ‘Sexual and Reproductive Rights During COVID-19: Response and Beyond’ (June 2020) 2.
[3] Audrey Lebret, ‘Covid-19 pandemic and derogation to human rights’ (2020) 7(1) Journal of Law and the Biosciences 14.
[4] United Nations Population Fund (UNFPA), ‘Covid-19: A Gender Lens’ (March 2020) p. 7; Organisation for Economic Co-operation and Development (OECD), ‘Women at the core of the fight against Covid-19 crisis’ (2020).
[5] Amnesty International, ‘Exposed, Silenced, Attacked: Failures to Protect Health and Essential Workers during the COVID-19 Pandemic’ (2020).
[6] Center for Reproductive Rights (June 2020) 1.