Discussion and Analysis
Whilst a total of 85% acceptance rate of recommendation may indicate a certain level of consensus on the issue of FGM amongst states, an analysis of the nature of the positions adopted by states during the discussions reveals how some states grappled with the complex relationship between FGM and culture during the discussions held over both cycles. In particular, it was interesting to observe that the vast majority of states in responding to recommendations provided implicit or explicit reference to the association between FGM and cultures in their responses, particularly when the recommendation was being noted. From the findings there are four main patterns that have emerged.
First, observer states that issued recommendations under the first category’ in both cycles expressly declared FGM to be a harmful cultural practice that was required to be eliminated. From the nature of the recommendations under this category there are two implicit suggestions made by the observer states.
The statements indicate, first, that the observer states believed that FGM continued to be practised due to justifications that were embedded in some aspects of cultural belief systems; second, that the observer states are at the outset making clear that the continuance of the practice, despite being condoned by some cultural values and traditions, is in violation of international norms and thus should be eliminated. Observer states that adopted this position over the two cycles strongly resonate with the strict universalist position, which recognises that whilst cultural differences exist, it insists that universal human rights norms should transcend cultural idiosyncrasies.44 The implications of the strict universalist position adopted by some observer states during the discussions of FGM becomes apparent when one analyses the underlying presumptions of the states adopting this position. To begin with, the essence of the recommendations issued under the first category' is that whilst observer states recognised the cultural nature of FGM, suggestions were made to eliminate the practice. This recognition that FGM is embedded in some aspects of culture means that the observer states hold the presumption that such beliefs are formulated over a period of time. On the nature of culture, Clifford Geertz argues that cultural values are a synthesis of moral belief systems that are formulated, developed, and reaffirmed over a period of time.45 In this way the standards, values, and categories of culture are acquired unconsciously by individuals through a process of‘enculturation’.46 Following this logic, any reforms to values and beliefs embedded in culture must be undertaken gradually over a period of time to ensure that such reforms are accepted.47 Therefore, reforms undertaken to discourage attitudes in favour of the practice cannot be undertaken in a precipitous manner, and rather require long-term reform policies, and a constructive dialogue with relevant stakeholders in a community.48 In light of this, suggestions made by observer states under the first category to precipitously eliminate the cultural practice of FGM indicates that the observer states have not fully appreciated the nature of culture and process of enculturation, which deeply embeds the sympathetic attitudes held by individuals towards FGM.49 In fact, the observer states’ lack of appreciation of the nature of culture and the enculturation process, in relation to sympathetic attitudes towards FGM, confirms some of the theatrical critiques of the strict universalist position.50 Consequently, whilst the overwhelming acceptance of the recommendations from a strict universalist position may indicate a universal consensus on the issue, the underlying assumptions held by the states give reason to question whether recommendations issued by observer states under the first category are realistically attainable in the manner suggested.
The second significant aspect of discussions on FGM also emanated from states recognising the association between culture and FGM. However, in contrast to those observer states that used the link between FGM and culture to adopt a strict universalist position, Liberia, Mali, Central African Republic, and Gambia in the first cycle used the same association as a basis to challenge and refuse to accept the reforms suggested. In this way, whilst the states did not use culture to explicitly justify the practice, they used the association between FGM
Women’s Right to Health 93 and culture to explain why the practice continued to exist in the respective states under review. This with the fact that the recommendations were noted, gives reason to suggest the states implicitly challenged the suggested reforms to enact laws against the practice on the basis that the cultural nature of the practice hindered the implementation and acceptance of such laws. Whilst it is clear that neither of the states have directly and expressively adopted a strict cultural relativist position to justify FGM, the implications of the nature of the responses mean that the positions adopted by the states are open to the same profound criticism that are often subject to the strict cultural relativist position. One of the most profound criticisms of strict cultural relativism is the possibility of the notion of culture being invoked by, sometimes oppressive, states to justify ‘cruel and degrading practices’ and to deflect international scrutiny.51 The states noted above in their responses have used the cultural association of FGM as a basis to not accept the suggested reforms during their state reviews. In the second cycle, a slightly more nuanced form of response was provided by Indonesia, Sierra Leone, Somalia, and Gambia who refused to accept the recommendations, however, it was emphasised that the states were engaging in dialogue with the religious and cultural leaders with the view to eliminating the practice. There is arguably some merit in this response when compared to those states that noted the response in the previous cycle. Here, whilst the states have still noted the recommendations, the nature of the response is more subtle, and the language suggests there is clear intent in moving towards eliminating the practice. Indeed, it can be argued that engaging in a dialogue with the relevant stake holders, religious, and cultural leaders can be more of a productive method to help address the practice. Despite this reason for optimism, ultimately, the state has noted the recommendation and thereby has refused to undertake any suggestions for reforms from peers in relation to FGM. In this way, the extent of the reforms that will be implemented are restricted to the discretion of the state under review, and are not influenced by external sources. Thus, whilst the tone of the responses under the second cycle is slightly more subtle than those positions that are advocated by the states providing a similar response in the first cycle, ultimately, the association of FGM and culture is, albeit, more implicitly being used as a justification to not accept the recommendation.
The third position adopted by states can be described as being a more nuanced approach when discussing the issue of FGM and its association with culture. By far the most prevalent position adopted, by both states under review and observer states, during the discussions on FGM in both cycles is the recognition that the practice can be effectively eliminated through incremental reforms, recognised the significance of implementing incremental methods of reform to help modify cultural norms and attitudes that condone the practice. For instance, some states insisted that changes in the attitudes towards FGM needed to be instigated from within the culture itself. This was to be carried out by incorporating relevant stakeholders such as tribal chiefs, religious leaders, and FGM practitioners in a national dialogue as part of the reform process. More specifically, this means toundertake a dialogue with relevant stakeholders, including religious and cultural leaders, as well as public education and awareness-raising campaigns. This incremental nature of reforms was amongst the most popular forms of recommendations, categorised as number 2 for both cycles. Similarly, an A4 response whereby the states under review provided information as to the different policies, strategies, and dialogues that were being undertaken with the relevant stakeholders was similarly the most popular form of response over both cycles. In fact, even in the A5 response in the first cycle where the states directly acknowledged that the strong affiliation with the practice and cultural norm was making addressing the practice difficult, policies and strategies were in place to eliminate the practice. Going further, even when the states noted the recommendation, the most popular form of response provided was that incremental reforms were in place. In this way, it is clear that the most prevalent response over both cycles, regardless of whether the state is being reviewed or is a reviewer, or whether the recommendation is accepted or noted, recognised the significance of implementing incremental methods of reform to help modify cultural norms and attitudes that condone the practice.
The nature of this discussion held amongst states affiliates with the moderate cultural relativist position, which aims to implement reforms in a culturally legitimate manner.52 This is because one of the central premises of moderate cultural relativism is the belief that the only way of furthering universal human rights is to ground international human rights norms in cultural values and beliefs.53 One method of doing this is to undertake an internal discourse within the culture itself with the aim of reinterpreting certain values and beliefs, which are inconsistent with human rights law, to bring them in line with current international human rights standards.54 The fundamental aspect of such a discourse is that any reforms of cultural beliefs need to be undertaken from within the culture itself, by ‘internal actors’, to avoid the appearance of‘dictation by others’.55 Evidence of suggestions that affiliate with this internal discourse was recognised by some states during discussions on FGM, who encouraged a constructive dialogue between relevant stakeholders with the aim of changing sympathetic attitudes towards the practice.
The implications of states adopting a position that is comparable with the moderate cultural relativist position is that they indicate that some states in the UPR process recognise that international norms on FGM are more likely to be observed if such norms are rationalised at local level, so that the content and the goals of the norms are better understood by members of local societies.56 In this way, by encouraging the involvement of local leaders in the reform process, any suggested reinterpretations of cultural values and beliefs are more likely to be observed by individuals practising FGM.57 Further, evidence of states recognising the significance of an internal discourse on FGM indicates a substantial commitment by the states involved in ending the practice. This is because implementing policies and strategies with the aim of encouraging an internal dialogue to discourage FGM requires demanding levels of political, social, and economic commitment, through initiatives such as public awareness campaigns and engaging in a dialogue with relevant stakeholders. By comparison, acceptance of recommendations by states to enact laws arguably requires less commitment than those committing to reforms based on moderate cultural relativism.