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Universal Rights versus Cultural Relativism: A Continuing Debate

“Gender”

JU, SL

Part I: Feminism and Female Genital Mutilation

This section begins by reformulating the conflict between the objectives of human rights treaties, on the one hand, and customary laws and practices as well as religious beliefs on the other within the context of gender-related issues. As a starting point for discussion, Tracy Higgins problematizes contemporary feminist discourse by stating, “both the move to expand universal human rights to include those rights central to women’s condition and the move to a relativist view of human rights are consistent with and informed by feminist theory.” (405) In other words, when confronted with the challenge of cultural relativism, feminists must avoid simple tolerance of cultural difference, as it would ignore “pervasive limits on women’s freedom in the name of autonomy that exists for women in theory only.” (408) Additionally, they must be careful not to condemn cultural practices altogether as that would ignore the culturally variant experiences of women, which constitutes a central role in the discourse. As such, feminism is forced to walk a fine line between universalistic values and cultural sensitivity, an issue that is dominant in the debate concerning female genital mutilation.

On this subject, a variety of perspectives are presented in the text – each of which takes a slightly different slant on the debate mentioned above. After general background is provided on the practice from a medical standpoint, the issue of female genital mutilation [FGS] is framed according to the alleged rights that are violated with its practice (i.e. the rights of women, the rights of children, and the right to good health), on the one hand, and the arguments against these violations on the other. Kay Boulware-Miller argues the strengths of various approaches to condemning the practice within a cultural context. Isabelle Gunning points out the problem of placing responsibility on states for the actions of private actors. K. Hayter then brings to light the difficulties of condemning a practice like FGS when comparable, though arguably different, practices are accepted and condoned in the West (i.e. breast reduction and enhancement surgeries). An excerpt from a text presented by the Association of African Women for Research and Development takes up the issue of Western paternalism and argues for more understanding and increased involvement from ‘within.’ Hope Lewis expounds on the issue by advocating a more critical approach to the issue by Western opponents of FGS. Barbara Cossette investigates endogenous approaches to eliminating FGS through discussion of the methods of the Sabiny Elders Association in Uganda who have replaced FGS with a symbolic ritual to induct girls into womanhood. In a letter to the editor of the New York Times, an argument is made for avoiding ethnocentrism altogether. Finally, Yael Tamir presents an argument highlighting the immutable “deficiencies” that arise when any one culture attempts to appraise the cultural practices and norms of another by focusing on the disproportionate amount of attention given to FGS as compared to other global human rights violations.

Part II: The Tools of Change and Reservations

In the second part, Abdullahi Ahmed An-Na’im stresses that not only the state’s domestic laws have to be adapted according to the international law, but as well religious and customary laws. (426) He argues that since both, religious and customary, sources have been shaped and formed over a long time period, they can be changed through transforming the mainstream’s attitude and beliefs from within the system. This process is termed the ‘internal discourse’. In addition, he argues that an external discourse, a cross-cultural dialogue among the other traditions of the world should take place in order to support the internal discourse. When supporting the internal discourse, one has to be aware that any sense of ‘imperial’ interests would threaten the collapse of the internal discourse and jeopardize its achievements.

In “Testing the Limits of Tolerance as Cultures mix”, Barbara Crossette discusses the interaction between the mainstream and minority cultural activities within the US. While the majority of Americans have a very positive attitude towards new immigrants that strengthen their values, they tend to have, as Martha Minow points out, a negative view of cultural practices that they deem ‘nonmodern, nonscientific and nonrational’. (436) Anthropologists argue on the other hand, that as long as some social or cultural good can be attributed to a certain practice, they should be accepted within the US system. The great fear thus is though that this acceptance would cause the slow deterioration of ‘core American culture’. However, Urban Jonsson points out, that there is a ‘global moral minimum’ which is constituted by a common ground that can be found along the African, Asian and Western traditions. (437) From a different perspective though, the question still needs to be answered, as we have discussed in the last class, of who is in charge of the culture and whether or not the usage of these cultural practices is really in the interest of all members of a certain culture (e.g. asylum seekers).

After citing specific legal action that was taken by the US in order to prohibit Female Genital Mutilation, the book turns to evaluate the legal instrument of ‘reservation’ in connection with the CEDAW. No other HR treaty has received the same number of reservations as the CEDAW. As specified in the Vienna Convention on the Law of Treaties, Article 2(1)d, a state has the option to unilaterally exclude or modify the legal effect of the treaty through provisions. (439) The International Court of Justice, asked to clarify the legality of reservations, stressed that tolerance of reservations must be applied when dealing with humanitarian treaties, in order for the goal of ‘universality’ to be achieved. Consequently, instead for reservations to be only allowed if approved by every contracting party, reservations were permitted, as long as they do not prove to be “incompatible with the object and purpose of the present Convention” [CEDAW, Art. 28 (2)]. Rebecca Cook points out though that reservations that are compatible with the object and purpose of CEDAW still can free states from providing the means necessary to work progressively towards the goal of equality and elimination of all forms of discrimination against women. (441)

1. How could opponents of FGS balance progressive initiatives while maintaining sensitivity to cultural and individual autonomy? I.e. is there a less pervasive approach, such as promoting education, expanding economic options for women, etc.?

2. Is cultural relativism valid when the so-called ‘victims’ of FGS are not involved in the process of defining, shaping, and influencing the character of that culture?

3. Does Abdullahi Ahmed An-Nai’m’s approach on how to change religious and customary norms convince you? What are some of the key factors for achieving success?

4. Imagine you were Germany and had objected to the various reservations to the CEDAW as on page 444. You realize though that after having heard your objection, none of the states are going to withdraw their reservation. Would you apply other instruments trying to convince them to withdraw their reservation?

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