Human Rights in the feminine. “The Female Circumcision” as a violation of women’s rights

The western influence, which was dominant, when the international rules about human rights first 
developed themselves, is now just one of the cultural influences in the development of international 
standards of human rights. Its contribute to the development of human rights was enormous, but not 
unique: other cultures brought significant contributes to the collective concept of human dignity. 
Although the western concept of human rights was introduced in the legal systems of many western 
cultures, through the colonialism and  of western cultural influence, it was not always an easy 
transposition. 
Human rights are still for many people of the Third World, an alien concept and an example of cultural 
imperialism. 
Besides, the assumed protection of human rights  has often been seen as a pretext for a continuous 
intervention of colonial  western powers in the  home affairs of these sovereign states. 
The traditional African culture was and is today consistent with human rights, but with an African 
conception of human rights, founded on an African context; and not on western rules, which englobe 
the Universal Declaration of Human Rights. 
We must acknowledge that in a multicultural world, every culture acknowledges human rights in its  
own way. 
If we turn towards a cultural  multiculturalism and oppose ourselves to cultural relativism, we are 
allowed to achieve a universal consensus, based on the human rights shared by different cultures. 
  It is essential to conciliate the concept of diversity with that of universality. 
We must respect other and different cultures, but this respect can’t be reconciled with practices such as 
the mutilation of feminine genitals, which violate the physical integrity of an individual. 
What is important is ,  in my opinion , the way in which we intervene in order to abolish  these 
practices, but without criticizing other  people’s culture. 
 It is necessary to carry out a discourse from an educational point of view: the countries which practise 
mutilation need a real development from a social and economical point of view. 
 We shouldn’t impose our culture, but on the contrary, we should try to adapt the international 
standards of human  rights to the real African social reality. 
This report is based on what the western world has begun to develop concretely to extirpate such 
practice. 
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In  America,  the law of precedents has been modified, thanks to the case of  a toganese girl who after 
many negative experiences,  managed to obtain political asylum. She escaped from her country because 
she was afraid of being subject to the practice of mutilation . Now the women who don’t want to be 
subject to such practice, can apply for  political asylum, claiming that they are persecuted, because of 
their status of women, belonging to a definite social group. 
Women must be allowed to express themselves: this practice cannot be perpetrated on little girls who 
can’t express their opinion, if  we want to achieve a  conscious consensus, also knowing  the different 
consequences of the practice, especially from a physical and psychical point of view. 
   In Europe, as we have already said, we have become acquainted with this practice through 
immigration. The rite is carried out illegally, because it is liable to penal prosecution. 
In the last years some specific rules have also been  issued to “ wipe out” the phenomenon in Europe 
(see the  case of  the United Kingdom and the resolution approved by the European Parliament in 2001, 
as regards the practice of mutilation and the possibility of applying for asylum. 
 However,  the legal instrument is neither sufficient nor effective. It addresses itself to people, who  
devoid of an adequate cultural level, are linked to tradition. In  Europe and in every other country of 
immigration, the  repetition of the phenomenon is also linked to the problem of the non integration of 
immigrates. It is likely that,  when the individual finds himself in a new cultural context, which is 
potentially hostile, or simply incomprehensible, he reads in his customs, the only true bondage, which 
still bounds himself in an indelible way to the culture from which it is drawn, and it is urged to put 
them into practice, even when they are in contrast with the local moral, or even with the law. 
   In order to understand better this phenomena, it is necessary to enter the African territory and to see 
that in the last years, some states have become aware of the phenomenon  trying to get rid of it. 
There are already some substantial laws in Sudan and in Somalia. In other states African women have 
become aware of the consequences of these rites and  have done everything possible to find some 
alternative rites of initiation which don’t violate the physical integrity of the person(see Gambia). 
This educational path to uproot  the custom of  the feminine genital mutilation, is a long path, but it has 
already given its  outcomes. 
Getting rid of cultural elements, which are so deeply rooted in the human conscience, is not an easy 
task, but  we know that one day this practice will be completely abandoned and that the  social status of 
the woman, will be at last recognized in the international scenery in a substantial way and not only 
formally. 
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1. What are  human rights: An introduction 
 
It is difficult to find a period in the history of humanity in which the issue of human rights had such 
great relevance in theory and in practice such as the period developing from 1948 until today. The 
question of human rights has never been the object of such great attention. 
  The universalization of the issue of human rights, a phenomenon peculiar of our era, was associated 
with the political and legal internalization of human rights. Human rights are no more  an object of 
interest from an historical, philosophical and doctrinal point of view, but they have become a subject, 
linked with substantial right and policy.  From a political and juridical point of view they evolved  from 
an exclusive subject of national right into international reality. 
There is no doubt that nowadays the issue of human rights is ruled mostly by international right. 
The history of human rights blends with the history of man. It mirrors the various stages which were 
marked by the evolution of thought in general and by praxis. The same religious, philosophical and 
political thoughts that analyze and explain the plot of the way of living in a society, are themselves the 
basis of human rights. 
These rights are articulated in ideas and concepts which forged and spread them,  and of devices which 
could express them and make them efficient as well. Great inventions and discoveries  marked and 
changed the life  of man. The great scientific and technological discoveries suppressed  man’s wonder. 
From a  finite world, in which  he was at first  situated, man saw the boundaries surrounding him, sink   
in the face of all scientific discoveries. 
But man has always remained the homo sapiens of 2000 years ago: his arms  got bigger owing to the 
invention of new utensils,  but his soul remained the same. This has caused a tragic and dangerous lack 
of equilibrium for the future of humanity. 
Obeying to a dialectical and contrasting law, which reacts against social  facts, some men and women 
felt even more determined to fight for the protection of the human being, in a place ,which is no more 
at the measure of man and that in each instant threatens and tries to annihilate them. 
These men and women try to protect the  human being behind a juridical barrier, made of their own 
values and of legal prescriptions, but unfortunately this barrier is in the hand of the will of the states 
which follow usually their interests and that cling to their sovereignty and to their claimed  and illusory 
equality. 
The crimes against humanity and the inequality, that the whole world knew in the recent past and that 
are in some respects still a cruel reality, strengthened  the willingness of men and women to engage 
themselves in favour of the rights of the human person. 
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 That’s why the past 40 years  were marked  by the constant effort to enunciate , promote, and protect 
the inalienable  rights of man and of peoples. 
The  United Nations had as regards this effort of reflection and of action,  a capital and determinant 
role. 
Every one tries to link the establishment of human rights and of far origins, which are a part of his 
culture and community. 
The Europeans link themselves to Greek and classic thought and Asian people to Confucius. The 
Africans affirm that the respect of the human person was prescribed  in the traditional societies of pre-
colonial Africa.. 
But the history of the rights doesn’t belong to any people: the rights of man are not exclusive of any 
epoch, of any place, of any culture. 
The Aristotelian  conception of natural right marks the crystallization of the belief in the existence and 
in the primary nature  of a right, which is the result of the nature of things of which the law of a society  
is the expression and a complement and  which supports in favour of what should or should not  be. 
Medieval society appears to us as a society whose basis principles are the opposite of the rights of man. 
It is essentially unjust and discriminating. 
“It is  completely/totally wrong  to find f the origins of the rights of man in social systems, which don’t 
know the fundamental condition of the existence of the rights of man, that is ’the idea of freedom and 
equality”. 
Equality and freedom have been conquered by men in recent times and the concept of solidarity was 
coined by ONU, as an international society organized for the necessities of survival. 
 
1.1 The evolution of the concept of human rights 
In the evolution of the concept of “human rights” there was the development of different theories, 
linked to different currents of thought or better the opposition  between di  blocks 
I would like to dwell briefly, only to understand better   the modern stage  of the issue of human rights,  
on how we arrived at the concept of universalization of human rights. 
The concept of human rights is analyzed  by the use of three visions: the western point of view, the 
socialist point of view and that of the countries of the Third World. 
Some criteria and doctrines  contributed to create the concept of human  rights in the western 
conception. The most important aspect of the western conception affirms that the existence of the rights 
and freedoms concerning human nature or the status of the individual, emerge  above the state and 
above  all political organizations. Such rights are attributed to the human being, and are not a 
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consequence of the  fact of being a citizen of a state. It is also said  that, the human  being is the subject 
of the international right. 
This vision of human rights is linked to the democratic tradition of western countries, which accepts the 
ideological and classical pluralism of a multiple-party  system. 
In the last thirty years the western conception has undergone an evolution that is from the old 
individual conception to a conception which acknowledges not only civic and political rights, but also 
the effectiveness of economic, social and cultural rights, since without them the civic rights don’t have 
a material basis and are a void and unreal formula . Some institutions ad hoc at an international level, 
were also created, in order to relieve the state from the problem of the protection of human rights. 
Western Europe is also a part of the western group. I mention it because there has been  in this area, a 
remarkable development in the field of the international protection of human rights at a regional level, 
as an example for the entire community. 
It is an example of the way in which we can operate on a local level, bearing always in our mind, the 
concept of universality. The two concepts are not in contrast, but on the contrary the two regimes can 
combine and harmonize  in different situations. 
The socialist conception exhibits a different approach, as regards the concept of human rights. 
The point of departure is the Marxist conception. Socialist theories don’t accept the origin of the 
natural right as a right of citizens; they don’t accept the idea that the right of citizens mirrors the 
relationship between man and society. The basis is society organized as a state: these rights should 
express the relationship between the state and the citizens. The stress is put on he role of the State, 
which put human rights in a different position as regards the western conception. The state represents 
the interests of the citizens, the citizens can’t have rights which are in contrast with those of the state. 
Besides, this basic  role, which is endowed to the state, denies(that there might be any form of 
international control. The individual must behave according to what is  prescribed by the state, because 
such behaviour conforms  to the interest of society’. 
The vision of the Third World shows some difficulties of analysis, because there are different forms of 
colonization, which had an influence on the creation of present society. There is not a shared concept  
on human rights, but there is a uniformity of conditions, such as underdevelopment, the political and 
economic situation, which allow a certain uniformity of approach as regards the issue of human rights. 
The social and economic reality of the Third World, leads  to give more and more importance to 
economic, social and cultural rights, which are at the basis of the formation of each individual. The idea 
of the economic development has the priority in the face of the warranty of civil and political rights. 
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Most of the countries of the Third World affirm that trying to solve the problems concerning  the 
malnutrition, poverty and education has the priority in the face of the statement of  formal rights, which 
are unknown, and which don’t meet the  interest of hungry  and ignorant  masses . 
Besides, we must also look at the political and social situation: there is a lack of institutional and 
administrative structures , which are   steady and efficient; there is a lack of respect of constitutional 
methods  and the unfree manifestation of the political thought. 
 
1.2  Definition of the rights of man 
We can’t give a satisfactory definition of  the “rights of man”. The problem lies in the fact that there 
isn’t a global concept which includes all the different cultures and societies’.” The expression “human 
rights” is a relative concept which varies in the different societies’, regions and circumstances. 
We can’t or at least we shouldn’t question the fact that in our planet there is a diversity of “cultures” or 
“civilizations”, but what is important is that what make men appear outwardly different, should be 
judged as something completely secondary, tin the  face of what makes them similar and equal. 
A nucleus of human rights is present in the most ‘primitive societies’, but the devices for the protection 
of these rights were elaborated later: each ethnic group, each ideology have tried to formulate some 
concepts and to put them at the service of the aim to be followed. The rights of man are so subject to 
everlasting tensions around which there is the creation of schools and tendencies that in any case  
collide with the new idea of universalism. 
In recent times we have arrived at a global conception, at a sort of synthesis imposed by the evolution 
of humanity towards a unique world. 
This conception of universalism developed from the crash of the Soviet Union, from the end of the 
contrast  between the two blocks of West and East: we have no more a bipolar vision and we can 
consider the human rights in a global and universal vision, respecting nevertheless the different cultures 
and civilizations. 
   The new development and the new attention drawn on human rights must be characterized by a cross-
cultural dialogue, which leads  to the sharing of values, which can be  regarded as universal and be 
protected: it is only through the interaction between cultures that we are allowed to establish a dialogue 
and a mutual knowledge, from which rises a multicultural society which learns from the “other” and 
that can enrich and improve “another society”. 
At present  the rights of man, are mainly the result of treatises and conventions freely ratified by the 
states, and  by the rules, which are a part of several customs as well 
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The rights of man appear, thus, as a coherent group of fundamental juridical principles, that are applied  
in the whole world, both to individuals, and peoples and that aim at the protection of  the claims, which 
concern man and all men regarded collectively on the basis of  the existence of a human dignity, which 
is part of their person and justified by human condition.  
Of the acknowledged prerogative, an individual or more than an individual, considered collectively and 
the human condition are peculiar characteristics of human rights. 
For claims  we mean the legal power to make or not to make something, or to demand or not a 
performance. The rights of man and of peoples, exhibit  a beneficiary (individual or group of 
individuals) and a lender(mainly the political powers). 
The beneficiary must be able to perform certain acts or  to refrain, without forbidding or limiting his 
behaviour. It is the law that imposes some limits to human behaviour and that specifies the forbidden 
behaviours. 
The beneficiary  mustn’t abuse of the powers which  were attributed to him, because he can harm other 
individuals. In order to make life possible in a society, it is necessary to limit the exercise  of  the 
natural rights of each man, by some rights, which ensure to other members of society “the exercise  of 
the same rights. 
In general, public order and the rights of third parties, are the frontiers inaccessible of all rights of man 
and some peoples. The intervention of the state must be balanced, by referring to the prerogatives of  
the state, which are however put into comparison with the rights of man and the rights of third parties. 
The prerogatives, above mentioned, exist only because they are recognized. It is this acknowledgement 
that transforms them into rights of man, in some way comes true  the translation from rights of pre-
right to a state of right. 
The acknowledgement of these prerogative must have an ‘international effect. The rights of man not 
only concern the states regarded in isolation. The duty to respect these rights goes beyond the national 
boundaries. The rights  of man are considered accepted by the states that form the current  international 
society, which present itself as a community based essentially on solidarity.’ 
 In order to make human rights a juridical reality, there must be a society organized under the form of a 
state of right. The international society is based on the principle of sovereign equality and on the 
principle of non-intervention. This implies that a state can’t be linked to decisions that it didn’t accept. 
It also means that the rights of man exist only as far as a state accepted it at the level of national 
legislation. 
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However, it is necessary  to make a clarification the international right based on customs and treatises, 
absorbed a part of the national rights concerning the rights of man, thus these rights are no more of 
national competence, but they solve  on an international level. 
A part of these rights is constituted by the fundamental rights of man, such as the common values of 
human society.  No state can   claim its sovereignty  for the violation of these rights and  each 
individual is a beneficiary of it, without considering his nationality.’. 
Besides, in the case of a systematic violation of these rights, the intervention of the international 
community for means different from the use of force, is justified. 
In conclusion, when we deal with human rights, with systematic violations of these rights or the rights 
of peoples, we don’t need the recognition of these rights ,on the level of state, to attribute them a 
judicial life, but we must refer to the general international right. 
The international right knows, traditionally ,as subjects, the states and international organizations. It is 
only with hesitation that he takes an interest in  individuals. 
 At first, it was only in the name of humanitarian actions and for the protection of certain natural rights. 
The situation has undergone an evolution, since the Second War  World giving a greater and greater 
space to the individual and to his rights. With the punishment of the Crimes of war, the protection of 
human rights has opposed the principle that stated that the individuals can’t have neither rights, nor 
obligations in the international right. 
The human rights are linked to human condition, which is the foundation of the principle of equality. 
The human condition is necessary and sufficient for the exercise of the rights of man. 
According to Art.1 and 2 of the Universal  Declaration of the Rights of Man” all human beings were 
born free and equal in their dignity and rights and “everyone can enjoy all the rights and freedoms 
proclaimed in the present Declaration, without any distinction”. 
Men have some rights because they are equal and free because they are men. 
There exists an etymological controversy in the word man, which is interpreted with a sex tendency. 
Nobody has wanted, in the formulation of such precepts to give an accession linked to sex. These are 
rights that express the human condition without any distinction of sex, race, colour, religion, political 
opinion or another opinion and whatever other status. 
Nowadays, there is an international right of man and peoples. Such right results from treatises, ratified 
freely by the states and by the international customs. Besides, there are principles regarding the rights 
of man and of peoples. 
These principles constitute themselves also a rights and are treated in the same way. Nobody can 
oppose them or violate without incurring into sanctions. 
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What is really important is that the  application of the rights of man should be granted by a system of 
effective protection. 
 
1.3. The concept of universalism of the human rights  
 
Such concept has developed from the bringing into action of the Universal Declaration  
of 1948. People believed they were able  to create a universal system  
common to all the human beings.  
The Universal Declaration is the product  of many ideologies: the point of encounter and of  
connection of various conceptions of man and of society. We can notice  the lack of a great 
rhetorical: this is  due  to the necessity of speaking to billions of people with  different  
religions, culture, social traditions, institutions and politics. 
. It is a Decalogue for five billions of individuals. It had  the merit to constitute one of the 
factors of unification of humanity.  
Such Declaration does not bind the states in an onerous way: it binds only with its moral and 
political weight. The other pacts that were gradually stipulated between the states have a 
more intense value because they impose  juridical compulsory imperatives, but are weaker  
because they tie only the states  which adhere to such pacts.  
It is a utopia to speak of universalism: there are some precepts accepted by all the states  
but the various cultural and ideological conceptions do not allow to speak of universality of the 
human rights. We can try to find points in common but we cannot still create some  total 
human rights.  
 
1.4. Multiplication and specification of the human rights of women  
The phenomenon of the multiplication and the specification of the rights can be put surely into 
connection, with the increasing number of conditions , deserving protection 
by the legal order both with the widening of the title of some typical rights to subjects others 
than man. But it is above all the current impossibility  to  regard the individual as a generic 
entity or as a subject  in an abstract sense, to have imposed to the international legislator to 
look at the specificity and at the concreteness of the different modalities of the being in 
society.  
The most concrete manifestation of the phenomenon of the multiplication of the rights  
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for specification,  is given  by the proliferation in the international field of a series of legal 
instruments which are directed to the protection of various subjects. Particularly meaningful 
was the normative production  which addresses  to women, by the international community. 
The United Nations have in fact reserved,  in the last decades to women , a  really consistent 
number of recommendations, of declarations and of sectorial conventions, so that we can 
refer to a unitary  corpus of norms , which constitute an international code.  
The feminist critic  has raised issues concerning the different treatment in  the development of 
human rights of women against he rights of which men are the natural beneficiaries. 
From more than one side it has been found that the rights of women are also based on 
concrete experiences, but unlikely men, the violations of which they are victims, have often 
not been taken into account on the legal and judicial plan.  
The fundamental assumption results from the acknowledgment that  the feminine, condition  
given  also the various distinctions, exhibits  universal characters. Women endure 
discriminations and violences with modalities that often don’t touch men since to a wide 
extent the abuses of power of which they are victims are of a sexual and reproductive nature. 
These abuses show themselves  in forms, ways and circumstances, that although re-entering 
in whatever  official convention on the human rights have not found a right consideration on 
an international level, if not very rarely, first of all because  they were committed really at the 
damage of women.  
We can also say that  the most numerous are the violations at the expense of a social group, 
as are women.  
Paradoxically , it is less easy  to pursue on a penal plan certain behaviours, because such 
behaviours are widely perceived and are shaped like elements of normality.  
 
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