Whether a cultural pressure to practice female genital mutilation prevalent in a particular area has to be considered as a sufficient reason to grant asylum?

  • Emilija Liubinaitė
Keywords: Female genital mutilation, asylum law, cultural pressure, internal relocation, human rights violation

Abstract

The problem that is being analyzed in this article is whether a cultural pressure to practice female genital mutilation (hereinafter referred to as “FGM”) prevalent in a particular area has to be considered as a sufficient reason to grant asylum. The major purpose of this study is to determine whether the problem written above can be resolved while considering the following: reasons and consequences of FGM, forms of cultural pressure and how this pressure correlates with human rights and freedoms, conditions for granting asylum, scientific and case law sources. Two primary methods were employed in this study: comparative and analyzes of scientific articles, legal documents and case law to investigate key aspects of asylum and human rights law. The methods were implemented depending on specific research tasks. Initial hypothesis researched in this paper is that cultural pressure to practice FGM has to be considered as a sufficient reason to grant asylum if there is a real possibility of persecution. 

This article is composed of four chapters, each of them dealing with different stages of research. First chapter presents the concept of female genital mutilation and explains why this topic was chosen for study. Second chapter demonstrates reasons and consequences of FGM. Third chapter discusses forms of cultural pressure and how this pressure results to violation of fundamental human rights and freedoms. Forth chapter analyzes conditions for granting asylum, presents important case law decisions and compares scientists and courts positions. 

The research shows that there is a discussion in the asylum law cases whether under the provisions of Convention relating to the Status of Refugees adopted on 28 July 1951 FGM constitutes persecution, whether woman from a tribe where FGM is practiced is a member of a particular social group, whether she was being persecuted for reasons of membership of that group, whether her home country is unable or unwilling to protect her from such persecution and whether there is no possibility of internal relocation. Looking from the international human rights perspective, it is notable that asylum law is meant to protect individuals from fundamental human rights violations when their home country cannot do so. In the beginning, this protection was orientated to deal with consequences of World War II and its refugees that usually were persecuted for their race, religion, nationality or political opinion, however, when the situation has changed international community started to perceive other forms of persecution. While examining the conditions for granting asylum, this paper analyzes whether female genital mutilation procedure violates international human rights to such an extent that women from a community which uses cultural pressure to practice FGM are eligible for asylum.

The procedure of female genital mutilation is quite a cruel one: it is performed without anesthesia with any sharp object (kitchen knives, razor blades, scalpels, broken glass, sharp stones) in unsanitary conditions. During the procedure and after it women face short-term and long-term consequences such as excruciating pain, psychological trauma, pain or insensitivity during sexual intercourse, complications during childbirth, increased susceptibility to diseases and infections and even death. Hence, international organizations have recognized female genital mutilation as violation of human rights. However, there is still a question whether the cultural pressure to practice female genital mutilation also has to be considered as human rights violation.

This paper argues that communities, which practice FGM for reasons of marking their cultural identity, religion, tradition, patriarchal system, sexual control of a woman, make an intense cultural pressure on women which violates fundamental human rights such as right to life, bodily integrity, freedom and safety, right to be free from torture, cruel, inhuman or degrading treatment and when the procedure is performed on children plenty of international rights of the child set out in Convention of the Rights of Child are being violated. However, if a woman, her parents or relatives oppose the practice and refuse to perform FGM, the woman is usually separated from the community. This separation in Africa where community ties are especially strong results in other than FGM form of persecution – separation from land, other resources and protection which means separation from resources that are essential for living. Consequently, when there is no alternative to persecution the cultural pressure to practice female genital mutilation has to be considered as a sufficient reason to grant asylum.

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Published
2020-02-18
How to Cite
Liubinaitė, E. (2020). Whether a cultural pressure to practice female genital mutilation prevalent in a particular area has to be considered as a sufficient reason to grant asylum?. Law Review, 2(20), 68-104. https://doi.org/10.7220/2029-4239.20.4
Section
ARTICLES

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