In this sense, the founding document (or as Entman might put it, the inaugural ‘communicating text’) of international human rights law (the Universal Declaration of Human Rights, UDHR) functions as a particularly potent form of framing, for it selects aspects of perceived reality, making them not just salient but symbolically central to the entire philosophical, moral, juridical order designated by the term ‘international human rights law’.
Grear 2012
Last month, we discussed social justice and intersectionality, envisioning a holism that might result in a different way of framing social justice. This month, inspired by South Africa’s commemoration of Human Rights Day on 21th March, we explore what intersectionality might mean, both in the theory and practice of human rights.
Envisioning Rights
Born in the mid-20th century, subsequent to and because of the Second World War, human rights were founded on a principle of universality. All humans, the argument went, are equal.
The opening preamble of the Universal Declaration of Human Rights (UDHR) recognised that “the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Notwithstanding our racial, sex, religious, national and other differences, humans were to be understood as part of the same “family”. Never again were members of our species going to be victimised and persecuted in the way the Jewish people were during the holocaust.
This served an important unifying purpose in the immediate aftermath of the Second World War. Solidarity and collaboration between politically and economically aligned nations was the order of the day—though tensions between the so-called West and the USSR were running high. It was a powerful ideal that has served us in promoting justice and equality around the world for many decades.
Yet the human rights regime has not been without its objectors (Langford 2018; Arendt 1951; Posner 2014). Critics have taken issue with aspects of the human rights approach and its apparatus. For instance, some have highlighted the catch-22 presented by the United Nations’ mandate of sovereign equality. Essentially, the enforcement of all UN declarations is delegated to member states themselves, whose territorial integrity and political independence are guaranteed under international law, preventing outside interference. This legal bind means that states are both the day-to-day enforcers of human rights and, occasionally, the worst human rights offenders.
Moreover, the western liberal ideological bias in international human rights law allows for the selective prioritisation of political over social or economic rights, which misses the point. Human rights are interconnected. Impoverished communities lacking access to basic necessities may not be able to effectively exercise their political voice. Similarly, economic rights do not guarantee protections against racism, sexism, homophobia or xenophobia.
A more theoretical and foundational concern about the underlying premise of the UDHR is eloquently illustrated by the proliferation of declarations protecting individual vulnerable groups in the following years. Their existence points to intrinsic hierarchies embedded in the practice of human rights: these groups were not, in fact, protected under the original declaration. Invoking an idealised “human family” and prohibiting discrimination on the basis of membership in a protected group was not, it seems, enough.
As Anne Grear writes, “the hierarchies and asymmetries observable in international human rights law… reflect agendas far removed from the affirmation of the equal worth and dignity of all members of the ‘human family’”. With each subsequent amendment, the global human rights regime inadvertently produces and reproduces a host of marginalised others (women, disabled, refugees, queer folks etc.) that then require explicit inclusion. The naming of specific categories points to the UDHR’s blind spots and the betrayal of its promise to universality. In other words, if the Universal Declaration of Human Rights were truly universal, there would be no need for these separate declarations.
Reframing Rights
Perhaps, the human rights regime’s original, humanist approach failed to account for the particular needs of vulnerable groups because it tended to ignore the structures that render humans unequal. In response, we suggest, intersectionality might take the focus off individual characteristics and put it on these structures instead. Addressing the root of the problem rather than its symptoms.
We acknowledge that there is no ‘magic bullet’ to realising a rights regime that addresses the entirety of the lived human experience. Yet what intersectionality offers is a recognition of the nuances and complexities of the structural inequalities that render some human experiences invisible or unimportant. Acknowledging the different ways in which individuals experience legal regimes depending on their overlapping identities of race, sex/gender expression, class, religion, nationality, socio-economic, sexuality etc., might help us move the needle towards a genuinely universal and encompassing framework for rights.
In our previous issue, we argued in favour of a holistic kind of justice – social justice that accounts for solidarity between migrants and hosts and moves beyond the headline grabbing enmity between them. A similar argument might be made in the pursuance of rights. Maybe the best route to justice and equity is exploiting the overlap between rights categories, the overlaps between the rights of migrants and those of hosts. Rather than being mutually exclusive or reducible to a zero sum calculation, rights must be practised holistically, multiply, simultaneously. Intersectionality is fundamentally about coalition building, finding common ground across differences. With this lens, perhaps the universal aspirations of the UDHR might one day be achieved.
What do you think?
The conundrum of human rights was difficult to grapple with, as it has been for philosophers and lawyers since its inception. We can only offer a morsel of that decades long debate and perhaps shed some light on how it might progress in the future.
What are your thoughts on the Issue?
How might we resolve the inherent tension between universalism and particularity in the rights framework?
What, if any, insight does intersectionality provide?
We’d love to hear from you.