Human Rights principles applied to the protection of WHRDs

Inalienability and universality

Human rights are fundamental rights everyone has by virtue of being human. They are inherent and inalienable in every person regardless of their status in any given society. Human rights cannot be granted or withdrawn or taken away. They are enshrined in the Universal Declaration on Human Rights, and subsequently in conventions and treaties such as: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).

Many states and human rights experts assert that the universal nature of human rights is beyond question. States have repeatedly proclaimed their acceptance by subscribing to the Universal Declaration on Human Rights, the ICCPR, and the ICESCR (referred to as the International Bill of Human Rights) and incorporating these human rights into national constitutions or domestic laws.

Furthermore, the principle of non-discrimination on the grounds of sex, gender or any other distinction, which is codified in the UN Charter and the Universal Declaration on Human Rights, clearly establishes the inclusion of women in the universal application of human rights. The Vienna Declaration and Programme of Action also explicitly state that women’s human rights are ‘an inalienable, integral and indivisible part of universal human rights’[1].

Despite these pronouncements, there remains a tension between the affirmation of the universality of rights, and the need to create space for cultural differences and diversity. Embracing cultural relativism, some governments argue that human rights are not universal, but a product of the West. They contend, human rights do not apply to all, but are culturally specific to the West or Global North. This argument is particularly problematic for women Human Rights Defenders.

The enactment of CEDAW in 1981[2] addresses this tension between human rights and culture. The CEDAW Committee, which monitors the implementation of the Convention, has categorically stated that traditional, religious or cultural practices cannot be used to justify discrimination against women. Article 5 stipulates that states shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women that are linked to inequality between sexes and gender stereotypes. Hence, reservations made by governments under Articles 2 and 16 of CEDAW on cultural or religious grounds are considered incompatible with the object and purpose of the Convention. (Odhikar 2009)

Indivisibility

Indivisibility of human rights means that human rights are interdependent and interrelated so the international community must treat these rights on the same footing, in a fair and equal manner, and with the same emphasis. This human rights principle however, is far from practiced. In reality, there has been a hierarchy in the promotion of human rights based on the private and public divide embedded in international human rights law. Civil and political rights, generally regarded as ‘public’, are given primacy over economic, social and cultural rights which are viewed as pertaining to the ‘private’ sphere or as unjustifiable.

This hierarchy disadvantages women given that most economic, social or cultural rights apply more often to their lives than to men’s. Moreover, rights that are more pertinent to them such as reproductive rights or sexual rights have been marginalised in mainstream human rights frameworks. For women’s human rights activists, dismantling the hierarchy of rights and the division between private and public domains is essential to ensure their safety and protection. This is especially true for those WHRDs who espouse more controversial women’s human rights concerns such as reproductive rights, women’s rights in marriage, and equal access to property and inheritance.

Equality and Non-discrimination

Articles 1 of the Universal Declaration on Human Rights[3] provides that: ‘All human beings are born free and equal in dignity and right.’ Article 2 states that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind such as race, colour or sex. This principle is premised on the notion that all human beings are free to develop their personal abilities and make choices without the limitations set by stereotypes, rigid gender roles and prejudices. In particular, gender equality pertains to a condition of equality between individuals and groups who hold different gender identities, but each have equal status, rights, and access to power and resources.

Feminists examined three different approaches or interpretations of gender equality, which significantly advanced the concept of equality within the human rights framework. One approach to equality is an approach wherein men and women, while initially different physically and socially, should eventually aspire to be the same. This approach maintains that women can be like men, too, so programmes and actions are geared implicitly towards making women comply to male standards in order to attain gender equality. The other approach recognises that women and men are different. From a protectionist approach, such differences account for differing treatment between the sexes, with the need to protect women or create safe spaces for them in order to ensure gender equality. A corrective or substantive approach also recognises the historical, present, and multiple differences between and among the sexes. Instead of maintaining that each sex should be treated differently, it advocates for pursuing measures that provide real options or create enabling conditions that will correct these differences and achieve equality between men and women.[4]

Inter-sectionalism

Central to the realisation of the human rights of women is an understanding that women do not experience discrimination and other forms of human rights violations solely on the grounds of gender. They are also discriminated upon because of age, disability, race, ethnicity, caste, class, national origin, sexual orientation, or some other status. Often, the social, economic and political systems that maintain the inequality between men and women intersect with those that allow the domination of a certain race, class, or ethnicity.

The Beijing Declaration[5] articulates the elements of this intersectional approach. It calls for governments to ‘intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people’. The Commission on the Status of Women, which monitors the implementation of the Beijing Platform for Action and related documents, also monitors how governments and other duty holders have addressed the various ways in which multiple forms of discrimination adversely affect women’s enjoyment of their human rights.

An intersectional approach analyses the disempowerment of women and other marginalized groups by identifying the interaction between two or more forms of subordination. It addresses the manner in which different discriminatory systems on the basis of gender, class, race, ethnicity, and others intersect and create inequalities that structure multiple forms of discrimination. This approach examines the way that specific acts and policies operate together to create further disempowerment[6].

For WHRDs, applying the concept of intersectionalism generates a nuanced understanding of the human rights principles of universality, indivisibility and equality, which reflects upon the multiple identities of human beings and the diversity of experiences, even just among women. It demonstrates how these multiple identities can lead to multiple or differing relationships of power and inequality that call for multi-layered strategies for their protection.

Well-being

The current male-centered conceptualization of human rights does not include the concept of well-being. Accountability for violations and abuses of human rights has been largely defined in terms of those that are inflicted upon victims. No state obligation has been explicitly formulated to address incidents of chronic stress, exposure to trauma or burn-out, or issues around self-esteem or non-recognition, which are abuses that do not necessarily involve a perpetrator and a victim. Even the recent UN Declaration on Human Rights Defenders only refers to violations, and does not look into measures that would ensure the well-being of activists.

Paragraph 89 of the Beijing Platform for Action provides the closest articulation of well-being as a component of the human right to health. It states: «Women have the right to the enjoyment of the highest attainable standard of physical and mental health. The enjoyment of this right is vital to their life and well-being and their ability to participate in all areas of public and private life. Health is a state of complete physical, mental and social well-being, not merely the absence of disease or infirmity. Women’s health involves their emotional, social and physical well-being and is determined by the social and political context of their lives, as well as by biology.»[7]

Asserting that the attainment of ‘a state of complete physical, mental and social well-being’ is a human right would go a long way in the protection of Women Human Rights Defenders. It would oblige the public and private sectors to develop programmes, activities, and allocate resources that respond not only to human rights violations, but proactively ensure a secure and dignified life for activists.

As demonstrated in this chapter, the new concepts introduced as a result of the advocacy for women’s human rights and sexual rights have enriched the interpretation of human rights standards. Women Human Rights Defenders will do well to further this advancement in order to attain a more holistic understanding and realisation of all human rights.

[1] Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, Article 18.

[2] Original report found in; http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx

[3] Copy of the declaration found in http://www.un.org/en/universal-declaration-human-rights/

[4] CEDAW: Restoring Rights to Women, Partners for Law in Development (PLD)/UN Development Fund for Women (UNIFEM) (2004).

[5] Beijing Declaration, Fourth World Conference on Women, Beijing, China, September 1995, Article 32.

[6] Background Briefing on Intersectionality, Center for Women’s Global Leadership: Working Group on Women and Human Rights, http://www.cwgl.rutgers.edu/globalcenter/policy/bkgdbrfintersec.html

[7] Beijing Declaration, Fourth World Conference on Women, Beijing, China, September 1995, para 89