If there is a separate convention outlining the rights of women and the elimination of the discrimination of women it implies that general human rights instruments fail to protect women. However, the Universal Declaration of Human Rights states that “all humans are entitled to all the rights and freedoms set forth” in the Declaration.[1] Sedley defines human rights as birthrights, in that we are all entitled to them freely and equally, rights are not something which should be earned. “Rights which are not recognised as universal cannot be human rights.”[2]
However, there are many factors which vary the importance or significance of rights to the individual, fundamental rights have changed over time, and will continue to change, when the Universal Declaration of Human Rights was first drafted in the 1940’s the intent was to protect individuals from State tyranny as seen in Communist and Fascist regimes. Nowadays the focus is more on using positive obligations to protect individuals from others, the state acts as the ‘guardian’. Fundamental rights also vary from culture to culture. For example the rights to vote or freedom of expression may be highly prioritised in developed States, but the right to freedom from slavery or forced labour is likely to be more relevant to individuals who are exploited in developing countries.
As Sedley states “the argument for universality foes not ignore these differentials.”[3] A further example of how rights have changed is the inclusion of gender under those protected from discrimination, when the Universal Declaration was drafted it would have been unthinkable to believe that women were oppressed or segregated in society in the same way as race and religion. However, certain cultures still carry the belief system of separating women and men’s equality, such as religious laws like Sharia. However, does this distinction between modern western ideology and cultures more resistant to change mean that non-western beliefs are wrong? This is where the margin of appreciation allows for cultural diversity, however, how can a right be universal if it is limited by the doctrines of the majority. Therefore if a majority of people believe that capital punishment is acceptable then does that negate the universality of the right to life? This example applies to the United States who have signed and ratified the Universal Declaration of Human Rights but many of its states still enforce the death penalty. Sedley defines one of the key characteristics of universality as “the non-negotiability of basic rights.”[4]
Furthermore, all rights are context based, as the right to life is negated by self-defence and can be derogated from in times of war or to quell a riot, also the prohibition of torture is defined as an ‘absolute right’, with no room for derogation, however many countries which have ratified the Universal Declaration still continue to use methods of inhumane or degrading treatment Therefore do human rights only work where they are recognised and enforced and the individuals from countries which do not enforce all rights and denied the universality of those rights?
[1] Universal Declaration of Human Rights, 10 December 1948, Article 2[2] The Rt Hon Lord Justice Sedley Are Human Rights Universal, and Does it Matter? (University of Birmingham 2005) 2[3] Ibid[4] Ibid 4
