The Limitations of Universal Human Rights: A Critical Examination through Intersectionality
Introduction:
The Theory of Intersectionality was developed by Kimberle Crenshaw in 1989, to provide a critical framework for understanding how multiple forms of discrimination intersect to compound the structural disadvantage minority individuals may face.1 The theory was primarily developed in response to the insufficient human rights measures that were in place to protect the interests of black women.2 Crenshaw outlined that while race and gender were protected characteristics under international human rights frameworks, their complex intersection and the unique struggles and barriers this creates for women of colour were not adequately recognised nor protected.3 While the theory of intersectionality provides a critical lens for considering the inadequacies and pitfalls of human rights doctrines, many international doctrines have remained resistant to thorough implementation of the theory. Thielen describes this resistance as implementation of the theory on a predominantly superficial level, with many international institutions having adopted intersectionality without sufficiently embracing its radical, political, and theoretical underpinnings.4 This depoliticization of a theory that has been historically grounded in addressing copious systemic inequality, is a direct result of international bodies aiming to adopt a neutral stance regarding the implementation of human rights, effectively distorting the emancipatory potential of intersectional theory.5
The Universal Declaration of Human Rights (UDHR) protects the widespread inherency of human rights, regardless of nationality, sex, ethnicity, colour, religion, language, or any other status.6 While this ‘colour-blind’ view of universally applicable rights, aims to protect all individuals regardless of identities, it fails to recognise the dynamic and unique experience faced by intersectional minority groups. The compounded disadvantage such individuals may encounter when compared with individuals who experience discrimination or disadvantage based on an isolated factor, is not adequately recognised nor remedied. Although intersectional theory has posed difficulties for the development of human rights, due to the fact development has occurred in a predominantly binary fashion, the application of the theory allows for protection against intersectional discrimination and can address the current inadequacies within international human rights frameworks.
The Challenges of Integrating Intersectional Theory with International Human Rights Law
International human rights frameworks tend to be broad in nature, essentially offering a one-size-fits-all approach, treating all individuals equally despite differences in personal characteristics or identities. The principle of universalism has long been enshrined in international documents like the UDHR7 and the International Covenant on Civil and Political Rights.8 Conversely, the theory of intersectionality is based on the meticulous consideration of personal characteristics and identities, and how the intersection between such engenders unique and compounded inequitable experiences for minority individuals. Intersectional theory emphasises contextual and particularised experiences of oppression, rather than treating individuals as if they fit into singular categories. Mutua illustrates the problematic nature of the concept of universalism by highlighting the tensions between the ideals of universal human rights and the realities of cultural relativism.9 Mutua acknowledges the advancements that have been made in the application of human rights due to the applicability of universalism, such as the abolition of sectarian and exclusionary practices.10 However, it is argued that the vast implementation of universalism fails to implement a nuanced approach to human rights which considers cultural diversity, respects cultural differences, and integrates such within the global human rights framework.11 This limitation is evident when considering the ‘meagre’ implementation of intersectional theory. While intersectional theory has been demonstrated to advance the rights of compounded minorities and dismantle ingrained systems of oppression, the current entrenched concept of universalism presents a barrier to its successful application.
Furthermore, the concept of intersectional theory operates with flexible, fluid, and evolving concepts of self-identity, focusing on how multiple forms of discrimination compound to create unique experiences of disadvantage. In contrast, international human rights frameworks are structured around rigid legal definitions, where possible violations are outlined in clear and measurable circumstances. This unyielding approach to considering violations of human rights whereby discrimination is based solely on singular criteria, risks development occurring in a piecemeal fashion. The nuance of each individual’s experience is essentially obscured by inflexible practices and procedures, which fail to account for a variety of violations occurring simultaneously. This emphasises the copious limitations of radical universalism, which requires a rigid hierarchal ordering of the various moral communities to which an individual belongs.12 In considering this inflexible definitional dilemma, the work of Patricia Hill Collins considers the practical challenges in merging intersectional theory with rigid definitions of human rights law.13 Primarily, Collins addressed the tension between viewing intersectionality as a structural concept as opposed to a more individual or identity-based one.14 However, while challenges of applying intersectional theory to international human rights frameworks are noted, the prevailing emphasis remains to be that intersectionality is not a static or monolithic concept, but rather a dynamic and evolving framework that requires careful consideration of context and power relations.15
Analysis: Considering Intersectional Theory from a Critical Feminist Perspective
Since the conception of international human rights doctrines, barriers have existed, precluding women’s access to their fundamental human rights. The objective of facilitating accessibility has been the focus of multiple laws. The ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been one of the most monumental attempts at addressing these copious barriers that many women face in accessing fundamental rights.16 Indeed, while women have inarguably faced discrimination that cannot be equally extended to their male counterparts, women of colour, religious minorities, queer women and disabled women have faced compounded disadvantage that has not been recognised by international instruments. The work of feminist scholars has initiated advancement in this despondent area, the development of CEDAW along with other similar treaties is evident of this. However, the application of feminist scholar Kimberle Crenshaw’s intersectional theory provides a radical approach to the current defective system that fails to address the needs of minority women.
In considering the case of Sahin v Turkey,17 the unique barrier to education that a woman of a religious minority experienced was not recognised by the UCtHR. The case involved a petition to the court by Layla Sahin, that her university’s policy on the banning of headscarves violated her rights to freedom of religion and her right to education, under the European Convention on Human Rights (ECHR).18 The Court ruled in favour of Turkey, finding that the university’s headscarf ban was necessary to maintain secularism in the public community, which is a principle upheld by Turkish law. What the Court failed to recognise, was that this limitation placed on Ms Sahin was a direct result of her intersectional identity, namely her gender and religious status. Ms Sahin’s discrimination did not materialise as a result of her gender or her religious status in isolation, as the policy did not affect Muslim men, nor did it affect non-Muslim women. Thus, the unique disadvantage that she faced was a direct result of the intersection between her gender and her religious identity. The current international frameworks (UDHR and ECHR) copiously failed to recognise this direct discrimination of a woman of intersectional identity, as the discrimination was not a direct result of her gender or religious status in isolation. This highlights the copious defects of the current doctrines, by which adopting an intersectional approach could largely mitigate such failures. This case demonstrated a clear example of the dangers of viewing ‘womanhood’ from a monolithic view. International human rights systems must consider the compounded discrimination women face when they possess multiple marginalised identities, as the current framework fails to address the nuanced realities of women experiencing overlapping forms of oppression.19
Recommendations: Applying Intersectional Theory to International Human Rights Law
As discussed, the concept of universalism enshrined within the UDHR often has the unintended consequence of precluding protection for a myriad of forms of discrimination that marginalised people who hold an intersectional identity experience. The application of intersectional theory to international human rights mechanisms creates a system which can better identify and address the unique challenges faced by individuals with intersecting marginalised identities.20 This inclusion can lead to more effective strategies for promoting equality and safeguarding human rights.21 Primarily, a current issue in international human rights frameworks is identified by Perguini and Gordon, they assert that the concept of human rights has been designated by powerful countries and institutions to maintain and justify their control over marginalised groups.22 Rather than functioning in the intended emancipatory manner, human rights frameworks have been employed to reinforce the status quo by ultimately reflecting the intentions of the dominant powers.23 These powers reaffirm the distinct ‘groups’ or ‘grounds for discrimination’ that are often outlined in international frameworks. Intersectional theory can help combat this restrictive approach to human rights by promoting the self-identification of individuals and allowing recognition of discrimination that arises as a result of intersectional disadvantage rather than as a result of an isolated and pre-established factor.
Considering the tendency of international frameworks to legislate for discrimination on a single-axis model, a divergence in drafting protections based on intersectional approaches must ensue. As outlined by academics, the concept of intersectional theory has deep roots in academic and activist work, however, it has gradually begun to establish roots in international human rights law.24 With global bodies employing an intersectional lens, greater guidance involving intrinsic and valuable nuance can be offered to Member States.25 However, amelioration has been slow and ensuring adequate implementation can only be achieved by enhanced collaboration between scholars and legal practitioners.26 Essentially, intersectional theory calls for a holistic approach by international institutions. Primarily, by recognising the multiple identities of marginalised groups, whether self-identified or not, and by ensuring the intersectional nature of these is adequately protected in international human rights frameworks. For this to be possible, the rigid nature of legal definitions in this area must be malleable, as the current static nature of such, in addition to the unilateral categories in which individuals can experience discrimination, do not account for nuanced breaches of human rights.
Furthermore, it is argued that successful implementation of intersectional theory requires ample consultation with the voices of marginalised communities, given that these have typically been the perspectives that have been circumvented during the drafting of international human rights frameworks. Intersectional theory, when implemented practically, provides an avenue to promoting substantive equality, and encourages participation by diverse individuals in employing fair procedures for possible intersectional breaches of human rights.27 By ensuring that an extensive range of perspectives is brought before judicial and quasi-judicial authorities, intersectional theory provides a framework to expansively prevent and remedy inequalities.28 Systemic change cannot be effectuated in isolation of marginalised perspectives, as the enduring prejudiced view of powerful institutions has continuously failed to recognise nuanced intersectional forms of discrimination throughout history.
Conclusion
International human rights frameworks have copiously resisted the objectives of intersectional theory, instead upholding the concept of universalism. While the concept of universalism undeniably has admirable intentions of ensuring protection for all individuals regardless of personal identities. The theory exerts the copious failure of addressing discrimination in isolated categories, which fails to recognise cultural relativism and the nuanced nature of marginalised affliction.29 Additionally, given the fluid and evolving nature of intersectional theory, rigid definitions of international law pose resistance to successful implementation in human rights frameworks. However, the current single-axis system of identification for possibilities of discrimination must be amended. As outlined in the case of Sahin v Turkey,30 recognising breaches of human rights on isolated factors alone fails to protect marginalised individuals whose discrimination arises as a result of their intersectional identity. Opportunities for improvement lie in permitting extensive consultation with marginalised groups during the drafting of international doctrines. As outlined by Perguini and Gordon, the concept of human rights has been designated by powerful countries and institutions to maintain and justify their control over marginalised groups. Thus, the only ethical manner of advancement remains to be the promotion of ample consultation with the perspectives of marginalised communities when implementing intersectional theory in international frameworks.
Bibliography:
1 Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1(8) University of Chicago Legal Forum 139.
2 Ibid.
3 Ibid.
4 Jens T. Thielen, ‘Intersectionality’s Travels to International Human Rights Law’ (2024) 45(2) Michigan Journal of International Law, 233.
5 Ibid.
6 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA RES 217 A (III) (UDHR) art 2.
7 Supra 6.
8 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 2.
9 Makau Mutua, The Complexity of Universalism in Human Rights (Dordect: Springer Netherlands 2004) 51- 64.
10 Ibid.
11 Ibid.
12 Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’ (1984) 6(4) Human Rights Quarterly 400.
13 Patricia Hill Collins, ‘Intersectionality’s Definitional Dilemmas’ (2015) 41(1) Annual Review of Sociology 1.
14 Ibid.
15 Ibid.
16 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol 1249, p 13.
17 Leyla Şahin v Turkey [GC], No 44774/98, ECHR 2005-XI, 819.
18 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9, art 2.
19 Joana Stelzer and Gabriela M. Kyrillos, ‘Inclusion of intersectionality in the scope of human rights’ (2021) 12 Revista Direito e Práxis 237.
20 Ibid.
21 Ibid.
22 Nicola Perugini and Neve Gordon, The Human Right to Dominate (OUP 2015).
23 Ibid.
24 Antonjica Petricusic, ‘From Theory to Practice: The Deployment of Intersectionality in International Human Rights Policy’ (2024) 10 Berkeley Women’s Law Journal 16.
25 Ibid.
26 Ibid.
27 Ivona Truscan and Joanna Bourke-Martignoni, ‘International Human Rights Law and Intersectional Discrimination’ (1995) 10 Berkeley Women’s Law Journal 16.
28 Ibid.
29 Supra 9.
30 Supra 17.