International documents and institutions should recognize and protect human rights. But what if they are instead creating them? And what effects does this have on other human rights?
Historically, acts such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, or the Convention of the Rights of the Child aimed to recognize fundamental human rights and emphasize the state’s responsibility to protect them. Nowadays, however, one might instead observe a process that could be described as the creation of so-called “new rights”. Considering the educational and social function of law, the question about the order in which legislative solutions are introduced arises. Are they created when public opinion supports them? Or does support for them only grow when they are already introduced and recognized as the applicable norm?
In the legislation regarding controversial matters, lobbying methods clearly play a crucial role. Clifford Bob in his book “The International Struggle for New Human Rights” describes the strategy for their introduction.
Adoption does not happen easily. Rather the aggrieved must persuade the rights movement of the claim’s import and its validity as a distinct right. In many cases, even seemingly sympathetic NGOs are resistant. However, if gatekeeper NGOs can be convinced to embrace and promote a claim, this makes wide recognition of the new right more likely. While states may also adopt new claims early, most act later, in the context of campaigns involving the wider rights movement – he writes.
Among the new rights that are promoted most fervently are sexual and reproductive rights, often related to anti-discrimination laws. While I wholeheartedly believe in the absolute equal dignity of every human being and acknowledge the importance of anti-discrimination efforts in many spheres of life, the question about what is depicted as discrimination must be posed.
For instance, the UN Human Rights Committee in its comment referring to the case Mellet v. Ireland, stated that “State’s failure or refusal to provide reproductive health services that only women need constitutes gender discrimination”. Since this “reproductive health service” in this case was an abortion, to say that denying it to only women constitutes gender discrimination seems rather ridiculous.
Moreover, it appears unfair to speak about discrimination when the circumstances of particulars situations differ significantly. As a Polish citizen, I do not feel discriminated against in the United States simply because I can’t vote there, although my friends with American citizenship can. I was not discriminated in Poland when I was 16 because I couldn’t vote at such a young age. To have a right to vote in any of these circumstances I would have to demand special treatment and/or modification of a certain institution.
Paradoxically, unreasonable broadening the scope of anti-discrimination laws may result in further forms of actual discrimination. Swedish midwives Linda Steen and Ellinor Grimmark were denied jobs because they wouldn’t perform abortions. European Court of Human Rights refused to take up their case. In the United States female athletes are being forced to compete against biological males with no real chance to win. In the Masterpiece Cakeshop case, Jack Philips had to face long and mentally-exhausting court battle, because he politely declined to create a wedding cake celebrating a same-sex marriage for two men, even though he offered to sell them anything else in his store. These are very few examples of discrimination of individuals precisely in the name of anti-discrimination efforts. That is why, we must never stop asking questions: what do the words we hear actually mean?