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Journal ArticleDOI

Fifty Years On: The Curious Case of Intersectional Discrimination in the ICCPR

18 Sep 2017-Nordic Journal of Human Rights (Routledge)-Vol. 35, Iss: 3, pp 220-239

Abstract2016 marked the fiftieth anniversary of the International Covenant on Civil and Political Rights (ICCPR) and thus of the oldest self-standing general right to non-discrimination in international law under article 26. The Human Rights Committee has enforced the right with rigour creating a vast and formidable body of discrimination jurisprudence over the decades. This jurisprudence, though, is doggedly single-dimensional and appears to have given short shrift to discrimination based on multiple and intersecting grounds of article 26, viz race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This article examines the curious case of missing intersectional discrimination in the ICCPR. It does so by pulling together the dispersed and often unidentified claims based on more than one ground of discrimination. It delineates the pathologies of reasoning in these claims which have overlooked the idea of ‘intersectionality’ understood ...

Summary (2 min read)

1. Introduction

  • Under the International Covenant on Civil and Political Rights has emerged the oldest and largest body of discrimination jurisprudence in international law.
  • This article is dedicated to examine this anomaly in the particular context of the First Optional Protocol.
  • It surveys the vast array of individual communications decided under the Optional Protocol concerning article 26 and picks through the lines of reasoning adopted in actual and potential claims of intersectional discrimination.
  • In the final analysis, the article shows the pathologies of reasoning which have contributed to an intersectionalitydevoid discrimination jurisprudence and in turn, supplies a normative grounding for 24 Aumeeruddy-Cziffra (n 9).

2. The Idea of Intersectionality

  • The vast and rich intellectual discourse on intersectionality can be traced back to over 150 years of Black feminist thought.
  • The District Court of Missouri declared that the ‘lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both. ’36 This the claimants failed to show.
  • Black women can experience discrimination in ways that are both similar to and different from those experienced by white women and Black men.
  • Thus, it provides a counter to the ‘dominant ways of thinking about discrimination,’41 by accepting that discrimination can be based on more than one ground, and by appreciating what it means when it does, i.e. produces similar and different patterns of group disadvantage when multiple grounds intersect.
  • Taking cue from this tipped balance, this article does not rehash the commendable strides made in intersectionality theory but takes a hard look at the international law practice of discrimination under the First Optional Protocol of the ICCPR to understand and address the ways in which intersectionality fails to materialise.

3. The Curious Case

  • To date, the HRC has decided over 120 individual communications on merits concerning article 26.47 Statistically speaking then, these communications have occupied much of the HRC’s attention.
  • ’68 While the Committee did not offer its own analysis of intersectional discrimination, its unreserved adoption of the pointed reasoning presented by the author is the first and only sign of an intersectionality-friendly stance in deciding an individual communication.
  • All the claims were singularly argued on the ground of marital status and their reasoning follows identical trajectory—of applying the test of ‘reasonable and objective criteria’ in judging whether the distinction was sustainable under article 26.
  • The fact that these claims were not simply about the distinction between married and unmarried people but about specific claimants who suffered disadvantage because of their own complex set of circumstances – being female, unmarried, and economically dependent – found no inlet in the decisions spanning over two decades of the Committee’s discrimination work between 1984-2005.73.
  • The author argued that whilst all other treatment constituted discrimination on the basis of political opinion (because of her human rights campaigning), her gang rape and forced sterilisation was specifically a case of sex discrimination.

4. Fifty Years On and Beyond

  • The question that arises in learning that intersectionality has fallen through the cracks of the Committee’s discrimination jurisprudence is why it matters to be reckoned with at all and how can this be realised.
  • And yet despite these limitations, the Committee’s work under the Optional Protocol is considered, at least in practice, to be legal, judicial and binding.
  • But it could have possibly found that claimants who were unmarried women were a special intersecting group between the groups of women and unmarried persons who suffered disadvantages specifically associated with their identities, including disadvantage relating to unequal power dynamics like the lack of choice in contracting marriage and economic dependence on male partners.
  • First, responding to the category of intersectional discrimination requires an appreciation of the framework of intersectionality—one based on multiple and intersecting grounds creating similar and different patterns of group disadvantage at the same time.

5. Conclusion

  • Intersectionality remains largely wanting in the Human Rights Committee’s jurisprudence other than the single instance of LNP.
  • In LNP, the Committee decided the article 26 claim on the grounds of sex and ethnicity, subjecting them to an intersectional analysis of finding similar and different patterns of group disadvantage based on both the grounds.
  • But the breakthrough in LNP provides the HRC a cue for transforming its record on the subject.
  • The key to unlocking this potential remains in consistently looking for and appreciating both the nature of intersectionality and the purpose of prohibiting discrimination in a substantive way.
  • Amongst other things, the legacy beyond the first fifty years of the ICCPR will be shaped by how the HRC responds to this challenge in order to address complex and crosscutting forms of discrimination.

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Atrey, S. (2017). Fifty Years On: The Curious Case of Intersectional
Discrimination in the ICCPR.
Nordic Journal of Human Rights
,
35
(3),
220-239. https://doi.org/10.1080/18918131.2017.1350505
Peer reviewed version
Link to published version (if available):
10.1080/18918131.2017.1350505
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1
FIFTY YEARS ON: THE CURIOUS CASE OF INTERSECTIONAL DISCRIMINATION IN THE
ICCPR
Shreya Atrey*
Abstract
2016 marked the fiftieth anniversary of the ICCPR and thus of the oldest self-standing
general right to non-discrimination in international law under article 26. The Human
Rights Committee has enforced the right with rigour creating a vast and formidable
body of discrimination jurisprudence over the decades. This jurisprudence, though, is
doggedly single-dimensional and appears to have given a short shrift to discrimination
based on multiple and intersecting grounds of article 26, viz. race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or
other status. This article examines the curious case of missing intersectional
discrimination in the ICCPR. It does so by pulling together the dispersed and often
unidentified claims based on more than one ground of discrimination. It delineates the
pathologies of reasoning in these claims which have overlooked the idea of
intersectionality understood as disadvantage based on multiple and intersecting
grounds, which is both similar to and different from disadvantage based on individual
grounds. The article shows that this conceptual reckoning matters in identifying and
addressing discrimination, and thus enforcing the commitment in article 26 of
addressing not just single-ground discrimination but ‘any discrimination’ against ‘all
persons’ on ‘any ground…or other status.’
Keywords
ICCPR, Article 26, Optional Protocol, Intersectional Discrimination, Grounds.
1. Introduction
Under the International Covenant on Civil and Political Rights (ICCPR) has emerged the
oldest and largest body of discrimination jurisprudence in international law.
1
On 23
March 1976, the ICCPR was the first core human rights treaty to come into force, and
article 26 of the ICCPR became the first freestanding general right to non-
* Max Weber Fellow, European University Institute (Florence). DPhil (Oxon), BCL (Dist) (Oxon), BA
LLB (Hons) (NALSAR).
I am grateful for the invaluable feedback on earlier drafts of the article presented at the INTRAlaw
Human Rights Colloquium organised at the Department of Law, Aarhus University, Denmark, 29-30
September 2016 and at the Association of Human Rights Institutes (AHRI) Conference, organised
by the Netherlands Institute of Human Rights (SIM), Utrecht University, 1-3 September 2016. Many
thanks in particular, to Prof Jens Vedsted-Hansen and two anonymous peer reviewers of the article
for their helpful comments.
1
International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171.

2
discrimination which now binds 168 States Parties.
2
Article 26 prohibits discrimination
in all spheres, not only in relation to the rights guaranteed under the ICCPR.
3
Unlike
single-ground treaties like the Convention on the Elimination of All Forms of Racial
Discrimination (CERD),
4
the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW),
5
and the Convention on the Rights of Persons
with Disabilities (CRPD),
6
it applies to a non-exhaustive list of grounds including eleven
enumerated grounds of race, colour, sex, language, religion, political or other opinion,
national or social origin, property, and birth.
7
The Human Rights Committee (HRC or
the Committee), established under Part IV of the ICCPR and mandated by the First
Optional Protocol,
8
decided its first individual communication on the violation of
article 26 as early as 9 April 1981.
9
It has since decided over 120 individual
communications on merits under article 26 alone, single-handedly more than the
entire body of jurisprudence of the CEDAW, CERD and CRPD Committees. Even the
first ICCPR General Comment on non-discrimination and equality between sexes dates
back to 30 July 1981, several months before the specific treaty on the subject
CEDAW came into force.
10
The quality of the ICCPR discrimination jurisprudence too
has been widely acclaimed as ‘rich and dynamic’
11
and has, in substantive terms,
yielded outstanding successes like extending the right to non-discrimination under
article 26 to the realm of economic, social, and cultural rights;
12
including
homosexuality
13
and nationality
14
as other statuses in the list of prohibited grounds;
extending the States’ responsibility towards prohibiting private acts of
2
The list of State Parties to the ICCPR, as of 20 November 2016, is available at
<https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
4&chapter=4&clang=_en> accessed 20 August 2016.
3
Cf ICCPR, art 2(1), which applies only in relation to the rights guaranteed under the ICCPR and arts
2325 which guarantee non-discrimination in relation to particular rights.
4
International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted
7 March 1966, entered into force 4 January 1969) 660 UNTS 196.
5
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (adopted 18
December 1979, entered into force 3 September 1981) 1249 UNTS 13.
6
Convention on the Rights of Persons with Disabilities (CRPD) (adopted 13 December 2006, entered
into force 3 May 2008) 2515 UNTS 3.
7
Cf ICCPR, art 3, which specifically relates to equality between men and women.
8
Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December
1966, entered into force 23 March 1976) 999 UNTS 171. The Optional Protocol binds 115 State
Parties. <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
5&chapter=4&clang=_en> accessed 20 August 2016.
9
Aumeeruddy-Cziffra et al v Mauritius (1981) CCPR/C/12/D/35/1978.
10
HRC, ‘General Comment No 18: Non-Discrimination’ (1989) HRI/GEN/1/Rev.9 (Vol I).
11
‘The Right to Equality and Non-Discrimination’, Icelandic Human Rights Centre,
<http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-
and-fora/substantive-human-rights/the-right-to-equality-and-non-discrimination> accessed 20
August 2016.
12
Broeks v the Netherlands (1987) CCPR/C/OP/2/1984; Zwaan-de-Vries v the Netherlands (1987)
CCPR/C/OP/2/209/1984.
13
Toonen v Australia (1994) CCPR/C/50/D/488/1992.
14
Gueye v France (1989) CCPR/C/35/D/196/1985.

3
discrimination;
15
and upholding affirmative action as part of the right to non-
discrimination.
16
In fact, as Joseph and Castan remark: ‘[s]ome of the most rigorous
Optional Protocol decisions have concerned article 26,
17
within the vast swath of
ICCPR jurisprudence which is itself considered the ‘lion’s share of UN jurisprudence.
18
Non-discrimination and equality has thus emerged as ‘the single dominant theme of
the Covenant
19
that shines through its formidable legacy of fifty years.
On this impressive canvas appears an incredulous dent. The ICCPR jurisprudence
remains largely ignorant of discrimination based on a combination of grounds. Neither
does the text of article 26 nor does the more substantive statement on discrimination
in General Comment No 18, mention anything explicitly about discrimination based on
multiple grounds considered together. References to dual, multiple, combination,
overlapping, compound or intersectional discrimination remain scarce in the
Committee’s decisions on individual communications.
20
The result being, that the vast
discrimination jurisprudence produced under the First Optional Protocol of the ICCPR
from 1981-2016, is characteristically unidimensional in its focus: concerning
discrimination when it occurs only on the basis of one of the grounds of race, colour,
sex, language, religion, political or other opinion, national or social origin, property,
birth or other status. In other words, it has turned a blind eye to ‘intersectionality’ or
inequalities which occur not only on the basis of a single ground but on the basis of
two or more intersecting grounds, for example, in case of unmarried female cohabiting
partners who have been one of the most persistent claimants before the HRC on
grounds of both marital status and gender.
21
This came to be corrected, at least in
relation to women, in General Comment No 28 on article 3 (which relates to equality
between sexes) where the Committee recognised that discrimination against women is
often ‘intertwined with discrimination on other grounds.’
22
This was the first mention
of the idea of intersectionality in the Committee’s discrimination jurisprudence. The
second and the only other instance is the Committee’s 2011 decision in LNP v
Argentina where it agreed with the authors account of intersectional discrimination
based on both sex and ethnicity.
23
LNP also marks the end of its engagement with
15
Love et al v Australia (2003) CCPR/C/77/D/983/2001.
16
Ballantyne v Canada (1993) CCPR/C/47/D/359/1989.
17
Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases,
Commentary and Materials (OUP 2014) [1.72].
18
ibid [1.12].
19
ibid [23.01]
20
Wouter Vandenhole, Non-discrimination and Equality in the View of the UN Human Rights Treaty
Bodies (Intersentia 2005) [36]. The jurisprudential analysis in this article is restricted to decisions
under the individual communications procedure and does not span the state reporting mechanism.
21
See nn 69-72 and accompanying text.
22
HRC, ‘General Comment No 28: Equality of Rights between Men and Women (art. 3)’ (2000)
CCPR/C/21/Rev.1/Add.10 [30].
23
LNP v Argentina (2011) CCPR/C/102/D/1610/2007.

4
intersectional discrimination under the individual complaints procedure which
continues to decide discrimination claims devoid of intersectionality.
The result is puzzling because at least initially, this was not meant to be the case. Even
before the term ‘intersectionality’ was coined in 1989, the first individual
communication decided on article 26 in 1981 was specifically advanced as an
intersectional claim based on multiple grounds. In Aumeeruddy-Cziffra, the authors
claimed to be victims of discrimination not only on the basis of their sex but also on
the basis of race and political opinion when their foreign husbands were denied
residency by the Mauritian State.
24
Seminal claims of discrimination in relation to
socio-economic rights, like Vos (Hendrika S) v the Netherlands
25
and Broeks too were
explicitly argued on dual grounds of ‘sex and marital status’ and ‘sex and status’
respectively. The Committee paid scant attention to the significance of the interaction
between multiple grounds in these communications despite of the fact that they were
actually advanced as such. On the other hand, in claims where intersectionality
potentially mattered, the fact that they were not actually argued in this way made the
single-ground approach appear rather justified.
26
So despite the considerable and credible ICCPR discrimination jurisprudence,
intersectionality remains wanting from the record. This article is dedicated to examine
this anomaly in the particular context of the First Optional Protocol. It surveys the vast
array of individual communications decided under the Optional Protocol concerning
article 26 and picks through the lines of reasoning adopted in actual and potential
claims of intersectional discrimination. The purpose is to learn how intersectionality
remains underappreciated and importantly, why it matters to subject multi-grounds
claims to an intersectional analysis. Section 2 identifies the kernel of intersectionality
and intersectional discrimination and sets the perspective for the forthcoming
discussion. Section 3 takes stock of article 26 claims which were either argued on
multiple grounds or could have been, based on what is apparent in the Committee’s
analyses of these claims. It establishes the curious case of the short shrift given to
intersectionality implicated in multi-ground discrimination claims. In Section 4 an
explanation follows for why it is important to understand and address intersectionality
and intersectional discrimination under article 26. The central argument is that it
matters in an instrumental way in addressing discrimination claims such that they
succeed in identifying and responding to complex patterns of group disadvantage, and
thus enforcing article 26 under international law per se. In the final analysis, the article
shows the pathologies of reasoning which have contributed to an intersectionality-
devoid discrimination jurisprudence and in turn, supplies a normative grounding for
24
Aumeeruddy-Cziffra (n 9).
25
Vos (Hendrika S) v the Netherlands (1989) CCPR/C/35/D/218/198.
26
See discussion in Section 3.2 below.

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Q1. What are the contributions in "Fifty years on: the curious case of intersectional discrimination in the iccpr" ?

2016 marked the fiftieth anniversary of the ICCPR and thus of the oldest self-standing general right to non-discrimination in international law under article 26. This jurisprudence, though, is doggedly single-dimensional and appears to have given a short shrift to discrimination based on multiple and intersecting grounds of article 26, viz. This article examines the curious case of missing intersectional discrimination in the ICCPR. It does so by pulling together the dispersed and often unidentified claims based on more than one ground of discrimination. It delineates the pathologies of reasoning in these claims which have overlooked the idea of ‘ intersectionality ’ understood as disadvantage based on multiple and intersecting grounds, which is both similar to and different from disadvantage based on individual grounds. The article shows that this conceptual reckoning matters in identifying and addressing discrimination, and thus enforcing the commitment in article 26 of addressing not just single-ground discrimination but ‘ any discrimination ’ against ‘ all persons ’ on ‘ any ground.