Fifty Years On: The Curious Case of Intersectional Discrimination in the ICCPR
Abstract: 2016 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)
- 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.
- 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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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.