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The Equal Rights Review, Vol. Sixteen (2016)
103
International Human Rights Law and
Intersectional Discrimination
Ivona Truscan and Joanna Bourke-Martignoni1
Introduction
Through traveling to other people’s “worlds” we discover that there are “worlds”
in which those who are victims of arrogant perception are really subjects, lively
beings, constructors of vision even though in the mainstream construction they
-
2
International human rights monitoring mechanisms have traditionally relied upon a “sin-
gle-axis” approach to enforce legal provisions prohibiting discrimination.3 The focus of these
bodies has been on discrete, mutually exclusive grounds of discrimination as they are rec-
ognised in human rights instruments, such as the Universal Declaration of Human Rights,
which prohibits distinctions based on “race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.”4 The remedies provided
by international human rights mechanisms in individual cases, as well as their policy rec-
ommendations, have tended to reinforce this singular conception of discrimination, which,
in turn, entrenches normative and institutional fragmentation and discursive hierarchies
-
national human rights law.5 This article employs an analysis based on selected approaches to
intersectional discrimination as an action-oriented method to examine the state of current
practice within international human rights mechanisms.6
1 The authors would like to thank the Swiss Network for International Studies which, from 2013 to 2015,
supported the larger research project, “The Intersectionality of Human Rights Violations and Multiple
Forms of Discrimination”, within which this article was developed. More information about the project
is available at: http://www.unifr.ch/iiedh/fr/recherche/ethique-politique-dh/snis. The views expressed
in the article remain those of the authors.
2 Lugones, M., quoted in Kapur, R., “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject
in International Post-Colonial Feminist Legal Politics”, Harvard Human Rights Journal, Vol. 15, 2002, p. 1.
3 May, V. M., , Routledge, 2015, p. 82.
4 Universal Declaration of Human Rights, Article 2.
5 See above, note 3.
6 Crenshaw, K., “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics”, ,
Vol. 4, 1989, pp. 139–167; Crenshaw, K., “Mapping the Margins: Intersectionality, Identity Politics, and
The Equal Rights Review, Vol. Sixteen (2016)
104
The article focuses on the jurisprudence of the Committee on the Elimination of Discrimina-
tion against Women (CEDAW Committee) as well as several recent interpretive comments
and cases by other human rights treaty monitoring bodies. The discussion begins with an
overview of several theories of intersectional discrimination and explores the advantages as
well as the drawbacks of intersectionality as an observational and reform-driven methodolo-
gy for analysing and implementing guarantees of substantive equality through international
human rights law. In its following sections, the article applies intersectional methodologies
to the practice of the CEDAW Committee, the Committee on the Elimination of Racial Dis-
crimination (CERD Committee), the Committee on the Rights of the Child (CRC Committee),
the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the
Rights of Persons with Disabilities (CRPD Committee).
1. Intersectionality Theory and International Human Rights Law
Intersectionality is what occurs when a woman from a minority group (…) tries to
with one form of oppression but with all forms, those named as road signs, which link
7
Intersectionality is both a method of observation and an action-oriented form of practice
that aims to uncover and redress the workings of privilege and oppression that often remain
hidden from view in the classical single-axis analyses of discrimination and inequality used
by most international human rights monitoring mechanisms.8
Theories about intersectionality have a long history within critical race feminism and in
post-colonial studies.9 During the 1990s, a number of scholars working within these different
Violence against Women of Color”, , Vol. 43, 1991, pp. 1241–1299; Hill Collins, P., et
al, “Symposium on West and Fenstermaker’s ‘Doing Difference’”, in Fenstermaker, S. and West, C. (eds.),
, Routledge, 2002; and Kapur, R., “The Tragedy of Victimization Rhetoric:
Resurrecting the ‘Native’ Subject in International Post-Colonial Feminist Legal Politics”, Harvard Human
Rights Journal, Vol. 15, 2002.
7 Crenshaw, K., according to a report of the 2001 World Conference against Racism as cited in Yuval-Davis,
N., “Intersectionality and Feminist Politics”, , Vol. 13, 2006, p. 196.
8 See above, note 3.
9 See, for example, note 6, Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence
against Women of Color”; see above, note 6, Kapur; Bulbeck, C., Re-orienting western feminisms: women’s
diversity in a postcolonial world, Cambridge University Press, 1998; Padilla, L. M., “Intersectionality and
, Vol.
66, 1997, p. 843; Lenard Hutchinson, D., “Identity Crisis: ‘Intersectionality’, ‘Multidimensionality’, and the
Development of an Adequate Theory of Subordination”, , Vol. 6, 2001,
p. 285; and Grillo, T., “Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House”,
, Vol. 10, 1995, p. 16.
The Equal Rights Review, Vol. Sixteen (2016)
105
traditions advanced models of intersectionality as a counterweight to the dominant essen-
within national and international anti-discrimination law and policies.10 The intersectional,
-
utes, but rather that identities are constantly being shaped and remade as a result of multiple
characteristics and experiences.11 As Virginia May notes, “[i]ntersectionality highlights how
lived identities, structural systems, sites of marginalisation, forms of power and modes of
resistance ‘intersect’ in dynamic, shifting, ways.”12
In rejecting the notion that individual grounds of discrimination can be easily separated
from one another in terms of both their cause and effect, intersectional theories rely on
a matrix framework that recognises the intricately entwined functions of both identities
and power.13 Intersectional approaches differ from cumulative or multiple conceptions of
discrimination which add together a number of grounds of discrimination – ethnic origin
+ gender + social class + disability + age – as discrete, sequential and severable identity
factors.14 Intersectional approaches recognise that the unique forms of discrimination that
occur at the intersection between several systems of oppression should be observed using
typically provided in cases of discrimination on the basis of a single ground.15 An intersec-
tional analysis considers intra-group differences as important as those between groups
and asserts that it is possible for individuals and groups to be simultaneously oppressed
and privileged.16
10 See above, note 6, Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics”; see above, note 6, Kapur;
and Bulbeck, C., Re-orienting western feminisms: women’s diversity in a postcolonial world, Cambridge
University Press, 1998.
11 Lenard Hutchinson, D., “Identity Crisis: ‘Intersectionality’, ‘Multidimensionality’, and the Development
of an Adequate Theory of Subordination”, , Vol. 6, 2001; and Grillo, T.,
“Anti-Essentialism and Intersectionality: Tools to Dismantle the Master’s House”,
Journal, Vol. 10, 1995.
12 See above, note 3.
13
Thought”,, Vol. 33, 1986; and Satterthwaite, M., “Crossing Borders, Claiming Rights: Using
Human Rights Law to Empower Women Migrant Workers”,
Journal, Vol. 8, 2005, p. 1.
14 Andersen, M. L. and Hill Collins, P., , Wadsworth Publishing, 2015.
15
,
Intersentia, 2003, p. 15.
16 See above, note 3.
The Equal Rights Review, Vol. Sixteen (2016)
106
There is apparent consensus in academic circles and, increasingly, amongst human rights
practitioners, concerning the fundamental limitations of the single-axis approach to discrim-
ination.17 However, disagreement arises in relation to the extent to which intersectionali-
ty-based methods are capable of providing concrete responses to the challenges imposed by
taking into account a multiplicity of experiences of inequality and oppression.18
For some scholars, intersectionality forms:
19
In this view, the application of intersectional methods is doomed to achieve the opposite
problem” whereby intersectionality leads to the disaggregation of sub-group identity catego-
ries to the point that the subjects of analysis are reversed, with the individual remaining the
standing unit, while the group disappears.20
These critics assert that when the individual or the subgroup remains the subject of analy-
sis, it becomes impossible to design policies, strategies or legislative instruments that would
advance the interests of a larger group.21 This line of reasoning further implies that, even
within a given system of oppression, certain subgroups have a more privileged position when
compared with others.22 Thus, oppressed subgroups may assume positions of dominance
with respect to other subgroups. The “relativism problem” describes every individual as a
potential oppressor, thereby rendering the normative framework on anti-discrimination and
equality meaningless.23
In a scenario where every subgroup experiences some form of oppression, and makes claims
for its own priority in strategies to redress discrimination, it has been asserted that intersec-
17 Ibid.
18 Conaghan, J., “Intersectionality and the Feminist Project in Law”, in Cooper, D. (ed.),
, Routledge Cavendish, 2008.
19 Ibid.
20 Ehrenreich, N., “Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating
Systems”, , Vol. 71, 2002, p. 267.
21 Ibid., pp. 266–267.
22 Roseberry, L., “Multiple Discrimination” in Sargeant, M. (ed.),
, Cambridge University Press, 2011, p. 28.
23 See above, note 20, p. 271.
The Equal Rights Review, Vol. Sixteen (2016)
107
tionality does not deliver on its egalitarian promise.24 These critiques argue that without a
mechanism for measuring degrees of inequality, intersectional practice locks individuals and
subgroups into a never-ending “battle of oppressions”.25
Another argument invoked to refute the advantages of the practical application of an in-
tersectionality framework centres on the claim that intersectionality is an instrument that
should be limited to mapping and identifying those groups that deserve greater attention in
policies and laws to redress inequalities. According to Conaghan,
-
feminism, accompanied by calls for a better representation, a richer topography
26
This assessment positions intersectional approaches to anti-discrimination as observational
aids rather than as practical tools capable of radically changing the formulation and imple-
mentation of policies, programmes and laws to address intersectional forms of oppression.27
Lastly, human rights practitioners have also expressed concern regarding the added-value
of an intersectionality approach in connection with the issue of remedies.28 Several of these
authors view the application of intersectional methods as offering a false promise to com-
-
ingfully address the root causes of inequality and power imbalances.29
given the institutional segregation, absence of capacity and the lack of cross-referencing
lead to an ad hoc application of intersectional analysis, thereby creating the risk of interpre-
tive inconsistency and the multiplication of different approaches to the same problem.30
24 See above, note 3.
25 See above, note 20, p. 269.
26 See above, note 18.
27 Tomlinson, B., “Colonizing Intersectionality: Replicating racial hierarchy in feminist academic arguments”,
, Vol. 19, 2013, pp. 254–272.
28 Davis, A.N., “Intersectionality and International Law: Recognizing Complex Identities on the Global
Stage”, Harvard Human Rights Journal, Vol. 28, 2015, pp. 205–242.
29 See above, note 3.
30 Bond, J.E., “International Intersectionality: A Theoretical and Pragmatic Exploration of Women’s Human
Rights Violations,” , Vol. 52, 2003, p. 74.
The Equal Rights Review, Vol. Sixteen (2016)
108
While these criticisms of intersectionality as a method for promoting social change are not
-
tersectional approaches can and should be used by international human rights institutions
to more effectively implement and monitor guarantees of substantive equality. Taken to
their logical conclusion, intersectional methods of analysis demand a thorough and rad-
ical rethinking of the manner in which human rights institutions operate. The following
an engagement with intersectionality as a method. Progress is not necessarily going to be
linear as the application of intersectionality in practice is a radical, transformative project.
As Virginia May asserts:
Intersectionality is a form of resistant knowledge developed to unsettle conven-
tional mindsets, challenge oppressive power, think through the full architecture
31
2. Awareness of Intersectionality and Forms of Multiple Discrimination in the
Practice of International Human Rights Mechanisms
Article 1(3) of the United Nations Charter states that one of the purposes of the United Na-
tions is:
economic, social, cultural, or humanitarian character and in promoting and en-
couraging respect for human rights and for fundamental freedoms for all without
This provision inspired the text in Article 2 of the Universal Declaration of Human Rights,
which recognises that “everyone is entitled to all the rights and freedoms set forth (…)
without distinction of any kind, such as race, colour, sex, language religion, political or
other opinion, national or social origin, property, birth or other status.” The subsequent
adoption of the 10 core multilateral human rights treaties and the practice developed un-
der each of these treaties has broadened the reach of international anti-discrimination law.
may constitute discrimination, but also in relation to the grounds upon which discrimina-
tion must be prohibited. The oldest of these human rights treaties, namely the Convention
on the Elimination of Racial Discrimination, prohibits distinctions based on “race, colour,
descent, or national or ethnic origin”.32 The two International Covenants, the Internation-
al Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Eco-
31 See above, note 3, p. xi.
32 Convention on the Elimination of Racial Discrimination, Article 1(1).
The Equal Rights Review, Vol. Sixteen (2016)
109
nomic, Social and Cultural Rights (ICESCR) enriched the category of prohibited grounds by
adding an open-ended list that includes, “sex, language, religion, political or other opinion,
national or social origin, property, birth or other status”.33
Treaty provisions on non-discrimination now routinely refer to “other status”, in order to
leave the potential categories of prohibited grounds open, thus allowing the mechanisms
oppression. The category of “other status” has been read as including a number of differ-
ent attributes such as, age,34 disability,35 migrant or refugee status,36 place of residence,37
health situation,38 status of deprivation of liberty,39 sexual orientation,40 physical appear-
ance,41 and poverty.42
While the evolving and constantly growing list of grounds of discrimination prohibited by
international human rights law would seemingly provide the basis for a systematic consider-
ation of intersectional forms of discrimination, to date this has not been the case. As a general
rule, most of the treaty bodies have approached inequality as a singular or separate phe-
nomenon, paying little attention to the substantive rethinking of international anti-discrim-
33 International Covenant on Civil and Political Rights (ICCPR), Article 2(1); and International Covenant on
Economic, Social and Cultural Rights (ICESCR), Article 2(2).
34 Committee against Torture (CAT), , UN
Doc. CAT/C/GC/2, 24 January 2008, Paras 21–22; CAT,
UN Doc. CAT/C/GC/3, 13 December 2012, Paras 8, 32; Committee on the Elimination
of Discrimination against Women (CEDAW Committee),
, 1999, Para 24; Committee on Economic, Social and Cultural Rights
(CESCR), 7 October 1996,
Para 12; and CESCR, ,
UN Doc. E/C.12/GC/20, 2 July 2009, Para 29.
35 Human Rights Committee (HRC), , 28 July 1981, para 13; and
CEDAW Committee, ,
1999, Para 25.
36 Committee on the Elimination of Racial Discrimination (CERD Committee),
justice system, UN Doc. CRPD/C/GC/31, 20 August 2004.
37 CESCR, , UN Doc.
E/C.12/GC/20, 2 July 2009, Para 34.
38 Ibid., Para 33.
39 Ibid., Para 27.
40 CAT, UN Doc. CAT/C/GC/3, 13
December 2012, Paras 8, 32.
41 CERD Committee, , UN Doc. CERD/C/DOM/CO/13-14,
19 April 2013, Para 16.
42 CEDAW Committee, , UN Doc. CEDAW/C/PER/CO/6, 2 February 2007, Para 36.
The Equal Rights Review, Vol. Sixteen (2016)
110
ination law that would be necessary in order to effectively capture and redress situations of
intersectional inequality.43
In recent years, however, a number of the human rights treaty monitoring bodies, including,
the CERD Committee,44 the CRC Committee,45 the Human Rights Committee (HRC)46 and the
CESCR47 have begun to mention forms of multiple and intersectional discrimination within
their work. It appears that awareness of the need to counter the “single-axis thinking” and
essentialism that characterise the formulation of the non-discrimination provisions within
most of the international human rights instruments is slowly growing.
The changing nature of the treaty bodies’ engagement with forms of intersectional discrim-
ination is also apparent in several illustrative cases decided under the Optional Protocol to
Convention on the Elimination of Discrimination against Women (Optional Protocol). Some
of these cases are analysed in more detail below. While the text of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) explicitly refers to par-
ticular groups of women in Article 14, on rural women, and in Article 12(2), on equal access
to health care where special mention is made of pregnant and breast-feeding women, until
recently, the CEDAW Committee carried out its work without much analysis of the forms of
intersectional oppression that groups and individual women may face. The group “women”
was viewed by the Committee as being an essentially unitary category with comparisons
being made against a male comparator (presumably also devoid of any identifying features
other than biological sex).
43 See above, note 30, p. 141.
44 CERD Committee, ,
20 March 2000.
45 See, for example, Committee on the Rights of the Child (CRC Committee),
, UN Doc. CRC/C/GC/11, 12 February 2009; CRC
Committee,
country of origin, UN Doc. CRC/C/GC/2005/6, 1 September 2005; and CRC Committee,
, 2015.
46 HRC, , , 10 November 1989. While the Committee does not
expressly refer to intersectional or multiple forms of discrimination, it insists upon substantive (de facto)
equality as the standard that it uses to assess state compliance with obligations under Articles 2 and 26
inequalities and in paragraph 8, it cites the example of the provisions in Article 6(5) of the ICCPR that
prohibit the death sentence being carried out on pregnant women.
47 See above, note 37, Para 17, “[s]ome individuals or groups of individuals face discrimination on more
than one of the prohibited grounds, for example women belonging to an ethnic or religious minority.
consideration and remedying.” The CESCR does not go further to suggest which particular measures
states must take to consider or remedy “cumulative” or multiple discrimination.
The Equal Rights Review, Vol. Sixteen (2016)
111
3. The CEDAW Committee and its Evolving Practice in Considering Intersectionality
in Individual Communications
This section of the article compares several decisions on individual communications submit-
ted to the CEDAW Committee, 48 v 49 ,50 and
.51 The authors of each communication are women belonging to par-
ticular groups: A.S. is a Roma woman; Cecilia Kell is an Aboriginal woman and a survivor of
domestic violence; R.P.B. is a girl with disabilities; and E.S. and S.C. are widows and members
of the Sukuma ethnic group.
a. A.S. v Hungary
In 2004, in one of its earliest decisions under the Optional Protocol, the CEDAW Committee
examined the case of . v Hungary. The case concerned the medical sterilisation of a Hun-
garian Roma woman, A.S. without her full and informed consent.52 A.S. argued her case on the
basis of the right to health information under Article 10(h), the right to non-discrimination
in the health sector in Article 12 and the right to freely decide on the number and spacing of
children under Article 16(1)(e) of the CEDAW. In her allegations, A.S. stressed her “extremely
vulnerable situation (…) as a woman who would lose her child and as a member of a margin-
alised group of society – the Roma”.53 She also maintained she would have never consented to
the sterilisation given her “strict Catholic religious beliefs that prohibit contraception of any
kind”.54 The issue of informed consent is central to the Committee’s discussion of the merits
of the three articles invoked by the author.55
The . v Hungary case was ground-breaking in that the decision indirectly raised the
issue of the systemic discrimination faced by many Roma women in Hungary and else-
where in the region.56 It also underscored the State’s obligation to eliminate discrimination
and provide accessible and understandable reproductive and sexual health information
48 , Communication No. 4/2004, UN Doc. CEDAW/C/36/D/4/2004, 29 August 2004.
49 , Communication No. 19/2008, UN Doc. CEDAW/C/51/D/19/2008, 26 April 2012.
50 , Communication No. 34/2011, UN Doc. CEDAW/C/57/D/34/2011, 12 March 2014.
51 . , Communication No. 48/2013, UN Doc. CEDAW/C/60/D/48/2013, 13 April, 2015.
52 See above, note 48. A.S. was sterilised during a caesarean section medical intervention prompted by the
death of her foetus.
53 , Para 9.4.
54 , Para 2.4.
55 , Para 11.5.
56 Schultz, D.L., “Translating Intersectionality Theory into Practice: A Tale of Romani- Feminist
Alliance”, , Vol. 38, 2012, pp. 37–43.
The Equal Rights Review, Vol. Sixteen (2016)
112
for all.57 However, the Committee failed to engage with the intersectional forms of oppres-
sion that A.S. encountered. At the heart of her complaint was the fact that being subjected
to forced sterilisation violated both her religious convictions and her interest in following
Roma traditions, especially since “having children is said to be a central element of the
value system of Roma families”.58 The Committee did not explicitly take into account the
fact that the author belonged to the Roma minority, nor did it undertake any analysis of
her particular circumstances as a Roma mother and whether these factors fundamentally
altered the kind of discrimination that she faced.
The discussion of the merits of the allegation under Article 12 provided the right opportunity
for the CEDAW Committee to discuss how A.S.’s belonging to the Roma community resulted
in differential treatment in the context of accessing health care services. However, the Com-
mittee did not take this opportunity. The Committee recalled its General Recommendation
No. 24 on women and health, but only in so far as it related to informed consent, omitting to
refer to the part of the Recommendation that stresses circumstances, other than biological
differences, which impact on women’s health status:
health status, there are societal factors that are determinative of the health status
attention should be given to the health needs and rights of women belonging to
59
The Committee should have taken into account that the author belonged to a Roma commu-
nity, her particular vulnerability and her religious beliefs regarding contraception as “soci-
etal factors” determinative of her health status and treatment. The Committee apparently as-
sumed that the author suffered the violation in the same way as a non-Roma woman, failing
to recognise that, from a gender perspective, the experience of non-minority women does
not encompass the experience of all women.60
The remedies offered by the CEDAW Committee in v Hungary, while adequate in some
intersectional forms of discrimination experienced by Roma women in the context of sexual
and reproductive health care. The Committee called on the State to take measures that would
raise the awareness of relevant personnel in public and private health centres with respect
to the provisions of the CEDAW and the Committee’s General Recommendations concerning
women’s reproductive health. The treaty body also stressed important amendments that the
57 See above, note 48, Para 11.5.
58 , Para 2.4.
59 See above, note 35, Para 6.
60 See above, note 48, Para 11.5.
The Equal Rights Review, Vol. Sixteen (2016)
113
State needed to introduce in order to strengthen respect for the principle of informed con-
sent in all cases of sterilisation, including by monitoring public and private health centres
that perform such medical procedures.61 The Committee’s formulation of the recommenda-
when, in fact, it was the intersection of her situation as a member of the Roma community
and as a mother that resulted in her forced sterilisation.
-
struments previously elaborated by the CERD Committee and the CESCR. In 2000, the CERD
Committee adopted a General Recommendation addressing the gender aspects of racial dis-
crimination62
persons.63
women’s health status in particular ways, the CERD Committee stated that:
There are circumstances in which racial discrimination only or primarily affects
-
nition or acknowledgement of the different life experiences of women and men, in
64
The CERD Committee further acknowledged that:
-
cally because of their gender, such as sexual violence committed against women
members of particular racial or ethnic groups in detention or during armed con-
65
Consideration of the comments of the CESCR in relation to the right to health also could have
assisted the CEDAW Committee to develop a more in-depth analysis of A.S.’s experiences. In
its General Comment No. 14 on the right to health, the CESCR states that the:
61 Ibid.
62 See above, note 44.
63 CERD Committee, , 2000.
64 See above, note 44, Para 1. In paragraph 5, the Committee also indicates that it will take several
methodological steps to systematise its consideration of the gendered aspects of racial discrimination,
namely it commits to: (a) examine the form and manifestation of racial discrimination; (b) identify
the circumstances in which racial discrimination occurs; (c) enquire on the consequences of racial
discrimination; and (d) establish the availability and accessibility of remedies and complaint mechanisms
for racial discrimination. Importantly, if the CEDAW Committee had taken these practical steps into
account in its decision in six years later, it would have opened up the possibility of a
discussion of the particular circumstances of the applicant as a Roma woman in the health care system.
65 , Para 2.
The Equal Rights Review, Vol. Sixteen (2016)
114
conditions in which people can lead a healthy life, and extends to the underlying
determinants of health, such as food and nutrition, housing, access to safe and
66
-
sential elements of availability, accessibility, acceptability and quality would have allowed
the CEDAW Committee to examine and understand the author’s experiences.67 The au-
thor’s description of the facts contained indications of the physical barriers that affected
her access to emergency medical services.68 This raises questions from the point of view
of the obligation to provide accessible health facilities without discrimination.69 A.S. also
claimed that it took only 17 minutes to register her arrival at the hospital, to perform the
caesarean section, to ask for her consent to be sterilised and to perform the sterilisation.70
This course of events raises serious doubts about the accessibility of information concern-
ing reproductive and sexual-health care and the element of acceptability, which requires
respect for the culture of individuals and minorities as well as sensitivity to gender and
life-cycle diversity.71
-
al Comment No. 22, issued in March 2016, supports recognition of intersectional discrimina-
tion. The Comment focuses on the right to sexual and reproductive health and acknowledges
that for:
-
secting forms of discrimination that exacerbate exclusion in both law and prac-
tice, (…) the full enjoyment of the right to sexual and reproductive health is fur-
72
66 CESCR, General Comment No. 14
, UN Doc. E/C.12/2000/4, 11 August 2000, Para 4. The analysis of the CESCR would also allow the
CEDAW Committee to establish not only that the State failed in its obligation to provide information with
regard to sexual and reproductive health, but also emphasise the fact that withholding or misrepresenting
health-related information amounts to a violation of the obligation to respect the right to health.
67 , Para 12.
68 See above, note 48, Para 2.2.
69 See above, note 66, Para 12(b)(ii).
70 See above, note 48, Para 2.3.
71 See above, note 66, Para 12(b)(iv) and (c).
72 CESCR, on ,
UN Doc. E/C.12/GC/22, 4 March 2016, Para 2.
The Equal Rights Review, Vol. Sixteen (2016)
115
Importantly, the CESCR explicitly recognises that “individuals belonging to particular groups
may be disproportionately affected by intersectional discrimination in the context of sexu-
al and reproductive health”.73 Such groups may include women living in poverty as well as
women belonging to different ethnic minorities.74 The connection established by the CESCR
regarding the likelihood that women belonging to ethnic minorities may experience intersec-
tional discrimination may dismantle some of the apparent reluctance of treaty bodies to pay
more attention to forms of intersectional discrimination.
In 2015, the CEDAW Committee did go some way towards recognising that different groups
of women face different and unique barriers to accessing sexual and reproductive health ser-
the situation of sexual and reproductive rights in the Philippines.75 Although the inquiry did
-
nomically disadvantaged women and adolescent girls in Manila as being of particular con-
cern, and its recommendations to the government emphasised the need to ensure that these
groups of women, as well as others, have effective access to sexual and reproductive health
services, including information.76 The Philippines inquiry demonstrates that the CEDAW
of women in relation to access to sexual and reproductive health services, including infor-
mation. The next part of this section will consider the case of a case involving
property rights.
b. Kell v Canada
In 1990, Cecilia Kell, an Aboriginal woman from the Canadian Northwest Territories, returned
to her home community of Rae-Edzo after attending university.77 When the local housing au-
thority made lodging available to indigenous people under a special scheme, Kell decided to
apply. She was living with her partner, one of the directors of the Housing Authority Board
at the time who, hearing of the scheme, attempted to apply in his own name. After his appli-
cation was rejected because he was not a member of the community, the housing authority
advised Kell to list both herself and her partner in her application. This proved successful and
a house was granted to them as co-owners and both were named on the Assignment Lease.78
73 , Para 30.
74 , Para 30.
75 CEDAW Committee,
, UN Doc.
CEDAW/C/OP.8/PHL/1, 22 April 2015.
76 Ibid., Para 52 (a).
77 See above, note 49.
78 Ibid., Para 2.3.
The Equal Rights Review, Vol. Sixteen (2016)
116
Over the three years that followed the house purchase, Kell was subjected to domestic violence
1993, the Northwest Territories Housing Corporation, the public authority administering the
properties, removed Kell’s name from the Assignment Lease at the request of her partner with-
out her knowledge or consent. In 1995, she was evicted from her home by her partner. Over
the next 10 years, she fought to regain her property rights through the Canadian legal system.
She alleged that all of these lawyers failed to follow her instructions and negotiated without
her consent.79
80
In 2008, contending that she had exhausted all domestic remedies, Kell brought an individual
complaint under the Optional Protocol. She claimed, in particular, that Canada had “failed to
ensure that its agents refrain from engaging in any act or practice of discrimination against
women, when they removed [Kell’s] name from the lease without her consent.”81 She further
submitted that the State had violated Article 16(1)(h) of the CEDAW as it failed to ensure her
equal right to ownership, acquisition, management, administration and enjoyment of her
property.82 Her further submission noted that:
-
discrimination contributed to a pattern of behaviour that was – at best bullying
83
The CEDAW Committee concluded that Kell’s property rights had been prejudiced by the
public authority acting with her partner, and that she had been discriminated against on the
basis of her identity as an Aboriginal woman who was a victim of domestic violence.84 The
Committee reiterated its interpretive guidance on intersectional discrimination in its Gen-
eral Recommendation No. 28, and found that the scope of the general obligations of states
contained in Article 2 of the CEDAW had to be interpreted in light of the intersecting forms of
discrimination experienced by Ms Kell:
79 Ibid., Para 2.13.
80 Ibid., Para 2.11.
81 , Para 3.2.
82 Ibid., Para 2.13.
83 Para 9.3.
84 This conclusion was not unanimous. Ms. Patricia Schulz submitted a dissenting Individual Opinion
whereby she disagreed with the Committee’s decision on the admissibility of the complaint, and the
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117
The discrimination of women based on sex and gender is inextricably linked with oth-
er factors that affect women, such as race, ethnicity, religion or belief, health, status,
-
gally recognise and prohibit such intersecting forms of discrimination and their com-
85
The Committee determined that Canada had violated Articles 2(d) and (e) and 16(1)(h)
of the Convention and that “[a]s the author is an aboriginal woman who is in a vulnera-
ble position, the State party is obliged to ensure the effective elimination of intersectional
discrimination.”86 Aside from recommending that Kell be provided with reparations for
Convention to ensure effective access to justice for all Aboriginal women, by taking steps to
recruit and train more Aboriginal women to provide legal aid to women “from their com-
munities, including on domestic violence and property rights.”87 It further recommended
that professional legal aid services be provided for Aboriginal women with a focus on do-
mestic violence and property rights.88
c. R.P.B. v the Philippines
The Committee also took into account the existence of several systems of oppression based
on age, gender and disabilities in its 2014 decision in.89 R.P.B., who is
unable to speak and hearing impaired, was 17 years old at the time that her neighbour alleg-
edly raped her. She reported the incident to the police; where her sister interpreted for her
hearing impaired in the Philippines is almost entirely in English, R.P.B. could not understand
90
85 See above, note 49,
women may suffer. The Committee added that “the intersectional discrimination faced by Aboriginal
women living on reserves is exacerbated by their living in a rural environment, because of their
geographical isolation and limited mobility, the lack of safe transportation and their limited access to
law enforcement, protection and counselling services”. See, CEDAW Committee,
, UN Doc. CEDAW/C/OP.8/CAN/1, 30 March 2015, Para 204.
86 See above, note 49, Para 10.3.
87 Ibid., Para 11.
88 Ibid., Para 12. Similarly, in , Communication No. 17/2008, UN Doc. CEDAW/
C/49/D/17/2008, 27 September 2011, the Committee considered that the deceased’s status as a woman
of African descent and her social-economic status placed her in a vulnerable sector of society in relation
to access to health services.
89 See above, note 50.
90 , Para 3.9.
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118
In her petition to the Committee, R.P.B. argued that in addition to the use of gendered myths
and stereotypes about the behaviour of “ordinary” Filipina women, her particular situation,
that of being a girl minor and having a disability, was not taken into account. As such, there
was a violation of the State’s obligation to end discrimination in the legal process under Ar-
ticles 1 and 2(c), (d) and (f) of the CEDAW. She also claimed that the lack of a sign language
interpreter, either at the investigative stage or at trial, violated her rights under Article 21(b)
of the Convention on the Rights of Persons with Disabilities (CRPD).91
In its assessment, the Committee noted that R.P.B. had suffered moral and material damages
as a result of the:
with the free assistance of sign language interpreters and by the use of the stere-
92
As a result, the Committee recommended that the State provide reparation in the form of
“monetary compensation commensurate with the gravity of the violations” as well as psy-
chological counselling and therapy for R.P.B. and her affected family members and “barri-
er-free education with interpreting.”93 More generally, the Committee recommended that
free and adequate sign language interpretation be provided at all stages of proceedings, that
rape legislation be reviewed and that criminal proceedings be conducted “in an impartial and
fair manner and free from prejudices or stereotypical notions regarding the victim’s gender,
age and disability.”94
In the . case, the Committee considered the obligations of states in relation to women
-
with observing that myths and stereotypes prevent courts from considering the individual
circumstances of the victim, which may include disability and age.
Although the Committee made progress in taking account of the complex circumstances that
formed the background to R.P.B.’s situation, the decision also demonstrates the limits of its
capacity to follow an intersectionality-based analysis through to its natural conclusion. R.P.B.
requested that the Committee make a decision on alleged violations of Article 2 (c), (d) and
(f) in relation to fair trial guarantees free from discrimination as to sex, age, and disability.
Despite the Committee’s display of awareness of, and concern for, R.P.B.’s situation as a girl
91 Ibid.
92 Ibid., Para 8.11.
93 Ibid., Para 9.
94 Ibid.
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119
with hearing and speech impairments, its views still prioritised the sex and gender aspects
of the communication.
In its decision, the Committee refers to its General Recommendation No. 18 on women with
disabilities95 where it acknowledges that these women “may face double discrimination
linked to their special living conditions.”96 With this argument, the Committee seems to be
closer to an additive understanding of inequalities rather than an intersectionality-based
logic. Its conclusion, by focusing only on the sex-and gender-based discrimination that lie
-
ty aspects of the violation. Furthermore, the Committee disregarded the age dimension of the
complaint, and treated the author as an adult woman.
Under Article 2(f) of the CEDAW, the Committee explained that compliance by a state
with its obligation to eliminate gender stereotypes needs to be assessed in light of “gen-
der, age and disability sensitivity applied in the judicial handling of the author’s case”.97
The Committee’s examination of the degree of sensitivity exercised by domestic authori-
ties comprised assessments of the courts’ use of gender stereotypes based on gender and
sex constructing a typology of “ordinary Filipina female rape victim” who would “summon
every ounce of her strength and courage to thwart any attempt to besmirch her honour
and blemish her purity”; and the courts’ observations that R.P.B’s conduct did not match
that of the constructed model, in that she had not tried to escape by making noise or using
force.98 While in this case, the Committee stated that it was going to take account of the tri-
ple-tiered situation of the victim, its conclusions separate sex and gender, on the one hand,
and age and disability, on the other. The Committee held that the facts of the case amounted
to sex and gender-based discrimination and disregard for the author’s disability and age.99
Thus, the Committee neither decided on additive discrimination on the basis of sex, gender,
age and disability, nor intersectional discrimination. Despite its analysis, it still preferred
to operate with a conceptual separation of the applicant’s experiences and focus on sex and
gender-based discrimination to the detriment of age and disability.
As with , the Committee’s analysis of the merits would be enriched if it extend-
ed its purview to relevant practice from the other treaty bodies, particularly the CRC Com-
mittee and the CRPD Committee. In 2007, the CRC Committee adopted a General Comment
on the rights of children with disabilities where it recognised that:
95 Ibid., Para 8.3.
96 Ibid.
97 Ibid., Para 8.8.
98 Ibid., Para 8.9.
99 Ibid.
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120
-
100
If the CEDAW Committee were to integrate this interpretation into its reasoning on future
cases involving girls with disabilities, perhaps it would help establish a jurisprudence based
on the recognition of multiple discrimination, rather than severing and prioritising personal
experiences.
The most comprehensive understanding and application of an intersectionality-based logic
appears in the draft General Comment of the CRPD Committee regarding Article 6 of the
CRPD which focuses on women with disabilities. In the draft, the CRPD Committee states that
taking an intersectional approach constitutes a:
-
knowledges that human beings experience discrimination differently according
to their statuses throughout life-cycle and that discrimination occurs in various
101
The CRPD Committee therefore recognises that women and girls with disabilities are of-
as comprising several layers of discrimination based on various grounds whose interaction
produces new forms of discrimination that are unique and cannot be correctly understood by
describing them as double or triple discrimination.102
This draft General Comment constitutes an important source of interpretation concerning
the content of an intersectionality-based analysis of discrimination and the main advan-
tages it presents compared to the single-axis approach. First, the Committee understands
intersectional discrimination as a form of discrimination based on the interlinking of mul-
tiple grounds. Second, the draft General Comment posits that, unlike the case of additive
discrimination, in the case of intersectional discrimination, the grounds of discrimination
are inextricably linked and it is impossible to untangle them in order to tell which part of the
discrimination is based on a certain ground. Third, it stresses that intersectionality is useful
to uncover experiences that may remain invisible in the single axis analysis, and to account
for the complexity of human experiences at the intersection of sex, gender, age, sexual orien-
tation, ethnicity, or cultural or religious backgrounds. This acknowledgment recognises that:
100 CRC Committee, , The rights of children with disabilities, UN Doc. CRC/C/GC/9,
27 February 2007, Para 8.
101 CRPD Committee, , Women and disabilities, UN Doc. CRPD/C/14/R.1,
22 May 2015, Para 4.
102 Ibid. Para 8.
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121
103
Particularly relevant for future cases such as . v the Philippines, the CRPD Committee
states that:
-
104
This interpretation touches upon the essence of the argument made in the case, and
states what the CEDAW Committee did not articulate. In defence of the CEDAW Committee,
it can be argued that, unlike the text of the CEDAW, the CRPD explicitly acknowledges that
women and girls with disabilities face intersectional discrimination, and calls on states par-
ties to take measures to ensure the full and equal enjoyment by them of all human rights and
fundamental freedoms.105
d. E.S. and S.C. v Tanzania
In one of its most recent decisions, the CEDAW Committee examined
the situation of two widows with minor children who were ordered to vacate their homes fol-
lowing the deaths of their husbands.106 In each instance, the local courts applied patrilineal cus-
tomary law provisions that granted male family members the right to administer and dispose
of the estate.107 In 2006, the women appealed to the High Court of Tanzania which concluded
that “the impugned paragraphs [were] discriminatory in more ways than one”, but that “it was
impossible to effect customary change by judicial pronouncements”.108 The High Court decided
that it would not overturn the provisions because doing so would “be opening the Pandora’s
box, with all the seemingly discriminative customs from our 120 tribes plus following the same
path”.109 Several subsequent appeals by the women were dismissed on procedural grounds.110
103 Ibid., Para 17.
104 Ibid., Para 8.
105 Convention on the Rights of Persons with Disabilities, G.A. Res.A/RES/61/106, 2006, Article 6.
106 See above, note 51.
107 Ibid., Paras 2.5–2.6.
108 Ibid., Para 2.8.
109 Ibid.
110 Ibid., Paras 2.9–2.10.
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122
Having exhausted domestic remedies, the women turned to the CEDAW Committee. The
women’s complaint stated that there are three separate systems of intestate inheritance law
being the most widely applied system.111 The Committee concluded “that inheritance mat-
ters are governed by multiple legal systems in the State party and that the authors have been
subjected to Sukuma customary law on the basis of their ethnicity.”112 Although it does not
elaborate further upon the situation of the authors as widows subject to patrilineal custom-
ary inheritance law, a footnote refers to the Committee’s General Recommendations No. 28
and No. 29 in connection with intersectional discrimination.113
In its determination, the Committee highlights the fact that widows are forced to “per-
petually depend on their male relatives and their children” and that they therefore suffer
violations of their right to economic independence under Article 13 of the CEDAW.114 The
Committee also found that Tanzania had breached its obligations under Articles 2 (c), 2 (f ),
5 (a), 15 (1), 15 (2), 16 (1)(c) and 16 (1)(h) of the Convention, “read in the light of General
Recommendations Nos. 21, 28 and 29.”115 In addition to its recommendations concerning
compensation for the authors of the complaint, the Committee urged Tanzania to ensure
that the rights guaranteed in the CEDAW prevail over inconsistent national laws and that
it repeal or amend local customary laws, “with a view to providing women and girls with
equal administration and inheritance rights upon the dissolution of marriage by death,
irrespective of their ethnicity or religion.”116
The case thus raises the possibility of an intersectional approach
but again, the Committee failed to follow up its observations with a detailed analysis of the
geographical location.
The cases decided by the CEDAW Committee under its Optional Protocol demonstrate a de-
veloping awareness of intersectional discrimination.117 The evolution of the Committee’s
thinking is apparent in the four cases presented above, however, it is not a linear progression
and there is still a large gap between the rhetorical acknowledgement of intersectionality
111 Ibid., Para 2.1.
112 Ibid., Para 7.6.
113 Ibid., footnote 32, p. 11.
114 Ibid., Para 7.8.
115 Ibid., Para 8.
116 Ibid., Para 9 (ii).
117 While not explored in detail in this Article, this awareness can also be seen in the CEDAW Committee’s
investigations of reproductive and sexual health rights in the Philippines and the disappearances of
Aboriginal women in Canada under the inquiry procedure. See, CEDAW Committee,
, UN Doc. CEDAW/C/OP.8/CAN/1, 30 March 2015, Para 204; and above, note 75.
The Equal Rights Review, Vol. Sixteen (2016)
123
as a framework of analysis and the full application of intersectional methodologies in the
determination of remedies. In its 2004 decision in . v Hungary, the Committee did not ac-
knowledge the fact that the author was a Roma woman and the remedies that were ordered
within sexual and reproductive health care that she experienced as a result of her situation
as a mother from a Roma community. In the later cases of , decided in 2012, and
decided in 2014, the Committee referred to the concept of intersec-
tionality and attempts to incorporate elements of an intersectional approach into its recom-
mendations. Finally, in the 2015 decision , the intersectionality of the
and the remedies recommended addressing the question of gender-based discrimination in
customary laws on inheritance and property rights in general, without a detailed analysis
of the particular situation of widows from ethnic groups that apply patrilineal customary
inheritance laws. Arguably, the Committee took a backward step in ,
of the Committee will be telling in this regard.
4. Beyond Individual Cases: the CEDAW Committee’s Interpretive Practice on
Intersectionality in General Recommendations
In addition to the legislative, budgetary and policy measures recommended in individual
prevention of intersectional discrimination. This section of the paper traces some of the re-
cent developments that are apparent in the Committee’s interpretive General Recommenda-
tions, including its effort to achieve greater institutional coherence on the question of inter-
sectional discrimination against girl children in the context of harmful traditional practices.
a. Intersectionality through Substantive Interpretation in General Recommendations
In 1991, the CEDAW Committee adopted an extremely brief General Recommendation on
disabled women in which it refers to the “double discrimination” faced by women with dis-
abilities.118 This General Recommendation was followed, in 2004, by General Recommenda-
tion No. 25 on temporary special measures in which the Committee discusses the fact that:
against them as women, may also suffer from multiple forms of discrimination
based on additional grounds such as race, ethnic or religious identity, disability,
118 CEDAW Committee, , 1991, Preamble.
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124
multiple forms of discrimination against women and its compounded negative
119
multiplicity of identities that may exist within the group “women”, it still approached mul-
tiple discrimination from an essentially additive perspective. The qualitatively different
nature of intersectional forms of oppression is not recognised and, as a result, the category
of “women” is maintained as the norm with other groups within the category being posi-
tioned as “mere derivatives”.120
In 2010, the CEDAW Committee adopted General Recommendation No. 28 on the core obli-
gations of states parties to the CEDAW. A paragraph of the General Recommendation is dedi-
cated to intersectionality, which is described as a “basic concept for understanding the scope
of the general obligations for states’ parties contained in Article 2”.121 In the same paragraph,
the Committee notes that the discrimination that women experience because of their gender
is “inextricably linked with other factors such as race, ethnicity, religion or belief, health sta-
tus, age, class, caste and sexual orientation and gender identity” and that discrimination on
the basis of gender may consequently “affect women belonging to such groups to a different
degree or in different ways to men.”122 The CEDAW Committee goes on to note that states
must “legally recognize such forms of discrimination and their compounded negative impact
on the women concerned and prohibit them” and that policies and programmes to redress
intersectional discrimination must also be adopted.123
General Recommendation No. 28 represents a shift in the Committee’s thinking about in-
tersectional discrimination in that the notion of the “inextricable” linkage between dif-
ferent grounds of discrimination is evoked. The paradigm has changed from one in which
discrimination is viewed in an additive way, with different grounds being stacked on top of
of intersectionality may reveal an entirely new form of discrimination. Unfortunately, (and
this is almost certainly a result of the construction of the CEDAW itself which focuses exclu-
sively on discrimination against women) this recognition is immediately linked to a male
comparator, thereby diminishing the complexity of the analysis and ultimately rendering
it less potentially disruptive to the settled system of international human rights law than it
might otherwise have been.
119 CEDAW Committee, Temporary measures, 2004, Para 12.
120 See above, note 28, pp. 205–242.
121 CEDAW Committee,
, UN Doc. CEDAW/C/
GC/28, 16 December 2010, Para 18.
122 Ibid.
123 Ibid.
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125
The Committee has continued to take up the language of intersectionality in some of its other
recent General Recommendations, including: Recommendation No. 30 in 2013 which dis-
124 No. 34 in 2016
on the rights of rural women;125 and General Recommendation No. 33 in 2015 on women’s ac-
cess to justice.126 Importantly, the latter General Recommendation notes that “discrimination
against women is compounded by intersecting factors that affect some women to degrees or
in ways that differ from those affecting men or other women.”127 The movement away from
the male comparator to recognition of the fact that differences between women may be more
decisive in some cases of intersectional discrimination than differences between men and
women is a crucial step in the evolution of the Committee’s thinking on intersectionality.
b. Intersectionality through Institutional Developments: the CEDAW and CRC Commit-
tee’s Joint General Recommendation/General Comment on Harmful Practices
2014, two monitoring bodies issued a joint interpretive instrument. The CEDAW and CRC
124 CEDAW Committee,
, UN Doc. CEDAW/C/GC/30, 1 November 2013, Paras 6 and 7, in which the Committee
notes that “women are not a homogenous group” and that “[d]iscrimination against women is also
compounded by intersecting forms of discrimination, as noted in General Recommendation No. 28. Given
125 CEDAW Committee,, UN Doc. CEDAW/C/GC/34, 4
March 2016, Para 14, which states, “[i]n line with GR 28, States parties should recognize that rural women
are not a homogenous group and often face intersecting discrimination.” In Para 15, the Committee notes,
“States parties should eliminate all forms of discrimination against disadvantaged and marginalized
groups of rural women. For example, States parties should ensure that disadvantaged and marginalized
groups of rural women including indigenous; afro-descendent; ethnic and religious minorities; female
are protected from intersecting forms of discrimination and have access to education, employment, water
and sanitation, health care, etc. States parties should develop policies and programmes ensuring the
equal enjoyment of rights by disabled rural women, including by ensuring accessibility of infrastructures
and services. States parties should similarly ensure that older rural women have access to social services,
adequate social protection, as well as economic resources and empowerment to live life with dignity,
126 CEDAW Committee, , UN Doc. CEDAW/C/
GC/33, 3 August 2015, Para 8, where the Committee states, “[i]n addition, discrimination against women
is compounded by intersecting factors that affect some women to degrees or in ways that differ from
those affecting men or other women. Grounds for intersecting or compounded discrimination may
include ethnicity/race, indigenous or minority status, colour, socio-economic status and/or caste,
language, religion or belief, political opinion, national origin, marital and/or maternal status, age,
urban/rural location, health status, disability, property ownership and identity as a lesbian, bisexual or
those groups to gain access to justice.”
127 , Para 8.
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126
Committees adopted a Joint General Recommendation/General Comment on harmful prac-
tices.128 This ground-breaking initiative was attempted following observations by both treaty
bodies that harmful practices fall within the purview of each of the CEDAW and the Conven-
tion on the Rights of the Child (CRC), and that these practices have also been a subject on
which the Committees have repeatedly expressed shared concern.129
From the perspective of discrimination based on sex, the approach that the Committees take
in the General Comment/Recommendation is to acknowledge harmful practices as human
rights violations producing continuous effects from childhood into adulthood, and thus affect-
ing girls and adult women alike.130 The Committees further state that sex and gender-based
discrimination intersects with other factors that affect women and girls, in particular those
who belong to, or are perceived as belonging to, disadvantaged groups, and who are there-
fore at a higher risk of becoming victims of harmful practices.131 As such, the two Commit-
tees assert that harmful practices are “grounded in discrimination based on sex, gender and
age, among other things,”132 as they are “deeply rooted in social attitudes according to which
women and girls are regarded as inferior to men and boys based on stereotyped roles”.133
on the basis of, among other things, sex, gender and age, in addition to multiple
and/or intersecting forms of discrimination that often involve violence and cause
134
128 CEDAW Committee and the CRC Committee,
harmful practices, UN Doc. CEDAW/C/GC/31-CRC/C/GC/18, 14 November 2014.
129 The Convention on the Elimination of All Forms of Discrimination against Women provisions that are
relevant for an analysis on harmful practices are: Article 1, Article 2, Article 5, and Article 16. From the
point of view of the Convention on the Rights of the Child, the relevant provisions would be: Article 2,
Article 3, Article 19(1), and Article 24. The interpretative instruments developed by the respective treaty
monitoring bodies have additional value, such as the CEDAW Committee’s
1990; , 1992;
, 1994; and above, note 35. On the
other hand, the CRC Committee elaborated the
inter alia), UN Doc. CRC/C/GC/8, 21 August 2006; and
freedom from all forms of violence, UN Doc. CRC/C/GC/14, 29 May 2013.
130 See above, note 128, Para 68.
131 , Para 6.
132 Ibid., Para 7.
133 Ibid., Para 6.
134 Ibid., Para 15.
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127
make in the General Recommendation/Comment. For instance, with regard to the recom-
mendation to states to adopt or amend legislation with a view to effectively eliminating
harmful practices, the Committees note that such legislation should address the root causes
of these practices, including “discrimination on the basis of sex, gender, age and other inter-
secting factors”.135 The preventive measures recommended by the treaty bodies also stress
the fact that harmful practices cannot be treated in isolation, but require a rights-based ap-
proach that recognises the indivisibility and interdependence of rights.136
The General Recommendation/Comment presents several particularities. The normative con-
tent under the CEDAW and the CRC outlined in the General Recommendation/Comment, in-
practices follows the model developed in the practice of the CRC Committee with regard to
violence against children137 and corporal punishment.138 Another element from the practice
of the CRC Committee is the focus on upholding the dignity and integrity of the individual. In
its General Comments regarding violence against children and corporal punishment, the CRC
Committee stresses “the concept of dignity requires that every child is recognised, respected
and protected as a rights holder”.139 On the other hand, the determination that harmful prac-
narrative of the CEDAW Committee with the addition of discrimination against children. In its
gender-based violence as a form of discrimination that inhibits women’s ability to enjoy rights
and freedoms on a basis of equality with men in accordance with Article 1 of the CEDAW.140 Fur-
thermore, General Recommendation No. 19 draws attention to the linkage between discrimi-
nation against women, violence against women and violations of human rights.141 In the same
135 Ibid., Para 55(e).
136 Ibid., Para 58.
137 CRC Committee, The right of the child to freedom from all forms of violence,
UN Doc. CRC/C/GC/13, 18 April 2011, Para 4. This reads “violence is understood to mean all forms of
physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse” as listed in article 19, paragraph 1, of the Convention”.
138 CRC Committee, The right of the child to protection from corporal punishment
UN Doc. CRC/C/
any punishment in which physical force is used and intended to cause some degree of pain or discomfort,
however light”.
139 See above, note 137, Para 3(c).
140 CEDAW Committee, 1992, Paras 1, 6.
141 Ibid
of human rights and fundamental freedoms under general international law or under human rights
conventions, is discrimination within the meaning of Article 1 of the Convention”.
The Equal Rights Review, Vol. Sixteen (2016)
128
vein, the General Recommendation/Comment on harmful practices highlights the connection
between discrimination, violence and human rights violations by reminding states parties of
their due diligence obligations to prevent acts that impair the recognition, enjoyment or exer-
cise of rights by women and children and to ensure that private actors do not engage in discrim-
ination against women and girls, including gender-based violence.142
The General Recommendation/Comment is undeniably valuable in that it paves the way for
future collaborations among the treaty bodies, provides a substantive and nuanced analysis
of the human rights violations that arise from harmful practices through its integration of
perspectives from both the CEDAW and the CRC, and ensures greater consistency in the ap-
success. The undertaking of the two treaty bodies shows that the mere fact of institutional
cooperation on a given issue is not necessarily enough to achieve substantive integration
Recommendation/Comment is segregated and states are informed that the CEDAW inter-
pretation of the concept should be applied if the harmful practice concerns violence against
women and girls, whereas the CRC forms the referential standard if the case involves violence
against children in general.143
This type of interpretation may result in further separation and marginalisation, as Nura
taken by women’s and children’s rights narratives.144
CEDAW and the CRC are applicable to girls, the application of both treaties and the discourses
related to women’s rights and to children’s rights result in failure to address girls’ particular
on account of age, and in the discourse on children’s rights on account of gender. She carries
the argument further to imply that under the CEDAW, the underlying subject of rights is the
white woman; while under the CRC, the underlying subject is the male child.145 Not consider-
subjects of rights, and, second, in a partial approach to the protection on girls’ rights, where
the focus has been primarily on issues connected to harmful practices and sexual violence.
and gaps, and as a mechanism for redesigning the human rights framework of protection.146
142 CEDAW Committee and the CRC Committee,
on harmful practices, Para 11.
143 Ibid.
144
Marginalization of the Girl-Child”, , Vol. 17, 2009.
145 Ibid., p. 348.
146 Ibid., p. 346.
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129
Moreover, an argument can be made that the General Recommendation/Comment presents
a level of inconsistency in that it relies solely on provisions of the CEDAW and the CRC, with-
out wider reference to the ICCPR or the ICESCR. Many arguments have been made that the
thematic human rights treaties, such as the CRC, the Convention on the Rights of Migrant
Workers and Members of their Families, or the CRPD, are a form of lex specialis in relation
to the ICCPR and the ICESCR which contain the general norms of human rights protection.147
The two specialist committees, the CEDAW Committee and the CRC Committee, invoked
their innovative approach in adopting a joint General Recommendation/Comment. Howev-
er, both the HRC and the CESCR had also previously issued interpretive guidance in relation
to harmful practices. In its Concluding Observations on Indonesia, the HRC recommended
that the State make efforts to prevent and eradicate harmful practices.148 The CESCR has
expressed deep concern at the lack of progress made by India in eliminating tradition-
al practices and provisions of personal status laws that are harmful and discriminatory
to women and girls.149 The inclusion of the two generalist treaty bodies in the discussion
surrounding the adoption of a joint interpretive instrument would have marked a turn-
ing point in institutional thinking about intersectionality. A future path towards improved
coordination could involve joint action by all of the treaty bodies in the development of a
common interpretation of the non-discrimination guarantees that are contained in each of
the core human rights treaties.
Conclusion
Intersectionality scholarship invites us to observe and recognise the complexities and multi-
ple dimensions of different systems of power and oppression and the impact that these may
have on individuals and groups.150 The challenge remains in translating these observations
into the development of responses that go beyond highly individualised remedies to mean-
147 O’Flaherty, M. and O’Brien, C., “Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the
Human Rights
, Vol. 7, 2007, pp. 141–172.
148 HRC, , UN Doc. CCPR/C/IDN/CO/1, 21 August 2013, Para 12. See also
HRC, , UN Doc. CCPR/C/DJI/CO/1, 19 November 2013, Para 8; HRC, -
, UN Doc. CCPR/C/ETH/CO/1, 19 August 2011, Para 10; HRC,
, UN Doc. CCPR/C/MWI/CO/1/Add.1, 19 August 2014; and HRC, -
, UN Doc. CCPR/C/KEN/CO/3, 31 August 2012, Para 15.
149 CESCR, , UN Doc. E/C.12/IND/CO/5, 8 August 2008, Para 25. See also CE-
SCR, , UN Doc. E/C.12/COD/CO/4, 16 December
2009, Para 20; CESCR, , UN Doc. E/C.12/NPL/CO/3, 12 December 2014,
Para 14; and CESCR, , UN Doc. E/C.12/GMB/CO/1, 20 March 2015.
150 See above, note 6, Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Cri-
tique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics”, pp. 150–152.
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system of international human rights law that continues to primarily function using a “sin-
gle-axis” approach to inequality.
There are indications that international human rights mechanisms are gradually beginning
to take steps to more fully respond to forms of intersectional discrimination. An examination
of the jurisprudence and recommendations issued by the CEDAW Committee over the course
of a decade reveals both the progress that the treaty body has made, as well as its reluctance
to forge ahead with the substantive application of an intersectional approach. The Commit-
tee’s initial failure to engage with issues of multiple and intersectional discrimination as seen
in -
sectionality in its decision in . General Recommendation No. 28 on the states
intersectionality as a basic concept for the interpretation of general obligations to guarantee
substantive equality under the Convention. The General Recommendation acknowledges dif-
ferences between women and calls on states to legally recognise and prohibit intersectional
forms of discrimination.
However, the CEDAW Committee’s application of intersectionality as a method of analysis
has not followed a linear path. In its recent decisions in , and particular-
ly in the Committee arguably took a step back. In the former case, the
treaty body demonstrated awareness of the author’s complex situation as a girl with disabili-
ties but decided to prioritise sex and gender discrimination over age and disability. In the lat-
ter case, the Committee did not engage in any meaningful discussion of the applicants’ status
A comparison with the interpretive practice of other treaty bodies shows that there is poten-
tial for greater clarity and consistency on anti-discrimination law within the international
human rights system, and provides insights into the ways in which the current gaps in the
CEDAW Committee’s reasoning on intersectionality could be closed. Steps in this direction
were taken in General Recommendation/Comment No. 31 on harmful practices elaborated
jointly by the CEDAW and CRC Committees, which highlights the intersectional dimensions of
approach. However, fragmentation remains in the approach taken in the General Recommen-
dation/Comment and in its development.
The evolving interpretive practice by the treaty bodies demonstrates that intersectionality
does have a place in international human rights law as an observational tool and as a frame-
work for guiding policy and legislative change. The inconsistency and hesitation shown by the
treaty bodies in the application of intersectionality may be explained by the fact that they have
yet to develop a comprehensive or uniform methodology for assessing inequality. There are no
Intersectional practice by the international human rights system is also valuable for its po-
-
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131
mendations by treaty bodies to states have recently focused on ensuring that cases of inter-
sectional discrimination are justiciable at the national level through, inter alia, the adoption
of consolidated anti-discrimination legislation and an expansion of the mandates of national
human rights institutions so that they are able to consider complaints that simultaneously
invoke intersecting grounds of discrimination.151
As a theory and as a practical tool for the implementation of human rights, intersectionality
provides insights as to how we might promote substantive equality and encourage partici-
pation by diverse individuals and groups in the conceptualisation, development, implemen-
tation and monitoring of policies, laws, budgets and administrative programmes that have
an impact on the enjoyment of human rights. By ensuring that a rich range of experiences is
brought before judicial and quasi-judicial authorities, intersectionality offers a framework to
comprehensively prevent and remedy inequalities. The scope and nature of the human rights
violations that arise at the intersections of different forms of discrimination can, as a result,
-
man rights guarantees.
151 See, for example, note 126, Para 60 (c). This reads “provide the possibility for women to lodge claims
involving multiple and intersecting forms of discrimination.”
