Intersectionality and Human Rights Law

Shreya Atrey, Peter Dunne, Shreya Atrey, Peter Dunne

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509942251
• eBook ISBN: 9781509935307
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This collection of essays analyses how diversity in human identity and disadvantage affects the articulation, realisation, violation and enforcement of human rights. The question arises from the realisation that people, who are severally and severely disadvantaged because of their race, religion, gender, age, disability, sexual orientation, class etc, often find themselves at the margins of human rights; their condition seldom improved and sometimes even worsened by the rights discourse. How does one make sense of this relationship between the complexity of people's disadvantage and violation of their human rights? Does the human rights discourse, based on its universal and common values, have tools, methods or theories to capture and respond to the difference in people's lived experience of rights? Can intersectionality help in that quest? This book seeks to inaugurate this line of inquiry.

1

Beyond Universality

An Intersectional Justification of Human Rights

SHREYA ATREY

Introduction

Where, after all, do universal rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.

– Eleanor Roosevelt¹

In a small but plush part of the world, Grenfell Tower had been home to 350 residents since 1967. The residents were, according to data published in 2015, amongst the top 10 per cent most-deprived sections in the country, nestled in one of the wealthiest neighbourhoods in London – Kensington and Chelsea.² When Grenfell caught fire in the early hours on 14 June 2017, not all could escape. Seventy-two individuals lost their lives.³ Grenfell’s victims were overwhelmingly poor, Black, Muslims, first-generation immigrants and refugees – many of them inhabiting all of these characteristics at the same time. Amongst those who died, 18 were children, including one stillborn infant. Seven were persons with disabilities. The number of women outnumbered men. People from 19 other nationalities lost their lives alongside seven white Britons and over 20 non-white Britons. Twenty-one were from Africa and 15 from the Middle East and Asia. There were also diverse professionals – artists, chambermaids, chefs, electricians, retailers, waiters, taxi drivers, lorry drivers and porters all among them.⁴

Tragedy, calamity and disaster could strike anywhere. Yet, Grenfell was anything but accidental. The local council had only recently (in 2016) renovated Grenfell Tower with poor-quality cladding. In 2015, it was warned that the fire barriers were ineffective and could put lives at risk. The Council instead chose to save £693,161 with cheaper cladding. But the demographics of Grenfell’s victims are telling and the implication is clear: that those disadvantaged at multiple levels have cheaper lives still. Their rights to life, liberty, security, housing, family and livelihood are negotiable; their poverty, race, religion, gender, age, disability, nationality and employment status, determinative of their life conditions and in fact, the existence of life at all.

The charred skeleton of Grenfell now stands as a reminder of the hollow and despondent location where rights did not inhabit the homes and lives of its residents. A distant reality compared to that which Eleanor Roosevelt had imagined for universal human rights. How did that come to be? Why did rights have no meaning in the lives of the Grenfell residents? If rights are universal and guaranteed equally to everyone, how come the Grenfell residents so obviously fell through the cracks?

The Grenfell tower tragedy is a poignant example of how the diversity of human lives bears on the experience of universal human rights. Poverty, race, religion, gender, age, disability, nationality, employment status etc all played a part in how the panoply of rights of the Grenfell residents – to life, liberty, security, home, family and livelihood – came to be violated. How does one make sense of the relationship between the complexity of people’s disadvantage and the violation of their human rights? Does human rights law, based on its universal values, have tools to capture and respond to the difference in people’s experiences of rights? Can intersectionality help in this quest?

This chapter explores these questions. It seeks to square the emphasis on the universality of human rights with the rich diversity of the experience of human rights. It argues that the norms of equality and non-discrimination may be limited in recognising such diversity. Instead, such diversity, and its full complexity, may be appreciated via intersectionality theory. Intersectionality provides a framework for mediating the universality of human rights and in fact modifies the normative basis for which rights matter. This basis, referred to as ‘intersectional universality’, may in turn have a significant impact on human rights practice. It is argued that the most significant impact may be on resurrecting the waning discourse on causation in human rights.

A few remarks are necessary to clarify what this chapter is not about. It is not about the diversity of rights themselves. As such, it is not a challenge to the universality of the range of equal and similar rights of all persons around the world. Consequently, it is not about the oft-repeated challenge to universality – that of cultural relativism.⁵ Instead, it is about the diversity in the experience of human rights based on different identities and conditions which define human life, but not necessarily cultures. It thus does not speak to the debate over group versus individual rights.⁶ Equally, it is not about the universality of human nature or human essence as the basis of human rights.⁷

In fact, the chapter seeks to underscore the relevance of seeing human life aside of, or beyond, the fact of its common humanity because it has an influence on human rights, especially their justification. Even in the most homogeneous of cultures or societies, such difference can and will exist – there will be men and women; they will be of different ages; they may belong to many genders; some of them will be straight and others gay; some will be disabled and some not; and there may be several classes, ethnic groups, religions, languages, professions and political opinions which define them. What makes up common humanity are these internal differences. What difference do these differences make and how does the complexity of difference come to be reflected in universality once we accept it as the premise of human rights?

This chapter ponders over this rather discursive theme. It does not go into the specific ways in which specific differences are recognised in the form of the right to freedom of association, freedom of religion, collective rights, right to self-determination and so forth. The concern is more general than that – that rights, such as the right to life, which are general and non-specific, tend to remain at that level rather than relating to the specific identities, positions, contexts and experiences which breathe life into it. Defined in formal terms and confined to status-identities, the general guarantee of the right to non-discrimination also remains at this rather superficial level when it comes to recognising the full complexity and character of human life. The chapter proposes that this full complexity can be reckoned with as a matter of intersectionality. That said, the chapter is not an exposition of intersectionality theory or its defences per se.⁸ There is little space here to engage with the vast breadth of what has come to be ‘a field of intersectionality studies’.⁹ The immediate purpose of enlisting intersectionality here is to exhume it in human rights law by going beyond its invocation in the vastly important but limited site of discrimination law. More specifically, the purpose is to have intersectionality speak directly to the theory of human rights in terms of conceiving universal human rights as they are experienced by one and all. The references to intersectionality are thus going to be directed to serving that purpose. With all that, the exploration of the links between the foundations of human rights and intersectionality theory remains rudimentary, open to critique and amendment.

I.Universality

Universality, it may be said, is the first amongst first principles of human rights law. The Universal Declaration of Human Rights (UDHR) in 1948 opened with the proclamation that ‘all human beings are born with equal and inalienable rights and fundamental freedoms’.¹⁰ This was followed in 1950 by the European Convention on Human Rights (ECHR), which aimed at ‘securing the universal and effective recognition and observance’ of rights.¹¹ In 1965, the incoming Convention on the Elimination of All Forms of Racial Discrimination (CERD) reiterated the UDHR in that ‘all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin’.¹² Soon after in 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both recognised the ‘inherent dignity and … equal and inalienable rights of all members of the human family’.¹³ In fact, it would be futile to look for a human rights treaty which begins without echoing the commitment to universality in some form.

But universality is hardly of preambular significance alone. Theorists have posited moral, ethical and political accounts of human rights based on universality. Human rights are described as ‘rights that one has simply because one is a human being’¹⁴ or ‘rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity’.¹⁵ They are said to arise from the ‘minimum fact of human origin’.¹⁶ To call them ‘human’ rights is to ‘characterize the scope of the claims being made, [that is] … to universality and a commitment to equality and non-discrimination’.¹⁷ In fact, equality/non-discrimination is the corollary of universality. Recognising that rights rest upon common humanity, universality debars the denial of common humanity and thus any form of inequality or discrimination in the status of human beings as human beings or as bearers of rights. In this way, rights are guaranteed not just to all human beings, but to all human beings equally. Egalitarianism is thus an essential feature of universal human rights.¹⁸ This is reflected in the preponderance of equality guarantees in human rights instruments. These take the form of the right to equality and non-discrimination proclaiming not only that everyone is entitled to all rights equally, but also specifically that rights are guaranteed to everyone without distinction or discrimination based on certain characteristics, often included in a list of grounds, such as race, colour, sex, gender, language, religion, disability, age, sexual orientation, political or other opinion, national or social origin, and property.¹⁹

Given that the history of the world is saturated with inequality, where human beings have been denied equal status as human beings and as deserving of equal moral worth and concern as another human being, the commitment to ‘radical political egalitarianism’ is believed to be ‘a central achievement of the human rights movement’.²⁰ It is an achievement because in reality, equality was not in any way a given; it is the result of the process gone through by humanity and hence arrived at.²¹ In Hannah Arendt’s vivid words: ‘We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights.’²² Yet, importantly for Arendt, equality is a constant reminder of the difference and diversity of humans. The distinctiveness of their individuality and their condition is what is typically human about humans. For Arendt, ‘we are all the same, that is, human, in such a way that nobody is ever the same as anyone else who ever lived, lives, or will live’.²³ On this view, the claim about universality is one about the equality of difference. Thus, universal human rights matter because they affirm both the differences in humans and the equality in the fact of such difference.

Arendt contemplates humans in their full complexity and more than just humans. She thus doubts the idea that human rights accrue to humans even when they are stripped of all other attributes and thus are simply nothing but bare humans.²⁴ This was particularly ...

Table of contents

• Cover
• Title Page
• Foreword
• Acknowledgements
• Contents
• List of Contributors
• Table of Cases
• Table of Statutes
• Introduction: Intersectionality from Equality to Human Rights
• 1. Beyond Universality: An Intersectional Justification of Human Rights
• 2. Harnessing the Full Potential of Intersectionality Theory in International Human Rights Law: Lessons from Disabled Children’s Right to Education
• 3. The Potential and Pitfalls of Intersectionality in the Context of Social Rights Adjudication
• 4. The Right to Education and Substantive Equality: An Intersectional Reading
• 5. Class, Intersectionality, the Right to Housing and the Avoidable Tragedy of Grenfell Tower
• 6. Intersectionality, Repeal and Reproductive Rights in Ireland
• 7. The Distance Between Us: Sexual and Reproductive Health Rights of Rural Women and Girls
• Epilogue
• Index
• Copyright Page