Beyond Containment – Confronting Racial Hierarchies in International Law: Intersections in Privilege and Marginalization

[Paulina Jimenez Fregoso is an advocacy advisor at the Centre for Reproductive Rights]

Intersectionality remains contested. While it includes multiple social categories and personal identities, there is far reaching debate about its contours. While race, class and gender were widely accepted for a time, these were later seen to fall short of the complex dynamics of multiple forms of oppression. Helma Lutz eventually compiled a comprehensive ‘list’ of identities subject to intersectionality. She uses the term ‘basic dualisms’ to identify axes beyond the traditional triptych, resulting in a list of 14 lines of difference including ‘gender, sexuality, ‘race’/skin-colour, ethnicity, nation/state, class, culture, ability, age, sedentariness/origin, wealth, North–South, religion and stage of social development.’ Lutz’s list is neither exhaustive nor definitive but, importantly, she warns of the dangers of keeping a closed concept that risks neglecting the spaces between these lines of difference.

In my chapter, ‘De-essentializing Race: Intersectionality as a Feminist Approach in International Human Rights Law’, I argue that the conceptualisation of intersectionality should include as many multiply-burdened individuals as possible. As I show, if we fail to address each intersection with the same determination or take a static approach, international law runs the risk of focusing on an incomplete list, and in doing so inadvertently creating a hierarchy between ‘accepted’ and ‘overlooked’ intersections. 

International laws need for an intersectional approach

Race is, self-evidently, a core system of oppression in the world today. However, a limited racial literacy within international law prevents us from seeing the vulnerabilities of a white homosexual woman, as her racial privilege obfuscates other intersections of oppression. Here lies the importance of intersectionality, which conceptually allows us to understand multiply-burdened individuals and communities, where forms of oppression often result from a mixture of gender, race, and class. As Crenshaw has long argued, in juridical analysis, intersectionality is intended to be used as a practical tool that would highlight the gaps in studies of law and inequality. Its value is precisely in its ability to underscore the inequalities experienced by individuals who suffer marginalisation based on multiple intersecting identities that produce simultaneous inequalities.

Intersectionality has been said to sit between the need to understand intersecting identities in their individuality and group politics, covering the processes of differentiation between individuals and the systems of oppression that marginalises some and privileges others. Intersectionality does not eliminate the common traits or sufferings of groups. Rather, it recognises the common situations experienced by individuals and digs deeper to determine their differences. It recognises the existence of patterns of oppression and repression, but its application should not create subgroups within the subgroups to the point of rendering any anti-discrimination or equality policy irrelevant.

The approach of international law’s adjudicative bodies

As I highlight through adjudicatory examples in my chapter, there are glimpses of positivity within human rights bodies’ engagement with race. From the International Criminal Tribunal for Rwanda in Akayasu making visible the multiple harms of women without corresponding compartmentalisation of identity and experiences, to the specific use of intersectionality by the Inter-American Court of Human Rights (IACtHR) in Cuscul Pivaral et al v Guatemala, characterisation of the violence that captured the intersecting characteristics of direct victims, as well as the inter-generational elements of the harm. 

Yet, often these bodies fall short. In its reasoning and later reparation, the IACtHR limited itself to a singular specific group, ignoring the compounding intersections affecting victims and affected communities. Cuscul Pivaral et al  involved forty-nine people diagnosed with HIV between 1992 and 2003, where the IACtHR found that the State had violated the rights to health, life, personal integrity, judicial process, and non-discrimination of the victims. Amongst the victims were individuals in a relationship with people of the same sex, victims who belonged to Indigenous groups and did not speak Spanish, women who were illiterate, and individuals with limited economic resources. 

It is therefore troubling that the IACtHR — known for championing Indigenous peoples’ rights — does very little to address the links between a high incidence of HIV/AIDS among Indigenous populations and their lack of medical access with the historic discrimination they have endured. For example, if the interlocking systems of oppression are taken into account by adjudicators and intersectionality is implemented to understand the harm, the Cuscul Pivaral judgment could have assessed and taken into account the literacy rates among Indigenous groups in Latin America — the lowest among all social groups — and the causes and impact on the information they received regarding sexual and reproductive health, for both prevention and treatment purposes. 

The challenge of taking an intersectional approach:

In many ways the paucity in IHRL adjudicative bodies’ approach calls attention to the conceptual breadth of intersectionality, and the corresponding challenges that those bring. According to Puar, intersectionality theorises that all identities are lived and experienced in an intersectional manner; all subjects are intersectional regardless of consciousness and identities are not rigid concepts. No individual is a member of only one group but rather of several intersecting ones. Paur makes us alive to the risk that placing women of colour as the subjects of intersectionality allows the category of meaning to be both depoliticised and emptied, producing instead a narrative of an essentialised ‘other’ echoing the interpellation of adjacent feminist conceptual framings. Through its improper use, intersectionality risks essentialising individuals in the very same way it tries to challenge and overcome. 

Likewise, Yuval Davis highlights the complexity of defining the different axes of discrimination which have multiple meanings to different people. All identities are possible receptors of oppression, which results in the marginalisation of the individual, even when the individual possesses one identity that could be deemed privileged. Davis further argues that defining concepts such as disability, age, or even race is too complicated because there is no consensus about what each entails. Accordingly, in order to tackle the lack of agreement that Davis warns about, it is essential that intersectionality does not construct the meaning of identities based on the understandings of its interlocutors but, instead, keeps an open mind to prevent any sort of generalisation of how an identity is experienced. 

The challenges Paur and Davis raise have profound implications when thinking through intersectionality’s promotion of effective reparation. Comprehensive justice highlights the importance of an intersectional analysis for the determination of reparations, generating real possibility that those measures could be tailored to the actual harm that occurred. Reparations must go above and beyond the immediate reasons and consequences of the crimes and violations; they must aim to address ‘the political and structural inequalities that negatively shape . . . lives.’ Reparation that fails to take account of the larger context that further marginalizes the victims, will render whatever outcome they obtain futile. Intersectionality can contribute to determining the ideal reparation in cases where the victim was already in a disadvantaged situation that allowed the violation to happen, both assisting in repairing the harm on a personal level, but also more broadly, since individuals and social groups exist at intersections and are not isolated from each other.

Conclusion

When we talk about race and processes of racialisation in intersectionality, we must think of it as interacting together with other marginalised identities, rather than existing as a static category on its own. Using intersectionality to understand multiply-burdened individuals demands that we think of the individual as a whole rather than as a compilation of dissected identities. Doing so brings both scholars and practitioners one step closer to understanding how different contexts create unique experiences in each individual. 

Legal analysis of the interactions and processes of oppression in identity construction contributes to the understanding of both the process of construction as well as the content individuals give to their intersecting identities and how they are modified, limited, or developed. This understanding of race as doing specific heavy work prevents us from giving static content of what race means, and the user will be able to craft their meaning based on the manner race interacts with other identities. Intersectionality as a conceptual device not only allows us to understand the oppression experienced from multiple axes, but also provides meaning to otherwise abstract categories of identity such as race, age, or disability within and beyond international law.