Gender and Its Inter-Sectional Dimension in International Minority Law

International Journal on Minority and Group Rights 17 (2010) 469ndash490

copy Koninklijke Brill NV Leiden 2010 DOI 101163157181110X512179

brillnlijgr

Gender and Its Inter-Sectional Dimension in International Minority Law

Ilias Bantekas

Professor of Public International Law School of Law Brunel University UK

Abstract Intersectional gender discrimination in the fi eld of minority law encompasses discrimination not only in respect of onersquos minority status but additionally on account of that person being a woman Such discrimination many times aff ects female group members only as in the case of ethnic cleans-ing through rape and is thus inapplicable to men Although the two forms of discrimination (ie minority and gender) are not treated as a single act in the relevant international legal documents the recent practice of United Nations human rights rapporteurs is to identify a unifi ed violation that is gender-specifi c Th is has not yet trickled down to the domestic level but I argue that a pur-posive and evolutionary interpretation of the law should move towards recognition of a single violation

Keywords discrimination intersectional minorities gender indigenous human rights

1 Introduction

While the academic legal literature has been increasingly responding to the requirements of intersectional discrimination in the spheres of law economics and anthropology 1 the link between minority discrimination that is coupled with an additional act of gender discrimination of minority women has only relatively recently been identifi ed by relevant United Nations (UN) bodies Indeed I argue that two important reasons underlie this attitude of the United Nations Firstly this may be attributed to the rigidity of the mandate of its thematic structure especially the Special Rapporteurs and of its quasi-judicial institutions albeit the

) Th e author would like to express his gratitude to Dr Alexandra Xanthaki for her comments on the fi rst draft Th e usual disclaimers apply 1) See K Crenshaw lsquoMapping the Margins Intersectionality Identity Politics and Violence against Women of Colourrsquo 61 Stanford L R (1991) p 1241 PL Mason lsquoEvidence on Discrimination on Employment Codes of Colour Codes of Genderrsquo 12 Journal of Economic Perspectives (1998) p 63 EM Szyszczak lsquoTh e Interaction of Gender and Racersquo in B Hepple and EM Szyszczak (eds) Discrimination Th e Limits of the Law (Mansell Publishing 1993) p 214

470 I Bantekas International Journal on Minority and Group Rights 17 (2010) 469ndash490

incorporation of a gender dimension is not a new phenomenon 2 Th e second reason has been our lack of understanding of the full potential of intersectional discrimination on minority and indigenous women Th is state of aff airs has also been particularly exacerbated by the relative isolationist culture of many indige-nous groups in the developing world the absence of press coverage of internal strifes and armed confl icts in which minority women are targeted because of their biological and societal vulnerabilities which is ultimately a testament to how little we understand or care enough to make the eff ort to understand in some cases how other cultures operate and in what ways socio-economic forces fuel the discrimination of minority groups and their women members in particular

Th e aim of this article is to demonstrate the gradual perception of intersec-tional discrimination against minority women by the various UN bodies as well as other entities as well as explain why the matter has come to the forefront of international human rights bodies following the perpetration of gender-related off ences against minority women Intersectional discrimination occurs almost everywhere in healthcare access education labour relations to name a few how-ever not all of these aspects will be explored in this article and not every State espouses the position that intersectional discrimination is a single legal phenom-enon and not simply two separate acts of discrimination Given the very rigidity of existing international instruments concerned with the protection of minorities and the absence as a result of a comprehensive binding global treaty our legal understanding of minority discrimination is informed by Article 27 of the International Covenant on Civil and Political Rights (ICCPR) 3 which does not treat gender as a distinct sub-species deserving of particular minority protection Th is author does not argue that a new treaty on minority women is needed Instead it is suggested that as a result of developments in the last 10 to 15 years a case can be made that minority gender discrimination is indeed a distinct uni-tary form of discrimination that is and should be subject to a regime of affi rma-tive action and special protection on the basis of existing instruments and the dynamic nature of human rights treaties 4 To a very large degree this obligation of affi rmative action is expressly enshrined in Article 4(1) of the 1979 Convention

2) Report of the Expert Group Meeting on the Development of Guidelines for the Integration of Gender Perspectives into United Nations Human Rights Activities and Programmes UN Doc ECN41996105 Annex (20 November 1995) and Integration of Womenrsquos Human Rights into the Work of the Special Rapporteurs ECN41997131 Annex (28 April 1997) 3) 999 UNTS 171 4) Th is is attested for example by the dynamic interpretation of Article 1 of CEDAW whereby the Convention concerns at least expressly only sex discrimination but the CEDAW Committee in its General Recommendation 25 UN Doc CEDAWC2004IWP1Rev1 (30 January 2004) para 8 held that gender and not only sex should be taken into account when members consider their obligations under the Convention

I Bantekas International Journal on Minority and Group Rights 17 (2010) 469ndash490 471

5) 1249 UNTS 13 6) GA Res 47135 (18 Dec 1992) 7) ETS No 157

on the Elimination of All Forms of Discrimination against Women (CEDAW) 5 although the terminology of CEDAW refers to them as ldquospecial temporary measuresrdquo

2 Th e Absence of Gender as a Species or Sub-Species in International Minority Instruments

It is well known that none of the existing hard and soft law instruments pertain-ing to the protection of minorities encompasses women as a distinct minority group within the range of protected groups (with the exception of the Declaration on Indigenous Peoples) Article 27 of the ICCPR for example refers only to ethnic religious and linguistic minorities and the 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic Religious and Linguistic Minorities 6 adds also national minority groups Equally the Council of Europersquos 1995 Framework Convention for the Protection of National Minorities 7 is lim-ited to its narrowly focused subject matter Th ere is one important reason as to why women were not included as protected minority groups within the principal instruments it was not conceivable that they can constitute numerical minorities by reason of the operation of nature Equally they do not possess the same char-acteristics needs and aspirations of other minority group and hence there was no reason to distinguish them as a special category in need of protection Of course one should not also forget that until very recently active participation in wars and migration were to a very large degree the exclusive domain of men and as a result in the aftermath of a war or migration women were the majority As a result of these considerations it was felt that the incorporation of general gender neutral non-discrimination clauses in human rights treaties instituted suffi cient and ample protection mechanisms

In recent years it has been acutely demonstrated that women can be the victims of certain human rights violations in a distinct way than that experienced physi-cally mentally and socially by men To a degree this may be associated with the biological vulnerability of women but it is mainly a product of socio-cultural and economic considerations Take for example wartime sexual off ences such as those that took place extensively in the former Yugoslavia and Rwanda Although rape and other grave sexual violations were also committed against men the primary targets were females Th e Special Rapporteur of the then UN Commission on Human Rights clearly pointed out that the purpose of rape in those confl icts was not only to cause an individual attack but more importantly to enforce ethnic


8) Report on the Situation of Human Rights in the Territory of the Former Yugoslavia UN Doc A4892-S25341 Annex (1993) pp 20 57 ICTY Prosecutor v Karadzic and Mladic Rule 61 Decision (11 July 1996) para 64 reprinted in 108 ILR 86 9) Th e use of rape as a process of ldquoslow deathrdquo was recognised as a means of deliberately infl icting

on a group conditions of life calculated to bring about its physical destruction thus constituting genocide ICTR Prosecutor v Kayishema Trial Chamber judgment (21 May 1999) para 116 10) International Criminal Tribunal for Yugoslavia (ICTY) Statute Article 5(g) International Criminal Tribunal for Rwanda (ICTR) Statute Article 3(g) Article 7(1)(h) of the International Criminal Court (ICC) Statute includes ldquopolitical racial national ethnic cultural religious and genderrdquo in its list of discriminatory grounds for crimes against humanity as well as ldquoother grounds that are universally recognised as impermissible under international lawrdquo 11) 1948 Convention on the Prevention and Punishment of the Crime of Genocide 78 UNTS 277 12) Enforced sterilisations and removal of children during peacetime are common against women members of indigenous and minority groups See infra notes 62 and 63 Th e Australian case against its aboriginal population is well documented and was in fact legalised through the adoption of the 1918 Aboriginals Ordinance Th is policy of enforced assimilation and child removal was much later defended on legalistic grounds by the Australian High Court in Kruger v Th e Commonwealth (1997) 190 CLR 1 See C Tatz lsquoConfronting Australian Genocidersquo 25 Aboriginal History (2001) p 16 at p 24 See also Mestanza Chavez v Peru Case 12191 Report No 7103 Inter-Am CHR OEASerLVII118 Doc 70 rev 2 at 668 (2003) where the Peruvian authorities harassed an illiterate indigenous Peruvian woman by telling her that her giving birth to fi ve children was a criminal off ence and that she would have to be sterilised See lsquoMass Sterilisation Scandal Shocks Perursquo BBC News 24 July 2004 which reported on 200000 enforced sterilisations of indigenous Indians by the Fujimori regime available at ltnewsbbccouk2hiamericas2148793stmgt

cleansing designed to degrade and terrify the entire ethnic group 8 Th us women were chosen by the perpetrators in order to infl ict a greater harm on the overall community which may in fact be an otherwise protected minority group as were the Tutsi in the context of Rwanda In this case the attack against women is not determined by reference to their sex in the mind of the perpetrator but in rela-tion to their social place in the community against which the crime is directed Th is element therefore gives war crimes genocide 9 and crimes against humanity 10 a gender dimension that is inseparable from the wider off ence and its conse-quences Th is reality was also recognised early in Article 2(d) of the 1948 Genocide Convention 11 which encompasses as an act of genocide the imposition of ldquomeasures intended to prevent births within the grouprdquo 12 as well as the forcible transfer of children of the group to another group in paragraph (e) Although this provision does not seek to distinguish the plight of mothers that are forced to part from their children or which have violently been robbed of the possibility of having a family which is central to the survival of indigenous and minority communities the drafters of the Genocide Convention inadvertently made this connection visible Th us whereas the absence of gender as a protected minority group is in line with reality encompassed in the relevant legal instruments the absence of particular measures for the protection of women as a special case of minority subjects is very problematic Nonetheless as this study demonstrates there exist suffi cient mechanisms in existing international instruments coupled


13) D McGoldrick Human Rights and Religion Th e Islamic Headscarf Debate in Europe (Hart 2006) 14) See R (SB) v Headteacher and Governors of Denbigh High School [2005] ECWA Civ 199 Th e judgment of the European Court of Human Rights in Sehin v Turkey (2005) 41 EHRR is of the same eff ect although it does not concern a minority woman but the claim to wear the headscarf by a Muslim woman in Turkey 15) UN Rapporteur on Contemporary Forms of Racism Racial Discrimination Xenophobia and Related Intolerance Report on the USA UN Doc ECN4199578Add1 (16 Jan 1995) paras 83ndash84 16) Lovelace v Canada 68 ILR 19

with their dynamic interpretation by their respective quasi-judicial bodies to address these issues

Women members of minority groups are also susceptible to injustices other than acts involving the perpetration of crimes against their persons Indeed they may suff er restrictions as to their private life by persons or organisations outside the minority or indigenous group as well as restrictions by the group itself which then begs the question whether the protection of the minority as a singular entity runs contrary to the rights of its particularly vulnerable group members Th e Islamic headscarf debate that has persisted in the last fi ve years in its European context is intrinsically a debate over whether women members of a minority group in this case of a religious nature are susceptible to the religious or cultural dictates of said minority as opposed to the laws of the forum 13 Given that the same restriction is not applicable to men it becomes obvious that the issue has a twofold legal dimension the exercise of equality coupled with freedom of expres-sion as well as a sui generis minority right that is not enjoyed equally by all mem-bers of the minority group Th e tension between the various personal entitlements versus the normative stance of State authorities has been endlessly debated elsewhere 14 and our sole objective here is to highlight the particular gender dimension Gender-related minority discrimination exists in all fi elds of life and it is certainly not confi ned to the developing world A persistent statistic in the USA for example since the mid-1990s demonstrates that African-American women earn not only less than other white females but also less than black males and that the poverty rates of families maintained by African-American single women are 50 per cent higher than those of their white women counterparts 15

Equally the restrictions placed on gender from within the boundaries of the group may be as formidable as those stemming from external sources In the Lovelace case Sandra Lovelace was a born and registered member of the Canadian Maliset Indians Upon her marriage to a non-Indian male and her subsequent abode away from the reservation for some time her Indian status was removed by her tribe in accordance with the Canadian Indian Act of the time and she was not allowed to return to the reservation 16 Th is case is better known for the Human Rights Committeersquos confi rmation of the principle of personal self-determination


17) See L P Mair African Marriage and Social Change (Routledge 1969) p 98 Zimbabwe Feature Calls for Review of Inheritance Laws (25 May 2008) available at lt wwwirinnewsorgreportaspxreportid=51928 gt 18) See CEDAW Committee General Recommendation 14 on female genital mutilation UN Doc A4538 (2 February 1990) Th e Committee strongly asks States to put an end to this practice

about onersquos perception of his or her minority status which cannot be revoked by factual determinations or laws to that eff ect For the purposes of this study the case is moreover signifi cant because the loss of minority status that was suff ered by Lovelace would not have been incurred by male members of her tribe Th e Canadian governmentrsquos response was that the Act was premised on the countryrsquos cultural understanding of tribal culture the rules for which had been through time written by males and thus their negative eff ects on women did not pertain to the entire tribe Another example of intra-minority gender discrimination and assault is instituted in those countries that permit all kinds of customary indige-nous practices guised under the pretences of customary law particularly in sub-Saharan Africa and under which women are very commonly treated in the same way as commodities Th us in accordance with such arrangements widows can by way of illustration in some countries be inherited by their relatives 17 whereas young girls are made to retain no personal corporal autonomy and are in many tribal contexts subjected to the practice of female genital mutilation 18 Th e main-tenance of these institutions runs contrary to the obligation stipulated in Article 2(f ) of CEDAW according to which member States must abolish all customary practices and laws that discriminate against women Moreover Article 5(a) of the same Convention obliges parties to take appropriate measures

To modify the social and cultural patterns of conduct of men and women with a view to

achieving the elimination of prejudices and customary and all other practices which are based

on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for

men and women

Th erefore there can be no doubt that relativist arguments have no place in customary-based discriminatory actions of this manner and States cannot hide behind the guise of customary law in order to justify gender-premised violations against indigenous and minority women

In the course of this article I shall discuss the concept of intersectional dis-crimination which plays a seminal role in minority gender protection but it should be noted from the outset that whereas women are not the subject of prin-cipal minority protection by any of the global or regional human rights instru-ments there is no reason why they cannot be protected as express sub-species in the laws of nations Such protection would pertain to vulnerable groups with a gender dimension such as lesbians women from ethnic or religious minorities with a high risk of forcible marriages women from groups with a high incidence


19) See CEDAW Committee General Recommendation 25 UN Doc CEDAWC2004IWP1Rev1 (30 Jan 2004) which clearly stated that the Convention is a dynamic instrument (para 3) 20) Operational Directive (OD) 420 (September 1991) 21) Article 7 of OD 420 reads as follows ldquoHow to approach indigenous peoples aff ected by devel-opment projects is a controversial issue Debate is often phrased as a choice between two opposed positions One pole is to insulate indigenous populations whose cultural and economic practices make it diffi cult for them to deal with powerful outside groups Th e advantages of this approach are the special protections that are provided and the preservation of cultural distinctiveness the costs are the benefi ts foregone from development programs Th e other pole argues that indigenous people must be acculturated to dominant society values and economic activities so that they can participate in national development Here the benefi ts can include improved social and economic opportunities but the cost is often the gradual loss of cultural diff erencesrdquo 22) Article 8 of OD 420

of human traffi cking and others Equally there is no reason why existing inter-national instruments cannot be read in such a way 19 particularly since minority rights are individual and not collective rights

3 Minority Rights Versus Individual Gender Rights

Th e most seminal pitfall of the minority rights regime has been its exclusive focus on the socio-cultural dimension of the minority phenomenon as a unitary entity in disregard whether partial or complete of its other more particular dimen-sions including gender although this was certainly not the intention of its origi-nal drafters Th is mentality has also been refl ected in the legislative attitude of even the most liberal and rights-oriented States In the Lovelace case the Canadian Parliament in trying to provide the native Indian communities with a set of privi-leges that would appease the demands of the indigenous tribal groups on the one hand and portray itself as a champion of minority rights on the other failed to consider that by doing so it risked marginalising or potentially infl icting harm on the grouprsquos more vulnerable members Th e same scenario has been witnessed in respect of the funding practices of the World Bank Articles 3 and 5 of the Bankrsquos Operational Directive on Indigenous Peoples 20 recognise that the term describes social groups with a social and cultural identity distinct from the dominant soci-ety that makes them vulnerable to being disadvantaged in the development process

From the outset the Bank is faced with a serious sociological dilemma Although the Bankrsquos primary purpose is to aid in the development of poor nations does this mean that it should or can alter the social structures and norms of traditional societies through the ldquocivilisationrdquo brought about as a result of the projects it fi nances 21 Operational Directive 420 dictates that the answer to this question must be based on the ldquo informed participation of the indigenous peoples themselvesrdquo 22 Th is principle of ldquoinformed participationrdquo requires in accordance


23) See generally AI Richards lsquoSome Types of Family Structure Among the Central Bantursquo in AR Radcliff e-Brown and D Forde (eds) African Systems of Kinship and Marriage (Oxford UP 1950) 24) World Bank Inspection Panel Investigation Report (2 May 2003) Cameroon Petroleum Development and Pipeline Project (Loan No 7020-CM) and Petroleum Environment Capacity Enhancement Project (Credit No 3372-CM) [Cameroon Inspection Panel Report] p 59 25) Ibid p 70

with Article 8 of Operational Directive 420 identifi cation of local preferences through direct consultation and incorporation of indigenous knowledge into project approaches However given the absence of a general education among many indigenous groups (at least in Africa and parts of Asia) and the socio-economic implications for decisions of this nature coupled with the fact that it is the investor that engages in the consultations said procedures cannot lead to a pragmatic informed participation A case where this dilemma was put to the test concerned the fate of the indigenous pygmy tribe BakaBakola in the course of the Bankrsquos fi nancing of the Chad-Cameroon pipeline It subsequently transpired that the BakaBakola shared clan identities with another indigenous group the Bantu which expected the former to work on the fi elds they occupied in exchange for starchy food 23 Th is social status and economic subservience under the Bantu led to physical and other mistreatment as well as restricted access due to ensuing fi nancial restraints to health education employment and social services thus accounting for greater morbidity mortality lower literacy and reduced wage employment 24 Having lost their natural hunting grounds as a result of the pipe-line project the Bank sought to apply its relocation directives and compensate the BakaBakola through the construction of new huts It did not however con-sider the demands of the BakaBakola for access to healthcare education and an end to their oppression by the Bantu nor did it take into account the fact that Baka women would be subject to sexual exploitation and prostitution among others from those working on the construction of the project Th e Inspection Panel argued that the socio-economic welfare of the BakaBakola should be a ldquowork in progressrdquo that is adaptable and fl exible according to its particular cir-cumstances 25 Th is is yet another example where the socio-cultural dimension of minorities or indigenous communities as a unitary entity is deemed weightier than its other particular manifestations in this case social and economic rights as well as gender-related rights Although the World Bank is not a party to the CEDAW and is not therefore bound by the obligations arising therefrom (espe-cially Articles 2(f ) and 5(a)) it cannot validly justify a radical departure from the principles enshrined in the Convention Th e preferred solution would have entailed the Bank disengaging the BakaBakola from their subservient status rather than assisting in its maintenance particularly since the members of the group expressed their abhorrence to the Bank

Th e politics belying such decisions (at least from the standpoint of institutions such as the World Bank and the practice of some States) to favour the traits of the


26) Reprinted in 1 Afr Hum Rts L J 40 entered into force on 25 November 2005 see also Articles 2(f ) and 5 CEDAW It should be noted that since most human rights instruments contain clauses to the eff ect that said instruments are part of the global human rights system they should not be examined in isolation but in conjunction with the global human rights panoply 27) Th e Committee on the Rights of the Child in its Concluding Observations on the Report submitted by Laos highlighted the fact that little attention was paid by the authorities among others to addressing the particular needs of minority children which were at risk of abuse malnu-trition lack of education and ultimately traffi cking It asked Laos to implement special measures UN Doc CRCC15Add 78 (10 October 1997) paras 10 12 36 48

group as a whole over and above the exigencies of its most vulnerable members are obvious and at times there seems to be little willingness to address them Certain provisions in the identifi ed regional and international instruments may be helpful in discerning the obligations of States where dilemmas of this nature emerge Under Article 4(2) of the Council of Europersquos Framework Convention

Th e parties undertake to adopt where necessary adequate measures in order to promote in all

cases of economic social political and cultural life full and eff ective equality between persons

belonging to a national minority and those belonging to the majority In this respect they shall

take due account of the specifi c conditions of the persons belonging to national minorities

In the same manner Article 4(5) of the 1992 UN Declaration provides that

States should consider appropriate measures so that persons belonging to minorities may par-

ticipate fully in the economic progress and development in their country

Article 24(1) of the recently operational Protocol to the African Charter on Human and Peoplesrsquo Rights on the Rights of Women in Africa 26 requires member States to

Ensure the protection of poor women and women heads of families including women from

marginalized population groups and provide them an environment suitable to their condition

and to their special physical economic and social needs

Th ese normative injunctions are clearly pointing towards an obligation on the part of States to distinguish the individual from the minority or indigenous groups to which he or she belongs and to facilitate that personrsquos progression in the realisation of eff ective social and economic rights and integration Th is is only natural given the individual entitlement of minority rights Th is means that the State can and must exercise a regime of positive discrimination in favour of minority women where women are marginalised within their own group or where they are suff ocated on account of the socio-economic and cultural condi-tions of the group 27 Although the Human Rights Committee fell short of stating that member States were subject to an affi rmative action obligation of this nature it did require of them to report on any legislative or administrative action taken


28) HRC General Comment No 28 UN Doc CCPRC21Rev1Add10 (2000) Th e Committee in this context was analysing Article 3 of the ICCPR but related this provision with Article 27 29) See CEDAW Committee General Recommendations 5 UN Doc A4338 (4 March 1988) and 25 supra note 4 paras 9 15 et seq 30) Affi rmative action of this nature in order to boost the numbers of women which are under-represented in the workforce of the UN Secretariat particularly in the higher echelons of the Organisation has been actively pursued by the UN Secretariat and the General Assembly See Article 8 UN Charter and UN S-G Administrative Instructions UN Doc STAI382 (3 March 1993) replaced by STAI412 (5 Jan 1996) and as later replaced and entitled ldquoSpecial Measures for the Achievement of Gender Equalityrdquo Moreover through GA Res 5167 (12 December 1996) GA Res 55258 (27 June 2001) s XIV(2) In GA Res 59277 (15 March 2005) the Assembly set a target of a 5050 ratio for men and women working in the Secretariat Th ese affi rmative actions were held by the UN Administrative Tribunal (UNAT) not to be in violation of the UN Charter or other fundamental principles See Grinblat v UN Secretary-General UNAT Case No 731 Judgment No 671 (4 November 1994)

with respect to minorities such that may potentially or actually violate the equal-ity rights of women It moreover mandated reports on their discharge of respon-sibilities in connection to the cultural or religious practices within minority or indigenous groups that have the potential of aff ecting the rights of women 28 Article 4(1) of CEDAW obliges member States to adopt ldquospecial temporary mea-suresrdquo with the aim of accelerating de facto equality between men and women Th e CEDAW Committee has declined to equate said measures with ldquoaffi rmative actionrdquo or ldquopositive discriminationrdquo but only in respect of their terminological signifi cance It has consistently interpreted these as requiring positive action preferential treatment the establishment of a quota system the pursuit of equal-ity of results thus eff ectively imposing a regime of affi rmative action albeit tem-porary in nature 29 save for indigenous persons in which case they are not temporary Th e existence of said affi rmative action obligation necessarily means that the gender dimension in Article 27 of the ICCPR is a valid sub-category subject to individual attention beyond the parameters of the group It also signi-fi es its status as a right that gives rise to positive as opposed to negative action by the State 30

Most States are generally reluctant to undertake positive action with respect to additional minority gender protection and the vast majority of eff orts consum-mated in the developing world have come about as a result of external funding or at the urging of external participants In post-war Bosnia the political emancipa-tion and representation of women from minority groups became an acute prob-lem particularly since the parties opted for an open list thus precluding women from being voted into offi ce since the registered voters of the majority group would not be willing to vote in favour of a minority female candidate Th e Organisation for Security and Co-operation in Europersquos Offi ce for Democratic Institutions and Human Rights (ODHRI) helped draft Bosniarsquos current Elections Law Article 419 of which obliges political parties to include in their list of


31) European Commission for Democracy through Law (Venice Commission) Draft Joint Opinion on Amendments to the Election Law of Bosnia and Herzegovina Opinion No 4602007 OSCEODHRI Doc CDL-EL(2008)OO4RevOREngl (24 April 2008) p 5 32) Ibid 33) World Bank Vietnam Development Report 2007 (2006) available at ltsiteresourcesworldbankorgINTRANETTRADEResourcesWBI-Training288464-1152217173757aiminghigh_englishpdfgt 34) DFID Vietnam Country Assistance Plan (2007 ndash 2011) Aiming High Draft for Consultation (14 June 2007) para 16 available at lth wwwdfi dgovukPubsfi lesdraft-vietnam-cap0607pdf gt 35) Vietnam Development Report supra note 33 pp 111ndash112 36) Ibid p 113 37) CEDAW Press Release Doc WOM1593 (17 January 2007) available at lt wwwunorgNewsPressdocs2007wom1593dochtm gt

candidates a certain number of minority gender candidates but the open listing procedure which allows voters to ignore the order of candidates on the list culminated in more than 30 women losing seats to men who had been placed lower in the list as candidates 31 As a result it was recommended that consider-ation be given to introducing a system ensuring a minimal percentage of each gender in the election body to achieve the objectives of Article 419 of the Election Law 32

In Vietnam ethnic minorities account for 14 per cent of the countryrsquos popula-tion Recent statistics demonstrate that while signifi cant improvements in the reduction of poverty have been achieved it is only the majority Kinh population that has seen the largest benefi ts In 2006 only 10 per cent of Kinh were poor whereas 52 percent of ethnic minorities were living in poverty 33 In the imple-mentation of the Paris Declaration on Aid Eff ectiveness of 2005 by its multilat-eral donors it was revealed that ethnic minority women were particularly disadvantaged in contrast to male members of their minority groups For instance one in fi ve lacks access to education and maternal mortality despite low national averages is signifi cant as few trained birth attendants are available 34 Lack of for-mal land tenure is yet another acute problem faced by minority women who are less likely to have registered land in both their own and their husbandrsquos name Four of the fi ve worst provinces in terms of equality of land rights have large ethnic minority populations 79 percent of ethnic minority households have only male holders of title to agricultural land Th is lack of title for ethnic minority women carries the repercussion that banks will not give them credit and therefore they will always be trapped in a vicious cycle of dependency 35 As a result it is not surprising that there is a high incidence of sexual traffi cking among ethnic minor-ity women 36 In 2006 Vietnam adopted a Law on Gender Equality Th is was presented to the CEDAW and in response to a question from Commissioner Shelton as to whether the Law included a strategy to assist minority women the government representative replied that special measures to address their needs had been included 37 Moreover the Vietnamese governmentrsquos plan of action in


38) A Case Study of the Program for Socio-Economic Development of Communes Facing Extreme Diffi culties in Ethnic Minorities and Mountainous Areas in Vietnam (P135) available at lt wwwoecdorgdataoecd115840413466pdf gt 39) See infra note 50 for the views of a UN Special Rapporteur on the general status of affi rmative action under general international law 40) F Banda and C Chinkin Gender Minorities and Indigenous Peoples (Minority Rights Group International 2004) pp 11 et seq 41) Fourth UN World Conference on Women Beijing Declaration and Platform of Action (1995) UN Doc ACONF17720 (17 October 1995) para 266

respect of utilising funds donated through the Paris Declaration programme paid signifi cant attention to addressing the particular needs of minority women apart from the protection of the minority groups themselves 38 It is clear therefore that both the donors and the government through legislative action recognised the existence of a positive obligation to enhance the particular gender rights of women members of minorities

Th e aforementioned analysis demonstrates the need for a combination of eff orts on the part of thematic rapporteurs and quasi-judicial bodies on the one hand and the more powerful donor States on the other to inculcate and high-light to the community of States their affi rmative action obligations Besides the incorporation of injunctions in the form of general recommendations etc these obligations must be constantly enshrined in the contractual undertakings relating to multi-donor funding arrangements Th e vast majority of aid contributions are channelled through trust funds established by treaty informal agreements Security Council resolutions or on the basis of the implied powers of interna-tional organisations Th e donors must oblige the trustee through the administra-tion agreement to incorporate an affi rmative action obligation in its grant agreement with the recipient where relevant Th us international law has a signifi cant role to play in pursuing this agenda 39

4 Th e Application of the Intersectional Discrimination Principle to Minority Women

Intersectional discrimination in the context of this study may be conceived in the sense that a woman is discriminated by reason of her gender and also because she happens to be a member of a particular minority or indigenous group Th is pro-cess obviously involves multiple layers of discrimination which in the mind of the perpetrator do not operate independently but instead intersect and reinforce each other 40 Th e application of intersecting discrimination had been observed for a while and it was inferred in the UNrsquos World Conference for Women where it was highlighted that the specifi c human rights problems facing women should not be viewed in isolation of their social economic cultural and other contexts 41


42) UN Doc CERDC56MISC 21Rev3 (20 March 2000) paras 1ndash2 See also CERD Concluding Observation on Uruguay UN Doc CERDC304Add78 (12 April 2001) para 10 discussing the status of women belonging to the Afro-Uruguayan community who are victims of double discrimination on grounds of both their gender and race 43) See particularly Special Rapporteur on Violence against Women Report on the Subject of Race Gender and Violence against Women UN Doc ACONF189PC35 (27 July 2001) which devotes an extensive section on intersectionality

Equally the Committee on the Elimination of Racial Discriminations (CERD) in its General Comment 25 on Gender Related Dimensions of Racial Discrimination noted that

Racial discrimination does not always aff ect women and men equally or in the same way

Th ere are circumstances in which racial discrimination only or primarily aff ects women or

aff ects women in a diff erent way or to a diff erent degree than men Such racial discrimination

will often escape detection if there is no explicit recognition or acknowledgement of the

diff erent life experiences of women and men in areas of both public and private life hellip

Certain forms of racial discrimination may be directed towards women specifi cally because of

their gender such as sexual violence committed against women members of particular racial

or ethnic groups in detention or during armed confl ict the coerced sterilization of indigenous

women abuse of women workers in the informal sector or domestic workers employed abroad

by their employers Racial discrimination may have consequences that aff ect primarily or only

women such as pregnancy resulting from racial bias-motivated rape in some societies women

victims of such rape may also be ostracized 42

It is now common practice for special rapporteurs to highlight the intersectional link 43 However until recently the various UN bodies thematic or otherwise had not made express references to the intersection of discriminatory practices targeting minority women but had instead focused on each violation in isola-tion Th is is attributable to a number of factors particularly the fact that no special protection was off ered in the relevant minority instruments to women as a subcategory thereof As a result the distinction of gender from the overall minority umbrella might well have been perceived as falling outside the mandate of the Special Rapporteurs even if gender was a paramount consideration Furthermore human rights bodies did not want to be seen to attack minorities given their vulnerable status fearing that such comments could be intentionally misinterpreted by States to abuse minority rights Moreover there is no doubt that developing countries with signifi cant minorities would fi nd it hard to toler-ate even further external intrusion in their internal aff airs particularly since as has already been mentioned by recognising the distinctiveness of gender in minority protection States would come under a positive obligation to enact and enforce specifi c measures What was required therefore was a concrete new mandate since it would be impossible to amend the ICCPR or indeed the 1992 Declaration


44) Res 200579 (21 April 2005) UN Doc ECN42005L10Add14 (21 April 2005) 45) Ibid para 16(c) Th e same is true with respect to the Special Rapporteur on Indigenous Issues 46) Supra note 42 47) Report of the Independent Expert UN Doc ECN4200674 (6 January 2006) paras 40ndash41 48) Ibid para 42

An example of the new mandate is Resolution 200579 of the Offi ce of the UN High Commissioner for Human Rights Operative paragraphs 2 and 4 of the Resolution urge

2 All States to promote and protect the rights of persons belonging to national or ethnic

religious and linguistic minorities as set out in the Declaration and while applying a gender

perspective to take as appropriate all the necessary constitutional legislative administrative

and other measures to promote and give eff ect to the Declaration including the provision of

equal access to education and facilitate their full participation in economic progress and

development

4 Calls upon States to give special attention to the promotion and protection of the human

rights of children belonging to minorities taking into account that girls and boys may face

diff erent types of risks 44

Moreover the Resolution also endorsed the appointment of an Independent Expert on Minority Issues part of whose mandate is ldquoto apply a gender perspec-tive in his or her workrdquo 45 Th is Resolution institutes a twofold dimension to exist-ing international law First of all the new appointee is no longer confi ned by the narrow confi nes of Article 27 of the ICCPR and the 1992 Declaration and thus is able to address the gender perspective to minority protection without having to justify the legality of his or her mandate Most importantly however in the opin-ion of this author a new and vital understanding among UN member States has to some degree normatively expanded our existing notions of international minority law Whereas previously the protection of minorities was seen as lacking context this development although one should not equate it with a treaty under-taking suggests that gender discrimination within a minority setting is a discrete sub-category that requires protection that is distinct from that of the group itself Th e fi rst appointed Independent Expert Mrs Gay McDougal in her fi rst and only report at the time of writing pointed out that in terms of intersectional discrimination she was guided by General Recommendation 25 of the CERD 46 noting additionally that such discrimination arises in numerous contexts includ-ing situations of armed confl ict civil unrest but also during relatively calm peri-ods 47 Th e Independent Expert expressed her will to devote her attention also to situations wherein members of minority groups face multiple levels of dis-crimination because of ldquotheir identities and personal realities such as sexual orientation and gender expression that challenge social or cultural normsrdquo 48


49) Human Rights Committee General Comment No 18 UN Doc HRIGEN1Rev6 (1994) p 26 at para 10 50) UN Doc ECN4Sub2200221 (17 June 2002) paras 75 et seq

Th is latter intersectional form of discrimination that is predicated on the victimrsquos challenge of social or cultural norms concerns to a larger degree the position of minority females within the parameters of the minority group While it is true that majority women may too challenge their societyrsquos cultural or social norms were a minority woman to do so her plight would be viewed with more resent-ment by the majority population Th e opposite view is also possible ie that the majority would actually welcome it as it would highlight the inferior status of that minority and be used to disempower that minority

Given the recognition of intersectional discrimination with respect to minority women is it legitimate for international actors such the United Nations to adopt internal instruments (such as resolutions decisions institutional regulations etc) and support international treaties that call for affi rmative action Th e response to this question is central to our aforementioned analysis because it is evident that the rationale of the CERDrsquos General Comment the mandate of the Independent Expert and of other international initiatives is to advocate the appropriation of special measures for minority women Th e Human Rights Committee has answered this question in the affi rmative acknowledging that

Th e principle of equality sometimes requires States parties to take affi rmative action in order

to diminish or eliminate conditions which cause or help to perpetuate discrimination prohib-

ited by the Covenant For example in a State where the general conditions of a certain part of

the population prevent or impair their enjoyment of human rights the State should take

specifi c action to correct those conditions Such action may involve granting for a time to the

part of the population concerned certain preferential treatment in specifi c matters as com-

pared with the rest of the population However as long as such action is needed to correct

discrimination in fact it is a case of legitimate diff erentiation under the Covenant 49

In fact a UN Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights Marc Bossuyt mandated with setting out the legal framework and discerning the existence of a right of affi rmative action in domes-tic and international law concluded that this was indeed so Although he did not specifi cally confi rm whether affi rmative action is applicable as a matter of inter-national obligation to minority women his study suggests that affi rmative action of this type falls under the sub-species of affi rmative preference which means ldquothat someonersquos gender or race will be taken into account in the granting or withholding of social goodsrdquo 50 Th is position is strongly reinforced by the Recommendations and Observations of human rights quasi-judicial bodies By way of example the CEDAW Committee in its discussion of Greecersquos report on the implementation of its obligations under the CEDAW expressed serious


51) UN Doc WOM1600 (24 January 2007) available at lt wwwunorgNewsPressdocs2007wom1600dochtm gt 52) CEDAW Concluding Observations on Sweden UN Doc A5638 (20 July 2001) para 357 53) [2004] IRLR 799 54) Ibid para 137 55) See also Network Rail v Griffi ths-Henry [2006] IRLR 865 56) Council Directive 200043EC implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin OJ L 18022 (19 July 2000) Council Directive 200078EC Establishing a General Framework for Equal Treatment in Employment and Occupation OJ L 303 (2 December 2000) Directive 200273EC of the European Parliament and of the Council amending Council Directive 76207EEC on the implementation of the principle of equal treat-ment for men and women as regards access to employment vocational training and promotion and working conditions OJ L 269 (5 October 2002) and Council Directive 2004113EC imple-menting the principle of equal treatment between men and women in the access to and supply of goods and services OJ L 373 (21 December 2004)

concern about the family situation of the countryrsquos Muslim minority women who lived according to strict Sharia under which the right of divorce belonged only to the husband and a woman must be listed as a certifi ed virgin in marriage documents Th ey stressed in that connection that the government had to safe-guard the rights of those women as it was obliged to do as a State party to the Convention 51 Equally the Committee urged the government of Sweden to take measures to eliminate discrimination against minority women and to be more proactive both within the minority communities as well as within the context of society at large with a view to combating violence against them and in order to increase their awareness as to the availability of social services and legal remedies Special emphasis was paid to the protection of Sami and Roma women 52

It should not escape the attention of the reader that claims of intersectional discrimination have arisen also in the context of domestic law almost exclusively in developed States and principally in respect of employment relations In Bahl v the Law Society 53 an Asian woman in the UK claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and because she was a woman Th e Court of Appeal held that each level of discrimination must be accounted for and proven separately irrespective of the fact that the vic-tim may have perceived them as a single discrimination 54 Th us this case may be viewed as precedent in the UK that intersectional discrimination constitutes an untenable claim 55 Nonetheless the importance of this case in its domestic con-text concerns the burden on the victim to prove both elements of the discrimina-tion rather than just one and cannot remove the obligation of States to protect minority women in vulnerable socio-economic and cultural settings Th e relevant European Community Directives while not prohibiting the invocation of inter-sectional claims do not expressly allow them either hence if one were to pursue such a claim that person could not be wholly satisfi ed that the legal basis of the claim lay in the Directives 56


57) See Banda and Chinkin supra note 40 pp 15ndash23 58) See Report of UN Special Rapporteur on Contemporary Forms of Racism Racial Discrimination Xenophobia and Related Intolerance UN Doc A49677 (23 November 1994) para 110 in which it was reported that the number of incidents of rape of indigenous women was increasing in the insurrection zone of Chiapas On 4 June a group of approximately 30 soldiers of the Mexican Federal Army raped three young women of the Tseltal indigenous group Th e rape took place at a military roadblock where the soldiers were on duty After being accused of being Zapatistas and threatened with death they were violently forced to have sexual relations with all of the soldiers at the roadblock 59) See the long list of cases brought to the European Court of Human Rights by Kurdish minority women in Turkey that were raped by members of the Turkish army as a result of retaliations for

Th e discerning reader will not fail to spot that whereas the relevant UN reports identify and highlight instances of intersectional discrimination and analyse its ramifi cations for the victims they fail to admonish States as to the practical legal action that the victims may pursue More practically should States recognise minority gender discrimination as a unitary off ence or violation or as two sepa-rate violations Should they be forced to subject all intersectional violations as unitary violations or simply those that are more egregious If States decide to treat them as two distinct off ences should they impose a greater degree of com-pensation than that which is prescribed in their existing legislation How are States to amend their criminal or civil procedure in respect of their burden of proof Th ese represent just some of the more fundamental questions that are crucial in respect of the practical realisation of intersectional discrimination otherwise it becomes a purely theoretical exercise

5 Th e Particular Problem of Sexual Abuse and Traffi cking of Minority Women and Girls

Sexual exploitation physical violation and traffi cking are not the sole preserve of minority women In their case however certain elements tend to render the crime in question immune and rehabilitation of the victim far more diffi cult than women from the majority group 57 During civil unrest and in the context of authoritarian regimes for example there is ample evidence that minority or indigenous women often become victims of mass rapes particularly if coupled with vicious propaganda to the eff ect that the men of said groups are staging mili-tary revolution or are challenging the government 58 Women are easy targets particularly if the male members of the group are in hiding and women have to remain in the community to take care of their families Th e impunity associated with mass rapes of minority or indigenous women in developing countries is exacerbated by the fact that the physical location of the communities is usually in remote areas and thus there is no access for the press but equally no access to legal remedies 59 Moreover the demonization of the entire minority group in the mass


Kurdish rebel attacks against the Turkish armed forces particularly Aydin v Turkey (1997) Eur Ct H R 25 EHRR 251 60) See Report of the Special Rapporteur on violence against women Integration of the Human Rights of Women and the Gender Perspective UN Doc ECN4200068 (29 February 2000) para 55 which cites the plight of the Rohingya women in Myanmar to which the government does not grant citizenship and who are easy prey to traffi cking as a result 61) See Human Rights Watch Middle East Watch Punishing the Victims Rape and Mistreatment of Asian Maids in Kuwait August 1992

media serves to alleviate the psychological burden in the publicrsquos psyche of any crimes that may have been perpetrated against minority women irrespective of their repugnant character

In the context of non-confl ict zones the sexual exploitation and traffi cking of minority women is not an obvious problem in the sense that there exists no obvi-ous reason why minority women may suff er more from these wretched practices than women belonging to the majority population Indeed there is no particular reason why this should be so and in every case the particular socio-economic and cultural context of minority and indigenous women will be crucial in their sexual exploitation At times (at least where poverty and minority status is combined with patriarchy) patriarchal structures of some minority and indigenous groups view men as the primary bread winners whereas women do not generally engage in independent trade commerce or engage in jobs of this nature but instead take care of the household raise the family and where possible assist the husband or father in the familyrsquos professional activities whether this is farming the family business etc Given the at times relative isolation of the minority or indigenous groups from the majority population in developing countries were the local minority economy to fail in any one year particularly by means of crop failure or falling produce prices the group could be left without adequate sustenance until the next agricultural season 60 Th e only commodity that is left to the community as a whole is the rendering of their personal services but cheap male labour can only pay off if the regional economy requires farmers or construction workers Where both of these industries are in short demand minority women and girls will always be lured by traffi ckers to work in the cities under the guise of house-hold servants or nurses while in fact the intention is to sexually traffi c them 61 Th e isolation and poverty of minority or indigenous groups in developing coun-tries makes their female members far more susceptible to traffi cking than their majority counterparts Furthermore lack of access to legal remedies for minority groups of this nature and general hostility towards them by the authorities neces-sarily means that their representatives cannot rely to any signifi cant degree on the authorities to search for their loved ones Finally depending on the culture of the minority or indigenous group especially if this tends to be conservative towards its female members the return of traffi cked women to the community may not be accepted by its male members Whereas this is also the case with traffi cked


62) UN Special Rapporteur on Contemporary Forms of Racism Report on Brazil UN Doc ECN4199672Add1 (23 January 1996) para 52 63) Ibid para 53 64) See Montagnard Foundation Annual Report on the Systematic Persecution of the Indigenous Montagnards (Degan Peoples) of the Central Highlands of Vietnam (March 2004) available at lt wwwmontagnard-foundationorgpdfMFI20REPORT202004pdf gt pp 19-20 65) For the most comprehensive study to date on descent-based discrimination see D Keane Caste-Based Discrimination in International Human Rights Law (Ashgate 2007) 66) 1989 Scheduled Castes and the Scheduled Tribes (Prevention of Crimes) Act Keane ibid p 123 notes that the majority of Indian States have failed to set up special courts in accordance with the 1989 Act

majority women in certain societies at least they have the chance to reintegrate in other parts of the country where social conditions are more liberal or even seek refuge elsewhere In the case of minority and indigenous women this process is a lot harder because their community will be their sanctuary but also because in the majority society at large they will suff er discrimination on account of their minority status Developing States should not view the compulsion of women into traffi cking as the ultimate desperate act of particular vulnerable persons but must instead adopt all possible measures to prevent such occurrences in accordance with Article 6 of CEDAW

Equally however in societies where minority women particularly in terms of race do not live in isolation from the majority population their stigmatisation as racially inferior forces them to enter into stereotypical jobs and even into prosti-tution In her 1995 Report the Special Rapporteur on Contemporary Forms of Racial Discrimination pointed out that the vast majority of black women in Brazil are employed as domestic servants nursemaids or samba dancers in night-clubs Most domestic servants are physically abused and sexually mistreated by their bosses and in conjunction with their inexistent education and racial discrimination in the labour market many of them are forced into prostitution 62 For similar reasons far more black women are sterilised than white women as a form of purifi cation and whitening of the Brazilian population 63 Th e same is true in respect of the Montagnard people in Vietnam where a systematic policy of enforced sterilisation among other serious human rights violations has been initiated by the central government 64

Descent-based (or caste) discrimination is an egregious form of discrimination because it is usually rooted very deeply in societies where it is prevalent particu-larly on the basis of religion 65 Th is is exactly the case with the institution of the caste system in India in which the dalits otherwise known as the untouchables are eff ectively excluded from partaking in the socio-economic and cultural strata of Indian life despite post-Gandhi legislation to the contrary 66 In its General Recommendation 29 CERD recognised such descent-based discrimina-tion as a form of racial discrimination paying special attention to the multiple


67) UN Doc HRIGEN1Rev6 (2003) p 223 68) UN Special Rapporteur on Contemporary Forms of Racism UN Doc AHRC719Add1 (21 February 2008) paras 56 et seq 69) Ibid para 68

discriminations against women members of descent-based groups 67 In his 2008 Report the Special Rapporteur on Contemporary Forms of Racism pointed out to the government of India that in a series of events in Uttar Pradesh the dalits were accused by caste group members of encroaching on their lands and as a result proceeded to attack and sexually assault a number of dalit women Th e Rapporteur took cognisance of the socio-economic positioning of dalit women outside the caste system and at the bottom of the hierarchical order which results in them facing violence in the community and in their families from State and private actors alike belonging to castes and various socio-economic groupings and from both sexes Th e major forms of violence are physical and verbal abuse sexual harassment abduction and rape 68 Given that when these crimes take place they are handled by government offi cials or members of the police who are themselves caste members in the same way as the perpetrators they are seldom reported or investigated 69

In this section I have made an eff ort to refl ect on a particular manifestation of primary form of discrimination coupled with a secondary that aff ects women much more than men sexual abuse and traffi cking Whereas male members of the minority or indigenous group may be targeted by reason of their membership of the group the victims of sexual assault and traffi cking are in their vast majority women and girls Th e same is true with respect to other socio-economic fi elds including employment access to housing etc

6 Conclusion

It is evident that the gender dimension in the discrimination of minority and indigenous women produces eff ects that are fundamentally diff erent in terms of their impact and victimisation when compared to men from the same minority or indigenous group Apart from some sporadic instances minority men are not generally subjected to sexual exploitation and traffi cking are not employed as domestic servants dancers and nurses and are paid higher than their fellow women just to name a few Th e additional victimisation of minority women is certainly attributable to their biological vulnerabilities and often their vulnerable status within the minority community and are therefore easier targets for abuse and discrimination compared to men from the same groups As a result minority women are prone to a double form of discrimination both as members of a particular ethnic religious linguistic or racial group but also on account of their


70) Protocol to Prevent Suppress and Punish Traffi cking in Persons Especially Women and Children Supplementing the UN Convention against Transnational Organised Crime (2001) 40 ILM 377 Articles 6ndash8 Council Directive 200481EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of traffi cking in human beings or who have been the subject of an action to facilitate illegal immigration who cooperate with the competent authori-ties OJ L 261 (6 July 2004)

gender in the perception of the perpetrators Th us in many cases particularly in situations of armed confl ict and ethnic unrest off ences against minority women are committed with the specifi c intent of causing harm both psychological and physical to the group as such (so-called targeted intersectional discrimination) Th is intersectional discrimination has been recognised in a string of reports and recommendations particularly by quasi-judicial bodies such as CERD Committee on the Elimination of Discrimination against Women and the Human Rights Committee as well as by Special and Th ematic Rapporteurs Whereas in the early to mid-1990s the concept of intersection was not obvious to the bodies entrusted to investigate related human rights violations such violations were in fact reported often Nonetheless the rigidity in the mandates of the specialised bodies (in terms of focus at least) and the lack of understanding of intersectional discrimination (whether targeted or compound) culminated in a proliferation of human rights violations in the absence of targeted responses With awareness of this distinct problem and the way it has been addressed in recent years by the relevant UN bodies as well as by the engagement of non-governmental organisations the situ-ation has certainly improved and new inroads have been made

Far from producing a customary rule by which intersectional discrimination against minority and indigenous women may be said to exist outside the realm of current minority treaty law the responses from States and their positive attitude towards the work of the specialised UN bodies suggests something has changed Th e international instruments in place that deal with minority protection do not distinguish gender protection from protection of the minority attributes of group members as a whole but an evolutionary interpretation of Article 27 of the ICCPR and of the 1992 UN Declaration such that does not preclude such a distinction is beginning to crystallise Th is view is further reinforced from the fact that recent internationally binding instruments oblige member States to pro-vide a sanctuary for traffi cked women and consider them as victims rather than as accomplices to a criminal off ence 70 Th is development demonstrates that the biological as well as the socio-economic vulnerability of women in underprivi-leged societies including minority and indigenous groups should be at the core of any criminalisation policy and law enforcement mechanism thus contributing to the eradication of intersectional discrimination As far as the grassroots level is concerned however States with acute problems must try to address their socio-economic imbalances both in terms of the majority as well as the minority


In all the relevant reports the lack of education for minority women in developing countries as well as the inaccessibility of legal remedies contributed signifi cantly to all their other evils What I have not determined in this article is the extent to which intersectional discrimination in the laws of the various States is recognis-able as such or whether it is subject to the victim proving both acts of discrimina-tion Th is question requires research of a diff erent nature but I did discuss in brief the rejection of unitary intersectional discrimination in UK employment discrimination law although this is not necessarily the case in the context of the European Community Th is may be too subtle of a legal problem for the majority of developing nations and one that is unlikely to reach their courts In some states such issues will relate to infringements of the civil law whereas in other states the impact of intersectional discrimination on minority and indigenous women will be felt at the level of criminal law Th e complicity of the State apparatus in these crimes will hamper womenrsquos eff orts to report the crimes and seek any legal rem-edies Th us it is crucial that the United Nations take it upon itself to promote the cause of intersectional discrimination and highlight all relevant incidents It is imperative that multilateral donors envisage or incorporate a contractual under-taking in their grant agreements with recipient States so that the latter are obliged to address intersectional discrimination by instituting affi rmative action laws particularly where the grant agreement relates to humanitarian projects


incorporation of a gender dimension is not a new phenomenon 2 Th e second reason has been our lack of understanding of the full potential of intersectional discrimination on minority and indigenous women Th is state of aff airs has also been particularly exacerbated by the relative isolationist culture of many indige-nous groups in the developing world the absence of press coverage of internal strifes and armed confl icts in which minority women are targeted because of their biological and societal vulnerabilities which is ultimately a testament to how little we understand or care enough to make the eff ort to understand in some cases how other cultures operate and in what ways socio-economic forces fuel the discrimination of minority groups and their women members in particular

Th e aim of this article is to demonstrate the gradual perception of intersec-tional discrimination against minority women by the various UN bodies as well as other entities as well as explain why the matter has come to the forefront of international human rights bodies following the perpetration of gender-related off ences against minority women Intersectional discrimination occurs almost everywhere in healthcare access education labour relations to name a few how-ever not all of these aspects will be explored in this article and not every State espouses the position that intersectional discrimination is a single legal phenom-enon and not simply two separate acts of discrimination Given the very rigidity of existing international instruments concerned with the protection of minorities and the absence as a result of a comprehensive binding global treaty our legal understanding of minority discrimination is informed by Article 27 of the International Covenant on Civil and Political Rights (ICCPR) 3 which does not treat gender as a distinct sub-species deserving of particular minority protection Th is author does not argue that a new treaty on minority women is needed Instead it is suggested that as a result of developments in the last 10 to 15 years a case can be made that minority gender discrimination is indeed a distinct uni-tary form of discrimination that is and should be subject to a regime of affi rma-tive action and special protection on the basis of existing instruments and the dynamic nature of human rights treaties 4 To a very large degree this obligation of affi rmative action is expressly enshrined in Article 4(1) of the 1979 Convention

2) Report of the Expert Group Meeting on the Development of Guidelines for the Integration of Gender Perspectives into United Nations Human Rights Activities and Programmes UN Doc ECN41996105 Annex (20 November 1995) and Integration of Womenrsquos Human Rights into the Work of the Special Rapporteurs ECN41997131 Annex (28 April 1997) 3) 999 UNTS 171 4) Th is is attested for example by the dynamic interpretation of Article 1 of CEDAW whereby the Convention concerns at least expressly only sex discrimination but the CEDAW Committee in its General Recommendation 25 UN Doc CEDAWC2004IWP1Rev1 (30 January 2004) para 8 held that gender and not only sex should be taken into account when members consider their obligations under the Convention






















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Gender and Its Inter-Sectional Dimension in International Minority Law

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Transcript of Gender and Its Inter-Sectional Dimension in International Minority Law