“Doing Intersectionality” Through International Human Rights Law: Substantive International Human Rights Law as an Effective Avenue Towards Implementing Intersectionality to Counter Structural Oppression?

Abstract

Intersectionality’s roots in anti-discrimination law were essential to its conception and development. However, anti-discrimination law is, by nature, tied to formal equality, exacerbates some of intersectionality’s most criticised aspects, and is ill-equipped to implement a more structural/systemic vision of intersectionality. Substantive IHRL, by contrast, may be better suited to implement some of intersectionality’s most promising elements. Since its focus is on the substantive realisation of rights rather than on equal access to rights, substantive IHRL could be a tool to achieve substantive equality and counter structural oppression. To this end, substantive IHRL contains existing interpretative principles (e.g. anti-stereotyping and vulnerability reasoning) that could be employed to encourage intersectional reasoning and redress by monitoring bodies. This contribution will explore how, based on these factors, substantive IHRL may help bridge the gap between intersectional analysis/critique and “doing intersectionality” in practice.

Keywords: intersectionality, international human rights law, human rights, structural oppression.