The right of minority-refugees to preserve their cultural identity: An intersectional analysis
| Published date | 01 September 2021 |
| Date | 01 September 2021 |
| DOI | 10.1177/09240519211033419 |
| Subject Matter | Articles |
The right of minority-refugees
to preserve their cultural
identity: An intersectional
analysis
Stephanie Eleanor Berry
School of Law, Politics and Sociology, University of Sussex, Brighton, UK
Isilay Taban
School of Law, Politics and Sociology, University of Sussex, Brighton, UK.
Abstract
While UN treaty bodies have sought to address forms of oppression resulting from the intersec-
tion of gender, race and/or disability through their practice, they rarely recognise the experience
of groups at the intersection of other social categories. This article uses the lens of intersection-
ality to analyse the practice of UN treaty bodies in relation to the intersection of minority and
refugee status. We argue that while minority-refugees have fled persecution connected to their
minority status, UN treaty bodies have failed to appreciate the impact of their location at the
intersection of persons belonging to minorities and refugees in host States on their right to pre-
serve their cultural identity. By failing to address the distinct experience of minority-refugees, UN
treaty bodies risk participating in their oppression. Further, we reveal that current practice not
only has potentially negative consequences for minority-refugees –as both individuals and groups
–and for the host society but may even undermine the ability of IHRL to achieve its overarching
objectives.
Keywords
International Human Rights Law, minority-refugees, the right to culture, intersectionality, cultural
identity
Corresponding author:
Stephanie Eleanor Berry, Senior Lecturer in International Human Rights Law, School of Law, Politics and Sociology,
University of Sussex, Freeman Building, Brighton, BN1 9RH, UK.
Email: s.e.berry@sussex.ac.uk
Article
Netherlands Quarterly of Human Rights
2021, Vol. 39(3) 198–219
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519211033419
journals.sagepub.com/home/nqh
1. INTRODUCTION
International human rights law (IHRL) should, in theory, be ‘indivisible, interdependent and inter-
related’,
1
insofar as the enjoyment of one set of rights is recognised to be necessary for the effective
enjoyment of all others.
2
However, critical theorists argue that, in practice, IHRL fails to achieve
this as it locks individuals into rigid categories –as, for example, refugees or women –on the
basis of their presumed primary identity,
3
and predetermines their needs on the basis of a standar-
dised experience.
4
Thus, IHRL fails to appreciate how individuals located at the intersection of dif-
ferent social categories experience different forms of oppression as compared to those seen as
typifying each category.
5
In so doing, IHRL further marginalises the experience of these individuals
and even risks contributing to their oppression,
6
when, on the contrary, it is supposed to recognise
and combat such oppression.
Intersectionality theory informs this article’s analysis of UN treaty bodies’current practice in
relation to minority-refugees. As a theory, intersectionality challenges the tendency to capture indi-
viduals’experiences based on a single classification, for example, gender or ethnicity.
7
Instead, it
demonstrates how ‘the structural and dynamic consequences of the interaction between two or more
axes of subordination’
8
result in a qualitatively different experience of oppression.
9
Intersectionality is most commonly used to highlight forms of oppression resulting from the inter-
section of gender, race and/or class.
10
This has, notably, influenced the development of IHRL,
11
and
led to the recognition of the qualitatively different experience of individuals at this intersection by
UN treaty bodies,
12
albeit inconsistently.
13
Further, the interaction between disability and other
social categories has been recognised under the UN Convention on the Rights of Persons with
1. UNGA, ‘Vienna Declaration and Programme of Action’UN Doc A/CONF.157/24 (Part I) [5].
2. JamesW. Nickel, ‘Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human Rights’(2008)
30 Human Rights Quarterly 984.
3. Roger Zetter, ‘Labelling Refugees: Forming and Transforming a Bureaucratic Identity’(1991) 4 Journal of Refugee
Studies 40; Wendy Brown, ‘Suffering the Paradoxes of Rights’in Wendy Brown and Janet Halley (eds), Left
Legalism/Left Critique (Duke University Press 2002).
4. Zetter (n 3) 44; Wendy Brown, ‘“The Most We Can Hope For…”: Human Rights and the Politics of Fatalism’(2004)
103 The South Atlantic Quarterly 451, 460.
5. Johanna E. Bond, ‘International Intersectionality: A Theoretical and Pragmatic Exploration of Women’s International
Human Rights Violations’(2003) 52 Emory Law Journal 71, 80. See generally, Kimberlé Crenshaw, ‘Mapping the
Margins: Intersectionality, Identity Politics, and Violence against Women of Color’(1991) 43 Stanford Law Review
1241.
6. Crenshaw (n 5) 1245; Patrick R. Grzanka, ‘Systems of Oppression’in Patrick R. Grzanka (ed), Intersectionality: A
Foundations and Frontiers Reader (1st edn, Routledge 2018) 2.
7. Crenshaw (n 5) 1242–44.
8. Kimberlé Williams Crenshaw, ‘The Structural and Political Dimensions of Intersectional Oppression’in Grzanka (n 6)
17.
9. Crenshaw (n 5) 1245.
10. See,for example, Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’[1989] University of Chicago Legal Forum 139;
Crenshaw (n 5).
11. Patricia Hill Collins and Sirma Bilge, Intersectionality (Polity Press 2016) 70–76.
12. Shreya Atrey, Intersectional Discrimination (OUP 2019) 18–19; Pok Yin S. Chow, ‘Has Intersectionality Reached its
Limits? Intersectionality in the UN Human Rights Treaty Body Practice and the Issue of Ambivalence’(2016) 16
Human Rights Law Review 453, 454.
13. Shreya Atrey, ‘Fifty Years On: The Curious Case of Intersectional Discrimination in the ICCPR’(2017) 35 Nordic
Journal of Human Rights 220.
Stephanie Eleanor Berry and Isilay Taban 199
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