There are cases where Indigenous people have sought justice for states violating their cultural rights through the UN Committee on Economic, Social and Cultural Rights (CESCR). Indigenous women have similarly sought justice for gendered discrimination through the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW). 

But can all instances of violated rights be neatly sorted into separate categories?  

What if an Indigenous woman experiences discrimination and has her rights violated due to both her gender and her status as an Indigenous person? 

Nine Core Treaties 

There are currently nine core human rights treaties protecting different categories of rights. Each of them has a committee of experts that track progress and supervise enforcement of the treaties. 

The nine core treaties, their abbreviations, and the year they were adopted are as follows: 

1. International Convention on the Elimination of All Forms of Racial Discrimination, ICERD, 1965 
2. International Covenant on Civil and Political Rights, ICCPR, 1966 
3. International Covenant on Economic, Social and Cultural Rights, ICESCR, 1966 
4. Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, 1979 
5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT, 1984 
6. Convention on the Rights of the Child, CRC, 1989 
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ICMW, 1990 
8. International Convention for the Protection of All Persons from Enforced Disappearance, CPED, 2006 
9. Convention on the Rights of Persons with Disabilities, CRPD, 2006 

A state is only bound by a treaty once it has been both signed and ratified, meaning that the state has taken official actions to make the treaty legally binding on their national level.  

Individuals can submit claims of rights violations committed by their own state to the treaty committees, but only if the treaty and its accompanying Optional Protocol have been signed and ratified by their state. 

For example, Chile has ratified CEDAW but not its Optional Protocol. This means that while the country is held accountable for generally upholding the rights protected by CEDAW, individual Chilean women cannot seek justice through the CEDAW Committee. 

It is additionally important to note that cases submitted by individuals only can be taken up by a committee if the individual has exhausted all their domestic legal opportunities first.  

Choose a Category 

In 2021 the International Work Group for Indigenous Affairs (IWGIA) recommended that CEDAW increase its support of Indigenous women and girls, resulting in the adoption of General recommendation No.39 in 2022. They argued that the discrimination faced by Indigenous women is often a combination of sexism, racism, structural inequalities, and their economic status. 

IWGIA refers to this as “multiple layers of discrimination” leading to “mutually reinforcing human rights abuses” (IWGIA, p. 2). However, the current structure of the human rights treaties is not fit to address this reality. 

The separation into nine categories means that these Indigenous women could be represented by CEDAW, ICERD, or ICESCR. But when individuals submit a claim of their state violating their rights, they have to select only one treaty committee to receive their submission.  

The result: they have to decide which category best represents their experience, thereby possibly being forced to simplify and misrepresent the violation. 

Recognising Complexity Using Intersectionality  

My critique of the current system for human rights treaties and their committees is inspired by the work of Black women in the USA, who have highlighted the discrimination faced by their demographic. They argued that Black women are marginalised by both racism and sexism, intersecting and resulting in further discrimination. Experiences of discrimination, they argued, are influenced by a combination of the two. This perspective is referred to as intersectionality. 

In 2016 the Oxford Human Rights Hub published the paper CEDAW and Women’s Intersecting Identities: A Pioneering Approach to Intersectional Discrimination,  critiquing CEDAW’s failure to recognise this concept. Combined with the growing pressure from Indigenous communities, CEDAW released the General recommendation No.39 (2022) on the rights of Indigenous women and Girls. 

This recommendation describes the reality of the discrimination experienced by Indigenous women through an intersectional lens, before recommending that this complexity should be considered in the individual cases. 

CEDAW and CRPD have furthermore co-published the Intersectionality Resource Guide and Toolkit This includes directions and recommendations for implementing intersectionality in the work of human rights committees.  

Recommendations or a New Structure 

CEDAW and CRPD are the two committees that actively engage in this debate, leaving the same to be desired from the other committees. 

Intersectionality is still not mentioned in any human rights treaties or optional protocols. Having the complexity of a case being fully understood through intersectionality is therefore not a protected right of individuals. Instead, it is dependent on the specific people overseeing a case.  

When submitting a case, one must find the balance between choosing a committee that is the closest thematically to the violation or a committee that will best understand the complexity of the case.  

This, however, can lead to inconsistencies, an issue for which CEDAW has already been critiqued. 

This article should not be seen as an attempt to undermine the important work of human rights committees. Instead, it is a call for an expanded discussion on how the current system must change as it misrepresents the reality of those who’s experiences of discrimination do not fit into the considerations of one single treaty.  

It is necessary to consider and discuss whether recommendations and toolkits are enough, or if a structural change is needed.