Human Rights, Intersectionality, and Superdiversity

K. Henrard, ‘(Human) rights perspectives to superdiversity: possibilities and lacuna in the international case law on intersectional discrimination’, in Fran Meissner, Nando Signoa and Steve Vertovec (eds), Oxford Handbook of Superdiversity, OUP 2022.

Investigations of how a superdiversity angle might lead to changed interpretations of legal concepts could be undertaken in various fields of law. This chapter zooms in on “intersectional discrimination” because the prohibition of discrimination is an essential tool for (analyzing) legal approaches to population diversity and because intersectionality is conceptually aligned with superdiversity. Indeed, both concepts alert us to the lack of homogeneity of ethnic groups and the multiple axes of differentiation within these groups. This chapter proceeds along three themes. First, it highlights the importance of intersectional discrimination for a richer nondiscrimination analysis. Second, it explores what a proper (explicit or implicit) identification of intersectional discrimination and a suitable assessment thereof would be. Third, it highlights the hesitation, even reluctance, of a range of international courts and quasi-courts to actually proceed as necessary. The analysis shows obvious differences of degree concerning the extent to which the United Nations treaty bodies, the European Court of Human Rights, and the Court of Justice of the European Union are even willing to identify intersectional discrimination, let alone properly evaluate it. By way of conclusion, the chapter identifies an urgent need to develop a comprehensive methodology for assessing instances of intersectional discrimination. The latter methodology is essential to develop nondiscrimination laws and policies that are suitable for superdiverse societies.