This guest post is by Judith Ngozichinyere Onwubiko. Judith is a student on the LLM, International Law with Medical Law and Ethics stream. Her main academic interest is International Human Rights Law. She hopes to pursue a career in academia.
I was recently asked the question: black or female, which is worse? It was the first time I had to consider whether an aspect of my identity could be better than another. I considered the question through the lenses of international law and made some striking observations.
First, as Susan Marks observes, international law favours victimhood. The international legal system is ordered in such a manner that one has to be identified as a victim in order to make claims in international law. Thus, international law, especially international human rights law, provides us with categories of rights as well as categories of victimhood. By making claim to a right, one is implying that they have been, are being, or are about to be subjected to some kind of victimization. However, the degree of protection available for a rights-based claim is dependent on the nature of the right in question.
This brings us to the second point: that human rights in international law are hierarchical. According to Anna Grear, the hierarchy of a right in international human rights law is reflected in the strength of enforceability of that right. Having considered the strength of enforceability of the right to non-discrimination on the ground of race and the right to non-discrimination on the ground of sex, I concluded that the former is of a higher hierarchy in international law. This is based on the following:
- The prohibition of racial discrimination is a rule of jus cogens, but sex discrimination is not. Jus cogens norms, as defined by Article 53 of the Vienna Convention on the Law of Treaties, are overriding principles of international law accepted by all members of the international community and from which no derogation is permitted. As a rule of jus cogens, the prohibition of racial discrimination will be binding on all states, including states that have not acceded to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. And states would be obliged to protect the right to non-discrimination of the ground of race in all circumstances, even during states of emergency.
- It took 14 years after the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination for the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to be adopted.
As a rule of jus cogens, the right to non-discrimination on the ground of race is a higher class of rights with more protection and enforceability than the right to non-discrimination on the ground of sex. For instance, states can determine the extent to which they will protect women’s right under CEDAW but cannot do so in relation to the prohibition of racial discrimination. In fact, one of the criticisms of the CEDAW is that it has been undermined by numerous reservations and declarations by state parties. And states that have not ratified the CEDAW are not bound by its provisions. Whereas, the prohibition of racial discrimination is binding on states irrespective of non-ratification, reservations or declarations. By privileging the prohibition of racial discrimination in this manner, international law seems to suggest that a claim based on racial discrimination is “better” than a claim based on sexual discrimination. And that it is worse to be female than to be black.
This may not be obvious in dual or multiple discrimination cases involving both racial and sexual discrimination. It is more obvious in cases involving either racial or sexual discrimination. For instance, if women in the UK are prohibited from driving merely because of their sex, a black woman who is prosecuted for driving in the UK may not enjoy much protection under international law. This is because the UK can only protect the rights of women under international law to the extent that it has undertaken to do so. And unless the UK undertakes to allow women to drive cars in the UK, international law cannot compel the UK to do so.
However, if it were black people who were prohibited from driving in the UK merely because of their race, the same black woman would enjoy a higher degree of protection under international law. The UK will be prohibited from discriminating against her on the ground of her race, notwithstanding that it may not have specifically undertaken to do so. So, while states can choose not to protect the right to non-discrimination on the ground of sex in certain circumstances, they are obliged under international law to protect the right to non-discrimination on the ground of race in all circumstances. The practical effect of this is that, the hypothetical black woman enjoys more protection under international law as a black person, than as a woman. For her, being a woman is worse than being black, since she is more at risk of discrimination as a woman than as a black person.
This raises two disturbing issues. First, not every claimant would like to be considered a victim. Personally, I would like my rights to be protected under international law; but I would prefer to be able to make claims to those rights without having to think of myself as belonging to some category of “victimhood”. Secondly, it is disappointing to discover that under international law, especially as it relates to discrimination law, it is better to be black than to be female. My sex and my race both constitute my identity and have the same effect on my person. Racial discrimination is just as offensive as sexual discrimination and I would like to be equally protected from both. Hence, the right to non-discrimination on grounds of sex should also have a high degree of protection as the right to non-discrimination on grounds of race. That one identity is “better” than another is contrary to the principle of equality.
 Susan Marks, ‘Human Rights in Disastrous Times’ in James Crawford and Martti Koskenniemi (eds), Cambridge Companion to International Law (CUP, 2012) 318-319.
 Anna Grear, ‘’Framing the Project’ of International Human Rights Law: Reflections on the Dysfunctional ‘Family’ of the Universal Declaration’ in Conor Gearty and Costas Douzinas (eds), Cambridge Companion to Human Rights Law (CUP, 2012) 24.
 Malcolm Evans (ed), International Law (2nd ed, 2006) 789.
 See for instance, Ivana Radacic, ‘Feminism and Human Rights: The Inclusive Approach in Interpreting International Human Rights Law’ (2008) 14 UCL Juris. Rev. 246, 255.