MONTRéAL PRINCIPLES ON WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Author: Womens UN Report Network
Date: February 5, 2006
Attachments: Montreal_Principles_en (1).pdf
WOMEN’S
ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
The
Montréal Principles were adopted at a meeting of experts held December 7 – 10,
2002 in Montréal, Canada. These principles are offered to guide the
interpretation and implementation of the guarantees of non-discrimination and
equal exercise and enjoyment of economic, social and cultural rights, found,
inter alia, in Articles 3 and 2(2) of the International Covenant on Economic, Social
and Cultural Rights, so that
women can enjoy these rights fully and equally.
The
participants at the Montreal meeting were: Sneh Aurora, Fareda Banda, Reem
Bahdi, Stephanie Bernstein, Gwen Brodsky, Ariane Brunet, Christine Chinkin, Mary
Shanthi Dairiam, Shelagh Day, Leilani Farha, Ruth Goba, Soledad Garcia Muñoz,
Sara Hossain, Lucie Lamarche, Marianne Møllmann, Dianne Otto, Karrisha Pillay,
Inés Romero, and Alison Symington. They unanimously agreed on the following
principles.
A.
Introduction
Sex
or gender inequality is a problem experienced primarily by women. The
systems and assumptions which cause women’s inequality in the enjoyment of
economic social and cultural rights
are often invisible because they are deeply embedded in social relations, both
public and private, within all States. Acknowledging this systemic and
entrenched discrimination is an essential step in implementing guarantees of
non-discrimination and equality.
The
terms “gender” and “sex” should both be understood as referring to the range of
economic, social, cultural, historical, political and biological constructions
of norms of behaviour that are considered appropriate for women and men.
Implicit in such an understanding of “gender” or “sex” relations is that male
and female norms have been constructed so as to privilege men and disadvantage
women. “Gender” and “sex” discrimination can be used interchangeably, and both
“gender inequality” and “sex inequality” are used to refer to the disadvantaged
position of women. In order to reflect this understanding of women’s
disadvantage, the Montréal Principles use the terms “discrimination against
women” and “women’s equality” wherever possible.
Economic,
social and cultural rights have a particular significance for women because as a
group, women are disproportionately affected by poverty, and by social and
cultural marginalization. Women’s poverty is a
central manifestation, and a direct result of women’s lesser social,
economic and political power. In turn, women’s
poverty reinforces their subordination, and constrains their enjoyment of every
other right.
The
UN Charter mandates universal respect for, and observance of all human rights,
including the right of women to equal exercise and enjoyment of their economic
social and cultural rights.[i] All
regional and global instruments which set out economic social and cultural
rights contain guarantees of non-discrimination and of equal enjoyment for women
of these rights.[ii] An
expression of this global consensus is found in Articles 3 and 2(2) of the International Covenant on Economic, Social
and Cultural Rights.
In
the political context of the early 21st century, it is particularly
important to underline this long-standing international consensus regarding
human rights primacy. The lack of priority accorded to securing universal
enjoyment of economic, social and cultural rights hurts women
disproportionately.
Women’s
particular vulnerability to social and economic deprivation is deepened further
in conflict and post-conflict situations and when economic sanctions are
imposed. The Committee on Economic, Social and Cultural Rights has stated that
economic, social and cultural rights must be taken into account when imposing
sanctions, and State Parties to the Covenant should take account of the
suffering that such sanctions are likely to inflict on certain sectors, such as
women. As the UN Security Council has recognized, peace and women’s equality are
inextricably linked.[iii]
The
inequality in the lives of women that is deeply embedded in history, tradition
and culture[iv] affects
women’s access to and enjoyment of economic, social and cultural rights. To
ensure women’s enjoyment of these rights, they must be implemented in a way that
takes into account the context in which women live. For example, the traditional
assignment to women and girls of the role of primary care-giver for children,
older persons and the sick restricts women’s freedom of movement and
consequently their access to paid employment and education. The economic and
social devaluation of the work, paid and unpaid, that women traditionally do
from a very young age, contributes further to fixing women in a position of
economic and social inequality. These factors diminish women’s earning capacity
and their economic autonomy, and contribute to the high rates of poverty among
women worldwide. Traditional, historical, religious or cultural attitudes are
also used to justify and perpetuate discrimination against women in the delivery
of economic, social and cultural rights, including health services and
education, by public and private agencies.
Inequality
in women’s enjoyment of economic, social and cultural rights contributes to
their economic dependence, denial of personal autonomy and lack of empowerment.
These in turn limit still further women’s ability to participate in public life,
including fora for economic, social, political and legal policy and
decision-making. As the Committee on the Elimination of Discrimination against
Women has noted: “‘Policies developed and decisions made by men alone reflect
only part of human experience and potential.’” [v] Such policies and decisions are less
likely to take account of gendered consequences, and the economic and social
factors that affect women’s lives.
Economic,
social and cultural rights and civil and political rights are particularly
indivisible and interconnected in the lives of women: inequality in economic,
social and cultural rights undermines women’s ability to enjoy their civil and
political rights, which then limits their capacity to influence decision and
policy-making in public life. Since “‘[a]ll human rights are universal,
indivisible and interdependent and interrelated’” [vi] equality
in civil and political rights[vii] is
undermined unless equality in the exercise and enjoyment of economic, social and
cultural rights is secured.
It
is especially important that women’s entitlement to equal enjoyment of economic,
social and cultural rights is acknowledged and re-emphasized in the current
climate of neo-liberalism and economic globalization. Policies of privatization,
economic austerity and structural adjustment have negative impacts for women.[viii] For
example, women are often the hardest hit by economic transition, financial
crises and rising unemployment. In
part, this is because women are relied upon to provide services that are cut
such as caring for children, older persons and the sick, because women are often
in insecure, part-time employment, they are commonly the first to lose their
jobs. Furthermore, poverty can lead to a decrease in food intake among women and
girls; girls are the first to drop out of schools; greater numbers of women are
forced to migrate; and women are vulnerable to trafficking, violence and ill
health. Economic and political insecurity provoke private and public backlash
against women’s rights that may be expressed through violence and articulated in
the form of defending cultures and traditions.
To
fully implement the rights set out in Articles 3 and 2(2) of the International
Covenant on Economic Social and Cultural Rights, and similar guarantees in other
human rights instruments, requires an understanding that focuses upon the
subordination, stereotyping and structural disadvantage that women experience.
It requires more than just formal legal recognition of equality between the
sexes. It requires commitment by all responsible parties to take all necessary
steps to address the actual material and social disadvantage of
women.
B. Definition
of Women’s Economic Social and Cultural Rights
1.
Women’s economic,
social and cultural rights include, but are not limited to, the right
to:
ª
An adequate
standard of living including:
§
food and
freedom from hunger;
§
water;
§
clothing;
§
housing and
freedom from forced eviction;
§
continuous
improvement of living conditions;
See for
example:
International Covenant on Economic, Social and Cultural Rights (ICESCR) article
11(1) and (2); Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) article 14(2)(h); Universal Declaration of Human Rights
(UDHR) article 25; Universal Declaration on Eradication of Hunger and
Malnutrition (UDEHM) article 1; Declaration on the Right to Development (DRD)
article 8(1); Committee on Economic, Social and Cultural Rights, General Comment
15 (“The right to water”); Additional Protocol to the American Convention on
Economic, Social and Cultural Rights (San Salvador Protocol) article 12; Rome
Declaration on Food Security; Istanbul Declaration and Program of Action on
Human Settlements.[ix]
v
The
highest attainable standard of mental and physical health throughout a woman’s
life cycle, including reproductive and sexual health and freedom;
See for
example:
ICESCR article 10(2) and 12; International Covenant on Civil and Political
Rights (ICCPR) article 6(4) and 18(4); Declaration on the Elimination of
Discrimination Against Women (DEDAW) article 9(e); CEDAW articles 10(h),
11(2)(a) and 12; UDHR article 25; Declaration on Population and Development
para. 7; Beiing Declaration and Program of Action paras. 89, 94 and 96;
Convention on the Rights of the Child (CRC) articles 24, 3(2); American
Convention on Human Rights (ACHR) article 4(5); San Salvador Protocol article
10; Inter-American Convention on the Protection, Punishment and Eradication of
Violence Against Women (ICPPEVAW) article 4(b); American Declaration on the
Rights and Duties of Man (ADRDM) article xi; Declaration on Social Progress and
Development (DSPD) article 11(b); DRD article 8(1); Maternity Protection
Convention (MPC) article 3; African Charter on Human and Peoples’ Rights
(African Charter) article 16; Committee on the Elimination of Discrimination
Against Women, General Comment 24.[x]
v
Equal
inheritance and ownership of land and property;
See for
example:
ICESCR article 11(1); CEDAW articles 13(b), 14(20(e) and (g), 15(2) and 16(h);
DEDAW article 6(1)(a); DRD article 8(1); International Convention on the
Elimination of All Forms of Racial Discrimination (CERD) articles 5(d)(v) and
5(d)(vi); UDHR article 17; ACHR article 21; African Charter, article 14; Beijing
Declaration and Program of Action, para. 61(b), 62, and 63.[xi]
v
Social security, social
protection, social insurance and social services, including special assistance
before, during and after childbirth;
See for
example:
ICESCR articles 9 and 10(2); CERD article 5(e)(iv); DEDAW article 10(1)(c);
CEDAW articles 11(1)(e), 11(2)(a), and 14(2)(c); MPC articles 4 and 6; UDHR
article 22, 23(1) and 25(1); San Salvador Protocol articles 9(2) and 15 (3)(a);
ADRDM article xvi; ICCPEVAW, article 8; CRC article 28.[xii]
v
Training and
education;
See for
example:
ICESCR articles 6 and 13; CEDAW articles 10 and 14(2)(d); DEDAW article 9; UDEHM
article 4; CERD article 5(e)(v); UDHR article 26; ACHR article 17(1); ICPPEVAW
article 6(b); San Salvador Protocol article 13(1)(2) and (3); CRC article 28;
Convention Against Discrimination in Education article 1; ADRDM article xii;
Bejing Declaration and Program of Action para. 69.[xiii]
v
Freely chosen work as
well as just and favourable conditions of work including fair wages, equal
remuneration and protection from sexual harassment and sex discrimination at
work;
See for
example: ICESCR
articles 6 (1), 6(2) and 7; CEDAW articles 11(1)c), (f); CERD article 5(e);
ICCPR article 8(3)(a); DEDAW article 10(1)(a); Abolition of Forced Labour
Convention (AFLC) article 1; DSPD article 6; UDHR articles 4 and 23;
Declaration on the Elimination of Violence against Women (DEVAW) article 3; ACHR
article 6(2); African Charter articles 5 and 15; ADRDM, article xiv; San
Salvador Protocol articles 6 and 7; Convention for the Protection of Human
Rights and Fundamental Freedoms (CPHRFF) article 4(2); MPC article 8; Equal
Remuneration Convention (ERC) article 1; Convention on Employment Policy
articles 1 (1) and (2); ILO Declaration on Fundamental Principles and Rights at
Work; ICPPEVAW, article 2(b).[xiv]
v
Form
and join trade unions;
See for
example: ICESCR
article 8; ICCPR article 22; CERD article 5(e)(ii); DSPD article 10; San
Salvador Protocol article 8; ILO Convention on Freedom of
Association and Protection of the Right to Organize.[xv]
v
Protection from economic
exploitation;
See for
example:
ICESCR articles 8 and 10 (3); ICCPR article 8; Supplementary Convention on the
Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to
Slavery article 1(b); CRC article 32; ILO Convention on Worst Forms of Child
Labour; UDHR article 4; ACHR article 6.[xvi]
v
Protection from coerced
and uninformed marriage;
See for
example: ICESCR
article 10(1); CEDAW article 16(1)(b); DEDAW article 6(2)(a); ICCPR article
23(3); Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriage (Marriage Convention) article 1; CERD
article 5(d)(iv); UDHR article 16(2); ACHR article 17(3).[xvii]
v
A
clean and healthy environment;
See for example: ICESCR article
12(2)(b); African Charter article 24.[xviii]
v
Participate in cultural
life;
See for
example:
ICESCR article 15(1)(a); CRC article 29(1)(c); CEDAW article 13(c); ICCPR
article 27; DEVAW article 3; CERD article 5(e)(vi); UDHR article 27; ACHR
article 26; African Charter articles 17(2) and 22(1); ICPPEVAW article 5; San
Salvador Protocol articles 14(1)(a) and (b).[xix]
v
Claim
and enjoy the benefits of patents and intellectual
property;
See for
example:
ICESCR article 15(1)(c); San Salvador Protocol article 14(c).[xx]
v
Nationality; and to
bestow nationality on children;
See for
example:
CEDAW article 9; DEDAW Article 5; Convention on the Nationality
of Married Women (CNMW) article 1; Convention Relating to the Status of Refugees
(CSR) article 2; UDHR article 15; ACHR article 20; CERD article 5(d)(iii).[xxi]
v
Freedom from trafficking
and exploitation; recognition of the human rights of trafficked
persons;
See for
example: CEDAW
article 6; DEDAW article 8; DEVAW article 2(b); CRC articles 34 and 35; ICPPEVAW
article 2(b); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention Against Transnational Organized Crime.[xxii]
2.
Indivisibility
and Interdependence of Rights
Economic,
social and cultural rights and civil and political rights are indivisible,
interdependent and interconnected. In the real lives of women, it is difficult
to separate these rights. For example, a woman’s right to life is threatened as
much by the deprivation of economic, social and cultural rights as by the
deprivation of civil and political rights.
3.
No
Justification for Restriction
Nothing
in the wording or substance of any international or regional human rights
document, policy, practice or custom can be used to justify restricting women’s
equal enjoyment and exercise of economic, social and cultural rights.
4.
Non-Retrogression
International
law entitles women to claim the highest level of available protection for their
rights that is afforded by international human rights instruments or national
law, policy or custom.[xxiii]
C. Principles of Equality and
Non-discrimination
5.
Women’s Sex
and Gender Inequality
Unequal power
relations between women and men must be acknowledged and changed, and the
entrenched disadvantage caused by this power imbalance must be addressed, if
women are to achieve the equal exercise and equal enjoyment of their economic,
social and cultural rights.
6.
Non-Discrimination
and Equality
Legal
guarantees of non-discrimination based on sex and legal guarantees of equality
for women, though expressed differently,
are articulations of the same obligation. This obligation is not confined to
negative restraints on States and third parties because negative restraints,
alone, do not successfully eliminate discrimination against women. Both the
right to non-discrimination and the right to equality mandate measures that
prevent harmful conduct and positive steps to address the long-standing
disadvantage of women.
7.
Definition
of Sex Discrimination
Sex
or gender discrimination occurs when intentionally or unintentionally, a law,
program or policy, or an act or a failure to act, has the effect or purpose of
impairing or nullifying the recognition, exercise or enjoyment by women of their
economic, social and cultural rights.[xxiv]
8.
Forms of
Sex Discrimination
Sex
or gender discrimination is experienced as discrimination because of being a
woman. It can also be experienced
as discrimination on the basis of marital status, for example, as discrimination
against wives, co-habitees, unmarried women, divorced women or widows, or on the
basis of family status, family responsibility, pregnancy, reproductive capacity,
or sexuality. Sexual harassment of women and violence against women must also be
understood as forms of sex discrimination.
9.
Substantive
Equality
Economic,
social and cultural rights must be interpreted and implemented in a manner that
ensures to women substantively equal exercise and enjoyment of their rights.
Substantively equal enjoyment of rights cannot be achieved through the mere
passage of laws or promulgation of policies that are gender-neutral on their
face. Gender neutral laws and policies can perpetuate sex inequality because
they do not take into account the economic and social disadvantage of women;
they may therefore simply maintain the status quo. De jure equality does not, by itself,
provide de facto equality. De facto, or substantive equality,
requires that rights be interpreted, and that policies and programs – through
which rights are implemented – be designed in ways that take women’s socially
constructed disadvantage into account, that secure for women the equal benefit,
in real terms, of laws and measures, and that provide equality for women in
their material conditions. The adequacy of conduct
undertaken to implement rights must always be assessed against the background of
women’s actual conditions and evaluated in the light of the effects of policies,
laws and practices on those conditions.
10.
Intersectionality
Many
women encounter distinct forms of discrimination due to the intersection of sex
with such factors as: race, language, ethnicity, culture, religion, disability,
or socio-economic class. Indigenous women, migrant women, displaced women, and
non-national or refugee women experience distinct forms of discrimination
because of the intersection of their sex and race, or their sex and citizenship
status. Women may also confront particular forms of discrimination due to their
age or occupation; family status, as single mothers or widows; health status,
such as living with HIV/AIDS; sexuality, such as being lesbian; or because they
are engaged in prostitution. Intersecting discrimination can determine the form
or nature that discrimination takes, the circumstances in which it occurs, the
consequences of the discrimination, and the availability of appropriate
remedies. To ensure that all women enjoy the benefits of their economic, social
and cultural rights, specific measures are needed to address the ways in which
women are differently affected in their enjoyment of a right as a result of the
intersection of discrimination based on sex with discrimination based on other
characteristics.
11.
Autonomy
Women
are entitled to exercise and enjoy their economic social and cultural rights as
autonomous persons. They cannot enjoy their economic, social and cultural rights
equally if they are treated as inferior to men or as adjuncts
of, or dependents of men, whether those men are family members or others. In turn, economic, social and cultural rights must be
interpreted and applied in ways that recognize women’s right to full legal
personhood and autonomy.
D. Impediments To
Women’s Equal Enjoyment of Economic, Social and Cultural Rights
12.
Impediments
Structural
impediments to women’s equal exercise and enjoyment of economic social and
cultural rights include, but are not
limited to: (i) social norms, customs and traditions that legitimize women’s
inequality; (ii) failure to take account of women’s disadvantage or their
distinct experiences when designing laws or measures to implement economic,
social and cultural rights; (iii) restrictions on access to legal or
administrative bodies where remedies for rights violations may be sought; (iv)
women’s under-representation in decision-making processes; (v) women’s unequal
status in their families; (vi) the failure to recognize women’s unremunerated
work, and to encourage the fairer distribution between women and men of family
and community-supporting labour; (vii) the neglect of women’s economic, social
and cultural rights in conflict and post-conflict situations; and (viii) the
gender-differentiated effects of economic globalization. These impediments must
be addressed and eliminated to ensure that measures adopted to implement
economic, social and cultural rights will benefit women
equally.
E. Legal
Obligations
13.
Justiciability
and Allocation of Resources
Women’s rights to
non-discrimination and equality are enforceable by judicial bodies and
administrative tribunals in all circumstances, including when they raise issues
of government allocation of resources for the realization of economic, social
and cultural rights.
14.
Immediate
Obligation
The right to
non-discrimination and to the equal exercise and enjoyment of economic, social
and cultural rights imposes an immediate obligation on States. This obligation
is not subject to progressive realization. The obligation is also an immediate
one for inter-governmental bodies and quasi-State actors or other groups
exercising control over territory or resources.[xxv]
15.
Respect, Protect,
Fulfill and Promote
Women’s
right to non-discrimination and equality imposes four specific obligations on
States: the obligations to respect, protect, fulfill and promote women’s
exercise and enjoyment of economic, social and cultural rights. These four
obligations are indivisible and interdependent and must be implemented by States
simultaneously and immediately.
16.
Range of
Conduct
The
obligations to respect, protect, fulfill and promote women’s economic, social
and cultural rights require a range of conduct from States. States are obliged
to both refrain from acting harmfully and to take positive steps to advance
women’s equality.
Categories: Releases