Women’s Economic, Social & Cultural Rights – News on ICESCR
Author: Womens UN Report Network
Date: February 12, 2006
Accommodation
Women’s
Economic, Social and Cultural Rights:
A
Recent Development in International Human Rights Law
The United Nations
Committee on Economic, Social and Cultural Rights recently adopted General Comment N. 16, its first interpretation
of the equality rights provision contained in Article 3 of the International Covenant on
Economic, Social and Cultural Rights.
Article
3 ensures the equal right
of men and women to the enjoyment of all economic, social and cultural rights
contained in the Covenant. As such, Article 3 and its interpretation are
particularly important for the exercise and enjoyment of economic, social and
cultural rights for women.
This UPDATE addresses the
following questions:
§
What are
‘General Comments’ and What Is their Value?
§
Why are
Economic, Social and Cultural Rights Important for
Women?
§
What Are the
Key Elements of General Comment N.
16?
§
How Can this
General Comment Be Used in Your Work?
This UPDATE is intended
to assist advocates, lawyers, and others in understanding the content of
General Comment N.16 so that it
can be used in local activities to promote and protect women’s economic and
social rights.
WHAT
ARE GENERAL COMMENTS?
When a country signs or
ratifies an international treaty, like the International Covenant on Economic,
Social and Cultural Rights (ICESCR), they become a “party” to that treaty.
A party to a treaty is obliged to submit reports and appear before the United
Nations (UN) every five years to demonstrate how they have implemented the
treaty back home.
The body responsible for
overseeing compliance with the Covenant on Economic, Social and Cultural Rights
is called the UN Committee on Economic, Social and Cultural Rights (“the CESCR”
or “the Committee”).
The CESCR also adopts
legal interpretations of the rights contained in the Covenant. These are
called ‘General Comments’. For example, the Committee has adopted
General Comments on the right to adequate housing, health, and
education. In May 2005 they adopted General Comment N. 16: Article 3:
The Equal Right of Men and Women to the Enjoyment of All Economic, Social and
Cultural Rights.
General Comments clarify
and elaborate on the content of the rights contained in the Covenant and the
obligations that these rights impose. This assists governments in drafting
their reports for the Committee as it provides them with more information on
what they are obliged to do in order to meet their obligations under the
Covenant.
WHY
ARE ECONOMIC, SOCIAL AND CULTURAL RIGHTS IMPORTANT FOR
WOMEN?
Since the United Nations
World Conference on Human Rights in
world have demanded that women’s rights be understood and treated as a central
element of the human rights framework. Although significant advances have
been made in the last twenty-two years in this regard, human rights bodies and
policy makers have often ignored women’s economic, social and cultural
rights.
Slowly, this is
changing. In 2002 a group of human rights experts met in
Women’s Economic, Social and Cultural Rights – the first international legal
document to discuss the meaning and application of economic, social and cultural
rights for women. And now, the CESCR has adopted General Comment N. 16 which discusses the
meaning of Article 3 of the
ICESCR.
Economic, social and
cultural rights are important for women because sex (or gender) inequality is a
problem experienced primarily by women and because economic, social and cultural
rights have particular significance for women. This is because, as a group,
women have less social, economic and political power and are generally poorer
than other groups. Women are also affected disproportionately by the
presence or absence of social programs and services that deliver health care,
education, child care, and other forms of social care because women are the
principal unpaid providers of this care.
Women’s economic, social
and cultural rights are engaged, for example, when:
§
Women are paid
less than men for doing similar work or work of similar value;
§
Women do not
have the means to secure an adequate standard of living, due to discriminatory
laws, policies and practices, which preclude women from working, from
owning/inheriting land and property, or because of inadequate income assistance
programs;
§
Women are
denied access to housing because they are single, have children, or receive
government assistance;
§
Women are
forcibly evicted from their homes and lands and rendered homeless;
§
Women and
girls are forced to marry;
§
Women cannot
access basic services such as water and health care because they are required to
pay for these services or because these services are not available locally; and
§
Women and
girls are denied education or are required to pay for primary
education.
In order for women to
truly enjoy equality, they need to be able to exercise and enjoy ALL human
rights. This does not just mean rights to vote, to nationality, and to
citizenship, but also rights to an adequate standard of living, including food
and housing, and rights to work, education, health, and social security.
Economic, social and cultural rights are indispensable for the realization of
other human rights.
Women’s economic, social
and cultural rights are especially important in a globalized economy.
Women are often hardest hit by the economic policies that are currently being
implemented in most countries around the world, such as structural adjustment
programs and privatization of services. These policies often jeopardize
women’s ability to claim and enjoy their economic, social and cultural
rights. For example: when public health and other social services are cut,
the State often relies on women to fill-in the gaps by providing unpaid health,
child, and elder care. This makes it harder for women to take-up paid
employment because women have less time to work outside of the
home.
Women’s experiences of
inequality today are rooted in history, as well as current cultural, religious
and social beliefs that hold that women are inferior and should be subordinate
to men. This means that in order for women to fully and equally enjoy
economic, social and cultural rights, public policies meant to implement these
rights must be understood and implemented in ways that account for women’s
realities and lives. Policies and laws must address the way in which women
are subordinated to men, and how women’s roles and abilities are assumed to be
inferior or different, such as for example, the assumption that all women will
be mothers or that housework is “women’s work”.
In order to obtain
equality, State policies must address the disadvantage women experience in the
very structures and institutions of society, such
as:
§
the social
norms, customs, and traditions that contribute to and legitimize women’s
inequality and subordination;
§
women’s
under-representation in decision-making bodies;
§
women’s
unequal status in their families; and
§
women’s
unremunerated work.
Recent developments in
international human rights law may assist States and others in this regard by
outlining the steps that they should take in order to ensure that women can
exercise and enjoy their economic, social and cultural
rights.
What follows is an
overview of the most recent development of this nature: General Comment N. 16: Article 3:
The Equal Right of Men and Women to the Enjoyment of All Economic, Social and
Cultural Rights.
Recent
Development in International Human Rights Law:
General
Comment N. 16:
Article 3: The Equal Right of Men and Women to the Enjoyment of All Economic,
Social and Cultural Rights
Title:
General
Comment N. 16 (2005)
Article
3: The Equal Right of Men and Women tothe Enjoyment of All Economic, Social and
Cultural Rights.
By:
The United
Nations Committee on Economic, Social and Cultural
Rights
Date:
May 2005
URL:
http://www.ohchr.org/english/bodies/cescr/docs/CESCR-GC16-2005.pdf
UN
Doc.: E/C.12/2005/3, 13
May 2005
BACKGROUND
The Committee on
Economic, Social and Cultural Rights recently adopted General Comment N. 16 on Article 3 of the Covenant which pertains to
equality between women and men. Article
3 states:
The States Parties to the
present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights set forth in the present
Covenant.
General
Comment N. 16 is the Committee’s first
legal interpretation of the meaning of Article 3 as contained in the
ICESCR.
The Comment is divided
into six sections:
Introduction
(par. 1–5): This section
provides a brief overview of the historical foundation of Article 3, its
relationship to Article 2(2) on non-discrimination and references to Article 3
in other General Comments adopted by the
Committee.
Conceptual
Framework (par. 6-15): This
section is divided into three parts: Equality (par. 6–9); Non-Discrimination
(par. 10-14); and Temporary Special Measures (par. 15). This section
provides a conceptual framework – using the above three concepts – to assist in
understanding and implementing Article 3 of the
ICESCR.
State
Parties’ Obligations (par. 16-31): This section is also
divided into three parts: General Legal Obligations (par.16-17); Specific Legal
Obligations (par. 18-21); and Specific Examples of States parties’ obligations
(par. 22 – 31). This section outlines what States parties are legally
required to do (or refrain from doing) to uphold equality between men and women
under Article 3. This includes a description of the concepts of “respect,
protect and fulfill” and a description of how Article 3 might apply to each of
the other substantive rights contained in the Covenant, such as worker rights,
the right to an adequate standard of living, and rights to health and
education.
Implementation
at the National Level (par. 32-39): This section is divided
into the following three parts: Policies and Strategies (par. 32-37); Remedies
and Accountability (par. 38); and Indicators and Benchmarks (par. 39).
This section provides examples of concrete steps that States parties could take
at the domestic level to ensure the exercise and enjoyment of Article
3.
Violations
(par. 40 -42): This section
details actions or omissions by States parties that would necessarily be deemed
violations of Article 3 of the ICESCR.
What follows is an
analysis of some of the highlights contained in General Comment
N.
16.
H I G
H L I G H T S
HIGHLIGHT
1
General
Comment N.16 is the first articulation by the Committee on Economic, Social and
Cultural Rights on the meaning and application of Article 3 of the
ICESCR.
As the only body within
the United Nations human rights system solely responsible for interpreting the
meaning and application of economic, social and cultural rights – as contained
in the Covenant – this General Comment is an important legal document.
States parties now have legal authority available to assist them in developing
strategies to ensure the enjoyment of Article 3.
HIGHLIGHT
2
General
Comment N.16 recognizes that the thrust of Article 3 is to ensure women
can exercise and enjoy the rights in the Covenant due to their historic and
ongoing disadvantage as compared to men.
Though Article 3 refers
to the equal enjoyment of economic, social and cultural rights by both women and
men, the Committee indicates in several instances that Article 3 is aimed at
eliminating women’s
inequality. For example, paragraph 5 of the General Comment notes that
“[w]omen in particular are often denied equal enjoyment of their human rights by
virtue of the lesser status ascribed to them by tradition and custom or as a
result of overt and covert discrimination”. Paragraph 11 discusses the
meaning of discrimination against women and sex
discrimination.
HIGHLIGHT
3
General
Comment N. 16 recognizes that if women are going to exercise and enjoy economic,
social and cultural rights equally with men, then all of the rights in the
Covenant must be analyzed through the lense of equality, non-discrimination and
the need for temporary special measures.
The General
Comment sets out a framework for understanding the implications of Article
3. At the core of this framework are three concepts: substantive equality,
non-discrimination and temporary special measures. The General Comment
provides good definitions of these first two concepts (see below). By
setting up this conceptual framework the Committee implies that States parties
will only be in compliance with the obligations imposed by Article 3 if it
ensures women’s equality and non-discrimination in the development and
implementation of all of its economic, social and cultural laws, policies and
programs.
The Comment fails to
adequately elucidate the interrelationship between the concepts of equality,
non-discrimination and temporary special measures. For example, the
Comment does not indicate that the legal obligations that attach to rights to
equality and non-discrimination are the same and that these legal obligations
may require the adoption of temporary special measures. Instead, it
asserts obliquely that the “principle of non-discrimination is the corollary of
the principle of equality” (par. 10). Further, the Comment states that the
“principles of equality and non-discrimination, by themselves, are not always
sufficient to guarantee true equality” and therefore, at times, temporary
special measures are needed (par. 15). This is confusing because, properly
understood, temporary special measures are a means of reaching equality and
non-discrimination.
The UN Committee on the
Elimination of Discrimination Against Women has adopted General
Recommendation N. 25 which provides a full analysis of temporary special
measures, including the relationship between equality, non-discrimination and
temporary special measures.
That being said, the
Comment sufficiently outlines the meaning of these three concepts so that users
of the Comment can interpret and apply the concepts in a manner that best
ensures substantive equality for women.
HIGHLIGHT
4
General
Comment N. 16 embraces the idea that if women and men are to equally enjoy the
rights in the Covenant substantive equality must be embraced when
interpreting and implementing the rights contained in the
Covenant.
Paragraph 6
states:
…
the rights set forth in the Covenant are to be enjoyed by men and women on a
basis of equality, a concept that carries substantive
meaning.
Paragraph 7
states:
“De jure (or formal) equality and de facto (or substantive) equality are
different but interconnected concepts. Formal equality assumes that
equality is achieved if a law or policy treats men and women in a neutral
manner. Substantive equality is concerned, in addition, with the effects
of laws, policies and practices and with ensuring that they do not maintain, but
rather alleviate, the inherent disadvantage that particular groups
experience.
Paragraph 8
adds:
Substantive equality for
men and women will not be achieved simply through the enactment of laws or the
adoption of policies that are gender-neutral on their face. In
implementing Article 3, States parties should take into account that such laws,
policies and practice can fail to address or even perpetuate inequality between
men and women, because they do not take account of existing economic, social and
cultural inequalities, particularly those experienced by
women.
These definitions are
important.
Formal
Equality
There are times when
formal equality, at a minimum, is required to address women’s in equality.
For example, when legal protections, social services or programs are explicitly
extended solely to men or exclude women. However, because direct
discrimination against women is not as common as it once was, more often, women
will require the protections of substantive equality in order to enjoy their
economic, social and cultural rights. For example, if laws permit
employers to refuse to hire women because they may become pregnant, this would
be a violation of formal equality. The remedy would be to require employers to
give women the same rights as men to be hired.
Substantive
Equality
However, this kind of
direct discrimination against women is not as common as it once was. More often,
women are discriminated against by neutral-appearing laws and policies that hold
women’s inequality in place by failing to address women’s realities or their
economic, social and cultural disadvantage. For example, if employment laws do
not provide for adequate maternity leave and maternity supports, women will
continue to be penalized in the labour force when compared to men. Failure to
provide for maternity and child care perpetuates women’s unequal participation
in paid labour and is a violation of substantive equality.
Substantive equality is
concerned with the effects or
results of laws and programs that
are intended to deliver rights, or with gaps in laws and programs that
perpetuate inequality.
Although
“gender-neutral” laws and policies — e.g. laws and policies that don’t mention
any distinctions between men and women — appear to offer equality because on
their face they treat men and women the same way, the effect of these laws and
policies can result in women’s disadvantage. Such laws and policies are
developed or implemented without due consideration for the economic, social and
cultural disadvantages particular to women, such as women’s disproportionate
levels of poverty, as well as traditional and cultural beliefs that women are
inferior to men, and that women should be dependent on men.
To determine
whether a law, policy or program discriminates against women it must be
evaluated in terms of its effect on women and in light of women’s real
circumstances. For women to enjoy “de facto” or “substantive” equality
means that laws, policies and programs must be interpreted in a way that takes
into account women’s actual economic, social, and cultural
disadvantage.
HIGHLIGHT
5
General
Comment N. 16 provides a good definition of non-discrimination – a definition
that incorporates a key principle of substantive
equality.
At paragraph
11, the General Comment relies on the definition of non-discrimination found in
Article 1 of the Convention on the Elimination of All Forms of Discrimination
Against Women which states that discrimination against women
is:
… any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or
any other field. [Emphasis added].
The Comment
then proceeds to state that discrimination can be either direct (explicit) (par.
12) or indirect (has discriminatory effects) (par. 13).
As noted
above, substantive equality is concerned with the effects of laws, policies and programs on
women, recognizing that a gender neutral law, policy or program may be
discriminatory in its effects on women. And thus, to ensure the
achievement of substantive equality, the Comment recognizes that discriminatory
effects of laws, policies and
programs must be identified and redressed.
HIGHLIGHT
6
General
Comment N.16 recognizes that Article 3 imposes immediate obligations on
States parties.
Obligations
The General Comment
states that women’s inequality in economic, social and cultural fields must be
addressed immediately (par. 16). That is, States parties must take
immediate steps to address sex discrimination and women’s inequality in
economic, social and cultural realms.
The Comment then outlines
three broad obligations on States: to respect,
protect and fulfil the right contained in Article 3 and its implications
for other rights in the Covenant (par. 17). The Comment implies that these
three broad obligations are also immediate.
These three terms are
defined as follows:
Respect
– States parties must
refrain from discriminatory actions that result in the denial of the equal right
of men and women to their enjoyment of economic, social and cultural rights
(par. 18);
Protect – States parties must
eliminate the practices that perpetuate inequalities, adopt legislative
provisions on equality and non-discrimination and to prevent third parties from
interfering with the enjoyment of Article 3 (par. 19 and 20);
and
Fulfill – States parties must
take steps to ensure that in practice women and men enjoy their economic, social
and cultural rights equally, for example, by ensuring the availability and
accessibility of appropriate remedies, establishing appropriate venues for
redress such as courts and tribunals; adopting temporary special measures to
accelerate women’s equal enjoyment of their rights; and undertaking human rights
education and training programmes for judges and public officials (par. 21).
HIGHLIGHT
7
General
Comment N. 16 recognizes that States parties may be obliged to simultaneously
refrain from acting and to take positive steps to address women’s
inequality.
The three obligations
outlined above are referred to as “levels of obligation”. But this does not
mean that States parties can implement their obligations sequentially. To
fulfill the obligation of immediacy States parties are required to “respect,
protect, and fulfill” simultaneously in order for women to enjoy substantive
equality in economic, social and cultural realms. In other words, a State
party is required to both refrain from acting discriminatorily AND to take
positive steps to redress sex-discrimination and inequality. For
example, an employer must refrain from discriminating against women of child
bearing years for fear that they might become pregnant. At the same time,
an employer might be required to provide women employees with maternity leave
and a flexible work environment for women with young
children.
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