UN Human Rights Committee GENERAL COMMENT-ICCPR-Gender Equality
Author: Womens UN Report Network
Date: March 12, 2006
Human Rights Committee on UN International
of Rights Between Men and Women.
ICCPR – http://www.ohchr.org/english/law/ccpr.htm
RIGHTS BETWEEN MEN AND WOMEN.
UN Human Rights Committee – http://www.ohchr.org/english/bodies/hrc/index.htm
Monitoring civil and political rights
The Human
Rights Committee is the body of independent experts that monitors implementation of the
International Covenant on Civil and Political Rights by
its State parties.
List of UN Human Rights Committee Adopted GENERAL
COMMENTS:
http://www1.umn.edu/humanrts/gencomm/hrcomms.htm
_______________________________________________________________________________
Human Rights
Committee, General Comment 28, Equality of rights between men and women (article
3), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000).
GENERAL COMMENT No.
28
EQUALITY OF RIGHTS BETWEEN MEN AND WOMEN, (Art. 3)
1.
The Committee has decided to update its General Comment on Article 3 of this
Covenant and to replace General Comment 4 (thirteenth session 1981), in the
light of the experience it has gathered in its activities over the last 20
years. This revision seeks to take account of the important impact of this
article on the enjoyment by women of the human rights protected under the
Covenant.
2. Article 3 implies that all human beings should enjoy the
rights provided for in the Covenant, on an equal basis and in their totality.
The full effect of this provision is impaired whenever any person is denied the
full and equal enjoyment of any right. Consequently, States should ensure to men
and women equally the enjoyment of all rights provided for in the Covenant.
3. The obligation to ensure to all individuals the rights recognized in
the Covenant, established in articles 2 and 3 of the Covenant, requires that
State parties take all necessary steps to enable every person to enjoy those
rights. These steps include the removal of obstacles to the equal enjoyment each
of such rights, the education of the population and of state officials in human
rights and the adjustment of domestic legislation so as to give effect to the
undertakings set forth in the Covenant. The State party must not only adopt
measures of protection but also positive measures in all areas so as to achieve
the effective and equal empowerment of women. States parties must provide
information regarding the actual role of women in society so that the Committee
may ascertain what measures, in addition to legislative provisions, have been or
should be taken to give effect to these obligations, what progress has been
made, what difficulties are encountered and what steps are being taken to
overcome them.
4. State parties are responsible for ensuring the equal
enjoyment of rights without any discrimination. Articles 2 and 3 mandate States
parties to take all steps necessary, including the prohibition of discrimination
on the ground of sex, to put an end to discriminatory actions both in the public
and the private sector which impair the equal enjoyment of rights.
5.
Inequality in the enjoyment of rights by women throughout the world is deeply
embedded in tradition, history and culture, including religious attitudes. The
subordinate role of women in some countries is illustrated by the high incidence
of pre-natal sex selection and abortion of female fetuses. States parties should
ensure that traditional, historical, religious or cultural attitudes are not
used to justify violations of women’s right to equality before the law and to
equal enjoyment of all Covenant rights. States parties should furnish
appropriate information on those aspects of tradition, history, cultural
practices and religious attitudes which jeopardise, or may jeopardise,
compliance with article 3, and indicate what measures they have taken or intend
to take to overcome such factors.
6. In order to fulfil the obligation
set forth in article 3 States parties should take account of the factors which
impede the equal enjoyment by women and men of each right specified in the
Covenant. To enable the Committee to obtain a complete picture of the situation
of women in each State party as regards the implementation of the rights in the
Covenant, this general comment identifies some of the factors affecting the
equal enjoyment by women of the rights under the Covenant, and spells out the
type of information that is required with regard to these various
rights.
7. The equal enjoyment of human rights by women must be protected
during a state of emergency (article 4). States parties which take measures
derogating from their obligations under the Covenant in time of public
emergency, as provided in article 4, should provide information to the Committee
with respect to the impact on the situation of women of such measures and should
demonstrate that they are non-discriminatory.
8. Women are particularly
vulnerable in times of internal or international armed conflicts. States parties
should inform the Committee of all measures taken during these situations to
protect women from rape, abduction and other forms of gender based
violence.
9. In becoming parties to the Covenant, States undertake, in
accordance with article 3, to ensure the equal right of men and women to the
enjoyment of all civil and political rights set forth in the Covenant, and in
accordance with article 5, nothing in the Covenant may be interpreted as
implying for any State, group or person any right to engage in any activity or
perform any act aimed at the destruction of any of the rights provided for in
article 3, or at limitations not covered by the Covenant. Moreover, there shall
be no restriction upon or derogation from the equal enjoyment by women of all
fundamental human rights recognized or existing pursuant to law, conventions,
regulations or customs, on the pretext that the Covenant does not recognize such
rights or that it recognizes them to a lesser extent.
10. When
reporting on the right to life protected by article 6, States parties should
provide data on birth rates and on pregnancy and childbirth-related deaths of
women. Gender-disaggregated data should be provided on infant mortality rates.
States parties should give information on any measures taken by the State to
help women prevent unwanted pregnancies, and to ensure that they do not have to
undertake life-threatening clandestine abortions. States parties should also
report on measures to protect women from practices, that violate their right to
life, such as female infanticide, the burning of widows and dowry killings. The
Committee also wishes to have information on the particular impact on women of
poverty and deprivation that may pose a threat to their lives.
11. To
assess compliance with article 7 of the Covenant, as well as with article 24,
which mandates special protection for children, the Committee needs to be
provided information on national laws and practice with regard to domestic and
other types of violence against women, including rape. It also needs to know
whether the State party gives access to safe abortion to women who have become
pregnant as a result of rape. The States parties should also provide the
Committee information on measures to prevent forced abortion or forced
sterilization. In States parties where the practice of genital mutilation exists
information on its extent and on measures to eliminate it should be provided.
The information provided by States parties on all these issues should include
measures of protection, including legal remedies, for women whose rights under
article 7 have been violated.
12. Having regard to their obligations
under article 8, States parties should inform the Committee of measures taken to
eliminate trafficking of women and children, within the country or across
borders, and forced prostitution. They must also provide information on measures
taken to protect women and children, including foreign women and children, from
slavery, disguised inter alia as domestic or other kinds of personal service.
States parties where women and children are recruited, and from which they are
taken, and States parties where they are received should provide information on
measures, national or international, which have been taken in order to prevent
the violation of women’s and children’s rights.
13. States parties
should provide information on any specific regulation of clothing to be worn by
women in public. The Committee stresses that such regulations may involve a
violation of a number of rights guaranteed by the Covenant, such as: article 26,
on non-discrimination; article7, if corporal punishment is imposed in order to
enforce such a regulation; article 9, when failure to comply with the regulation
is punished by arrest; article 12, if liberty of movement is subject to such a
constraint; article 17, which guarantees all persons the right to privacy
without arbitrary or unlawful interference; articles 18 and 19, when women are
subjected to clothing requirements that are not in keeping with their religion
or their right of self-expression; and, lastly, article 27, when the clothing
requirements conflict with the culture to which the woman can lay a
claim.
14. With regards to article 9 States parties should provide
information on any laws or practices which may deprive women of their liberty on
an arbitrary or unequal basis, such as by confinement within the house. (See
General Comment No 8 paragraph 1.)
15. As regards articles 7 and 10,
States parties must provide all information relevant to ensuring that the right
of persons deprived of their liberty are protected on equal terms for men and
women. In particular, States parties should report on whether men and women are
separated in prisons and whether women are guarded only by female guards. States
parties should also report about compliance with the rule that accused juvenile
females shall be separated from adults and on any difference in treatment
between male and female persons deprived of liberty, such as, for example,
access to rehabilitation and education programmes and to conjugal and family
visits. Pregnant women who are deprived of their liberty should receive humane
treatment and respect for their inherent dignity at all times surrounding the
birth and while caring for their newly-born children; States parties should
report on facilities to ensure this and on medical and health care for such
mothers and their babies.
16. As regards article 12, States parties
should provide information on any legal provision or any practice which
restricts women’s right to freedom of movement as, for example, the exercise of
marital powers over the wife or parental powers over adult daughters, legal or
de facto requirements which prevent women from travelling such as the
requirement of consent of a third party to the issuance of a passport or other
type of travel documents to an adult woman. States parties should also report on
measures taken to eliminate such laws and practices and to protect women against
them, including reference to available domestic remedies (See General Comment No
27 paragraphs 6 and 18)
17. States parties should ensure that alien women
are accorded on an equal basis the right to submit reasons against their
expulsion, and to have their case reviewed as provided in article 13. In this
regard, they should be entitled to submit reasons based on gender specific
violations of the Covenant such as those mentioned in paragraphs [10 and 11]
above.
18. State parties should provide information to enable the
Committee to ascertain whether access to justice and the right to a fair trial,
provided for in article 14, are enjoyed by women on equal terms to men. In
particular States parties should inform the Committee whether there are legal
provisions preventing women from direct and autonomous access to the
courts (Case 202/1986, Ato del Avellanal v.
Peru (views of 28 October 1988).; whether women may give evidence as witnesses
on the same terms as men; and whether measures are taken to ensure women equal
access to legal aid, in particular in family matters. States parties should
report on whether certain categories of women are denied the enjoyment of the
presumption of innocence under article 14, paragraph 2, and on the measures
which have been taken to put an end to this situation.
19. The right of
everyone under article 16 to be recognized everywhere as a person before the law
is particularly pertinent for women, who often see it curtailed by reason of sex
or marital status. This right implies that the capacity of women to own
property, to enter into a contract or to exercise other civil rights may not be
restricted on the basis of marital status or any other discriminatory ground. It
also implies that women may not be treated as objects to be given together with
the property of the deceased husband to his family. States must provide
information on laws or practices that prevent women from being treated or from
functioning as full legal persons and the measures taken to eradicate laws or
practices that allow such treatment.
20. States parties must provide
information to enable the Committee to assess the effect of any laws and
practices that may interfere with women’s right to enjoy privacy and other
rights protected by article 17 on the basis of equality with men. An example of
such interference arises where the sexual life of a woman is taken into
consideration to decide the extent of her legal rights and protections,
including protection against rape. Another area where States may fail to respect
women’s privacy relates to their reproductive functions, for example, where
there is a requirement for the husband’s authorization to make a decision in
regard to sterilization, where general requirements are imposed for the
sterilization of women, such as having a certain number of children or being of
a certain age, or where States impose a legal duty upon doctors and other health
personnel to report cases of women who have undergone abortion. In these
instances, other rights in the Covenant, such as those of articles 6 and 7,
might also be at stake. Women’s privacy may also be interfered with by private
actors, such as employers who request a pregnancy test before hiring a woman.
States parties should report on any laws and public or private actions that
interfere with the equal enjoyment by women of the rights under article 17, and
on the measures taken to eliminate such interference and to afford women
protection from any such interference.
21. States parties must take
measures to ensure that freedom of thought, conscience and religion, and the
freedom to adopt the religion or belief of one’s choice — including the freedom
to change religion or belief and to express one’s religion or belief – will be
guaranteed and protected in law and in practice for both men and women, on the
same terms and without discrimination. These freedoms protected by article 18,
must not be subject to restrictions other than those authorized by the Covenant,
and must not be constrained by, inter alia, rules requiring permission from
third parties, or by interference from fathers, husbands, brothers or others.
Article 18 may not be relied upon to justify discrimination against women by
reference to freedom of thought, conscience and religion; States parties should
therefore provide information on the status of women as regards their freedom of
thought, conscience and religion, and indicate what steps they have taken or
intend to take both to eliminate and prevent infringements of these freedoms in
respect of women and to protect their rights against any discrimination.
22. In relation to article 19 States parties should inform the Committee
of any laws or other factors which may impede women from exercising the rights
protected under this provision on an equal basis. As the publication and
dissemination of obscene and pornographic material which portrays women and
girls as objects of violence or degrading or inhuman treatment is likely to
promote these kinds of treatment of women and girls, States parties should
provide information about legal measures to restrict the publication or
dissemination of such material.
23. States are required to treat men and
women equally in regard to marriage in accordance with article 23, which has
been elaborated further by General Comment 19 (1990). Men and women have the
right to enter into marriage only with their free and full consent, and States
have an obligation to protect the enjoyment of this right on an equal basis.
Many factors may prevent women from being able to make the decision to marry
freely. One factor relates to the minimum age for marriage. That age should be
set by the State on the basis of equal criteria for men and women. These
criteria should ensure women’s capacity to make an informed and uncoerced
decision. A second factor in some States may be that either by statutory or
customary law a guardian, who is generally male, consents to the marriage
instead of the woman herself, thereby preventing women from exercising a free
choice.
24. A different factor that may affect women’s right to marry
only when they have given free and full consent is the existence of social
attitudes which tend to marginalize women victims of rape and put pressure on
them to agree to marriage. A woman’s free and full consent to marriage may also
be undermined by laws which allow the rapist to have his criminal responsibility
extinguished or mitigated if he marries the victim. States parties should
indicate whether marrying the victim extinguishes or mitigates criminal
responsibility and in the case in which the victim is a minor whether the rape
reduces the marriageable age of the victim, particularly in societies where rape
victims have to endure marginalization from society. A different aspect of the
right to marry may be affected when States impose restrictions on remarriage by
women as compared to men. Also the right to choose one´s spouse may be
restricted by laws or practices that prevent the marriage of a woman of a
particular religion with a man who professes no religion or a different
religion. States should provide information on these laws and practices and on
the measures taken to abolish the laws and eradicate the practices which
undermine the right of women to marry only when they have given free and full
consent. It should also be noted that equality of treatment with regard to the
right to marry implies that polygamy is incompatible with this principle.
Polygamy violates the dignity of women. It is an inadmissible discrimination
against women. Consequently, it should be definitely abolished wherever it
continues to exist.
25. To fulfill their obligations under article 23,
paragraph 4, States must ensure that the matrimonial regime contains equal
rights and obligations for both spouses, with regard to the custody and care of
children, the children’s religious and moral education, the capacity to transmit
to children the parent’s nationality, and the ownership or administration of
property, whether common property or property in the sole ownership of either
spouse. States should review their legislation to ensure that married women have
equal rights in regard to the ownership and administration of such property,
where necessary. Also, States should ensure that no sex-based discrimination
occurs in respect of the acquisition or loss of nationality by reason of
marriage, of residence rights and of the right of each spouse to retain the use
of his or her original family name or to participate on an equal basis in the
choice of a new family name. Equality during marriage implies that husband and
wife should participate equally in responsibility and authority within the
family.
26. States must also ensure equality in regard to the dissolution
of marriage, which excludes the possibility of repudiation. The grounds for
divorce and annulment should be the same for men and women, as well as decisions
with regard to property distribution, alimony and the custody of children. The
need to maintain contact between children and the non-custodian parent, should
be based on equal considerations. Women should also have equal inheritance
rights to those of men when the dissolution of marriage is caused by the death
of one of the spouses.
27. In giving effect to recognition of the family
in the context of article 23, it is important to accept the concept of the
various forms of family, including unmarried couples and their children and
single parents and their children and to ensure the equal treatment of women in
these contexts (General Comment 19 paragraph 2 last sentence). Single parent
families frequently consist of a single woman caring for one or more children,
and States parties should describe what measures of support are in place to
enable her to discharge her parental functions on the basis of equality with a
man in a similar position.
28. The obligation of states to protect
children (article 24) should be carried out equally for boys and girls. States
should report on measures taken to ensure that girls are treated equally to boys
in education, in feeding and in health care, and provide the Committee with
disaggregated data in this respect. States should eradicate, both through
legislation and any other appropriate measures, all cultural or religious
practices which jeopardize the freedom and well-being of female children.
29. The right to participate in the conduct of public affairs is not
fully implemented everywhere on an equal basis. States must ensure that the law
guarantees to women article 25 rights on equal terms with men and take effective
and positive measures to promote and ensure women’s participation in the conduct
of public affairs and in public office, including appropriate affirmative
action. Effective measures taken by States parties to ensure that all persons
entitled to vote are able to exercise that right should not be discriminatory on
the grounds of sex. The Committee requires States parties to provide statistical
information on the percentage of women in publicly elected offices including the
legislature as well as in high-ranking civil service positions and the
judiciary.
30. Discrimination against women is often intertwined with
discrimination on other grounds such as race, colour, language, religion,
political or other opinion, national or social origin, property, birth or other
status. States parties should address the ways in which any instances of
discrimination on other grounds affect women in a particular way, and include
information on the measures taken to counter these effects.
31. The right
to equality before the laws and freedom from discrimination, protected by
article 26, requires States to act against discrimination by public and private
agencies in all fields. Discrimination against women in areas such as social
security laws – Case 172/84, Broeks v.
Netherlands (views of 9 April 1987; case 182/84, Zwaan de Vries v. The
Netherlands, (views of 9 April 1987); case 218/1986, Vos v. The Netherlands
(views of 29 March 1989) -., as well as in the area of citizenship or rights of
non-citizens in a country – Case 035/1978,
Aumeeruddy-Cziffra et al v. Mauritius (views adopted 9 April 1981) -, violates article 26. The commission of so called
“honnour crimes” which remain unpunished, constitutes a serious violation of the
Covenant and in particular of articles 6, 14 and 26. Laws which impose more
severe penalties on women than on men for adultery or other offences also
violate the requirement of equal treatment. The Committee has also often
observed in reviewing States reports that a large proportion of women are
employed in areas which are not protected by labor laws, that prevailing customs
and traditions discriminate against women, particularly with regard to access to
better paid employment and to equal pay for work of equal value. States
should review their legislation and practices and take the lead in implementing
all measures necessary in order to eliminate discrimination against women, in
all fields, for example by prohibiting discrimination by private actors in areas
such as employment, education, political activities and the provision of
accommodation, goods and services. States parties should report on all these
measures and provide information on the remedies available to victims of such
discrimination.
32. The rights which persons belonging to minorities
enjoy under article 27 of the Covenant in respect of their language, culture and
religion do not authorize any State, group or person to violate the right to
equal enjoyment by women of any Covenant rights, including the right to equal
protection of the law. States should report on any legislation or administrative
practices related to membership in a minority community that might constitute an
infringement of the equal rights of women under the Covenant – Case 24/1977 Lovelace v. Canada, (views adopted July
1981) – and on measures taken or envisaged to ensure the equal right of men and
women to enjoy all civil and political rights in the Covenant. Likewise, States
should report on measures taken to discharge their responsibilities in relation
to cultural or religious practices within minority communities that affect the
rights of women. In their reports, States parties should pay attention to the
contribution made by women to the cultural life of their
communities.
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