1. Introduction 3 Understanding women’s economic and social rights 10
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2. Understanding women’s economic and social rights2.1 The legal basis for women’s economic and social rightsInternational human rights law contains multiple provisions protecting economic and social rights, as well as women’s right to equality in the enjoyment of these rights. It is this vital intersection between substantive economic and social rights and women’s right to equality that must be examined and advanced. This Sub-Section provides an overview of the legal and other relevant standards which exist recognizing these rights. The Universal Declaration on Human Rights25 (UDHR) guarantees the right to non-discrimination (Article 2); the right to marry and to found a family, and the equal rights of spouses, both during marriage and at its dissolution (Article 16); the right to own property alone as well as in association with others (Article 17); the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment (Article 23, §1); the right to equal pay for equal work (Article 23, §2); the right to just and favorable remuneration (Article 23, §3); the right to form and to join trade unions (Article 23, §4); the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay (Article 24); the right to a standard of living adequate for the health and well-being oneself and one’s family, including food, clothing, housing and medical care and necessary social services, and the right to security (Article 25), the protection of motherhood and childhood (Article 25); and the right to education (Article 26). Article 28 states that everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized. The Convention on the Elimination of All Forms of Discrimination against Women26 (CEDAW) obliges States parties to embody the principle of equality of women and men in their national legal frameworks and to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women” (Article 2). Article 3 provides that “States [p]arties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.”27 Article 4 encourages States to adopt temporary special measures aimed at accelerating de facto equality between women and men. As mentioned above, CEDAW enshrines women’s economic and social rights alongside their civil and political rights, and specifically guarantee women’s rights to non-discrimination and equality (Articles 1 and 2); in education (Article 10); in employment Article 11 §1); in social security (Article 11 §1); as well as their right to protection against discrimination on the grounds of marriage or maternity (Article 11 §2); to protection against discrimination in the field of health care and appropriate services in connection with pregnancy (Article 12); and to protection against discrimination in other areas of economic and social life in order to ensure, on a basis of equality of women and men, the same rights, in particular the right to family benefits and the right to bank loans, mortgages and other forms of financial credit (Article 13 §(a) and (b)). CEDAW also specifies the particular rights of rural women, including the right to have equal access to agricultural credit and loans, the right to equal treatment in land and agrarian reform, and the right to equal enjoyment of adequate living conditions (Article 14),28 and obliges States parties to grant women legal capacity in civil matters equal to that of men including equal rights to conclude contracts and to administer property and equal treatment in all stages of procedure in courts and tribunals (Article 15). In the context of marriage and family relations, CEDAW requires States parties to uphold equal rights and responsibilities for women and men during marriage and at its dissolution and to ensure “the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration” (Article 16).29 The International Covenant on Economic, Social and Cultural Rights30 (ICESCR) also guarantees the right to non-discrimination (Article 2) and recognizes the equal right of women and men to the enjoyment of all economic, social and cultural rights (Article 3).31 It guarantees the right to work (Article 6) and the right to just and favorable conditions of work (Article 7). Article 7 explicitly provides that “Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work.”32 It guarantees the right of everyone to form trade unions and join the trade union of one’s choice (Article 8); recognizes the right of everyone to social security, including social insurance (Article 9); and recognizes that protection and assistance should be accorded to the family (Article 10). Article 11 guarantees the right of everyone to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing, and to the continuous improvement of living conditions, as well as the right to be free from hunger. Article 12 guarantees the right to the highest attainable standard of physical and mental health, while Articles 13 and 14 guarantee the right of everyone to education and the right to free primary education, respectively.33 The International Covenant on Civil and Political Rights34 (ICCPR) guarantees the right to non-discrimination (Article 2), the right to equality between women and men (Article 3) and the right to equality of persons before the courts (Article 14). It prohibits arbitrary or unlawful interference with one’s privacy, family, or home (Article 17), and it too addresses equality of spousal rights during marriage and at its dissolution (Article 23), and confirms equal protection of the law for all without discrimination (Article 26). Additional dimensions of women’s (and girls’) economic and social rights are also enshrined and protected within other international human rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination (1965),35 the Convention on the Rights of the Child (1989),36 the Convention Relating to the Status of Refugees (1959),37 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).38 At regional levels, similar legal protections exist on women’s economic and social rights. Beginning in Africa, the African Charter on Human and Peoples’ Rights39 stipulates that the rights enshrined within it apply to all persons regardless of sex (Article 2), that all are entitled to equality before the law (Article 3), and that all are obliged to treat others without discrimination (Article 2). It guarantees the right to work under equitable and satisfactory conditions, and the right to receive equal pay for equal work (Article 15); the right to enjoy the best attainable state of physical and mental health (Article 16); and the right to education (Article 17). Article 18 provides that States parties shall eliminate discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa40 underscores the principles of non-discrimination (Article 2) and specifically obliges States parties to “enact and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination, particularly those harmful practices which endanger the health and general well-being of women” (Article 2).41 The same Article requires that States parties “commit themselves to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.”42 Article 3 guarantees protection against violence, exploitation or degradation of women. The Protocol requires that in case of separation, divorce, or annulment of marriage, women and men shall have the right to an equitable sharing of the joint property deriving from the marriage (Article 7), and that existing discriminatory laws and practices shall be reformed to promote and protect the rights of women (Article 8). Articles 12 and 13 of the Protocol provide for women’s right to education and training, as well as their economic and social welfare rights (which encompass women’s right to work and to just and favorable conditions of work, as well States’ obligations to take necessary measures to recognize the economic value of the work of women in the home. Article 13 also guarantees adequate and paid pre- and post-natal maternity leave in both the private and public sector. Article 13 recognizes that “both parents bear the primary responsibility for the upbringing and development of children and that this is a social function for which the State and the private sector have secondary responsibility.”43 Article 14 addresses women’s health and reproductive rights, Article 15 the right to food security, Article 16 the right to adequate housing, Article 18 the right to a healthy and sustainable environment, and Article 19 the right to development. The Protocol also obliges States parties to take all appropriate measures to promote women’s access to and control over productive resources such as land and guarantee their right to property (Article 19). It articulates the rights of widows in terms of treatment, custody of children, and remarriage (Article 20), and stipulates that “a widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it” (Article 21).44 The Revised Arab Charter on Human Rights45 upholds the right to non-discrimination (Article 3) and to equal protection before the law (Articles 11, 12 and 22). The Revised Charter states that: “Men and women have equal human dignity and equal rights and obligations in the framework of the positive discrimination established in favour of women by the Islamic Shariah and other divine laws and by applicable laws and international instruments. Accordingly, each State party pledges to take all the requisite measures to guarantee equal opportunities and effective equality between men and women in the enjoyment of all the rights set out in this Charter” (Article 3 §3). The Revised Charter contains provisions on the right to protection against arbitrary or unlawful interference with regard to one’s privacy, family and home (Article 21); the right to own property (Article 31); the right to work (Article 34); the right to freely form trade unions or to join trade unions (Article 35); the right of every citizen to social security, including social insurance (Article 36); the right to development (Article 37); the right to an adequate standard of living, including food, clothing, housing, services and the right to a healthy environment (Article 38); the right to the highest attainable standard of physical and mental health and the right of the citizen to free basic health-care services (Article 39); and the right to education (Article 41).The European Social Charter (revised)46 recognizes the right to work (Article 1); the right to just conditions of work (Article 2); the right to safe and healthy working conditions (Article 3); the right to a fair remuneration (Article 4); the right to organize (Article 5); the right to bargain collectively (Article 6); the right of employed women to protection of maternity (Article 8); the right vocational guidance and training (Articles 9 & 10); the right to protection of health (Article 11); the right to social security (Article 12); the right to social and medical assistance (Article 13); the right to benefit from social welfare services (Article 14); the right of the family to social, legal and economic protection (Article 16); the right of migrant workers and their families to protection and assistance (Article 19); the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex (Article 20); the right of elderly persons to social protection (Article 23); the right of workers with family responsibilities to equal opportunities and equal treatment (Article 27); the right to protection against poverty and social exclusion (Article 30); and the right to housing (Article 31). The Charter also requires equality for women in respect to all the enumerated rights. In the Americas, the American Convention on Human Rights recognizes the right of non-discrimination on the basis of sex (Article 1), as well as the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution (Article 17). It recognizes rights to property (Article 21) and privacy (Article 11).47 The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights,48 (aka the Protocol of San Salvador) recognizes the right to non-discrimination (Article 3); as well as the right to work (Article 6); to just, equitable, and satisfactory conditions of work (Article 7); to social security (Article 9); to health (Article 10); to food (Article 12); to education (Article 13); and to the formation and the protection of families (Article 15). Both the Convention and the Additional Protocol requires equality for women in respect to all the enumerated rights. Also in the Inter-American system, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women49 guarantees the right of every woman to be free from violence in both the public and private spheres. Article 5 of the Convention provides that “Every woman is entitled to the free and full exercise of her civil, political, economic, social and cultural rights, and may rely on the full protection of those rights as embodied in regional and international instruments on human rights. The States [p]arties recognize that violence against women prevents and nullifies the exercise of these rights.”50 Most recently, in 2009, the Association of Southeast Asian Nations (ASEAN) established the ASEAN Intergovernmental Commission on Human Rights, whose mandate it is to promote human rights in the ten ASEAN countries.51 In 2012, the ASEAN Human Rights Declaration was adopted.52 The Declaration affirms “all the economic, social and cultural rights in the Universal Declaration of Human Rights” and enshrines a number of specific economic and social rights (paras. 26-34), as well as makes specific reference to the right to development (paras. 35-37). The Declaration also provides that the rights of women are an inalienable, integral and indivisible part of human rights and fundamental freedoms, and references the 1988 Declaration of the Advancement of Women in the ASEAN Region. Adopted some 24 years prior, the Declaration of the Advancement of Women in the ASEAN Region specifically notes that each ASEAN member should endeavor “[t]o promote and implement the equitable and effective participation of women whenever possible in all fields and at various levels of the political, economic, social and cultural life of society at the national, regional and international levels.”53 |