1. Introduction 3 Understanding women’s economic and social rights 10
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2.3 Understanding the obligations of States at the intersection of the rights to non-discrimination and equality and economic and social rightsAs we have seen in Sub-Section 2.1 above, CEDAW enshrines the full range of women’s human rights and recalls in its Preamble that: “discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity.”66 It enshrines women’s right to equality, their right to non-discrimination, and integrates women’s civil, cultural, economic, political and social rights within the framework of a single treaty.67 The CEDAW Committee has an impressive track record when it comes to addressing women’s economic and social rights within the context of its Concluding Observations on State party reports. Over the years an important body of norms has been amassed in this area through CEDAW’s Concluding Observations alone. Over the course of just this past year (2013), the Committee has reviewed a total of 24 State party reports. Within the context of each individual review, women’s economic and social disadvantage was addressed at length, and detailed recommendations were made to rectify this disadvantage.68 The Table below is provided to give a sense of the economic and social issues which the CEDAW Committee is regularly raising within the context of its reviews, and the kinds of recommendations it is making to States parties.69
To be sure, the CEDAW Committee has taken an extremely active role in advancing women’s equality within the sphere of economic and social rights.70 The CEDAW Committee has also provided specific guidance on women’s economic and social rights within the scope of its General Recommendations. These are summarized briefly in the Table contained in Annex 1. It has issued a number of specific General Recommendations in the area of women’s economic and social rights, including No. 13 on equal remuneration for work of equal value; 71 No. 16 on unpaid women workers in rural and urban family enterprises;72 No. 17 on measurement and quantification of the unremunerated domestic activities of women and their recognition in the GNP;73 No. 24 on women and health;74 and No 29 on economic consequences of marriage, family relations and their dissolution.75 Several General Recommendations have also been cross-cutting in nature, including No. 18 on disabled women;76 No. 19 on violence against women;77 No. 21. on equality in marriage and family relations;78 No. 26 on women migrant workers;79 and No. 27 on older women and protection of their human rights.80 As also noted above, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) also enshrines women’s right to equality, their right to non-discrimination, and gives particular emphasis to economic and social rights. The Committee on Economic, Social, and Cultural Rights has said that the rights of non-discrimination and equality (contained in Articles 2 & 3 of the ICESCR) are not stand-alone provisions, but rather should be read in conjunction with each specific right guaranteed under Covenant.81 The Committee has also provided specific guidance on women’s economic and social rights within the scope of its General Comments, which are summarized briefly in the Table contained in Annex 2. In terms of understanding State obligations vis-à-vis women’s economic and social rights, it is helpful to draw both from CEDAW and the ICESCR. An interesting legal concept which is found under the ICESCR, but not under CEDAW, is the concept of “progressive realization.”82 The ICESCR recognizes the varying ability of States to fulfill the rights outlined in the Covenant, and therefore the concept of “progressive realization” constitutes recognition of the fact that full realization of all economic and social rights will generally not be able to be achieved in a short period of time.83 However, when economic and social rights are seen through the lens of women’s rights to non-discrimination and equality, it must be understood that State obligations are immediate, and that progressivity cannot be said to apply.84 This is a critical nexus: the place where women’s right to non-discrimination, their right to equality, and their economic and social rights overlap and give rise to unique and specific State obligations which are of an immediate nature. General Comment No. 16 of the Committee on Economic, Social and Cultural Rights on the equal right of women and men to the enjoyment of all economic, social and cultural rights85 provides special insight on the nature of State obligations in this area. Consistent with State obligations articulated under CEDAW, it recognizes that the enjoyment of human rights on the basis of equality between women and men must be understood comprehensively and on the basis of substantive equality. In that regard, guarantees of non-discrimination and equality in international human rights law mandate both de facto and de jure equality. In particular, the Committee noted that: Gender-based assumptions and expectations generally place women at a disadvantage with respect to substantive enjoyment of rights, such as freedom to act and to be recognised as autonomous, fully capable adults, to participate fully in economic, social and political development, and to make decisions concerning their circumstances and conditions. Gender based assumptions about economic, social and cultural roles preclude the sharing of responsibility between men and women in all spheres that is necessary to equality.86 General Comment No. 16 also provides insight into the question of how women’s rights of non-discrimination and equality (contained in Articles 2 & 3 of the ICESCR) can be read in conjunction with each specific right guaranteed under Covenant.87 The following illustrative examples help to highlight this intersection: Equality in relation to the right to work (Article 11 of CEDAW and Article 6(1) of the ICESCR) requires that, in law and in practice, men and women have equal access to jobs at all levels and all occupations and that vocational training and guidance programs, in both the public and private sectors, provide men and women with the skills, information and knowledge necessary for them to benefit equally from the right to work.88 Equality in terms of the right to just and favorable conditions of work (Article 7(a) of the ICESCR) requires, inter alia, that States identify and eliminate the underlying causes of pay differentials, such as gender-biased job evaluation or the perception that productivity differences between men and women exist. States should also monitor compliance by the private sector with national legislation on working conditions through an effectively functioning labor inspectorate. States should adopt legislation that prescribes equal consideration in promotion, non-wage compensation and equal opportunity and support for vocational or professional development in the workplace. States should also reduce the constraints faced by men and women in reconciling professional and family responsibilities by promoting adequate policies for childcare and care of dependent family members.89 In relation to the right to form and join trade unions (Article 8 of the ICESCR) States are required to allow women and men to organize and join trade workers associations that address their specific concerns. Particular attention should be given to domestic workers, rural women, women working in female-dominated industries and women working at home, who are often deprived of this right.90 Equality in relation to the right of everyone to social security (Article 11.1(e) of CEDAW and Article 9 of the ICESCR), requires States to equalize the compulsory retirement age for both men and women. They must further ensure that women receive the equal benefit of public and private pension schemes, and States must also guarantee adequate maternity leave for women, paternity leave for men, and parental leave for both men and women.91 Equality in relation to marriage and family life (Article 16 of CEDAW and Article 10 of the ICESCR) requires that States provide victims of domestic violence, who are primarily female, with access to safe housing, remedies and redress of physical, mental and emotional damage. States must also ensure that women and men have an equal right to choose if, when and whom to marry, as well as the right of women to decide on the number and spacing of children. The legal age of marriage for men and women should be the same, and boys and girls should be protected equally from practices that promote child marriage, marriage by proxy, or coercion. States must also ensure that women have equal rights to marital property and inheritance upon their husband’s death. In particular, States must take appropriate measures to eliminate violence against women and act with due diligence to prevent, investigate, mediate, punish and redress acts of violence against them by private actors.92 Equality in relation to the right of everyone to an adequate standard of living (Articles 3 and 13 of CEDAW (see also Article 14 of CEDAW on Rural Women) and Article 11 of the ICESCR) requires that women have a right to own, use or otherwise control housing, land and property on an equal basis with men, and to access necessary resources to do so. It also requires States parties, inter alia, to ensure that women have access to, or control over, means of food production, and actively address customary practices under which women are not allowed to eat until the men are fully fed, or are only allowed less nutritious food.93 Equality in relation to the right to the highest attainable standard of physical and mental health (Article 12 of CEDAW and Article 12 of the ICESCR) obliges States to remove legal and other obstacles that prevent women and men from accessing and benefiting from healthcare on a basis of equality. They are required to address the ways in which gender roles affect access to determinants of health (such as food and water), remove legal restrictions on reproductive health provisions. States must also prohibit harmful practices such as female genital mutilation and ensure provision of adequate training for health care workers to deal with women’s health issues.94 Equality, in this context means focusing on those restrictions which only or disproportionately impact women, such as restrictions on access to the full range of reproductive health services. Equality in relation to the right to education (Article 10 of CEDAW and Article 13 of the ICESCR) requires States to adopt legislation and policies to ensure the same admissions criteria for boys and girls in all levels of education. States should ensure, in particular through information and awareness raising campaigns, that families do not giving preferential treatment to boys in sending their children to school, and that curricula promote equality and non-discrimination and do not promote gender stereotyping. States must also create favorable conditions to ensure the safety of children, in particular girls, on their way to and from school, as well as within school.95 In addition to looking at the right to equality and its intersection with each of the substantive rights, it is also possible to look more conceptually at the nature of State obligations by understanding the general ‘types’ or ‘categories’ of State obligations. Under both CEDAW and the ICESCR, States are obligated to respect, protect and fulfill women’s economic and social rights. While these have been at times called ‘levels’ of State obligations, no obligation here can be said to be more fundamental than another; States are obligated to respect, protect and fulfill women’s economic and social rights at all times. Let us look at each type of obligation more closely: (1) The Obligation to Respect entails that States shall refrain from any action which infringes on women’s economic and social rights, or which prevents women from satisfying these rights for themselves when they are able to do so. Respecting the right obliges States not to adopt (or, as the case many be, to repeal and rescind) laws, policies, administrative measures and programs that violate women’s rights to non-discrimination and equality, including in economic and social spheres. In particular, States must to take into account the effect of apparently gender-neutral laws, policies and programs and to consider whether they could result in a negative impact on the ability of women and men to enjoy their economic and social rights on a basis of equality.96 States must refrain from making laws, policies, regulations, programs, administrative procedures and institutional structures that directly or indirectly result in the denial of the equal enjoyment by women of their economic and social rights.97 (2) The Obligation to Protect entails that States must protect women within their jurisdiction from violations of their human rights, including economic and social rights, by non-State actors (including businesses and international financial institutions, as well as family members). CEDAW Article 2(e) specifically provides that States must “…take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise” and Article 2 in general imposes “a due diligence obligation” on States prevent discrimination by private actors.98 The obligation to protect requires States to take steps aimed directly at the elimination of prejudices, customary and all other practices that perpetuate the notion of inferiority or superiority of either of the sexes, and stereotyped roles for women and men. Obligations also include the respect and adoption of constitutional and legislative provisions on the equal right of women and men to enjoy all human rights and the prohibition of discrimination of any kind; the adoption of legislation to eliminate discrimination and to prevent third parties from interfering directly or indirectly with the enjoyment of these rights; the adoption of administrative measures and programs, as well as the establishment of public institutions, agencies and programs to protect women against discrimination. In addition, States have an obligation to monitor and regulate the conduct of non-State actors to ensure that they do not violate the equal right of women to enjoy their economic and social rights. This obligation explicitly applies, for example, in cases where public services have been partially or fully privatized.99 (3) The Obligation to Fulfill entails that States must realize the full enjoyment of all human rights, including economic and social rights, for all persons within their jurisdiction. The obligation requires States to take steps to ensure enjoyment of economic and social rights, in line with a States’ maximum of available resources.100 However, while some aspects of the obligation to fulfill are subject to progressivity, other aspects – particularly those related to non-discrimination and equality – are immediate (as discussed above). The obligation to fulfill requires that States take a wide variety of immediate steps to ensure that women and men enjoy equal rights de jure and de facto, including, where appropriate, the adoption of temporary special measures. This entails obligations of conduct as well as obligations of results. States must fulfill their legal obligations to all women through designing public policies, programs and institutional frameworks that are aimed at fulfilling the specific needs of women leading to the full development of their potential on an equal basis with men.101 In relation to this point, States must ensure the meaningful participation of women in assessment and analysis, program planning and design, budgeting and financing, implementation, monitoring and evaluation of policies and projects.102 The obligation to fulfill itself further contains duties to provide, promote and facilitate.103 In addition to these obligations, States are also generally prohibited from engaging in retrogressive measures,104 and at all times, States must prioritize the needs of the most disadvantaged and marginalized, including women. In relation to corporate and private actors, we have already seen that the obligation to protect provides that States must protect women within their jurisdiction from violations of their human rights, including economic and social rights, by non-State actors, including businesses and international financial institutions. The Guiding Principles on Business and Human Rights, endorsed by the United Nations Human Rights Council in 2011, help to unpack the obligations of States vis-à-vis business and corporate actors and are grounded in the recognition of: (a) States’ existing obligations to respect, protect and fulfill human rights and fundamental freedoms; (b) The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; and (c) The need for rights and obligations to be matched to appropriate and effective remedies when breached.105 A foundational principle is that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises, and that this requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.106 For further information on women, business and human rights, please see the background paper prepared by Ama Marston, which (inter alia) addresses women as business leaders, entrepreneurs and decision-makers, and examines corporate responsibility and the gender impact of corporate and international trade practices. States also have human rights obligations outside of their own borders, and here the Maastricht Principles on Extraterritorial Obligations (ETOs) of States are especially useful.107 The Maastricht Principles provide that the ETOs of States encompass a) obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and b) obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realize human rights universally.108 The Maastricht Principles reaffirm existing conventional and customary international law in the area of extra-territorial obligations and lay out the international legal framework of obligations to respect, to protect and to fulfill human rights abroad and make clear that in that context “States must at all times observe the principles of non-discrimination, equality, including gender equality, transparency and accountability.”109 The Maastricht Principles also acknowledge that accountability and remedies are required under the international human rights framework, and that “States must ensure the availability of effective mechanisms to provide for accountability in the discharge of their extraterritorial obligations”110 ETOs have recently been recognized under both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. In 2011 in its Concluding Observations on Germany, the Committee on Economic, Social and Cultural Rights addressed extra-territorial obligation to respect rights including through development cooperation and trade agreements: Committee notes with deep concern the impact of the State party’s agriculture and trade policies, which promote the export of subsidized agricultural products to developing countries, on the enjoyment of the right to an adequate standard of living and particularly on the right to food in the receiving countries … . The Committee urges the State party to fully apply a human rights-based approach to its international trade and agriculture policies, including by reviewing the impact of subsidies on the enjoyment of economic, social and cultural rights in importing countries. In this regard, the Committee draws the attention of the State party to the guidelines on international measures, actions and commitments as contained in the FAO Voluntary Guidelines on the Right to Food (2004). The Committee expresses concern that the State party’s policy-making process in, as well as its support for, investments by German companies abroad does not give due consideration to human rights … [and] calls on the State party to ensure that its policies on investments by German companies abroad serve the economic, social and cultural rights in the host countries.111 In 2012, the Human Rights Committee similarly addressed accountability and remedies for Germany’s extra-territorial obligation to protect rights in the context of corporate accountability, stating that: While welcoming measures taken by the State party to provide remedies against German companies acting abroad allegedly in contravention of relevant human rights standards, the Committee is concerned that such remedies may not be sufficient in all cases …. The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad.112 The Maastricht Principles also provide a clear articulation of customary and conventional international law as it relates to the obligations of Member States of inter-governmental organizations, including in particular international financial institutions (IFIs) regarding their respective human rights obligations, since such Member States make up the decision-making bodies that control or otherwise influence IFIs. Principle 9 addresses the scope of jurisdiction, and stipulates that: A State has obligations to respect, protect and fulfil economic, social and cultural rights in any of the following: a) situations over which it exercises authority or effective control, whether or not such control is exercised in accordance with international law; b) situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether within or outside its territory; c) situations in which the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law.113 IFIs, as organs of society, also must abide by human rights norms. In particular, as a Specialized Agency of the United Nations, the World Bank is obligated not to defeat the purposes of the Charter of the United Nations (UN Charter). Additionally, the World Bank must work to further the objectives of the UN Charter, and of course must not undermine those objectives.114 This requirement is laid out in Article 59 of the Charter, which mandates that “the creation of any new specialized agencies require[s] accomplishment of the purposes set forth in Article 55.”115 The purposes and objectives articulated in Article 55 include, inter alia, the promotion of “universal respect for, and observance of, human rights and fundamental freedoms for all.”116 Furthermore, Article 103 of the UN Charter makes clear that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”117 In other words, these UN Charter obligations would trump any contradictory clauses in donor project agreements. | ||||||||||||||||||||||||||||||||||||||||