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 Vienna (1993), women’s groups from around the 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 Montreal, Quebec and adopted the Montreal Principles on 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.

HIGHLIGHT 8

General Comment N. 16 provides several examples of the way in which Article 3 can interact with other rights in the Covenant.

This section (par. 22-31) provides some useful examples of the ways in which Article 3 interacts with other rights in the Covenant.  Highlighting the relationship between Article 3 and other rights in the Covenant helps to expose the ways in which women suffer disadvantage in different economic, social and cultural contexts.  For example, the Comment notes that Article 3 in relation to Article 13 (right to education) means that States parties should “ensure … that families desist from giving preferential treatment to boys in sending their children to school and that curricula promote equality and non-discrimination” (par. 30).

The examples provided in the General Comment are illustrative and not exhaustive.  In order for women to equally enjoy the rights in the Covenant, States parties and others must reflect on the many different economic, social and cultural contexts – beyond those referred to in the Comment – within which women experience inequality.  More importantly, States parties and others will have to determine how these inequalities can be addressed so that women enjoy substantive equality.

USING GENERAL COMMENT N. 16 IN YOUR WORK

Advocates for women’s economic, social and cultural rights work in a variety of capacities: as grassroots organizers, practicing lawyers, health practitioners, government policy makers, politicians, in non-governmental organizations, and as United Nations officials.  As such, the General Comment may be used in a variety of ways to reach very different ends.  The suggestions that follow are just a sampling of ideas of how General Comment N. 16 might be used in your work: 

Bring it to court.  General Comment N. 16 is a legal document and has been adopted by a United Nations treaty monitoring body.  As such, it can be relied upon as a supporting authority in court cases pertaining to women’s economic, social and cultural rights and whether the government has met the benchmarks established by the UN. 

Critique and formulate laws and policies.  General Comment N. 16 can be used to assist you in critiquing law and policy in a number of ways. 

• Use General Comment N. 16 to assist in the preparation of submissions to government bodies, including the treaty monitoring bodies at the United Nations, regarding your government’s performance with respect to the realization of women’s economic, social and cultural rights. 

• Use General Comment N. 16 to assess whether policies on economic, social or cultural matters in your country contribute to or address women’s disadvantage. 

• Use it to assist in the development of new laws and policies that effectively address women’s economic, social and cultural disadvantage or for law and policy reform.

• Use the General Comment N. 16 to assist in critiquing political platforms during election campaigns.

Enlighten and educate.  You can use the General Comment in training or education on women’s human rights, whether it be in a university course or a workshop for grassroots activists.  Copies of General Comment N. 16 can be sent to government officials and other relevant policy makers. 

Research. If you are engaged in research related to women’s human rights, General Comment N. 16 might assist you in the development of a research question and in the analysis of your results. 

Hold a public advocacy event.  General Comment N. 16 could provide the framework for a public event on women’s economic, social and cultural rights, for example, a women’s human rights tribunal.

Make General Comment N. 16 Your Own.  Apply the General Comment to your local context; to assist in understanding an economic, social and cultural rights issue affecting women in your community.

CERA would like to thank Canadian Heritage for their generous support of this work.

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