ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The
Montréal Principles were adopted at a meeting of experts held December 7 – 10,
2002 in Montréal, Canada. These principles are offered to guide the
interpretation and implementation of the guarantees of non-discrimination and
equal exercise and enjoyment of economic, social and cultural rights, found,
inter alia, in Articles 3 and 2(2) of the International Covenant on Economic, Social
and Cultural Rights, so that
women can enjoy these rights fully and equally.
The
participants at the Montreal meeting were: Sneh Aurora, Fareda Banda, Reem
Bahdi, Stephanie Bernstein, Gwen Brodsky, Ariane Brunet, Christine Chinkin, Mary
Shanthi Dairiam, Shelagh Day, Leilani Farha, Ruth Goba, Soledad Garcia Muñoz,
Sara Hossain, Lucie Lamarche, Marianne Møllmann, Dianne Otto, Karrisha Pillay,
Inés Romero, and Alison Symington. They unanimously agreed on the following
principles.
Sex
or gender inequality is a problem experienced primarily by women. The
systems and assumptions which cause women’s inequality in the enjoyment of
economic social and cultural rights
are often invisible because they are deeply embedded in social relations, both
public and private, within all States. Acknowledging this systemic and
entrenched discrimination is an essential step in implementing guarantees of
non-discrimination and equality.
The
terms “gender” and “sex” should both be understood as referring to the range of
economic, social, cultural, historical, political and biological constructions
of norms of behaviour that are considered appropriate for women and men.
Implicit in such an understanding of “gender” or “sex” relations is that male
and female norms have been constructed so as to privilege men and disadvantage
women. “Gender” and “sex” discrimination can be used interchangeably, and both
“gender inequality” and “sex inequality” are used to refer to the disadvantaged
position of women. In order to reflect this understanding of women’s
disadvantage, the Montréal Principles use the terms “discrimination against
women” and “women’s equality” wherever possible.
Economic,
social and cultural rights have a particular significance for women because as a
group, women are disproportionately affected by poverty, and by social and
cultural marginalization. Women’s poverty is a
central manifestation, and a direct result of women’s lesser social,
economic and political power. In turn, women’s
poverty reinforces their subordination, and constrains their enjoyment of every
other right.
The
UN Charter mandates universal respect for, and observance of all human rights,
including the right of women to equal exercise and enjoyment of their economic
social and cultural rights.[i] All
regional and global instruments which set out economic social and cultural
rights contain guarantees of non-discrimination and of equal enjoyment for women
of these rights.[ii] An
expression of this global consensus is found in Articles 3 and 2(2) of the International Covenant on Economic, Social
and Cultural Rights.
In
the political context of the early 21st century, it is particularly
important to underline this long-standing international consensus regarding
human rights primacy. The lack of priority accorded to securing universal
enjoyment of economic, social and cultural rights hurts women
disproportionately.
Women’s
particular vulnerability to social and economic deprivation is deepened further
in conflict and post-conflict situations and when economic sanctions are
imposed. The Committee on Economic, Social and Cultural Rights has stated that
economic, social and cultural rights must be taken into account when imposing
sanctions, and State Parties to the Covenant should take account of the
suffering that such sanctions are likely to inflict on certain sectors, such as
women. As the UN Security Council has recognized, peace and women’s equality are
inextricably linked.[iii]
The
inequality in the lives of women that is deeply embedded in history, tradition
and culture[iv] affects
women’s access to and enjoyment of economic, social and cultural rights. To
ensure women’s enjoyment of these rights, they must be implemented in a way that
takes into account the context in which women live. For example, the traditional
assignment to women and girls of the role of primary care-giver for children,
older persons and the sick restricts women’s freedom of movement and
consequently their access to paid employment and education. The economic and
social devaluation of the work, paid and unpaid, that women traditionally do
from a very young age, contributes further to fixing women in a position of
economic and social inequality. These factors diminish women’s earning capacity
and their economic autonomy, and contribute to the high rates of poverty among
women worldwide. Traditional, historical, religious or cultural attitudes are
also used to justify and perpetuate discrimination against women in the delivery
of economic, social and cultural rights, including health services and
education, by public and private agencies.
Inequality
in women’s enjoyment of economic, social and cultural rights contributes to
their economic dependence, denial of personal autonomy and lack of empowerment.
These in turn limit still further women’s ability to participate in public life,
including fora for economic, social, political and legal policy and
decision-making. As the Committee on the Elimination of Discrimination against
Women has noted: “‘Policies developed and decisions made by men alone reflect
only part of human experience and potential.’” [v] Such policies and decisions are less
likely to take account of gendered consequences, and the economic and social
factors that affect women’s lives.
Economic,
social and cultural rights and civil and political rights are particularly
indivisible and interconnected in the lives of women: inequality in economic,
social and cultural rights undermines women’s ability to enjoy their civil and
political rights, which then limits their capacity to influence decision and
policy-making in public life. Since “‘[a]ll human rights are universal,
indivisible and interdependent and interrelated’” [vi] equality
in civil and political rights[vii] is
undermined unless equality in the exercise and enjoyment of economic, social and
cultural rights is secured.
It
is especially important that women’s entitlement to equal enjoyment of economic,
social and cultural rights is acknowledged and re-emphasized in the current
climate of neo-liberalism and economic globalization. Policies of privatization,
economic austerity and structural adjustment have negative impacts for women.[viii] For
example, women are often the hardest hit by economic transition, financial
crises and rising unemployment. In
part, this is because women are relied upon to provide services that are cut
such as caring for children, older persons and the sick, because women are often
in insecure, part-time employment, they are commonly the first to lose their
jobs. Furthermore, poverty can lead to a decrease in food intake among women and
girls; girls are the first to drop out of schools; greater numbers of women are
forced to migrate; and women are vulnerable to trafficking, violence and ill
health. Economic and political insecurity provoke private and public backlash
against women’s rights that may be expressed through violence and articulated in
the form of defending cultures and traditions.
To
fully implement the rights set out in Articles 3 and 2(2) of the International
Covenant on Economic Social and Cultural Rights, and similar guarantees in other
human rights instruments, requires an understanding that focuses upon the
subordination, stereotyping and structural disadvantage that women experience.
It requires more than just formal legal recognition of equality between the
sexes. It requires commitment by all responsible parties to take all necessary
steps to address the actual material and social disadvantage of
women.
B. Definition
of Women’s Economic Social and Cultural Rights
1.
Women’s economic,
social and cultural rights include, but are not limited to, the right
to:
ª
An adequate
standard of living including:
§
food and
freedom from hunger;
§
water;
§
clothing;
§
housing and
freedom from forced eviction;
§
continuous
improvement of living conditions;
See for
example:
International Covenant on Economic, Social and Cultural Rights (ICESCR) article
11(1) and (2); Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) article 14(2)(h); Universal Declaration of Human Rights
(UDHR) article 25; Universal Declaration on Eradication of Hunger and
Malnutrition (UDEHM) article 1; Declaration on the Right to Development (DRD)
article 8(1); Committee on Economic, Social and Cultural Rights, General Comment
15 ("The right to water"); Additional Protocol to the American Convention on
Economic, Social and Cultural Rights (San Salvador Protocol) article 12; Rome
Declaration on Food Security; Istanbul Declaration and Program of Action on
Human Settlements.[ix]
v
The
highest attainable standard of mental and physical health throughout a woman’s
life cycle, including reproductive and sexual health and freedom;
See for
example:
ICESCR article 10(2) and 12; International Covenant on Civil and Political
Rights (ICCPR) article 6(4) and 18(4); Declaration on the Elimination of
Discrimination Against Women (DEDAW) article 9(e); CEDAW articles 10(h),
11(2)(a) and 12; UDHR article 25; Declaration on Population and Development
para. 7; Beiing Declaration and Program of Action paras. 89, 94 and 96;
Convention on the Rights of the Child (CRC) articles 24, 3(2); American
Convention on Human Rights (ACHR) article 4(5); San Salvador Protocol article
10; Inter-American Convention on the Protection, Punishment and Eradication of
Violence Against Women (ICPPEVAW) article 4(b); American Declaration on the
Rights and Duties of Man (ADRDM) article xi; Declaration on Social Progress and
Development (DSPD) article 11(b); DRD article 8(1); Maternity Protection
Convention (MPC) article 3; African Charter on Human and Peoples’ Rights
(African Charter) article 16; Committee on the Elimination of Discrimination
Against Women, General Comment 24.[x]
v
Equal
inheritance and ownership of land and property;
See for
example:
ICESCR article 11(1); CEDAW articles 13(b), 14(20(e) and (g), 15(2) and 16(h);
DEDAW article 6(1)(a); DRD article 8(1); International Convention on the
Elimination of All Forms of Racial Discrimination (CERD) articles 5(d)(v) and
5(d)(vi); UDHR article 17; ACHR article 21; African Charter, article 14; Beijing
Declaration and Program of Action, para. 61(b), 62, and 63.[xi]
v
Social security, social
protection, social insurance and social services, including special assistance
before, during and after childbirth;
See for
example:
ICESCR articles 9 and 10(2); CERD article 5(e)(iv); DEDAW article 10(1)(c);
CEDAW articles 11(1)(e), 11(2)(a), and 14(2)(c); MPC articles 4 and 6; UDHR
article 22, 23(1) and 25(1); San Salvador Protocol articles 9(2) and 15 (3)(a);
ADRDM article xvi; ICCPEVAW, article 8; CRC article 28.[xii]
v
Training and
education;
See for
example:
ICESCR articles 6 and 13; CEDAW articles 10 and 14(2)(d); DEDAW article 9; UDEHM
article 4; CERD article 5(e)(v); UDHR article 26; ACHR article 17(1); ICPPEVAW
article 6(b); San Salvador Protocol article 13(1)(2) and (3); CRC article 28;
Convention Against Discrimination in Education article 1; ADRDM article xii;
Bejing Declaration and Program of Action para. 69.[xiii]
v
Freely chosen work as
well as just and favourable conditions of work including fair wages, equal
remuneration and protection from sexual harassment and sex discrimination at
work;
See for
example: ICESCR
articles 6 (1), 6(2) and 7; CEDAW articles 11(1)c), (f); CERD article 5(e);
ICCPR article 8(3)(a); DEDAW article 10(1)(a); Abolition of Forced Labour
Convention (AFLC) article 1; DSPD article 6; UDHR articles 4 and 23;
Declaration on the Elimination of Violence against Women (DEVAW) article 3; ACHR
article 6(2); African Charter articles 5 and 15; ADRDM, article xiv; San
Salvador Protocol articles 6 and 7; Convention for the Protection of Human
Rights and Fundamental Freedoms (CPHRFF) article 4(2); MPC article 8; Equal
Remuneration Convention (ERC) article 1; Convention on Employment Policy
articles 1 (1) and (2); ILO Declaration on Fundamental Principles and Rights at
Work; ICPPEVAW, article 2(b).[xiv]
v
Form
and join trade unions;
See for
example: ICESCR
article 8; ICCPR article 22; CERD article 5(e)(ii); DSPD article 10; San
Salvador Protocol article 8; ILO Convention on Freedom of
Association and Protection of the Right to Organize.[xv]
v
Protection from economic
exploitation;
See for
example:
ICESCR articles 8 and 10 (3); ICCPR article 8; Supplementary Convention on the
Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to
Slavery article 1(b); CRC article 32; ILO Convention on Worst Forms of Child
Labour; UDHR article 4; ACHR article 6.[xvi]
v
Protection from coerced
and uninformed marriage;
See for
example: ICESCR
article 10(1); CEDAW article 16(1)(b); DEDAW article 6(2)(a); ICCPR article
23(3); Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriage (Marriage Convention) article 1; CERD
article 5(d)(iv); UDHR article 16(2); ACHR article 17(3).[xvii]
v
A
clean and healthy environment;
See for example: ICESCR article
12(2)(b); African Charter article 24.[xviii]
v
Participate in cultural
life;
See for
example:
ICESCR article 15(1)(a); CRC article 29(1)(c); CEDAW article 13(c); ICCPR
article 27; DEVAW article 3; CERD article 5(e)(vi); UDHR article 27; ACHR
article 26; African Charter articles 17(2) and 22(1); ICPPEVAW article 5; San
Salvador Protocol articles 14(1)(a) and (b).[xix]
v
Claim
and enjoy the benefits of patents and intellectual
property;
See for
example:
ICESCR article 15(1)(c); San Salvador Protocol article 14(c).[xx]
v
Nationality; and to
bestow nationality on children;
See for
example:
CEDAW article 9; DEDAW Article 5; Convention on the Nationality
of Married Women (CNMW) article 1; Convention Relating to the Status of Refugees
(CSR) article 2; UDHR article 15; ACHR article 20; CERD article 5(d)(iii).[xxi]
v
Freedom from trafficking
and exploitation; recognition of the human rights of trafficked
persons;
See for
example: CEDAW
article 6; DEDAW article 8; DEVAW article 2(b); CRC articles 34 and 35; ICPPEVAW
article 2(b); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention Against Transnational Organized Crime.[xxii]
2.
Indivisibility
and Interdependence of Rights
Economic,
social and cultural rights and civil and political rights are indivisible,
interdependent and interconnected. In the real lives of women, it is difficult
to separate these rights. For example, a woman’s right to life is threatened as
much by the deprivation of economic, social and cultural rights as by the
deprivation of civil and political rights.
3.
No
Justification for Restriction
Nothing
in the wording or substance of any international or regional human rights
document, policy, practice or custom can be used to justify restricting women’s
equal enjoyment and exercise of economic, social and cultural rights.
4.
Non-Retrogression
International
law entitles women to claim the highest level of available protection for their
rights that is afforded by international human rights instruments or national
law, policy or custom.[xxiii]
C. Principles of Equality and
Non-discrimination
5.
Women’s Sex
and Gender Inequality
Unequal power
relations between women and men must be acknowledged and changed, and the
entrenched disadvantage caused by this power imbalance must be addressed, if
women are to achieve the equal exercise and equal enjoyment of their economic,
social and cultural rights.
Legal
guarantees of non-discrimination based on sex and legal guarantees of equality
for women, though expressed differently,
are articulations of the same obligation. This obligation is not confined to
negative restraints on States and third parties because negative restraints,
alone, do not successfully eliminate discrimination against women. Both the
right to non-discrimination and the right to equality mandate measures that
prevent harmful conduct and positive steps to address the long-standing
disadvantage of women.
Sex
or gender discrimination occurs when intentionally or unintentionally, a law,
program or policy, or an act or a failure to act, has the effect or purpose of
impairing or nullifying the recognition, exercise or enjoyment by women of their
economic, social and cultural rights.[xxiv]
Sex
or gender discrimination is experienced as discrimination because of being a
woman. It can also be experienced
as discrimination on the basis of marital status, for example, as discrimination
against wives, co-habitees, unmarried women, divorced women or widows, or on the
basis of family status, family responsibility, pregnancy, reproductive capacity,
or sexuality. Sexual harassment of women and violence against women must also be
understood as forms of sex discrimination.
Many
women encounter distinct forms of discrimination due to the intersection of sex
with such factors as: race, language, ethnicity, culture, religion, disability,
or socio-economic class. Indigenous women, migrant women, displaced women, and
non-national or refugee women experience distinct forms of discrimination
because of the intersection of their sex and race, or their sex and citizenship
status. Women may also confront particular forms of discrimination due to their
age or occupation; family status, as single mothers or widows; health status,
such as living with HIV/AIDS; sexuality, such as being lesbian; or because they
are engaged in prostitution. Intersecting discrimination can determine the form
or nature that discrimination takes, the circumstances in which it occurs, the
consequences of the discrimination, and the availability of appropriate
remedies. To ensure that all women enjoy the benefits of their economic, social
and cultural rights, specific measures are needed to address the ways in which
women are differently affected in their enjoyment of a right as a result of the
intersection of discrimination based on sex with discrimination based on other
characteristics.
Women
are entitled to exercise and enjoy their economic social and cultural rights as
autonomous persons. They cannot enjoy their economic, social and cultural rights
equally if they are treated as inferior to men or as adjuncts
of, or dependents of men, whether those men are family members or others. In turn, economic, social and cultural rights must be
interpreted and applied in ways that recognize women’s right to full legal
personhood and autonomy.
D. Impediments To
Women’s Equal Enjoyment of Economic, Social and Cultural Rights
12.
Impediments
Structural
impediments to women’s equal exercise and enjoyment of economic social and
cultural rights include, but are not
limited to: (i) social norms, customs and traditions that legitimize women’s
inequality; (ii) failure to take account of women’s disadvantage or their
distinct experiences when designing laws or measures to implement economic,
social and cultural rights; (iii) restrictions on access to legal or
administrative bodies where remedies for rights violations may be sought; (iv)
women’s under-representation in decision-making processes; (v) women’s unequal
status in their families; (vi) the failure to recognize women’s unremunerated
work, and to encourage the fairer distribution between women and men of family
and community-supporting labour; (vii) the neglect of women’s economic, social
and cultural rights in conflict and post-conflict situations; and (viii) the
gender-differentiated effects of economic globalization. These impediments must
be addressed and eliminated to ensure that measures adopted to implement
economic, social and cultural rights will benefit women
equally.
E. Legal
Obligations
13.
Justiciability
and Allocation of Resources
Women’s rights to
non-discrimination and equality are enforceable by judicial bodies and
administrative tribunals in all circumstances, including when they raise issues
of government allocation of resources for the realization of economic, social
and cultural rights.
14.
Immediate
Obligation
The right to
non-discrimination and to the equal exercise and enjoyment of economic, social
and cultural rights imposes an immediate obligation on States. This obligation
is not subject to progressive realization. The obligation is also an immediate
one for inter-governmental bodies and quasi-State actors or other groups
exercising control over territory or resources.[xxv]
15.
Respect, Protect,
Fulfill and Promote
Women’s
right to non-discrimination and equality imposes four specific obligations on
States: the obligations to respect, protect, fulfill and promote women’s
exercise and enjoyment of economic, social and cultural rights. These four
obligations are indivisible and interdependent and must be implemented by States
simultaneously and immediately.
16.
Range of
Conduct
The
obligations to respect, protect, fulfill and promote women’s economic, social
and cultural rights require a range of conduct from States. States are obliged
to both refrain from acting harmfully and to take positive steps to advance
women’s equality. States are
required to repeal laws and policies that discriminate either directly or
indirectly. They are also required to guarantee women’s rights to
non-discrimination and to the equal exercise and enjoyment of economic, social
and cultural rights in appropriate domestic laws, such as national constitutions
and human rights legislation, and in the interpretation of customary and
personal laws. States are obliged
to regulate the conduct of third parties, such as employers, landlords, and
service providers. States are also obliged to design and implement policies and
programmes to give long-term and full effect to women’s economic, social and
cultural rights. These may include the adoption of temporary special measures to
accelerate women’s equal enjoyment of their rights, gender audits, and
gender-specific allocation of resources.[xxvi]
17.
Rights-claiming
mechanisms
States
must ensure that women’s rights to non-discrimination and to the equal exercise
and enjoyment of economic, social and cultural rights can be effectively
interpreted and applied by judicial and quasi-judicial bodies that are
independent from government. Further, States must ensure that the right to be
free from discrimination and the right to equality are interpreted
substantively, rather than formally, by judicial and quasi-judicial bodies, so
as to foster the equal enjoyment by women of economic, social and cultural
rights. States, when appearing as parties or intervenors before judicial or
quasi-judicial bodies must advocate for the interpretation and application of
rights that will ensure women’s substantive enjoyment of them.
18.
Maximum Available
Resources
States
must use the maximum available resources to respect, protect, fulfill and
promote economic, social and cultural rights. The maximum available resources
must be distributed in a manner that provides substantively equal exercise and
enjoyment of economic, social and cultural rights by women.
19.
Trade,
Trade Agreements and International Financial Institutions
States
have a non-derogable obligation to guarantee women’s equal enjoyment of their
economic, social and cultural rights in their actions and decision-making in the
context of trade, trade agreements, and agreements with, or participation in,
international and regional financial institutions.
20.
Due
Diligence
All
States when participating in international financial institutions, trade
agreements, or aid and development programs shall apply a due diligence test to
assess, foresee and prevent any adverse consequences of trade agreements,
structural adjustment programs, development and humanitarian assistance, and
other economic and social policies on women’s economic, social and cultural
rights. Where harm is caused by such agreements or programs, the responsible
States and institutions shall implement compensatory measures. This applies at
national, regional and international levels, in public and private spheres of
life.
21.
Provision for
Basic Needs
In the context of
scarcity, States shall make sure that the basic needs of women are satisfied,
especially in regard to health care, access to potable water, sanitation
services, housing, education, energy and social protection. This obligation
prevails as well in times of conflict and post-conflict. States and other
inter-governmental bodies must ensure that services are provided in a manner
that does not discriminate against women, and that ensures women’s equality.
22.
Privatization and
Regulation of Third Parties
Where services
are partially or wholly privatized, at a minimum States are required to adopt an
effective regulatory system to monitor the distribution of such services and
service providers must work in cooperation with the State to ensure the
substantively equal enjoyment of services by women in fulfilment of the State’s
international legal obligations.
23.
Regulation of
Transnational Corporations and Third Parties
States
have an obligation to require transnational corporations and other commercial
entities, when they are providing services or programs related to the enjoyment
of economic, social and cultural rights, to ensure that women benefit equally.
States also have an obligation to prevent transnational corporations and other
commercial entities from violating women’s economic, social and cultural rights
on their territory. When such rights are violated, States have a duty to provide
women with effective remedies.
24.
Recognition of
Unremunerated Work
States
must adopt specific measures to recognize the economic and social contribution
of the women who carry out unremunerated activities. States must also ensure
that women or particular groups of women do not carry out a disproportionately
large part of the unremunerated and devalued workload of families and
communities, including domestic labour and the care of children, sick, and older
persons.
States
and inter-governmental bodies must ensure that women can and do participate
fully in the formulation, development, implementation and monitoring of
economic, social and cultural programs and policies. They must also ensure the full
participation of women in the formulation, development, implementation and
monitoring of specific strategies, plans and policies that aim to eliminate
their gender specific disadvantages. This may require States and
intergovernmental bodies to ensure women’s participation in decision-making
where non-State actors provide programs or services that are related to the
enjoyment of economic, social and cultural rights.
F.
Violations
26.
Commission and
Omission
Violations of
women’s economic, social and cultural rights can occur through acts of
commission or omission by States and other actors who are insufficiently
regulated by the State, or not regulated by the State.
27.
Failure to
Correct
Where
the economic, social and cultural rights of women, or particular groups of
women, have been violated, States are obliged to adopt concrete measures
designed to ensure the immediate enjoyment of these rights by the affected
women.
28.
Undermining the
Rights
Undermining
women’s enjoyment or exercise of their economic, social and cultural rights
constitutes a violation. A State undermines these rights by: adopting overly
restrictive interpretations of rights-conferring provisions; taking the position
that economic, social and cultural rights are not justiciable; restricting
access by women, and organizations which represent them, to judicial and
quasi-judicial bodies; implementing women’s equal enjoyment progressively rather
than immediately; and, failing to maintain adequately funded and effective
enforcement institutions.
29.
Retrogressive
Measures
The adoption
of retrogressive measures that further reduce women’s access to or enjoyment of
their economic, social or cultural rights constitutes a
violation.
30.
Unwillingness
to Use Resources
A
State which is unwilling to use the maximum of its available resources for the
realization of economic, social and cultural rights violates women’s economic,
social and cultural rights.
G. Mechanisms and
Remedies
31.
Judicial
and Quasi-Judicial Mechanisms
States
must establish and maintain effective mechanisms for fully claiming and
enforcing women’s economic, social and cultural rights, including independent
courts and tribunals, administrative authorities and national human rights and
women’s commissions. Judges and other adjudicators must be provided with
adequate training regarding women’s rights to equality and to the equal
enjoyment of their economic, social and cultural rights. States must also ratify
relevant international and regional treaties that allow international remedies
and communication procedures without reservations that have the effect of
undermining women’s equal exercise and enjoyment of their economic, social and
cultural rights.
32.
Policy
Mechanisms
States
are required to ensure that there is a national system of institutions and
mechanisms, including national human rights institutions, commissions, and
ombuds offices, which will support the development of strategies, plans and
policies specifically designed to guarantee women’s equal exercise and enjoyment
of their economic, social and cultural rights. This system must guarantee the effective
inclusion of women’s perspectives in the design and application of public
policies in economic, social and cultural areas.
33.
Resources
for Mechanisms
States
must provide sufficient financial and physical resources to the institutions and
mechanisms that have the responsibility to implement and enforce women’s
economic, social and cultural rights in order to ensure their effectiveness and
accessibility.
34.
Access
States
must remove any obstacles that prevent women or certain groups of women from
accessing institutions and mechanisms which enforce and implement women’s
economic social and cultural rights and provide women with information regarding
how to access them. States must also adopt measures, such as legal aid, to
facilitate women’s access to institutions and mechanisms that can implement and
enforce women’s economic, social and cultural rights.
35.
Standards,
Data and Review
States
must continuously review and revise the implementation and enforcement of
women’s economic, social and cultural rights by developing gender-sensitive
standards, methodologies, criteria, targets and indicators, as well as tools for
gender disaggregation of statistical data and for budgetary analysis to
specifically assess women’s substantively equal enjoyment of their economic,
social and cultural rights.
36.
Remedies
In the
event of an infringement of the right to non-discrimination or the right to
equal enjoyment of women’s economic social and cultural rights, States are
required to provide one or more of the following non-exhaustive list of
remedies: compensation, reparation, restitution, rehabilitation, guarantees of
non-repetition, declarations, public apologies, educational programmes,
prevention programmes, revised policies, benchmarks and implementation
programmes, and other effective and appropriate remedies. The State has a
related obligation to ensure that the appropriate remedy is both ordered and
effectively implemented.
[ii]
International Covenant on Economic Social and Cultural Rights, Articles 2(2) and
3; American Convention on Human Rights, Article 1(1); Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights, Article 3; European Convention for the Protection of Human Rights and
Fundamental Freedoms (read in conjunction with its Protocols), Article 14;
African Charter on Human and Peoples’ Rights, Article 2; Cairo Declaration on
Human Rights in Islam, Article 1.
[iii] Security
Council Resolution 1325, 2000.
[iv] As identified
by the Human Rights Committee at para. 5 in its General Comment 28: Equality of rights
between men and women (article 3). 29/03/2000. CCPR/C/21/Rev.1/Add.10.
[v] CEDAW
General Recommendation
23: Political and Public Life. 13/01/97. Contained in document A/52/38. See para.
13.
[vi] United
Nations General Assembly, Vienna
Declaration and Programme of Action, I. 12/07/93. A/CONF.157/23 at para 5.
[vii] As reiterated
in HRC General Comment 28, supra note
4.
[viii] Report of
Independent Expert, Fantu Cheru, ‘Effects of Structural Adjustment Programmes on
Full Enjoyment of Human Rights, UN Doc. E/CN.4/1999/50, 24 February
1999.
[ix] International Covenant on Economic, Social
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GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. Universal Declaration on the Eradication of
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[x] International Covenant on Economic, Social
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46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. International Covenant on Civil and
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6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. Convention on the Elimination of All Forms
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GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. Cairo Declaration on Population and
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September 1990) [CRC]. American convention on Human Rights, 22
November 1969, 1144 U.N.T.S. 143, O.A.S. T. S. No. 36 (entered into force 18
July 1978) [ACHR]. Additional Protocol to the American
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(1989) 28 I.L.M. 156 (entered into force 16 November 1999) (San Salvador
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Duties of Man, adopted at the Ninth Annual International Conference of
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Doc. A/7630 (1969) 49 [DSPD]. Declaration on the Right to Development,
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(1986) 186 [DRD]. Maternity Protection Convention, 2000,
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2002) [MPC]. African Charter on Human and Peoples’
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force 21 October 1986) [African
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[xi] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. Convention on the Elimination of All Forms
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T.S. 1982 No. 31, 19 I.L.M. 33 (entered into force 3 September 1981) [CEDAW]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. Declaration on the Right to Development,
GA Res. 41/128, annex, 41 UN GAOR, 41st Sess., Supp. No. 53, UN Doc. A/41/53
(1986) 186 [DRD]. International Convention on the Elimination
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352 (entered into force 4 January 1969) [CERD]. Universal Declaration of Human Rights,
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July 1978) [ACHR]. African Charter on Human and Peoples’
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force 21 October 1986) [African
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[hereinafter Platform for
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[xii] International Covenant
on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can.
T.S. 1976 No. 46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR].
International Convention on the Elimination of All Forms of Racial
Discrimination, 7 March 1966, 660
U.N.T.S. 195, 5 I.L.M. 352 (entered into force 4 January 1969) [CERD].
Declaration on the Elimination of Discrimination against Women, GA Res.
2263(XXII), UN GAOR, 22d Sess. (1967) [DEDAW]. Convention on the Elimination of
All Forms of Discrimination against Women, 18 December 1979, 1249 U.N.T.S. 13,
Can. T.S. 1982 No. 31, 19 I.L.M. 33 (entered into force 3 September 1981)
[CEDAW]. Maternity Protection Convention, 2000, 15 June 2000, I.L.O. No. 183, 40
I.L.M. 2 (entered into force 7 February 2002)
[MPC]. Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR,
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69, (1989) 28 I.L.M. 156 (entered into force 16 November 1999) (San Salvador
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Ninth Annual International Conference of American States, Bogota, 1948.
Inter-American Convention on the Protection, Punishment and Eradication of
Violence Against Women, 9 June 1994, 33 I.L.M. 1534 (entered into force 5 March
1995) [ICPPEVAW]. Convention on the Rights of the Child, 20 November 1989, 1577
U.N.T.S. 3, 28 I.L.M. 1456 (entered into force 2 September 1990)
[CRC].
[xiii] International Covenant
on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can.
T.S. 1976 No. 46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR].
Convention on the Elimination of All Forms of Discrimination against Women, 18
December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31, 19 I.L.M. 33 (entered
into force 3 September 1981) [CEDAW]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. Universal Declaration on the Eradication of Hunger and Malnutrition,
adopted by the World Food Conference, endorsed by GA Res. 3348 (XXIX) 1974, 29th
Sess., UN Doc. E/CONF. 65/20 (1974) 1 [UDEHM]. International Convention on the
Elimination of All Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, 5 I.L.M.
352 (entered into force 4 January 1969) [CERD]. Universal Declaration of Human
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71 [UDHR]. American convention on Human Rights, 22 November 1969, 1144 U.N.T.S.
143, O.A.S. T. S. No. 36 (entered into force 18 July 1978) [ACHR].
Inter-American Convention on the Protection, Punishment and Eradication of
Violence Against Women, 9 June 1994, 33 I.L.M. 1534 (entered into force 5 March
1995) [ICPPEVAW]. Additional Protocol to the American Convention on Economic,
Social and Cultural Rights, O.A.S. T.S. No. 69, (1989) 28 I.L.M. 156 (entered
into force 16 November 1999) (San Salvador Protocol). Convention on the Rights
of the Child, 20 November 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1456 (entered into
force 2 September 1990) [CRC]. Convention Against Discrimination in Education,
429 U.N.T.S. 93, B.T.S. 44 (1962) (entered into force 22 May 1962). American
Declaration on the Rights and Duties of Man, adopted at the Ninth Annual
International Conference of American States, Bogota, 1948. Report of the Fourth
World Conference on Women: Platform for Action, A/Conf.177/20, 17 October 1995
[hereinafter Platform for Action].
[xiv] International Covenant
on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can.
T.S. 1976 No. 46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR].
Convention on the Elimination of All Forms of Discrimination against Women, 18
December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31, 19 I.L.M. 33 (entered
into force 3 September 1981) [CEDAW]. International Convention on the
Elimination of All Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, 5 I.L.M.
352 (entered into force 4 January 1969) [CERD]. International Covenant on Civil and
Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47,
6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. Abolition of Forced Labour Convention (ILO
No. 105), 25 June 1957, 320 U.N.T.S. 291, Can. T.S. 1960 No. 21 (entered
into force 17 January 1959) [AFLC].
Declaration on Social Progress and
Development, GA Res. 2542 (XXIV), 24 UN GAOR 24th Sess., Supp. No. 30, UN
Doc. A/7630 (1969) 49 [DSPD]. Universal Declaration of Human Rights,
GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. Declaration on the Elimination of Violence
Against Women, GA Res. 48/104, UN GAOR, 48th Sess., Supp. No. 49, UN Doc.
A/48/49 (1993) 217 [DEVAW]. American convention on Human Rights, 22
November 1969, 1144 U.N.T.S. 143, O.A.S. T. S. No. 36 (entered into force 18
July 1978) [ACHR]. African Charter on Human and Peoples’
Rights, 27 June 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982) (entered into
force 21 October 1986) [African
Charter]. American Declaration on the
Rights and Duties of Man, adopted at the Ninth Annual International
Conference of American States, Bogota, 1948. Additional Protocol to the American
Convention on Economic, Social and Cultural Rights, O.A.S. T.S. No. 69,
(1989) 28 I.L.M. 156 (entered into force 16 November 1999) (San Salvador
Protocol). Convention for the Protection
of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222,
E.T.S. No. 5 (entered into force 3 September 1953) [CPHRFF]. Maternity Protection Convention, 2000,
15 June 2000, I.L.O. No. 183, 40 I.L.M. 2 (entered into force 7 February
2002) [MPC]. Equal Remuneration Convention, 29 June
1951, 165 U.N.T.S. 303, ILO No. 100 (entered into force 23 May 1953) [ERC]. Convention on Employment Policy, ILO No.
122 (adopted 9 July 1964). ILO
Declaration on Fundamental Principles and Rights at Work, (1998) 37 I.L.M.
1233 (signed 19 June 1998). Inter-American Convention on the Protection,
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1534 (entered into force 5 March 1995) [ICPPEVAW].
[xv] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. International Covenant on Civil and
Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47,
6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. International Convention on the Elimination
of All Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, 5 I.L.M.
352 (entered into force 4 January 1969) [CERD]. Declaration on Social Progress and
Development, GA Res. 2542 (XXIV), 24 UN GAOR 24th Sess., Supp. No. 30, UN
Doc. A/7630 (1969) 49 [DSPD]. Additional Protocol to the American
Convention on Economic, Social and Cultural Rights, O.A.S. T.S. No. 69,
(1989) 28 I.L.M. 156 (entered into force 16 November 1999) (San Salvador
Protocol). ILO Convention on Freedom of
Association and Protection of the Right to Organize, 68 U.N.T.S. 17, ILO No.
87 (adopted 9 July 1948).
[xvi] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. International Covenant on Civil and
Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47,
6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Supplementary Convention on the Abolition of
Slavery, the Slave Trade and Institutions and Practices Similar to Slavery,
226 U.N.T.S. 3, C.T.S. 1963/7 (entered into force 30 April 1957). Convention on the Rights of the Child,
20 November 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1456 (entered into force 2
September 1990) [CRC]. ILO Convention on Worst Forms of Child
Labour, ILO No. 182 (adopted 19 November 2000). Universal Declaration of Human Rights,
GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. American convention on Human Rights, 22
November 1969, 1144 U.N.T.S. 143, O.A.S. T. S. No. 36 (entered into force 18
July 1978) [ACHR].
[xvii] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. Convention on the Elimination of All Forms
of Discrimination against Women, 18 December 1979, 1249 U.N.T.S. 13, Can.
T.S. 1982 No. 31, 19 I.L.M. 33 (entered into force 3 September 1981) [CEDAW]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. International Covenant on Civil and
Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47,
6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Convention on Consent to Marriage, Minimum
Age for Marriage and Registration of Marriages, 7 November 1962, 521
U.N.T.S. 231, (entered into force 9 December 1964) [Marriage Convention]. International Convention on the Elimination
of All Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, 5 I.L.M.
352 (entered into force 4 January 1969) [CERD]. Universal Declaration of Human Rights,
GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. American convention on Human Rights, 22
November 1969, 1144 U.N.T.S. 143, O.A.S. T. S. No. 36 (entered into force 18
July 1978) [ACHR].
[xviii] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. African Charter on Human and Peoples’
Rights, 27 June 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982) (entered into
force 21 October 1986) [African
Charter].
[xix] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. Convention on the Rights of the Child,
20 November 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1456 (entered into force 2
September 1990) [CRC]. Convention on the Elimination of All Forms
of Discrimination against Women, 18 December 1979, 1249 U.N.T.S. 13, Can.
T.S. 1982 No. 31, 19 I.L.M. 33 (entered into force 3 September 1981) [CEDAW]. International Covenant on Civil and
Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47,
6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Declaration on the Elimination of Violence
Against Women, GA Res. 48/104, UN GAOR, 48th Sess., Supp. No. 49, UN Doc.
A/48/49 (1993) 217 [DEVAW]. International Convention on the Elimination
of All Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, 5 I.L.M.
352 (entered into force 4 January 1969) [CERD]. Universal Declaration of Human Rights,
GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. American convention on Human Rights, 22
November 1969, 1144 U.N.T.S. 143, O.A.S. T. S. No. 36 (entered into force 18
July 1978) [ACHR]. African Charter on Human and Peoples’
Rights, 27 June 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982) (entered into
force 21 October 1986) [African
Charter]. Inter-American Convention
on the Protection, Punishment and Eradication of Violence Against Women, 9
June 1994, 33 I.L.M. 1534 (entered into force 5 March 1995) [ICPPEVAW]. Additional Protocol to the American
Convention on Economic, Social and Cultural Rights, O.A.S. T.S. No. 69,
(1989) 28 I.L.M. 156 (entered into force 16 November 1999) (San Salvador
Protocol).
[xx] International Covenant on Economic, Social
and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No.
46, 6 I.L.M. 360 (entered into force 3 January 1976) [ICESCR]. Additional Protocol to the American
Convention on Economic, Social and Cultural Rights, O.A.S. T.S. No. 69,
(1989) 28 I.L.M. 156 (entered into force 16 November 1999) (San Salvador
Protocol).
[xxi] Convention on the Elimination of All Forms
of Discrimination against Women, 18 December 1979, 1249 U.N.T.S. 13, Can.
T.S. 1982 No. 31, 19 I.L.M. 33 (entered into force 3 September 1981) [CEDAW]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. Convention on the Nationality of Married
Women, 20 February 1957, 309 U.N.T.S. 65, Can. T.S. 1960 No. 2 (entered into
force 11 August 1958) [CNMW]. Convention Relating to the Status of
Refugees, 28 July 1951, 189 U.N.T.S. 137, 158 B.S.P. 499 (entered into force
April 22, 1954) [CSR]. Universal Declaration of Human Rights,
GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. American convention on Human Rights, 22
November 1969, 1144 U.N.T.S. 143, O.A.S. T. S. No. 36 (entered into force 18
July 1978) [ACHR]. International Convention on the Elimination
of All Forms of Racial Discrimination, 7 March 1966, 660 U.N.T.S. 195, 5 I.L.M.
352 (entered into force 4 January 1969) [CERD].
[xxii] Convention on the Elimination of All Forms
of Discrimination against Women, 18 December 1979, 1249 U.N.T.S. 13, Can.
T.S. 1982 No. 31, 19 I.L.M. 33 (entered into force 3 September 1981) [CEDAW]. Declaration on the Elimination of
Discrimination against Women, GA Res. 2263(XXII), UN GAOR, 22d Sess. (1967)
[DEDAW]. Declaration on the Elimination of Violence
Against Women, GA Res. 48/104, UN GAOR, 48th Sess., Supp. No. 49, UN Doc.
A/48/49 (1993) 217 [DEVAW]. Convention on the Rights of the Child,
20 November 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1456 (entered into force 2
September 1990) [CRC]. Inter-American Convention on the Protection,
Punishment and Eradication of Violence Against Women, 9 June 1994, 33 I.L.M.
1534 (entered into force 5 March 1995) [ICPPEVAW]. Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, Supplementing the United
Nations Convention Against Transnational Organized Crime, (2001) 40 I.L.M.
335 (not yet in force).
[xxiii] See for
example UDHR article 30; ICCPR article 5(1) and (2); ICESCR article 5(2); CRC
article 41; ACHR article 29; ECHR articles 17 and
53.
[xxiv] CEDAW,
Article 1; HRC General Comment 18:
Non-discrimination.
10/11/89. 37th
Sess., 1989; CERD General Comment 25:
Gender-related dimensions of racial discrimination. 20/03/2000. Contained in document
A/55/18, annex V.
[xxv] CESCR General Comment 3: The nature of
states-parties’ obligations (art. 2, par. 1). 14/12/90. Contained in document E/1991/23. See
para. 1.