Claiming Women’s Economic, Social and Cultural Rights
A Resource Guide to Advancing Women’s Economic, Social and Cultural Rights Using the Optional Protocol and Convention on the Elimination of All Forms of Discrimination Against Women and the Optional Protocol and International Covenant on Economic Social and Cultural Rights Claiming Women’s Economic, Social and Cultural Rights
A Resource Guide to Advancing Women’s Economic, Social and Cultural Rights Using the Optional Protocol and Convention on the Elimination of All Forms of Discrimination Against Women and the Optional Protocol and International Covenant on Economic Social and Cultural Rights
International Network for International Women’s Rights Economic, Social and Cultural Rights Action Watch–Asia Pacific Claiming Women’s Economic, Social and Cultural Rights A Resource Guide to Advancing Women’s Economic, Social and Cultural Rights Using the Optional Protocol and Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol and International Covenant on Economic, Social and Cultural Rights Published April 2013
This work is licensed under a Creative Commons Attribution- NonCommercial-NoDerivs 3.0 Unported License.
This manual was jointly developed by IWRAW Asia Pacific and ESCR Net and was made possible through the generous support of Oxfam Novib, Ford Foundation, AJWS and Hivos.
Cover photo: UN Photo/Albert González Farran
International Network for Economic, Social and Cultural Rights (ESCR-Net) 211 East 43rd St. #906 New York, NY 10017 +1(212) 681-1236 Email: [email protected] Website: www.escr-net.org
International Women’s Rights Action Watch Asia Pacific 10-2, Jalan Bangsar Utama 9, 59000 Kuala Lumpur, MALAYSIA Tel: (603) 2282 2255; Fax: (603) 2283 2552 E-mail: [email protected], [email protected] Website: www.iwraw-ap.org Table of Contents
Forward ...... 4 Part One: Executive Summary ...... 6 Part Two: An Overview of Women’s ESC Rights Under ICESCR and CEDAW ...... 12 2.1 Women’s Economic, Social and Cultural Rights ...... 12 2.2 Overview of Substantive Rights ...... 12 2.3 Principles and Obligations ...... 16 2.4 A Coherent Approach to Women’s ESC Rights ...... 22 Part Three: Optional Protocols—Human rights complaints mechanisms ...... 28 3.1 What is an Optional Protocol? ...... 28 3.2 Common and differing features of OP-CEDAW and OP-ICESCR ...... 28 Part Four: Optional Protocol to the Convention On the Elimination of All Forms Of Discrimination against Women . 32 4.1 Overview ...... 32 4.2 Communications Procedure under OP-CEDAW ...... 33 4.3 Inquiry Procedure ...... 49 4.4 Conclusion ...... 56 Part Five: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights ...... 60 5.1 Overview of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights . 60 5.2. The Communication procedure ...... 60 5.3 The Inquiry procedure ...... 76 5.4. The Inter-State procedure ...... 82 Part Six: Advocacy and Litigation on Women’s ESC Rights ...... 90 6.1 International Advocacy ...... 90 6.2. National Level Advocacy ...... 92 6.3. Using Strategic Litigation as a strategy in national level advocacy on Women’s ESC Rights ...... 93 6.4 Case Studies ...... 102 6.5 Organizations Supporting Strategic Litigation on Women’s ESCR ...... 119 Part Seven: Appendix ...... 122 7.1 CEDAW Text ...... 123 7.2 OP-CEDAW Text ...... 130 7.3 OP-CEDAW Rules of Procedure ...... 134 7.4 ICESCR Text ...... 142 7.5 OP-ICESCR Text ...... 148 7.6 OP-ICESCR Rules of Procedure ...... 154 7.7 Participating in ICESCR and CEDAW Reporting Processes ...... 163 7.8 Model Communication Form ...... 165 7.9 General Recommendations to CEDAW ...... 167 7.10 General Comments Under ICESCR ...... 170 7.11 List of Special Procedures of Human Rights Council on economic, social and cultural rights ...... 179 7.12 Resources ...... 180 Forward
Foreword omen’s lives are impacted by a myriad of issues in CEDAW and echoed by the CESCR. Our work aims to such as the frequent lack of basic services, de jure build effective advocacy strategies and support activists and Winequality, lack of accountability of States, corpora- NGOs in their campaigning and engagement with key stake- tions and other global actors, discriminatory cultural stereo- holders. A key component of IWRAW Asia Pacific and ESCR- types, beliefs and the impact of harmful practices, religious Net’s collaborative strategy was the creation of resources fundamentalisms and development agendas which exclude to facilitate and support engagement of activists and NGOs consideration of the rights and experiences of women and with the mechanisms monitoring the implementation of differences among women. Within this context, the Inter- CEDAW and ICESCR, namely, the CEDAW Committee and national Covenant on Economic, Social and Cultural Rights Committee on Economic, Social and Cultural Rights. (ICESCR) and the Convention on the Elimination of All Forms In 2009, IWRAW Asia Pacific and ESCR-Net began work of Discrimination against Women (CEDAW) are the two towards the development of this Resource Guide: Claiming key human rights instruments which provide a forum for Women’s Economic, Social and Cultural Rights: A Resource demanding realization of women’s human rights. Guide to Advancing Women’s Economic, Social and Cul- International Women’s Rights Watch tural Rights Using the Optional Protocol (IWRAW) Asia Pacific and International ICESCR and CEDAW and Convention on the Elimination of All Network for Economic, Social and Cul- Forms of Discrimination against Women tural Rights (ESCR-Net) have been con- are the two key and the Optional Protocol and Interna- sistently promoting a holistic approach tional Covenant on Economic Social and to realization of women’s human rights, human rights Cultural Rights. This Resource Guide aims through mobilization and capacity building instruments which to improve the existing knowledge and of civil society, women’s rights organiza- understanding of activists and lawyers tions and NGOs advocating on economic, provide a forum for on international norms and standards, social and cultural rights. We have also demanding realization such as substantive equality, in address- sustained engagement with the Commit- ing women’s economic, social and cultural tees monitoring State Parties fulfillment of of women’s rights. It further aims to provide a practi- obligations under CEDAW and ICESCR to human rights. cal and substantive guideline on using the ensure that national level realities of wom- two Optional Protocols in a comprehen- en’s economic, social and cultural rights sive litigation strategy as part of advocacy are effectively raised internationally. With the adoption of by these activists and lawyers in advancing the realization of the Optional Protocol to CEDAW and Optional Protocol to women’s economic, social and cultural rights. ICESCR, the role of activists and lawyers in using litigation Many women’s rights activists may not be fully familiar to advance women’s economic, social and cultural rights with the range of existing international norms and standards becomes key to changing the situation on the ground for on women’s economic, social and cultural rights. Further, women claiming their rights nationally, regionally and inter- we have found that even where groups use both litigation nationally as they offer important additional opportunities to and advocacy strategies together to realize women’s ESCR, seek accountability. there still tends to be less reliance on economic and social The collaborative work of IWRAW Asia Pacific and ESCR- rights standards and obligations and a much greater focus Net since 2008 aims to facilitate the work of women’s rights on non-discrimination. Finally, there is a significant gap in activists and NGOs and NGOs working on economic, social awareness amongst activists, NGOs and lawyers, of the and cultural rights in advocating for the promotion and pro- potential and advantages of the international compliance tection of women’s economic, social and cultural rights mechanisms created under the two Optional Protocols. using the substantive equality framework clearly articulated Rebecca Brown, human rights lawyer and Deputy Director
4 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Forward
at ESCR-Net and Alison Aggarwal, expert from IWRAW Asia List of Abbreviations Pacific’s pool of resource persons, as the authors of this guide, have provided explanations on international stan- ESC Rights Economic, social and cultural rights dards on women’s economic, social and cultural rights, the CED Committee on Enforced Disappearances intersection between the substantive equality framework and rights enshrined in CEDAW and the specific rights rec- CEDAW Convention on the Elimination of All Forms of ognised in the ICESCR, the nature and meaning of substan- Discrimination against Women tive equality in relation to women’s economic, social and cul- CERD Convention on the Elimination of tural rights, and the nature and potential of the two Optional Racial Discrimination Protocols—OP-CEDAW and OP-ICESCR—in claiming wom- en’s rights nationally and internationally. ESCR-Net’s experi- CESCR Committee on Economic, ence and expertise in promoting the use of strategic litiga- Social and Cultural Rights tion as a tool in advocacy for advancing economic, social and CP Rights Civil and political rights cultural rights has helped in developing a practical check- list of do’s and don’ts for lawyers litigating for women’s ICESCR International Covenant on Economic, economic, social and cultural rights, especially using both Social and Cultural Rights Optional Protocols. ICCPR International Covenant on Civil and The Resource Guide is enhanced in terms of quality of Political Rights its content and delivery of information by the feedback and suggestions provided by the women’s human rights law- ICCPR-OP1 Optional Protocol to the ICCPR, yers who attended the Pilot-testing and Capacity Building individual complaints Workshop on Bringing Women’s ESCR Claims before OP- ICCPR-OP2 Second Optional Protocol to the ICCPR, CEDAW and OP-ICESCR, organised by IWRAW Asia Pacific abolition of the death penalty and ESCR-Net in Penang (Malaysia) on 3-7 December 2010. The Pilot-testing of the Resource Guide also provided an OP Optional Protocol opportunity to both the organizations to connect with activ- OP-CAT Optional Protocol to the Convention ists, lawyers and experts actively working on women’s eco- Against Torture nomic, social and cultural rights under CEDAW and ICESCR. We are grateful for the contributions of case studies to the OP-CEDAW Optional Protocol to CEDAW development of this Guide made by The Comité de América Latina y el Caribe para la Defensa de los Derechos de la OP-CRC Optional Protocol to the Convention on the Mujer (CLADEM), Center for Reproductive Rights (CRR) and Rights of the Child—currently being drafted the Women’s Law Centre (WLC) in South Africa. It was a OP-CRPD Optional Protocol to the Convention on the great privilege to work with experts, namely, Leilani Farha, Rights of Persons with Disabilities expert on women’s economic, social and cultural rights and Executive Director, Centre for Equality Rights in Accommo- OP-ICESCR Optional Protocol to ICESCR dation (Canada) and Caroline Lambert, member of IWRAW AP’s team on Drafting of OP-ICESCR and Executive Director, OP-ICRMW Optional Protocol to the International Convention on Y.M.C.A. (Australia). Both helped IWRAW Asia Pacific and the Protection on the Rights of All Migrant Workers and Members of Their Families ESCR-Net with their critical insights and suggestions and in shaping the Resource Guide in its present form. The contri- SPT Sub-Committee on the Prevention of bution by Lisa Pusey, former staff of IWRAW Asia Pacific, Torture and her immense commitment towards completion of the Resource Guide is much appreciated and acknowledged. UDHR Universal Declaration of Human Rights
5 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Forward
It was a conscious decision to make this Resource Guide OP-ICESCR, organised by IWRAW Asia Pacific and ESCR- an online resource for activists and lawyers in the current Net in Penang (Malaysia) on 3-7 December 2010. Their com- cyber-age. The case studies included in the Resource Guide ments, feedback and suggestions to the writers and the demonstrate the challenging and interesting work under- publishers have helped to deliver a practical Guide for appli- taken by activists and lawyers in different regions, but this cation in advancing of women’s economic social and cultural is just the tip of the iceberg. There are many of you located rights using CEDAW/ICESCR & OP-CEDAW/OP-ICESCR. in different regions who are promoting substantive equal- Thanks to Julieta Rossi, Sandra Ratjen, Ximena Andión ity for women through the use and implementation of inter- Ibañez and to the staff members and ex-colleagues at national norms and standards on women’s human rights. IWRAW Asia Pacific for their inputs during the development We would be pleased to hear from you to learn about the of the Guide. diverse issues, realities and violations of women’s eco- nomic, social and cultural rights and efforts undertaken to challenge the status quo and patriarchal hegemony which limit the rights of women. Acknowledgments We express sincere thanks and appreciation for the work and commitment showed by the two authors of this guide— Alison Aggarwal, resource person, IWRAW Asia Pacific’s pool of CEDAW experts, and Rebecca Brown, Deputy Direc- tor, ESCR-Net. We appreciate the contribution by Paola Garcia Rey in assisting Rebecca Brown in development of the Guide. Special thanks and appreciation for the contributions by Center for Reproductive Rights, Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer and Women’s Legal Centre, for the case studies sec- tion of the Guide. We are grateful to Caroline Lambert (YMCA, Australia) and Leilani Farha (Center for Equality Rights in Accommoda- tion, Canada) for their insights and critical inputs provided as the two external reviewers, and to Lisa Pusey, who played a pivotal role in the conceptualisation and development of this Advocacy Guide, in her capacity as a Programme Offi- cer at IWRAW Asia Pacific and as IWRAW Asia Pacific’s resource person on CEDAW, OP-CEDAW and women’s ESC rights. We appreciate consistent follow up and dedication of IWRAW Asia Pacific’s Programme Staff, Gauri Bhopatkar and Ann Campbell, towards completion of this Guide. We express special thanks to the women activists and law- yers from Asia, Africa, CEE-CIS and Latin America who par- ticipated in the Pilot-testing and Capacity Building Workshop on Bringing Women’s ESCR Claims before OP-CEDAW and
6 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
Part One: Executive Summary
7 1 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part One
1. Executive Summary 1.1 Women’s Economic, Social provide individuals with the ability to claim food, housing, employment, education and healthcare as basic rights. And Cultural Rights When needs are transformed into rights, it allows individ- Economic, social and cultural rights have a particular signif- uals to claim that these rights be respected, protected and icance for women because they go to the heart of issues fulfilled; and to hold governments accountable if they fail related to poverty and inequality. From women’s lived daily to do so. The international human rights framework also experiences and social and cultural roles, they know the cen- allows us to connect to the broader international commu- tral nature of ensuring adequate and nutritious food is avail- nity which is struggling for these rights around the world able for the family, the importance of being able to eas- and to use a common language which can promote solidarity ily access clean water, of having a safe and movement-building, thereby increas- and secure dwelling and access to a health ing the impact of our work. centre and medicine. Women know that The international Within the international human rights due to their work life being more often human rights system, the Convention on the Elimina- interrupted because of care-giving and tion of All Forms of Discrimination against child-rearing obligations, or because their framework and Women (CEDAW) and the International work is not formalized, or because they Covenant on Economic, Social and Cul- have always been paid less than their male mechanisms provide tural Rights (ICESCR) are particularly rel- colleagues, their access to adequate social individuals with evant for claims involving women’s eco- security benefits when they are older may nomic, social and cultural rights given be limited. Women know that school fees, the ability to claim food, these Committees’ expertise on wom- lack of adequate sanitation and privacy, housing, employment, en’s equality and substantive ESC rights, sexual harassment by male teachers and respectively. The treaty bodies monitoring policies excluding young mothers all cre- education and State compliance with these two cove- ate significant barriers for girl’s educational healthcare as opportunities. Women know that gender nants should be central in any advocacy or stereotypes impact their ability to achieve basic rights. litigation strategy involving women’s ESC equality and success in work, education, rights. Periodic review sessions are critical politics and at home. Women know the daily impact that opportunities for civil society to bring inter- poverty and inequality have in their daily lives. As a group, national awareness to the situation of women’s ESC rights women have less social, economic and political power and in a country. are disproportionately poor. In the context of the global finan- Further, both of these treaties have Optional Protocols cial crisis and deepening economic inequality, women are which can be used to enhance the normative and account- affected disproportionately by the presence or absence of ability framework for women’s ESC rights created by ICE- social programs and policies that ensure health care, edu- SCR and CEDAW. There are several benefits that Optional cation, child care, housing, food and water because women Protocols provide for the implementation of women’s ESC are the principal unpaid providers for these needs when the rights and redress for violations of women’s ESC rights. State fails to do so. These include: s CREATING AN ACCOUNTABILITY MECHANISM AT THE INTERNA- 1.2 Benefits of Using International tional level for a State’s failure to meet its obligations Conventions and Optional Protocols under the Convention; The international human rights framework and mechanisms s AFFORDING INDIVIDUALS AND GROUPS OF WOMEN THE POSSIBILITY
8 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part One
of an effective remedy where none was available at understanding of the intersection between discrimination national level; against women and barriers to women’s enjoyment of their s IDENTIFYING SPECIlC LAW AND POLICY REFORMS THAT MUST BE economic, social and cultural rights. Using this analysis and undertaken by a State which has breached its obliga- expertise in tandem can provide a powerful tool for holding tions under the Conventions; States accountable to fulfilling women’s enjoyment of their economic, social and cultural rights. s BUILDING JURISPRUDENCE THAT CAN INmUENCE DECISION MAK- ing in national courts and by other human rights bodies; Activists and lawyers have a key role to play in advanc- ing human rights discourse and standards on women’s eco- s CLARIFYING THE SCOPE AND CONTENT OF THE PROVISIONS OF THE nomic, social and cultural rights. When engaging with the Convention in the context of a specific factual situation, reporting and complaints procedures under CEDAW and so that all States Parties have more detailed guidance as ICESCR and their Optional Protocols, activists and lawyers to their obligations; can advance a gender-sensitive analysis of substantive eco- s CREATING OPPORTUNITIES FOR TARGETED CAPACITY BUILDING ON nomic, social and cultural rights and their relationship to the advocacy and litigation of women’s ESC rights; fulfilment of women’s right to equality. Further, we hope this s PROVIDING A FOCUS FOR CAMPAIGNING BY NATIONAL GROUPS Guide will encourage and support women’s rights advocates, on particular issues, through ratification campaigns or activist and lawyers to take action to bring accountability to advocacy to promote implementation of the CEDAW violation of women’s economic, social and cultural rights and CESCR Committee’s concluding observations and and advance enjoyment of their rights.This Resource Guide recommendations; and aims to bring greater accountability and protection to wom- en’s economic, social and cultural rights by encouraging and s ENCOURAGING STRATEGIC ALLIANCES AMONG GROUPS IN CIVIL supporting activists and lawyers to use CEDAW and CESCR society to support Optional Protocol related activities, in their national and international advocacy to advance wom- including ratification, submission of communications, en’s human rights. This Guide also seeks to celebrate wom- and inquiries. en’s significant and often unrecognised contribution to eco- nomic, social and cultural life and hopes through the use of 1.3 About this Guide the mechanisms presented here, women’s rights advocates This Guide is one of several initiatives aimed at bringing can advance recognition and visibility of these contributions. greater recognition and accountability to violations of wom- This guide lays out how organizations and individuals can en’s economic, social and cultural rights. The Guide seeks to use CEDAW and its OP as well as the ICESCR and its OP provide a practical tool for activists and lawyers to advance to implement women’s economic, social and cultural rights. the protection and fulfilment of women’s ESC rights through The manual also discusses how an Optional Protocol case the use of CEDAW and ICESCR’s normative framework and might be framed, and what should be considered when procedures in complimentary and mutually reinforcing ways. determining which venue is most appropriate for the claim. The realisation of women’s ESC rights implicates the The process of claiming one’s rights requires strong collab- norms enshrined in the nine international human rights trea- oration between lawyers, and advocates, and the communi- ties and in particular in the CEDAW and the ICESCR. While, ties and women whose rights have been violated. This man- it is important to work with all treaties, this Guide focuses ual is intended to be a practical resource to inform the work on CEDAW and ICESCR as the two most relevant trea- of advocates, including lawyers, litigators and activists, to ties. However, for women experiencing multiple discrimi- seek redress for human rights violations. nations, such as women with disabilities, racialised women This resource guide is divided into or migrant women, conventions such as CRPD, CRC and the following parts: CERD, will also be critical. Both CEDAW and the ICESCR through their normative framework and the specific exper- Part One: Executive Summary tise of their expert Committees, contribute to a greater Part Two: An overview of women’s economic social and
9 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part One
cultural rights and the general and specific obligations of states. Part Three: An overview of Optional Protocols. Part Four: An overview of the redress mechanisms avail- able under OP-CEDAW. Part Four: An overview of the redress mechanisms avail- able under OP-ICESCR. Part Six: An overview of advocacy and litigation strategies for claiming women’s ESC rights. The appendices contain: s 4HE TEXTS OF #%$!7 )#%3#2 AND THEIR RESPECTIVE Optional Protocols—OP-CEDAW and OP-ICESCR. s 3UPPLEMENTARY CHARTS AND CASE STUDIES AND s !DDITIONAL RESOURCES ON THE USE OF /0 #%$!7 AND /0 ICESCR.
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Part Two: An Overview of Women’s ESC Rights Under ICESCR and CEDAW
11 2 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
2. An Overview of Women’s ESC Rights Under ICESCR and CEDAW 2.1 Women’s Economic, Social and based on the affected women or group of women (or girls) in a particular case; it will also be important to be familiar with Cultural Rights the International Covenant on Civil and Political Rights, the Human rights are inherent and inalienable rights all people Convention on the Rights of the Child, and the Convention have because they are human and they are therefore uni- on the Rights of Persons with Disabilities, among others.9 versal.1 These basic principles were first established in the In addition to international agreements and mechanisms, UDHR2 and later by the ICESCR3 and the ICCPR.4 there are several important regional human rights agree- States have obligations arising from the fundamental and ments and mechanisms which are directly relevant to wom- inherent nature of human rights as well as under interna- en’s economic, social and cultural rights, including: tional human rights law and are legally accountable for viola- African System—Protocol to the African Charter on tions of these duties.5 All human rights are “indivisible, inter- Human and Peoples’ Rights on the Rights of Women in dependent, inter-related, and of equal importance for human Africa (Maputo Protocol); dignity.”6 This principle recognizes that all human rights— economic, social, civil, political and cul- Inter-American System—Inter- American Convention on the Preven- tural—are equally necessary to human All human rights dignity and equality. These categories fail tion, Punishment and Eradication of Vio- to capture the inherent connectedness of are “indivisible, lence against Women (Convention of all human rights and the necessity of their Belém do Pará), and the Additional Pro- realization in ensuring women’s equality. interdependent, tocol to the American Convention on Human Rights in the area of Economic, The position that economic, social and inter-related, and of Social and Cultural Rights (Protocol of cultural rights are not in fact rights, or equal importance for San Salvador); cannot be adjudicated, is outdated and European System—European Social has been proven incorrect by domestic, human dignity.” Charter and Council of Europe Conven- regional and international courts around tion on preventing and combating vio- the world.7 The adoption of the OP-ICE- lence against women and domestic violence.10 SCR itself signals an important shift in the international rec- ognition of justiciability of ESC rights. Furthermore, the The treaties listed above all provide relevant interpreta- traditional dichotomy between so-called “positive” and tive scope for each of the rights below. Depending on the “negative” rights is also being scrutinized, given clear evi- region in which you are working in, or the affected group of dence that all human rights include both negative and posi- women with whom you are advocating, your communica- tive obligations on States. That is, for most rights, States will tion, shadow report or other advocacy should also reference be required to refrain from action and to take positive steps the relevant understanding of women’s human rights as set and invest resources to realize human rights.8 out in those documents.11 The list below is not exhaustive and how the issue is ultimately defined in the communica- The full spectrum of obligations related to women’s eco- tion or inquiry should be context specific to the case you are nomic, social and cultural rights are drawn from many highlighting. sources. At the international level the two most relevant are the ICESCR and CEDAW. However, due to the interdepen- dent and indivisible nature of human rights, as well as the 2.2 Overview of Substantive Rights need to address rights-violations in an intersectional way Below are eight commonly recognized economic, social
12 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two AP/BULLIT MARQUEZ
and cultural rights, which draw primarily on the ICESCR and this obligation. States are required to adopt appropriate CEDAW in their description. In the section below, women’s legislative measures, and modify or abolish existing ESC rights are discussed in a way which highlights the links laws, customs and practices to prohibit discrimination between CEDAW and ICESCR’s elaboration of these rights against women, in both the public and private spheres. and obligations. It is important to note that both CEDAW and States should also adopt special measures designed at ICESCR highlight critical but different aspects of each right accelerating de facto equality between men and women, and obligation. CEDAW is central to arguing the discrimina- including steps to modify social, cultural and familial pat- tory effect of ESC rights violations on women and ICESCR terns of conduct. will be critical to elaborating the substantive scope of the rights at issue in the communication or inquiry. Right to work (ICESCR Article 6, 7, 8, 10(3); CEDAW Articles 5(a), 6, 11, Non-Discrimination and Equality 14(1)) (ICESCR, art 2(2), 3; CEDAW art 2, 3, 4, 5) The right to work entitles women workers to have the States may not discriminate against women, or groups of possibility to earn their living through freely cho- women, in law or in practice. Moreover, States have the sen work and to working conditions that are safe and obligation to ensure women and men the equal right to healthy and are not demeaning to human dignity. Work- enjoy economic, social and cultural rights. Non-discrimina- ers must be guaranteed a fair wage that allows for a tion in law alone will not be enough for the State to satisfy decent life for them and their families. There should be no
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discrimination of any kind in employment or promotion, vital for the realisation of many other rights, such as the including those based on gender stereotypes. Equal work rights to life, health and education. The right to food is should be compensated with equal pay, and employers not limited to just having a certain amount of calo- should provide their workers with periodic and paid holi- ries and necessary nutrients in one’s diet; it means that days. The right to work also includes the right to associ- everyone should have physical and economic access ate with one another and bargain for better working con- to food or the means of producing it at all times. States ditions, the right to join the trade union of their choice and must also prevent discrimination in access to food or the right to strike as long as it is in conformity with the resources for the procurement of food. The State must laws of the country. Forced labour and trafficking are ensure that “women have a right to own, use or other- illegal under international law and are grave violations of wise control housing, land and property on an equal basis human rights. States must ensure child labour is prohib- with men, and to access necessary resources to do so, ited under a certain age and when girls do work they must and ensure that women have access to or control over be provided additional protections. means of food production, and actively to address cus- tomary practices under which women are not allowed to Right to social security including eat until the men are fully fed, or are only allowed less social insurance nutritious food.” (ICESCR Article 9, 10(2), 11(1); CEDAW Article 11(1)e, 11(2), 14(2)c). Right to housing States must recognize the right of everyone to social (ICESCR Article 11(1); CEDAW 14(h), 16(h)) security, including social insurance, which guarantees The right to housing should be understood as encom- that everyone will be provided with the minimum goods passing all those elements in a residence that are essen- and services required for a dignified life. It is the duty tial to a life with dignity: security from outside or domestic of the State to make sure that everyone in its territory is threats, a healthy living environment, security of ten- afforded protection without discrimination from “(a) ure, affordability, habitability, accessibility, culturally lack of work-related income caused by sickness, disabil- adequate, proximity to necessary services, and free- ity, maternity, employment injury, unemployment, old dom to choose one’s place of settlement. Government age, or death of a family member; (b) unaffordable access must develop national policies that will guarantee this to health care; (c) insufficient family support, particularly right to all its citizens. Forced evictions are understood as for children and adult dependents.” Special attention a prima facie violation of the right to adequate housing. should be given to increasing access to social security “The State itself must refrain from forced evictions and benefits for disadvantaged and marginalized groups, such ensure that the law is enforced against its agents or third as older women and women who work in the infor- parties who carry out forced evictions.” If an eviction is mal sector. States must also ensure equalization of the absolutely necessary, it must be carried out in conformity compulsory retirement age for both men and women; with international human rights law and must not result in ensure that women receive equal benefits in both pub- homelessness. No one should be deprived of some form lic and private pension schemes; and guarantee adequate of housing even in times of economic downturn. maternity leave for women, paternity leave for men, and parental leave for both men and women. Maternity leave, Rights to water and sanitation social security and childcare should be available to both (ICESCR Articles 11 and 12; CEDAW Article 14(h)) formal and informal workers. The CESCR has stated that the right to water is indis- pensable for leading a life in human dignity and is a pre- Right to food requisite for the realization of other human rights. (ICESCR Article 11; CEDAW Article 14(g)(h), 16(h)) Among other requirements, States must ensure the right The right to food is essential for a dignified life and is of access to water and water facilities and services on
14 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
a non-discriminatory basis, especially for disadvan- favourable conditions to ensure the safety of children, taged or marginalized groups and must ensure wom- in particular girls, on their way to and from school as well en’s security is not threatened when physically access- as while there. Educational systems and policies must ing water. The right to water requires that everyone has also account for intersectional discrimination which access to an adequate amount of drinking water for per- affects girl children, such as disability and migratory or sonal and domestic uses. The full enjoyment of this citizenship status. States also must provide vocational right means access to water that is affordable, clean and adult education and lifelong learning which are cru- and physically accessible. Because women have been cial for women’s enjoyment of human rights, as well as to traditionally excluded in policy-making and decision- ensure de facto equality. making on water, State Parties should ensure they par- ticipate. States should ensure that the allocation of water Right to the highest attainable standard resources, and investments in water, facilitate access to water for all members of society. States should of physical and mental health ensure that policies and entitlements related to access (ICESCR Article 11, 12; CEDAW Article 12, 14(b)) to water should account for the disproportionate bur- The right to health is related to the fundamental right of den women bear in the collection of water and its use each person to live in dignity. It entitles people to enjoy within the household. States must ensure that women the best available health care, but it is not limited to and girls have adequate access to safe and clean sanita- this. “The right to health is closely related to and depen- tion facilities at school, and in public buildings for those dent upon the realization of other human rights, as under state supervision. contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, Right to education life, non-discrimination, equality, the prohibition against (ICESCR Articles 13 and 14; torture, privacy, access to information, and the free- CEDAW Articles 5, 10, 11(c), 14(2)d) doms of association, assembly and movement.” Safe Education has been regarded both as an end in itself and and secure housing, a clean environment, freedom from as a means for the individual and society to grow. It is harmful traditional practices, proper nutrition and accu- the key to full economic, social, cultural, civil and political rate and accessible information on sexual and reproduc- participation in society. It encompasses two broad com- tive health, are also the bases for a healthy life. The right ponents: enhancement of access for all to education to health also entitles women to have control over their on the basis of equality and non-discrimination and bodies and their health. States must “eliminate discrim- freedom to choose the kind and content of education, ination against women in their access to health care ser- which is available, accessible, acceptable and adapt- vices, throughout the life cycle, particularly in the areas of able. Access to primary education is a minimum core obli- family planning, pregnancy, confinement and during the gation; universal primary education must be compul- post-natal period.” “Societal factors are largely deter- sory and free of charge for girls and boys. States should implement temporary special measures to ensure de minative of the health status of women, …and for that facto equality for girls and in all educational settings, reason, special attention should be given to the health including higher education. The State should adopt legis- needs and rights of women belonging to vulnerable lation and policies to ensure the same admission crite- and disadvantaged groups, such as migrant women, ria for boys and girls at all levels of education. State Par- refugee and internally displaced women, the girl child and ties should ensure, in particular through information and older women, women in prostitution, indigenous women awareness-raising campaigns, that families desist from and women with physical or mental disabilities.” States giving preferential treatment to boys when sending their must ensure the greatest possible availability, accessi- children to school, and that curricula promote equal- bility, acceptability and highest quality healthcare for ity and non-discrimination. State Parties must create all on the basis of non-discrimination.
15 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
Cultural rights 2.3 Principles and Obligations (ICESCR Article 15; CEDAW Articles 10(g), 13(c), 14(2)f) There are also several key principles arising under both Women have the right to freely determine their iden- CEDAW and ICESCR that are necessary to refer to when tity, chose their religion and decide their own political making claims under either Optional Protocol and in general beliefs. Education plays an important role in promoting advocacy on women’s ESC rights. cultural diversity and forging tolerance among different groups. Governments should recognise and protect the Substantive Equality cultural diversity of their citizens. Cultural rights cannot The State obligation to ensure women’s substantive equal- be used, however, as a justification for practices that dis- ity in the enjoyment of economic, social and cultural rights criminate against women or violate human rights. Insti- under the ICESCR is captured in Articles 2(2) and 3 and Arti- tutional barriers and other obstacles must be overcome, cles 1 and 2 of CEDAW. Ensuring a comprehensive applica- such as those based on cultural and religious traditions, tion of the obligations in these Articles “requires an under- which prevent women from fully participating in cul- standing that focuses upon the subordination, stereotyping, tural life, science education and scientific research, and and structural disadvantage that women experience.”12 Uti- directing resources to scientific research relating to the lizing the substantive equality framework to outline a com- health and economic needs of women on an equal munication allows a complainant to highlight the full spec- basis with those of men. Women must have the same trum of rights at issue in the case, both within the specific opportunities to participate in sports and other recre- context of the violation while also accounting for the broader ational activities and reasonable accommodation should structural, cultural and social factors to be included. be made for women with disabilities. Women also have the right to benefit equally from scientific progress, States have the immediate duty to ensure that women and States should provide funding for research which are not being directly or indirectly discriminated against 13 directly targets diseases and conditions disproportion- in access to, or fulfillment of, a substantive right. Both ately affecting women. CEDAW and the CESCR have interpreted this obligation as not only requiring the State to prevent discrimination but Marriage and Family to take positive steps to remedy past and structural dis- crimination that goes beyond enactment of laws—beyond (ICESCR Article 10; CEDAW Articles 13(a), 14(1), 16) legal or formal equality to substantive or de facto equality.14 Women have the right to chose their marriage freely and Specifically, General Recommendations 28 of CEDAW and be equally represented, including in passing their national- General Comment 16 and 20 from CESCR detail this obli- ity onto their children, dissolution of the marriage, family gation. States can violate principles of equality with policies benefits, court and administrative proceedings, contracts and practices that on their face value are neutral, but that and loans, guardianship of the children, choosing a profes- have a discriminatory impact or effect on certain disadvan- sion and ownership and inheritance of property. States taged groups.15 must also ensure that women have the ability to decide on the number and spacing of their children, have the A great many of the claims which will emerge under the same personal rights as to family name, ability to choose OP-CEDAW and OP-ICESCR in relation to women’s ESC a profession and same rights and obligations within the rights will require a more robust approach to analyzing these family. Special protections should be afforded to moth- issues and in promoting the broader social, economic, polit- ers before and after childbirth, including paid leave and ical policies needed to realize women’s ESC rights. Claim- social security benefits. States should also account for ants will need to ensure the substantive equality framework the particular roles rural women have in ensuring the is integrated and utilized as the primary lens for analyzing economic survival of their families. Family laws includ- women’s ESC rights violations and in framing the request ing child maintenance, child custody, marital powers and for a remedy. property should not reinforce gender stereotypes. For instance, when States develop social security and
16 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
assistance programs that deny women access to an income reasonably calculated to ensure an adequate standard of Substantive equality in the Inter- living they not only exacerbate the preexisting vulnerable American Human Rights System situation of poor women, they also expose women to par- The Inter-American System has been increasingly ticular harms that reinforce their subordination and vulnera- integrating the notion of structural discrimination and ble status.16 inequality in the analysis of its recommendations. The A substantive equality analysis of the impact of social Inter-American Commission and Court have moved assistance on women in this example would show that due towards a concept of material or structural inequal- to the historic and socialized role of women in most soci- ity that recognizes that certain sectors of the popula- eties, her ability to work throughout her lifecycle has been tion are disadvantaged in exercising their rights, due limited due to less access to quality education, childbirth, to legal and factual obstacles and consequently require traditional family care-giving roles, and concentrations in the adoption of special measures to guarantee equal- part-time or informal work. This impacts women’s ability to ity. This implies the necessity of differential treatment build a work and salary history which is often a key compo- when, due to circumstances affecting a disadvantaged nent in calculating social security. In addition, when social group, identical treatment will in actual effect result in assistance funds do not accurately account for real costs, discrimination or fail to address the discrimination as women disproportionately suffer as this may increase their experienced by that particular group. It also requires an exposure to domestic violence and sexual exploitation. examination of the social trajectory of the alleged vic- Therefore, the substantive equality approach requires tim, the social context in which the norms and policies States to acknowledge the actual impact policies and prac- are considered, and the vulnerability of the social group tices have on women, looking at the particular context and in question. take positive measures to ensure equal access and equal In Niñas Yean y Bosico vs. República Dominicana, the benefits for women. Inter-American Court held “that the binding legal prin- The substantive equality approach highlights that State ciple of equal and effective protection of the law and must have an active role in providing and facilitating the non-discrimination mandates that the States, in regu- development of comprehensive economic and social pol- lating the granting of citizenship, should refrain from icies and programs which account for the differing needs creating regulations that discriminate on their face or in and circumstances of women.17 “The fact that, for women, effect against certain sectors of the population. More- poverty enlarges every dimension of women’s inequality, over, States must combat discriminatory practices at all not just the economic dimension.(…) without access to ade- levels, especially in government, and ultimately must quate social assistance and social services, including transi- adopt the necessary affirmative measures to ensure tional housing, access to training and education, and effec- actual equality under the law for all persons. (Inter- tive legal rights…women are much less able to resist or American Court on Human Rights, Niñas Yean y Bosico escape their subordination.”18 vs. República Dominicana, September 8, 2005.) The requirement of temporary special measures is another example of positive measures required to combat inequality.20 Temporary special measures should be distin- discrimination and is a State obligation arising out of Arti- cle 4 of CEDAW and Article 2(2) of ICESCR (as interpreted guished from more general positive measures or longer in General Comment 20). It is a method that CEDAW devel- term policy changes required to realize equality for women oped to accelerate women’s substantive equality, even if for- and girls. Rather than permanent changes in social policy, mal equality already exists.19 Temporary special measures temporary special measures can be invoked to deal with require governments to evaluate discrimination against particular issues adversely affecting women’s human rights. women “in a contextual way” and take affirmative steps to The duration of the measure is not fixed, and may be nec- transform the current structures which perpetuate women’s essary for a long period of time, but the concept is that the
17 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
provides a comprehensive interpretation of State obliga- Substantive Equality and Disability tions in this context. In particular it highlights the fact that For example, women with disabilities encounter the “discrimination older women experience is often mul- a particular historic and systemic situation of discrim- tidimensional, with age discrimination, compounding other ination based not only to social constructions of gen- forms of discrimination based on sex, gender, ethnic ori- der but also due to the long-accepted medical model of gin, disability, poverty, sexual orientation and gender iden- disability. The medical model posits that women with tity, migrant status, marital and family status, literacy and disabilities are naturally excluded from social functions other grounds. Older women who are members of minority, because medical conditions that impede participation. ethnic or indigenous groups, or who are internally displaced This has meant that women with disabilities face two or stateless often experience a disproportionate degree of deep layers of social and economic exclusion related discrimination. This is equally true for indigenous women, to gender and disability. Disability advocates have long women with disabilities, lesbians, minority women, migrant 27 argued that social conditions of exclusion, rather than women, girls, etc. inherent biological or medical differences, form the If you are submitting a communication under the OP- main barrier to active participation of women with dis- CEDAW or OP-ICESCR on behalf of a women experiencing abilities in society.28 multiple forms of discrimination, it is critical that you detail the ways in which the denial of the ESC rights is particularly experienced by the woman or group of women represented measure will be discontinued once equality is reached.21 in your complaint, highlighting how this denial of access to a The obligation of non-discrimination and therefore the obli- substantive right has been exacerbated or experienced dif- gation to ensure both women and men have equal right to ferently due to intersectional discrimination. the enjoyment of ESC rights is non-derogable (the State is We can see examples of the medical model play out in not allowed to place limitations on the right).22 In addition, the case of Gauer and Others v. France, where five women the CESCR has drafted General Comment 16 to Article 3 on with intellectual disabilities, each under guardianship, were the equal right of men and women to the enjoyment of all sterilized without their informed consent and against their economic, social and cultural rights. General Comment 16 wishes.29 The doctors claimed the sterilizations were med- integrates the framework of substantive equality and tem- ically necessary and in the best interests of these women. porary special measures into the ICESCR23 and this has No due process procedures were conducted to actually BEEN REmECTED IN SOME OF THE SUBSEQUENT 'ENERAL #OM- examine whether these decisions were correct. In order to ments adopted by the CESCR.24 The Committee affirmed effectively redress this violation which resulted from dis- that in some cases this may mean the State will need to crimination both because they are women, but also because take measures specifically favorable to women, which “sup- they have intellectual disabilities, understanding the multiple press conditions that perpetuate discrimination” in order to layers of social and cultural discrimination surrounding gen- achieve substantive equality.25 Further, General Comment der and disability at play in this case are key. 20 notes that States must “immediately adopt the neces- sary measures to prevent, diminish and eliminate the condi- tions and attitudes which cause or perpetuate substantive or Respect, Protect and Fulfill de facto discrimination.”26 All human rights require States to meet the immediate obli- gations to respect and protect. The obligation to respect Intersectionality requires States to refrain from actions that directly or indi- Within this framework it is critical to also integrate the inter- rectly discriminate against women and infringe on their sectionality dimension of the principle of non-discrimina- enjoyment of ESC rights. States Parties must not adopt or tion. For example, General Comment 6 of the CESCR on repeal laws, policies, or programs (including those which older persons extrapolates the multiple forms and intersec- appear neutral on their face) which adversely impact wom- tionality of discrimination experienced by older women and en’s equal enjoyment of ESC rights.30
18 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
The obligation to protect requires States to take steps directed at eliminating of prejudices and gender-based Montreal Principles on Women’s stereotypes; to adopt constitutional and legislative provi- Economic, Social and Cultural Rights, sions on equality and non-discrimination between men and Section 10. Intersectionality women; to ensure administrative programs and institu- Many women encounter distinct forms of discrimi- tions to protect against discrimination against women; and nation due to the intersection of sex with such fac- ensure effective remedies and redress.31 Importantly, States tors as: race, language, ethnicity, culture, religion, dis- must monitor and regulate the conduct of non-State actors, ability, or socioeconomic class. Indigenous women, including corporate actors, to ensure equal rights of women migrant women, displaced women, and non-national to ESC rights, including where public services have been or refugee women experience distinct forms of dis- partially or fully privatized.32 crimination because of the intersection of their sex and The third obligation on all States with regard to human race, or their sex and citizenship status. Women may rights is the obligation to fulfill. Despite the generally pro- also confront particular forms of discrimination due to gressive nature of obligations to fulfill ESC rights, the Cove- their age or occupation; family status, as single moth- nant defines at least two obligations of immediate character ers or widows; health status, such as living with HIV/ under the ICESCR: (1) “to take steps” to allow for continu- AIDS; sexuality, such as being lesbian; or because they ous progress in the realization of ESC rights, (2) on a basis are engaged in prostitution. Intersecting discrimina- of non-discrimination.33 Further in General Comment 16, tion can determine the form or nature that discrimina- CESCR notes its “[t]he equal right of men and women to the tion takes, the circumstances in which it occurs, the enjoyment of economic, social and cultural rights is a man- consequences of the discrimination, and the availabil- datory and immediate obligation of States Parties.”34 ity of appropriate remedies. To ensure that all women Under the immediate obligation to “take steps,” these enjoy the benefits of their economic, social, and cul- steps must be deliberate, concrete and targeted and States tural rights, specific measures are needed to address must detail the steps taken including developing a plan the ways in which women are differently affected in of action for implementation.35 In particular, the CESCR their enjoyment of a right as a result of the intersec- tion of discrimination based on sex with discrimination has noted that access to effective remedies for violations based on other characteristics. of rights; implementation of laws and policies targeted at realizing women’s ESC rights; monitoring mechanisms to ensure implementation; implementation of human rights Where the text of a substantive right does not prescribe education and awareness-raising programs; and participation the particular steps the State must take to achieve its fulfill- of women in all spheres of policy-making, are all particular ment, the Covenant requires both obligations of conduct obligations of States to fulfill women’s ESC rights.36 and result and the State must show that the steps it is tak- ing are in line with its capabilities.37 The obligation of conduct Progressive Realization requires the State to take action that is likely to result in real- ization of ESC rights, e.g. establishing a policy to progres- The obligation to achieve progressively the full realization sively increase women’s access to acceptable, affordable, of the rights requires States Parties to exert its best efforts accessible and quality health care. The obligation of result to implement ESC rights and move as rapidly as possible toward the ultimate goal of full realization of these rights. requires that the State meet specific targets established Under no circumstances should this provision be interpreted to meet the substantive standard, e.g. ensuring that more as allowing States the right to defer indefinitely efforts to women, including particular groups of women, are able to ensure full realization. The State has the obligation to ensure access to medical treatment. on a continuous basis the progressive fulfillment of ESC The CESCR has stated that although the term “progressive rights. realization” recognizes that full realization of all economic,
19 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
social and cultural rights will generally be achieved over a programs to protect the most disadvantaged and marginal- period of time, this should not be misinterpreted as depriv- ized members of society.42 ing the obligation of all meaningful content. “It is on the one Therefore, even if the State has moved forward in ensur- HAND A NECESSARY mEXIBILITY DEVICE REmECTING THE REALITIES OF ing women’s ESC rights, if it has not done so to the max- the real world and the difficulties involved for any country imum extent of all available resources, then it is in breach in ensuring full realization of economic, social and cultural of this obligation.43 For instance, a State’s systemic failure rights. On the other hand, the phrase must be read in the to reduce maternal mortality and provide access to quality light of the overall objective, indeed the raison d’être, of the maternal healthcare breaches its international obligations. Covenant which is to establish clear obligations for States The case study of Alyne da Silva Pimentel v. Brazil, decided Parties in respect of the full realization of the rights in ques- by CEDAW in 2011 (see page 102) is an example of this tion. It thus imposes an obligation to move as expeditiously point. In that case CEDAW recognized that despite Brazil’s and effectively as possible towards that goal.”38 significant efforts in areas of public health, its failure to prior- itize reduction of maternal mortality and to devote the max- Maximum Available Resources imum available resources to guarantee that women can go The CESCR has noted that although availability of resources safely through pregnancy and childbirth44 created a viola- serves as a measure by which to assess the steps taken, tion.45 it does not alter the immediacy of the obligation and can- Furthermore, the phrase “to the maximum of its available not be used to justify inaction. Where resources are demon- resources” refers to both the resources existing within a strably inadequate, the State must ensure the widest possi- State as well as those available from the international com- ble enjoyment of ESC rights under the circumstances. Even munity through international cooperation and assistance.”46 in times of severe resource constraints, such as now with Thus, resource availability should take into account budget- the current economic crisis, States must adopt targeted ary availability but also the possibility for international coop- eration, private resources and technical assistance.47 Example of Progressive Realization in Practice Due Diligence In a case decided by the European Committee on An important component of a State’s positive obligations Social Rights, the international body recognized that under the CEDAW Convention, is the principle of due dili- implementation by France of legislation relating to pro- gence, as articulated in General Recommendation 28: vision of education for persons with disabilities was “Article 2 also imposes a due diligence obligation on 39 extremely poor . The Committee ruled that the Gov- States parties to prevent discrimination by private actors. In ernment’s overall lack of progress in the area consti- some cases, a private actor’s acts or omission may be attrib- tuted a violation of the Charter, namely the right of per- uted to the State under international law. States parties are sons with disabilities to education, the right of children thus obliged to ensure that private actors do not engage in and young persons to education, and the right of all discrimination against women as defined in the Convention. persons to non discrimination. Although the Commit- The appropriate measures that States parties are obliged to tee noted that the realization of the right was “excep- take include the regulation of the activities of private actors tionally complex and particularly expensive”40, and with regard to education, employment and health policies because of this the Government was permitted some and practices, working conditions and work.” mEXIBILITY IT STILL REQUIRED THAT REALIZATION OF SOCIAL RIGHTS Further, this obligation has been more recently elaborated must occur within a “reasonable time, with measur- in the context of gender-based violence. States parties have able progress and to an extent consistent with the a due diligence obligation to prevent, investigate, prosecute 41 maximum available resources” . and punish such acts of gender-based violence. In Ms VK v.
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Bulgaria the CEDAW Committee observed that States par- minimum essential levels of each substantive right, which ties can be held responsible for private acts if they fail to act must be guaranteed by the State.52 In this regard, the CESCR with due diligence to prevent violations of women’s rights or has stated that a State Party in which any significant num- to investigate and punish acts of violence against women. ber of individuals is deprived “of essential foodstuffs, of essential primary health care, of basic shelter and housing, As described in CEDAW’s General Recommendation 19, or of the most basic forms of education is, prima facie, fail- “State parties must take reasonable steps ing to discharge its obligations under the to prevent human rights violations, investi- Covenant.”53 The CESCR has emphasized gate, impose the appropriate punishment While the full that “if the Covenant were to be read in and provide adequate redress to the vic- realization of economic, such a way as not to establish such a min- tims.” This is an area of State obligation imum core obligation, it would be largely which needs further development and def- social and cultural deprived of its raison d’être.” 54 inition, but in principle, this obligation will rights may be achieved be applicable at a minimum in the con- As the case study Alyne da Silva Pimen- 55 texts described above and perhaps more progressively; tel v. Brazil shows (see page 102), States broadly. have to ensure access to quality medi- deliberate, concrete cal treatment in conditions of equality and No Retrogressive Measures and targeted steps must ensure appropriate services to women in connection with pregnancy and childbirth The adoption of measures that reduce be taken immediately including pre-natal services and timely women’s access to or enjoyment of their to meet the obligations emergency obstetric care. The govern- economic, social or cultural rights consti- ment “cannot, under any circumstances 49 tutes a violation. The CESCR has inter- defined in the Covenant. whatsoever, justify its non-compliance preted that “[i]f any deliberately retrogres- with core obligations,” particularly the sive measures are taken, the State Party has the burden of right to health56 and should devote the maximum available proving that they have been introduced after the most care- resources to guarantee that women can safely experience ful consideration of all alternatives and that they are duly jus- pregnancy and childbirth.57 tified by reference to the totality of the rights provided for in Though the substance of what the minimum entails for the Covenant in the context of the full use of the State Par- each substantive right remains in development, in the mean- ty’s maximum available resources.”50 time, the minimum core concept acts as a burden-shifting For example, in GC 19 on social security, the CESCR indi- device: if a State asserts that it has been unable to meet the cated that in evaluating retrogressive measures, it will exam- minimum core obligation due to resource constraints, it is up ine whether: “(a) there was reasonable justification for the to that State to demonstrate that it had attempted to use all action; (b) alternatives were comprehensively examined; (c) available resources for the purpose of ensuring core rights there was genuine participation of affected groups in exam- for all, particularly the most vulnerable.58 ining the proposed measures and alternatives; (d) the mea- Most importantly, minimum core obligations should be sures were directly or indirectly discriminatory; (e) the mea- CONSIDERED A hmOORvMEANING IF CONDITIONS FALL BELOW THIS sures will have a sustained impact on the realization of the level, it will be prima facie (presumptive) evidence of a viola- right…an unreasonable impact…or whether an individual tion and the burden would fall upon the State to prove that or group is deprived of access to the minimum essential they have attempted to meet this minimum using maximum level…; and (f) whether there was an independent review of available resources.59 Once a State has met these very mini- the measures at the national level.”51 mum requirements, it is still obligated to continuously realize ESC rights utilizing maximum available resources. Minimum Core Obligations Some human rights advocates are skeptical of this frame- The “minimum core content” of a right refers to the WORK CONCERNED THAT RATHER THAN ESTABLISHING A mOOR IT WILL
21 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
establish a ceiling, where once States meet these basic lev- For example, in the countries falling into the “least devel- els they will not attempt to improve conditions further. This oped” category, claims brought under OP-ICESCR using the is a valid concern and one to which all human rights advo- minimum core requirement to pressure their State to ensure cates must remain vigilant. The duty of progressive realiza- basic nutritional requirements of school children, pregnant tion within maximum available resources continues after women and lactating mothers could be an important point OF LEVERAGE &URTHER IN CONmICT OR POST CONmICT COUNTRIES the minimum core obligations are met. Further minimum where funding has been prioritized for military expenditures core obligations can be used to create pressure for imme- often at the expense of basic needs, minimum core obliga- diate action by a State following ratification of the Cove- tions could be useful to pressure for re-orientation and pri- nant. Therefore, the concept of the minimum core may offer oritization of available funding. However, in some contexts, a useful short or mid-term strategy in which enjoyment of particularly in more developed countries, the argument of human rights in many contexts would be improved by sim- the “reasonableness” of government action and the duty ply meeting these essential levels, with an eye to demand- to take positive measures may be more useful and better ing continuous implementation and fulfillment after these address women’s equality and substantive fulfillment of ESC core obligations are met.60 rights. 61
Maximum Available Resources 2.4 A Coherent Approach to In assessing the State’s obligation to take steps to Women’s ESC Rights the maximum of available resources, and whether they As demonstrated by the overview of rights and obligations are “adequate” or “reasonable,” the Committees may above, much of the framework for understanding State obli- take into account the following considerations: gations as they relate to women’s economic, social and cul- tural rights under both mechanisms is quite similar, partic- (a) The extent to which the measures taken were ularly when a substantive equality approach is utilized. The deliberate, concrete and targeted towards the framework of substantive equality allows for a nuanced fulfillment of economic, social and cultural rights; understanding of how violations of economic, social and cul- (b) Whether the State Party exercised its discretion tural rights may be experienced by women in various social in a non-discriminatory and non-arbitrary man- and historical contexts, with various identities, while also ner; integrating clear State obligations related to both conduct (c) Whether the State Party’s decision (not) to allo- and result and to take positive measures to remedy these cate available resources was in accordance with violations. Although its application under each treaty may international human rights standards; not be identical, a thorough understanding of the substan- tive equality lens itself can be applied to all women’s human (d) Where several policy options are available, rights claims to ensure that the remedy demanded, and the whether the State Party adopted the option that MEANS USED TO IMPLEMENT THE REMEDY REmECT THE CLAIM- least restricts Covenant rights; ant’s articulation of her situation and her needs. (e) The time frame in which the steps were taken; Coherence is clearly important for claimants and rights (f) Whether the steps had taken into account the holders in developing strong legal arguments on women’s precarious situation of disadvantaged and mar- economic, social and cultural rights under either instrument. ginalized individuals or groups and, whether they As the scope and obligations related to particular rights are were nondiscriminatory, and whether they priori- developed through General Comments/Recommendations, tized grave situations or situations of risk. Concluding Observations or under the Committees’ views Source: CESCR, An Evaluation Of The Obligation To Take Steps To The “Max- under both Optional Protocols, it is important that these imum Of Available Resources” Under An Optional Protocol To The Covenant, U.N. Doc. E/C.12/2007/1 (21 September 2007). developments are integrated in the understanding of that right throughout the treaty body system. This coherence
22 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
will also support domestic level courts in applying interna- tional legal standards at the national level and parliamentar- Competing Needs IANS IN DESIGNING POLICIES WHICH REmECTS THE 3TATES INTERNA- As an advocate for women’s ESC rights, you will tional legal obligations. In addition, Committee members will find yourself confronting the reality of competing benefit from a more consistent interpretation of obligations needs in relation to the realization of ESCR. Because during periodic reviews or through individual or inquiry pro- of the nature of most economic and social rights, sub- cedures. stantial funding and support will be required to ensure Furthermore, although CEDAW is an integrated treaty, full realization. Inevitably, as you begin to call on your meaning it includes both civil and political rights as well as State, developed or developing, to realize women’s economic, social and cultural rights, having a comprehen- ESC rights, they will claim an inability to do so, possi- sive understanding of the rights and obligations in both trea- bly based on competing needs and limited resources. ties can provide a more complete overview of State obliga- While these claims of limited resources must be chal- tions for women’s ESC rights. Furthermore, CEDAW adds lenged, what are advocates to do in situations of truly value to women’s ESC rights claims by allowing for inter- limited funds? pretations which recognize the interrelated nature of civil An example of this question of approach can be and political and ESC rights. This helps to inform interpre- examined in the ESCR Committee’s response to the tations of women’s rights by the CESCR and contributes raising of school tuition in Germany which they exam- to bridging the artificial divide between these rights in prac- ined during the May 2011 review session. The Com- tice. Because the ICESCR provides the definitions of the full mittee was making additional recommendations to scope of the substantive content of each right and States’ Germany on lowering the high rate of school fees, obligations in relation to ESC rights, using these documents which had been raised by the State in the previous two in tandem to provide reference to the scope of each right years in the context of the financial crisis. Within this can strengthen arguments made with regard to specific ele- economic context, the CESCR concluded that schools ments of State duties. fees should not be increased and the State should con- tinue toward abolishing fees altogether. For example, although Article 12 of CEDAW creates the In addition, there is precedence at the national level State obligation not to discriminate in the provision of health- for the argument that financial crisis cannot be the care services and General Recommendation 24 further elab- basis for the retraction of existing social supports. In orates on a State’s obligations for this Article,62 only Article case no. 2000-08-0109 before the Constitutional Court 12 of the ICESCR and subsequent General Comment 14 lay of Latvia, employers were not paying into a social assis- out the normative content of the right to health: such as, it tance fund for their employees because of the cur- must be universal, non-discriminatory, available, accessible rent economic crisis. The Court found that despite the (both physically and financially), and of good quality.63 While financial situation, the State must ensure proper over- CEDAW is critical in defining States obligations with regards sight and enforcement of legislation which requires to substantive equality and non-discrimination, the ICESCR businesses to maintain their contributions to the social is necessary to elaborate the content of economic, social assistance system. and cultural rights. Your approach to advocating for women’s ESC rights– The integration of both the concepts of substantive equal- arguing for immediate implementation or progressive ity and of temporary special measures from CEDAW into implementation over time—will largely depend on the articulation of State obligations under the ICESCR fur- the context in which you are working, including: the ther shows the necessity of taking a holistic approach when extent of available resources of your State, friendli- addressing women’s ESC rights. CEDAW provides a deeper ness of the government to women’s ESC rights issues analysis of the roots and multiple manifestations of discrim- and whether there is widespread popular support for ination against women in the protection, promotion and ful- these issues. fillment of women’s human rights. Therefore, in bringing
23 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
attention to women’s ESC rights under the ICESCR, a claim *"9:;:*&%':*<
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25 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Two
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26 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
Part Three: Optional Protocols—Human rights complaints mechanisms
27 3 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Three
3. Optional Protocols— Human rights complaints mechanisms 3.1 What is an Optional Protocol? CAT, CEDAW and now CESCR) can, under given conditions, receive individual complaints. To enable individuals, groups of individuals or other States An Optional Protocol is a supplementary and separate to directly raise complaints of human rights violations with treaty to the main human rights treaty. It is necessary for specific treaty bodies, a number of Optional Protocol’s have a member State to sign and ratify the Optional Protocol, in been created which provide individual complaints mecha- addition to the main human rights treaty. Optional Protocols nisms for relevant treaties. In the UN Human Rights Treaty provide an avenue of access to justice for individuals at inter- System, Optional Protocols do not amend the text of the national level. original treaty, but rather specify some obligations (a sub- stantive protocol) or create additional mechanisms to mon- The procedures they provide for can include an individual itor compliance with the original instrument (a procedural communication, an inquiry procedure and an inter-state pro- cedure. The communications procedure enables individuals protocol). So far, under the international human rights sys- or groups of individuals to bring a complaint before the rel- tem, five of the supervisory Committees (CCPR, CERD, evant treaty Committee alleging a violation of their human Human Rights Treaties rights by the State. The inquiry procedure authorises the With Complaint Procedures treaty Committee to investigate allegations of grave or sys- tematic violations of human rights by the State Party. Under OP-ICESCR, a State Party must have explicitly “opted-in” Treaty Individual Complaints Mechanism to this procedure for it to be available. Included in some (individual communications) Optional Protocols, there is an inter-state procedure such as ICCPR First Optional Protocol to the ICCPR the OP-ICESCR which allows one State Party to the mecha- ICESCR Optional Protocol to the ICESCR nism to bring a complaint against another State Party where (also provides for an inquiry procedure) that State has not fulfilled its obligations under the Cove- (opened for signatures in 2009) nant. However, this procedure must be explicitly accepted by both State Parties. CEDAW Optional Protocol to the CEDAW (also provides for an inquiry procedure) The Table at left lists human rights treaties that have individual complaints mechanisms. CERD Article 14 of CERD There are also procedures for complaints which fall out- CRC Optional Protocol to the CRC side the treaty body system, through the special procedures (opened for signatures in 2012) under the Human Rights Council Complaints Procedure and through the Commission on the Status of Women.1 CAT Article 22 of CAT (also provides for an inquiry procedure) 3.2 Common and differing features CRDP Optional Protocol to the CRPD of OP-CEDAW and OP-ICESCR
CMW Art 77 of the CMW The OP-CEDAW and the OP-ICESCR both allow for a com- munications procedure and an inquiry procedure. The pro- CED No individual complaints mechanism cedures for the CEDAW and ICESCR Optional Protocols are similar, but also contain slight differences (in bold).
28 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Three
Common and Differing Features of OP-CEDAW and OP-ICESCR
Procedures CEDAW ICESCR Communication
Interim Measures Request for interim measures made by the Committee to the State Party prior to considering admissibility or the merits, where its necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.
Admissibility Complaint is in writing Complainant is not anonymous Complaint is submitted on behalf of an individual or group of individuals The facts occurred after the State Party agreed to the Optional Protocol, or the facts continued after that date The complaint is not manifestly ill-founded The claimant must be a victim of a violation of a right under the Convention
All domestic remedies are exhausted (or are unavailable or ineffective)
Limitation period: None Limitation Period: Complaint must be submitted within 1 year of domestic remedies being exhausted
The complaint has not been considered by the Committee or another international investigation or settlement procedure.
Merits Whether the matter is within the jurisdiction of the relevant treaty.
Whether the State has met its obligations under the relevant treaty.
Remedies Individual remedies aimed at redress and repairing the harm to the victim.
Systematic remedies (eg law reform)
Friendly Settlement Not available The Committee makes available its offices to the parties to conduct conciliation with a view to reaching a mutually agreeable settlement
Inquiry Information must be reliable Information must be reliable State Party must not have opted Grave or systematic violation out of the inquiry procedure State Party must have specifically opted-in to inquiry Grave or systematic violation procedure
Inter-State Procedure Not available A State Party can submit a complaint about alleged violation committed by another State Party. Both States must have explicitly opted-in.
29 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Three
Notes !"$I"#XXW4"RD&"7U'/I",ESDRM"12UI.EF"/%2GR&%"RD&"d8;"7U'/I",ESDRM"12UI.EFH" $IMRERURE2I"YUEF%EISb"5L&M2FURE2I"+[!64"_DE.D"EM"RD&"-/MEM"K2L"RD&"&MR/-FEMD'&IR" 2K"/"I&_".2'GF/EIR"GL2.&%UL&"K2L"/%%L&MMEIS".2IMEMR&IR"G/RR&LIM"2K"SL2MM" /I%"L&FE/-FT"/RR&MR&%"JE2F/RE2IM"2K"DU'/I"LESDRM"EI"/".2UIRLT("8I%&L"RD&"1>A" 12''UIE./RE2IM"CL2.&%UL&4"/IT"EI%EJE%U/F4"I2I\S2J&LI'&IR/F"2LS/IEl/RE2I" 2L"I&R_2L3"'/T"MU-'ER"/".2''UIE./RE2I"2I"/I"/FF&S&%"JE2F/RE2I"2K"DU'/I" LESDRM"/KK&.REIS"RD&"LESDRM"2K"_2'&I"5___(UI(2LS[_2'&I_/R.D[%/_[.M_[ .2''UIE./RE2IMpGL2.&%UL&(DR'F6(
30 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
Part Four: Optional Protocol to the Convention On the Elimination of All Forms of Discrimination against Women
31 4 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Four
4. Optional Protocol to the Convention On the Elimination of All Forms Of Discrimination against Women 4.1 Overview The procedures under the OP-CEDAW are implemented by the CEDAW Committee, which consists of 23 interna- The Optional Protocol to the Convention on the Elimination tional independent experts who monitor implementation of All Forms of Discrimination against Women (OP-CEDAW) of the CEDAW Convention and State Parties’ compliance was adopted on 6 October 1999 and entered into force on with the CEDAW Convention. States that are a party to the 22 December 2000. It is a separate treaty, open to States Optional Protocol recognise the competence of the CEDAW Parties to the parent Convention, CEDAW. The OP-CEDAW Committee to receive and consider complaints from per- covers all the rights provided for in the CEDAW Convention, sons within their jurisdiction alleging violations of their rights including discrimination in access to economic, social and under the Convention. cultural rights. The OP-CEDAW is procedural in nature and The CEDAW Committee’s, views, findings and recom- does not establish new rights. mendations under either the communication procedure or Structure of OP-CEDAW inquiry procedure are not legally binding. However, States There are 21 Articles in OP-CEDAW which Parties have a general legal obligation to act in good faith cover the following areas: with regard to their participation in the procedures estab- lished by the OP-CEDAW and their obligations under the Articles 1-5 Communications Procedure; CEDAW Convention itself. Therefore, they are expected to comply with the CEDAW Committee’s views, findings and Article 5 Interim Measures; recommendations.
Articles 6-7 Procedural stages of communications The CEDAW Committee has established follow-up proce- procedure, CEDAW Committee’s dures designed to encourage the implementation of its rec- consideration of communication and ommendations under the OP-CEDAW. outcome of its consideration; Ratification Articles 8-10 Inquiry Procedure, including opt-out The OP-CEDAW is a separate treaty, which can only be rat- (Article 10); ified by States who are already parties to the CEDAW Con- Article 11 Obligation to ensure complainants are vention. States Parties must ratify or accede to the OP- not subjected to retaliatory measures; CEDAW, separately to the CEDAW Convention.1 As of 18 Articles 12-17 Publicity of activities related to March 2013 105 States Parties are signatories to the OP- OP-CEDAW by the CEDAW Committee CEDAW. and State Party, CEDAW Committee’s At the time of ratifying or acceding to OP-CEDAW States authority to develop its rules of Parties can make a reservation to “opt-out” of the inquiry procedure, entry in force, prohibition of procedure by declaring that they do not recognise the author- reservations to the OP (Article 17); ity of the CEDAW Committee to conduct inquiries. If a State Articles 18-21 Procedure for amending OP-CEDAW, Party does opt-out, the inquiry procedure cannot be used in denunciations, official languages of relation to that State. States cannot opt-out of the communi- the OP-CEDAW and transmission of cations procedure. OP-CEDAW text to State Parties. As of 18 March 2013 four of the States Parties that are
32 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Four UN PHOTO/ALBERT GONZÁLEZ FARRAN UN PHOTO/ALBERT
signatory to the OP-CEDAW have made reservations to opt- the provisions of the CEDAW Convention at issue. out of the inquiry procedure. These are Bangladesh, Belize, s )N CONSIDERING A COMMUNICATION THE #%$!7 #OMMITTEE Colombia and Cuba. members are expected to be impartial and independent. s 4HE #%$!7 #OMMITTEES VIEWS AS TO WHETHER A VIOLA- 4.2 Communications tion has occurred represent an authoritative determina- Procedure under OP-CEDAW tion of the matter. Although not legally binding, the communications procedure The OP-CEDAW sets out the requirements regarding the is characterised as “quasi-judicial” in nature because of the processing and consideration of communications and inqui- following characteristics: ries. s 4HE PROCEDURE IS ADVERSARIAL IN NATURE BOTH THE COMPLAIN- In addition, the CEDAW Committee has adopted Rules of ant and the State against which the communication is Procedure that set out more detailed requirements regard- being brought have an opportunity to present opposing ing the processing and consideration of communications and arguments in written form to the CEDAW Committee. requests for inquiries. The development of these is provided s 4HE #%$!7 #OMMITTEE ASSESSES THE SUFlCIENCY AND for in Article 14 of OP-CEDAW. credibility of evidence presented by the parties in order The Rules of Procedure cover requirements for the admis- to reach a conclusion on the facts of the case. sibility of communications, the Committee’s working meth- s 4HE #%$!7 #OMMITTEE APPLIES LEGAL RULES IN INTERPRETING ods for preparing decisions on communications, and the
33 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
rules governing the Committee’s decision-making process.2 in the absence of authorisation3 where: it can be proven that They were based primarily on the UN Human Rights Com- the alleged victim is unable to submit the communication in mittee’s Rules of Procedure for the First Optional Protocol person due to compelling circumstances, such as (i) follow- to the ICCPR. The jurisprudence of other human rights bod- ing an arrest the victim’s location is unknown;4 (ii) detained ies with communication procedures can also be drawn upon victims;5 (iii) when the death of the victim was caused by an to clarify the broad meaning of the procedural requirements act or omission of the State concerned;6 and (iv) proof that found in the OP-CEDAW. the alleged victim would approve of the representation.7 The diagram on pages 36-37 maps the main stages of the The practice implemented by the CEDAW Committee communications procedure, as outlined in the OP-CEDAW under the OP-CEDAW8 has required third parties seeking to and its Rules of Procedure. act without the consent of the victim/s to submit a written explanation of the justification for such action, taking into 4.2.1 Submitting a complaint under the account the specific context and circumstances of the case: communication procedure s THE NATURE OF THE ALLEGED VIOLATION Individuals or groups of individuals from States which have s THE CIRCUMSTANCES THAT MAKE OBTAINING THE CONSENT OF ratified the Convention and its Optional Protocol can submit the alleged victims unworkable or impossible; a complaint under the communication procedure. s THE CAPACITY OF THE THIRD PARTY TO REPRESENT THE INTERESTS Communications can also be submitted on behalf of indi- of the victims effectively, including attentiveness to the viduals or groups of individuals with their written consent, needs of victims; and or without such consent, where the complainant can justify s THE ABSENCE OF ANY CONmICT BETWEEN THE INTERESTS OF acting on their behalf: the victims and possible interests that third parties may s 2EPRESENTATIVES CAN INCLUDE LAWYERS FAMILY MEMBERS themselves have in relation to the claim. a national or international NGO or any other representa- Communication No. 5/2005 Goekce v Austria tive designated by the victim(s). The Vienna Intervention Centre against Domestic Vio- s %VIDENCE OF CONSENT CAN BE OFFERED IN THE FORM OF AN lence and the Association for Women’s Access to Justice agreement to legal representation, power of attorney, on behalf of Hakan Goekce, Handan Goekce, and Guelue or other documentation indicating that the victim(s) Goekce (descendants of the deceased)—The deceased has authorised the representative to act on her or their victim was represented by two NGOs. The authors main- behalf. tained that it was justified and appropriate for them to s %XAMPLES OF SITUATIONS WHERE IT MAY BE JUSTIlABLE TO submit the complaint on behalf of the victim since the vic- act on behalf of the complainant without their consent tim had died and would never be able to give consent. include: The authors also had the written consent from the City of Vienna office for Youth and Family affairs that was the o bringing a communication on behalf of a very large guardian of the victim’s children. The Vienna Interven- group of individuals—a “class” of victims—where it is tion Centre stated that it was able to submit the complain impractical to get consent from each victim; given that a) the family of the victims was its client and, o The victim(s) faces a risk of ill-treatment or other therefore, had a personal relationship with the victim; and forms of retaliation, including physical injury or b) the Vienna Centre was an organization working in the economic loss, if the complainant consents to the area of domestic violence. The Committee accepted this communication on their behalf; argument and admitted the communication.9 o The victim(s) may be in detention or other confinement, Although there is no provision for direct submissions of in serious ill health, or have the lack of legal authority amicus curiae information from third parties, such informa- to consent; tion will be considered if submitted by one of the parties. To The Human Rights Committee has allowed representation this end, the Committee decided recently to revise its model
34 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
communication form (although the modifications have not s 3TATUS AS A VICTIM CAN BE BASED ON ACTUAL HARM ALREADY yet been made) to include an instruction that expert informa- suffered, or potential harm arising from a risk that an tion, including in an amicus curiae brief, must be: offending law may be applied to the victim.10 s CHANNELED THROUGH THE AUTHOR AND s 4HE REQUIREMENT FOR COMMUNICATIONS TO NOT BE ANONY- mous can make it difficult for many vulnerable women, s PROVIDED WITHIN A REASONABLE TIME AFTER THE ORIGINAL SUB- such as women victims of violence, to bring complaints mission or within the deadline given to the author for forward. The author can request that identifying infor- this purpose. mation is concealed during the consideration and in the The process for a communication is intended to be as Committee’s final decision. straightforward as possible. The complainant does not need It is the established practice of the CEDAW Committee, to be a lawyer or to have a legal representative to submit other treaty bodies, including the Human Rights Commit- a complaint before the CEDAW Committee. However, the tee and the Committee against Torture, and of the regional assistance of a lawyer or other trained advocate is often human rights bodies, that, if requested, they will suppress advisable given the legal and procedural intricacy of com- the name of the alleged victim in published documents. Ini- plaints. Legal advice may also improve the quality of the sub- tials or pseudonyms are substituted for the names of vic- missions in terms of the persuasiveness of the presenta- tims and/or authors.11 This occurred in two CEDAW Commit- tion of facts and how they represent a violation of economic, tee communications including Ms B.- J. v. Germany and Ms social and cultural rights. The United Nations does not pro- A.T. v. Hungary. vide legal aid or financial assistance for complainants and does not mandate that States Parties provide legal aid. Com- c) The complaint must concern a State Party to the plainants should verify whether legal aid in their countries is CEDAW Convention and to OP-CEDAW. available for bringing complaints under international mech- s ! COMMUNICATION MUST BE DIRECTED AGAINST A 3TATE 0ARTY anisms and whether non-governmental organisations offer and not against a non-State entity, such as a private assistance free of charge. individual, a private company or corporation or an inter- governmental organization. Where the alleged violation Some of the requirements for submitting a complaint relates to the conduct of non-State actors, the claim contained in the text of the Optional Protocol and the must be based on the obligation of the State Party to Rules of Procedure, include: prevent or respond to the alleged violation. a) The complaint must be in writing in one of the six offi- s 4HE VICTIM MUST BE hUNDER THE JURISDICTION OF THE 3TATE cial UN languages (English, French, Spanish, Chinese, Party.” That is, they must be: Arabic and Russian). o within the territory of the State Party; s /RAL RECORDED OR VIDEO TAPED COMMUNICATIONS ARE NOT o in territory under the effective control or occupation of allowed. However, communications may be accompa- the State Party; or nied by documentation and information in various for- o otherwise subject to the jurisdiction of the State Party mats to support and/or to prove the violation of the (eg, issue of passports). rights at issue. s &OR EXAMPLE WHERE AN INDIVIDUAL IS NOT LEGALLY ADMIT- b) The communication must not be anonymous (individ- ted to the territory of a State Party but faces violations uals may however request that identifying information while under the control of officials from the State Party, is not published in the Committee’s final decision). then the State Party is still considered to have jurisdic- s 4HERE MUST BE AN IDENTIlABLE hVICTIMvAN INDIVIDUAL tion over that person. or group of individuals that have been personally and Communication No. 15/2007— directly affected by a concrete violation of a human right Ms. Zhen Zhen Zheng v. The Netherlands recognized under CEDAW. The victim was a Chinese asylum seeker living in the
35 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four # PartSection Four #
Communications Procedure If inadmissible, communication is dismissed Violation(s) 1. Acts or failure to act by government official 2. Acts of non-governmental persons, groups, or enterprises (SP has duty to prohibit ‘private’ discrimination) Reexamine admissibility in light Recommendations: Submitted by “author” of SP’s and other If violation is found, Committee may information (victim, representative or others “on behalf”) Request for interim measures to Other sources direct SP to provide general and/or specific remedies including: Receivability requirements protect against irreparable harm of info: 1. written (discretionary) 1. NGO reports 1. Restituition, compensation, rahabilitation, or other remedy for 2. UN reports 2. not anomymous victim(s) including reports If admissible, Standing Requirements of Special Committee considers 2. Steps to end ongoing violation Author must be: Rapporteurs substance of claims in against victim(s) and prevent Admissible repetition of violation 1. Individual victim or group of individual victims 3. Analysis of light of “all available information.” 2. Designated representatives of victim(s) - need not national or 3. Review or change laws and be under the jurisdiction of the State Party (SP) international law practices in violation of Convention 3. Others ‘on behalf of’ victim(s) of (a) consent by 4. Documentary victim(s), (b) ‘justified‘ in acting on behalf of without evidence consent Communication forwarded to SP including Victim(s) must have: testimonies, Committee videos, 1. suffered harm issues views and photography, etc. recommendations 2. been under SP’s jurisdiction at time of violation SP duties: 1. Give ‘due consideration’ to views Subject matter jurisdiction: SP responds within 6 months, with and recommendations Violation of right defined in Arts. 2-16 of Convention, or 1. Info about remedy already provided 2. Written response within 6 months derived from right stated in Convention or interpreted as (if any) pre-condition for enjoyment of right explicitly recognised about action taken 2. Legal and factual arguments against in the Convention Views determine 3. Good faith obligation to comply, author’s claim, including info whether there has even though not legally bound challenging admissibility been a violation Reasons for inadmissibility 1. Failure to exhaust domestic remedies, unless within recognised exceptions of ‘unreasonable delay’ or ineffective remedy Committee considers communication 2. Same matter examined by Committee or other Committee may request international procedure follow-up information 3. ‘Incompatible with provisions of Convention’ Key
4. ‘Manifestly ill-founded’ or not ‘sufficiently Inadmissible substanstiated’ Admissible Inadmissible Procedure Communication may be resubmitted 5. Abuse of the night to submit communication if additional information would make if Victim, author, or NGOs may submit 6. Events occured before OP entered into force for SP admissible information on action taken by SP Produced for IWRAW Asia Pacific by students at the International Human Rights Law Clinic, New York University School of Law (2000/2001) 36 37 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
Netherlands. She complained that she was a victim of a Muzard-Fekkar and Adèle Daufrene-Levrard (represented violation by the State Party of Article 6 of CEDAW. Due to by SOS Sexisme) v. France the negligence of the State Party, she was traumatized during The Committee found that as Ms. Dayras and Ms. Zeghouani the asylum procedure and became suicidal as a result of the are not married, do not live in husband-and-wife relationships insecurity of her situation. The victim was under the jurisdiction and do not have children, they cannot claim rights pertaining of the State Party. Although the Committee ultimately found to the use or the transmission of family names and cannot the communication inadmissible on the grounds of failure to be victims of a right whose beneficiaries are only married exhaust domestic remedies, the Netherlands was recognized women, women living in de facto unions or mothers. They as having to legal jurisdiction over the victim. have not personally been adversely affected by French legislation and therefore lack the quality of victim. d) The individual must claim to be a victim of a violation of a right enshrined in CEDAW.12 The CEDAW Commit- e) The complaint should include the following: tee’s General Recommendations and Concluding Obser- s 4HE RELEVANT FACTS INCLUDING ANY SUPPORTING DOCUMENTA- vations are important sources to refer to for understand- tion, and an indication of what provisions of the Conven- ing the full scope of specific rights under CEDAW. tion are alleged to have been violated by the State Party. In the cases listed in the chart on page 50, the CEDAW Although failure to name the Articles of the Covenant Committee discussed and interpreted the meaning of “vic- alleged to be violated would not affect the Committee’s tim” under the Convention. decision regarding the admissibility of the communica- TION IT CAN INmUENCE THE UNDERSTANDING OF THE MATTER AT Communication No. 12/2007— issue.13 It is important to submit the communication as G. D. and S. F. v. France The Committee held that the authors failed to show that completely as possible and to include all relevant informa- they suffered any sex-based discrimination by bearing their tion on the case. The complainant should set out, ideally father’s family name. There was no discrimination as the in chronological order, all the facts on which her claim is family name they are given is not dependent on their sex. The based. For example, a group of women from a rural com- Committee therefore concluded that the authors lacked the munity that does not have reasonable access to mater- quality of victims under Article 2 of the Optional Protocol and nal health care, alleges that the State failed to take steps the communication was inadmissible. to ensure access for this community. Although the com- The dissenting opinion found that the test of victim sta- plainants will not be asked to list all the Articles that have tus is whether the authors have been directly and personally been violated, they will be expected to make the neces- affected by the violations alleged. The authors have suffered sary efforts to provide as much information as possible, sex-based discrimination by bearing their fathers’ family regarding the population that lives in the area, the lack names in their civil status documents, and that that discrim- of access to the health system, the chronology of the ination was based on discriminatory and sexist customary facts, the context of the situation, whether there is dis- rules on transmission of family names which were in force parate access for men and women because of limited at the time of their births. The legislation governing fam- hours or lack of transportation, etc., to give the Commit- ily names discriminates against women by prohibiting the tee enough information to recognize the violation and 14 transmission of or change of family name to the mother’s examine the claim. family name only and that the lack of choice with respect to s )NFORMATION ABOUT STEPS TAKEN TO EXHAUST DOMESTIC a mother’s family name, as the family name to be transmit- remedies at the national level. This means that the case ted to her children or changed, constitutes sex-based dis- must have been brought at the national level, negative crimination against women as defined in Article 1 of the Con- decisions appealed as possible, taken to relevant admin- vention and prohibited under Articles 2, 5 and 16 (1). istrative bodies if relevant or otherwise evidence be shown why national remedies are ineffective, unavail- Communication No. 13/2007— able or unreasonably prolonged. Michèle Dayras, Nelly Campo-Trumel, Sylvie Delange, Frédérique Remy-Cremieu, Micheline Zeghouani, Hélène s )MPORTANTLY THE #%$!7 #OMMITTEE DOES NOT PLACE
38 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
any time restrictions on when a communication can be “Interim measures” are usually requested when they are made.15 necessary to protect the victim from physical or mental harm s !N INDICATION OF WHETHER THIS MATTER IS OR HAS BEEN or action that could have an irreversible impact on the vic- before any other procedure of international investigation tim’s rights. For example, if a complainant is in custody and or settlement.16 under threat of torture or risks losing her life, the Committee could instruct the authorities to provide adequate protection A model communication form is available from the CEDAW for her. Another example is the provision of maintenance Committee at: http://www2.ohchr.org/english/law/cedaw- to a woman from her spouse or partner where this issue is one.htm. It is also available in IWRAW Asia Pacific’s “Our under review, and where receiving such resources immedi- Rights Are Not Optional: Advocating for the implementation ately is a matter of survival for her and her children. of the Convention on the Elimination of All Forms of Discrim- ination against Women (CEDAW) through its Optional Proto- Communication No. 2/2003—Ms. A. T. v. Hungary col. A Resource Guide, which can be accessed in various lan- The author made a request for interim measures of protection guages at http://www.iwraw-ap.org/publications/opcedaw. to avoid possible irreparable damage to her person—that is to save her life—which she felts was threatened by her violent htm. former partner. The Committee requested the State Party Communications can be submitted in to provide immediate, appropriate and concrete preventive writing and signed to: interim measures of protection to the author, as may be necessary, in order to avoid irreparable damage to her person. The CEDAW Committee Office of the High Commissioner for Human Rights United Nations Office 4.2.3 Consideration of a communication 1211 Geneva 10, Switzerland In considering a communication under OP-CEDAW the Fax: +41 22 917 9022 CEDAW Committee will consider three aspects: For further information: s 4HE ADMISSIBILITY OF THE COMMUNICATION E-mail: [email protected] s 4HE MERITS OF THE COMMUNICATION AND Or call on Tel: +41 22 917 1234 s 4HE REMEDIES AVAILABLE AND FOLLOW UP Confidentiality The Committee will form a Working Group of up to 5 All working documents and deliberations related to commu- members to prepare the communication for consideration nications are confidential and the discussions by the Work- by the full Committee. The Working Group assigns a Rap- ing Group and the full Committee related to communications porteur, who prepares analyses of the procedural and sub- are held in closed sessions. Members of the CEDAW Com- stantive issues related to the communication and draft texts mittee are prohibited from making public any information for consideration by the Working Group. The Working Group related to communications prior to a determination being meets one week prior to the Committee’s regular session. made. The parties to the communication (ie the State Party The Working Group has authority to declare a communica- and the author of the communication) can make information tion admissible if all members agree. If there is no unanimity related to the communication public. The Committee can among its members that the communication is admissible, request the parties not to do so, although it cannot require the Working Group must refer the decision on admissibil- them to maintain confidentiality. ity for decision by the full Committee. Based on discussion among its members, the Working Group transmits its rec- 4.2.2 Interim Measures ommendations and a draft text for review and discussion by the full Committee. After receiving a communication, but before making a deter- mination on admissibility or the merits of the communica- The full Committee considers the communication in light tion, the CEDAW Committee can request the State Party to of the Working Group’s recommendations and any additional take interim measures necessary to avoid possible irrepara- points raised by members in the discussions of the Commit- ble damage to the victim or victims of the alleged violation. tee as a whole. It then takes a decision as to its views and 39 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
recommendations. The decision is generally reached by con- Communication No. 1/2003—Ms. B.-J. v. Germany sensus but may be reached by simple majority if no consen- The dissenting opinion found that given the author’s age and sus is possible. Members of the Committee may register that since her divorce she had lived without a reliable income individual concurring or dissenting opinions. for five years and had few prospects for being able to earn an independent income—that the application of remedies was “unreasonably prolonged,” which is an exception to the rule 4.2.4 Admissibility of exhaustion of domestic remedies. A number of technical legal requirements must be met in order for the communication to be admissible. A communi- Communication No. 12/2007—G. D. and S. F. v. France The Committee found that although the domestic remedies cation will be declared inadmissible if: had not been exhausted because the appeals before the Paris s !LL AVAILABLE DOMESTIC REMEDIES HAVE NOT BEEN Administrative Tribunal and the Paris Administrative Court of exhausted. Appeal were pending, the application of the remedy provided by Article 61-1 of the Civil Code was both unreasonably Communication No. 1/2003—Ms. B.-J. v. Germany prolonged and unlikely to bring effective relief. The Committee found that the author had not exhausted domestic remedies concerning the issue of the equalization To be effective the relief must be comprehensive enough of pensions, because the author was reasonably expected to to cover restitution, compensation or rehabilitation for the include a specific appeal on the issue to the appellate court, victim(s) and/or action to prevent the violation from happen- as well as in her constitutional complaint. The Committee also held that an improperly filed constitutional complaint cannot ing again. To be effective, a remedy must be capable of pro- constitute an exhaustion of remedies. ducing the result for which it was designed and it must offer a reasonable prospect of success or a reasonable possibil- Communication No. 8/2005—Rahime Kayhan v. Turkey ity that it will prove effective. Core elements of an effective The Committee found that the author had not exhausted remedy include: domestic remedies because she had not put forward arguments that raised the matter of discrimination based on sex s ENFORCEABILITY in substance and in accordance with procedural requirements s THE INDEPENDENCE OF THE DECISION MAKING BODY AND ITS in Turkey before the administrative bodies that she addressed reliance on legal standards; before submitting a communication to the Committee. s THE ADEQUACY OF DUE PROCESS PROTECTIONS AFFORDED THE Communication No. 11/2006— victim; and Ms. Constance Ragan Salgado v. The United Kingdom of s PROMPTNESS Great Britain and Northern Ireland The Committee stated that in line with a longstanding Legal and practical barriers that would make a remedy jurisprudence of other international human rights treaty futile or inaccessible include: bodies, in particular the Human Rights Committee, authors of communications are required to raise in substance before s WIDESPREAD DISCRIMINATION IN THE COURTS domestic courts the alleged violation of the provisions of s REFUSAL OF OFlCIALS TO INVESTIGATE VIOLATIONS CEDAW, which enables a State Party to remedy an alleged s LACK OF lNANCIAL RESOURCES TO BRING A CLAIM THROUGH ALL violation before the same issue may be raised before the Committee. stages of the legal procedure; s INTIMIDATION OR THREATS BY OFlCIALS FAMILY MEMBERS OR s )T IS NOT NECESSARY TO hEXHAUSTv DOMESTIC REMEDIES IF members of the community; 1. No remedies for the violation are available; s LACK OF LEGAL CAPACITY LACK OF DUE PROCESS OR IF THERE IS 2. Remedies available are “unreasonably prolonged” no law on which to base the claim directly or indirectly (unreasonably time-consuming). hence the right concerned is not legally recognised 3. Remedies available are “unlikely to bring effective at the national level but is provided for in the CEDAW relief.” Convention.
40 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
Communication No. 5/2005— The Vienna Intervention Centre against Domestic Violence What constitutes an (available, and the Association for Women’s Access to Justice on behalf of Hakan Goekce, Handan Goekce, and Guelue adequate and) effective domestic Goekce (descendants of the deceased) v. Austria remedy? The Committee found that Sahide Goekce’s heirs not availing s 4HE CASE HAS BEEN CONSIDERED BY ALL APPROPRIATE themselves of the procedure under Article 140, paragraph legal or administrative fora within the domestic 1, of the Federal Constitution, did not prevent them from meeting the requirement of exhaustion of domestic remedies legal system without a proper review or assess- because the abstract nature of this remedy meant that it ment of the alleged violations; would not be likely to bring effective relief. s 4HE CASE HAS BEEN CONSIDERED BY ALL APPROPRI- The Committee also found that the entitlement of Sahide ate mechanisms but appropriate remedies do not Goekce to bring a complaint under section 37 of the exist; Public Prosecutor’s Act—which is designed to determine s 4HE DOMESTIC REMEDY AVAILABLE PROVIDES INADE- the lawfulness of official actions of the responsible Public quate restitution, compensation, rehabilitation or Prosecutor — cannot be regarded as a remedy which is likely to bring effective relief to a woman whose life is under a other relief to the victim; dangerous threat, and should thus not bar the admissibility of s ,EGAL BARRIERS EG LACK OF LEGAL CAPACITY PREVENT the communication. the victim from seeking redress;
Communication No. 15/2007— s 4HE VICTIM HAS BEEN DETERRED OR PREVENTED FROM Ms. Zhen Zhen Zheng v. The Netherlands seeking redress through intimidation or threats; The Committee refered to the Human Rights Committee s 7IDESPREAD GENDER DISCRIMINATION IN THE ADMIN- jurisprudence, according to which mere doubts about the istration of justice or weakness in the rule of law effectiveness of the remedies do not absolve an individual from exhausting domestic remedies. that generally render the domestic procedures ineffective; Communication No. 18/2008— s 0RACTICAL CONSTRAINTS RENDER THE REMEDY INACCES- Karen Tayag Vertido v. Philippines sible (e.g. financial costs that are so burdensome The Committee found that for a remedy to be effective, “adjudication of a case involving rape and sexual offences as to prevent the victim from pursuing the remedy claims should be dealt with in a fair, impartial, timely and available; a geographic location that makes the rel- expeditious manner’. The Committee found that the case evant forum inaccessible to the victim; or a failure remaining at the trial court level from 1997 to 2005 was not by the State Party to provide translation where the an effective remedy. victim is unable to speak or comprehend the work- ing language of the relevant forum); and Communication No. 22/2009— T. P. F. (represented by the Centre for Reproductive s 4HE DOMESTIC REMEDY ITSELF INCORPORATES DISCRIM- Rights and the Promotion and Protection of Sexual and inatory elements, such as restrictions on the evi- Reproductive Rights) v. Peru dentiary weight of women’s testimony. In light of the urgency of the situation of the victim, the Committee found that it was not reasonable to require that, in In all cases, whether it is alleged that domestic reme- addition to the lengthy procedure before medical authorities, dies have proven inadequate or unavailable, the com- the author should have to initiate a court proceeding of an munication submitted to the CESCR must be fully sub- unpredictable duration and hence the Committee found that stantiated with evidence and a detailed account of the domestic remedies had been exhausted. steps taken at the domestic level. s 3UCH EXCEPTIONS ALLOW THE #OMMITTEE TO INTERPRET THE Source: A Resource Guide Our Rights are not Optional, Advocating through the implementation of the Convention on the Elimination of All Forms of Dis- “exhaustion” requirement in light of the obstacles that crimination against Women through its Optional Protocol, IWRAW Asia Pacific, women face when seeking redress. 2008 (2nd Edition)
41 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
In analyzing the exhaustion of domestic remedies, inter- action measures to increase the number of women sectional discrimination (e.g. race, gender, ethnic, nation- candidates for political office). ality, economic condition, etc.) and the social, economic, Communication No. 7/2005— political and legal environment that contributes to discrimi- Cristina Muñoz-Vargas y Sainz de Vicuña v. Spain nation and experiences of oppression and privilege should In a dissenting opinion, 8 members of the Committee found be taken into account. Evidence of a pattern of defects in that the title of nobility in question was of a purely symbolic the administration of justice, such as discriminatory rules of and honorific nature, devoid of any legal or material effect. evidence or a widespread refusal by the judiciary and/or the Consequently, they considered that claims of succession to police to apply existing legal protections to migrant women, such titles of nobility are not compatible with the provisions of women with disabilities, lesbians, bisexual or transgender, the Convention, as there is no impairing or nullifying of a right. indigenous women or women from racial and ethnic minor- s #LAIMS RELATED TO RIGHTS SUBJECT TO RESERVATIONS ARE ALSO ity groups, can demonstrate the ineffectiveness of the rem- inadmissible, if the reservation is one that is permissi- edies in question. ble and the scope of the reservation covers the specific s 4HE SAME MATTER HAS ALREADY BEEN EXAMINED BY THE rights allegedly violated. CEDAW Committee or has been or is being examined o The matter is manifestly ill-founded or not sufficiently under another procedure of international investigation substantiated. or settlement. s ! COMMUNICATION WILL BE CONSIDERED hMANIFESTLY ILL The Committee will consider both the facts and the con- founded” if it: tent of the rights in question. If the facts have changed sig- o Alleges violations of rights that are not guaranteed by nificantly, or the claims were raised through other interna- CEDAW; tional procedures by a different individual, the Committee may decide that the communication is admissible. o Relies on an incorrect interpretation of the Convention; or Communication No. 8/2005—Rahime Kayhan v. Turkey The Committee referred to Fanali v. Italy (communication o Alleges facts that unquestionably indicate that the No. 075/1980) in which the Human Rights Committee held: State Party’s act or omission is consistent with its “the concept of “the same matter” within the meaning of obligations under CEDAW. Article 5 (2) (a) of the Optional Protocol to ICCPR had to be s 4O MEET THE REQUIREMENT OF hSUFlCIENT SUBSTANTIATION v understood as including the same claim concerning the same details should be provided concerning the specific situ- individual, submitted by him or someone else who has the standing to act on his behalf before the other international ation of the victim(s). body.” Applying this interpretation the CEDAW Committee s )T IS NOT SUFlCIENT TO MAKE BROAD CLAIMS ABOUT THE GEN- held the communication was admissible because the author eral situation, such as “the police do not enforce the is a different individual to the one who brought another case domestic violence law” or “the health care system fails regarding the veil before the European Court of Human to address the needs of older women” or to merely Rights. present statistics (e.g. the rate of illiteracy among s 4HE MATTER IS INCOMPATIBLE WITH THE PROVISIONS OF women, differences in pay, etc.). The Committee will CEDAW. declare such communications inadmissible. The facts o A communication may be considered “incompatible” about the general situation must be related to the spe- if it raises claims beyond the scope of the CEDAW cific harm (or threat of harm) to the victim(s). If a com- Convention (e.g. a claim that a State Party has munication meets this test, additional information can violated a group’s right to self-determination) or if it be submitted later, either to further substantiate the SEEKS A RESULT THAT CONmICTS WITH THE OBJECTIVES OF claim or if new relevant information becomes attainable. the Convention (e.g. a claim that woman’s parental s 4HE MATTER IS AN ABUSE OF THE RIGHT TO SUBMIT A COMMU- responsibilities will be undermined by affirmative nication.
42 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
s )T WILL BE CONSIDERED AN ABUSE OF THE RIGHT TO SUBMIT A Communication No. 8/2005— communication if: Rahime Kayhan v. Turkey The Committee found that while the author’s dismissal o The author’s purpose is to harass or defame an occurred before the OP-CEDAW came into force in Turkey, individual; the dismissal continued to affect the author’s loss of status, o There is some other malicious intent; namely her means of subsistence to a great extent, the deductions that would go towards her pension entitlement, o The claim has been previously found by the Committee interest on her salary and income, her education grant and to be unfounded; or her health insurance. The Committee held this constituted a o The facts of the communication occurred prior to the continuation of the facts. entry into force of the Optional Protocol for the State s 4HE #OMMITTEE CAN ALSO ADMIT A COMMUNICATION IF THE Party concerned, unless those facts continued after State Party has failed to remedy ongoing consequences that date. of a past violation. In this case, the State’s inaction can Communication No. 1/2003—Ms. B.-J. v. Germany be viewed as an affirmation of its previous violation.17 The Committee did not consider elements of the The determination of admissibility focuses on an assess- communication relating to the equalisation of pensions ment of the specific facts of the case. It is therefore espe- because the author’s divorce was finalised together with the cially important to present a detailed description of the facts matter of the equalization of pensions prior to the OP-CEDAW entering into force in Germany and the Committee found of the case, including: the alleged violation; the victim’s per- there were no facts that continued after that date. sonal circumstances; and where systemic conditions or vio- lations are relevant, the broader factual context of the case. Communication No. 3/2004 — It is also useful to refer to established interpretations of Ms. Dung Thi Thuy Nguyen v. The Netherlands admissibility requirements developed by other human rights The Committee found that while the first period of pregnancy bodies to which the CEDAW Committee is also likely to refer leave occurred before the OP-CEDAW had entered into force such as the need to apply the rule of exhaustion of domestic in the Netherlands, the second period of pregnancy leave extended beyond the date OP-CEDAW had entered into force REMEDIES WITH A DEGREE OF mEXIBILITY RATHER THAN UNDUE FOR- 18 in the Netherlands and therefore the communication was not malism, given the context of protecting human rights. declared inadmissible on this requirement. To date, of the 20 communications considered, 10 of them have been held inadmissible. The most common reason Communication No. 4/2004— for inadmissibility has been failure to exhaust domestic Ms. A. S. (represented by the European Roma Rights Center and the Legal Defence Bureau for National and remedies. Ethnic Minorities) v. Hungary If the communication is found to be inadmissible, it is Although the sterilisation took place before the OP-CEDAW dismissed. Where the CEDAW Committee decides that a came into force in Hungary, the Committee found that communication is inadmissible, the decision and the rea- sterilization is intended to be irreversible and should be viewed sons for it are communicated through the CEDAW Secretar- as permanent. Therefore the facts that are the subject of the communication to be of a continuous nature and therefore iat at the Office of the High Commissioner for Human Rights extend beyond the date that the OP-CEDAW came into force to the author of the communication and to the State Party in Hungary. concerned. A decision of the Committee declaring a communica- Communication No. 7/2005— tion inadmissible may be reviewed by the Committee upon Cristina Muñoz-Vargas y Sainz de Vicuña v. Spain The Committee found that the succession to the title was the receipt of a written request submitted by or on behalf of the event that was the basis of the author’s complaint, and was author or authors of the communication, containing informa- completed before the OP-CEDAW came into force in Spain, tion indicating that the reasons for inadmissibility no longer and that the event was not of a continuous nature. apply.
43 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
4.2.5 Merits Communication No. 2/2003—Ms. A. T. v. Hungary In a communication relating to domestic violence, the If the communication meets the admissibility requirements, Committee recalled its General Recommendation No. 19 only then will the CEDAW Committee consider the merits of on Violence against Women. The Committee also recalled the claims raised. its recommendations made in its Concluding Comments on Hungary’s combined fourth and fifth periodic report in 2002. In considering the merits, the Committee bases its find- ings regarding the facts on the written information presented Communication No. 18/2008— by the complainant and by the respondent State. The Com- Karen Tayag Vertido v. The Philippines mittee will consider a communication even if the respondent The Committee acknowledged that the text of the Convention State does not submit a response to the communication as does not expressly provide for a right to a remedy, however, the OP requires it to do. such a right is implied in the Convention, in particular in Article 2 (c), by which States Parties are required “to establish legal Both parties have an opportunity to review and respond to protection of the rights of women on an equal basis with men the other party’s submissions. The Committee can request and to ensure through competent national tribunals and other additional information from the parties subsequent to the public institutions the effective protection of women against parties” initial submissions. The parties can provide informa- any act of discrimination.” The Committee further found that tion from other sources on the record but third parties can for a remedy to be effective, adjudication of a case involving not submit information directly to the Committee. rape and sexual offenses claims should be dealt with in a fair, impartial, timely and expeditious manner. In considering the merits, the Committee may request the Secretariat to obtain information from organizations in the Communication No. 20/2008— UN system or other bodies that may assist it in the resolu- Ms. V. K. (represented by counsel, tion of the communication. The communications procedure Ms. Milena Kadieva) v. Bulgaria The Committee recalled General Recommendation 19 which does not allow for oral hearings, on-site visits or interviews. notes that gender based violence is not limited to acts that All information must be provided in written submissions. INmICT PHYSICAL HARM BUT ALSO COVERS ACTS THAT INmICT MENTAL OR The scope of the factual information considered by the sexual harm or suffering, threats of any such acts, coercion Committee in a communication focuses closely on the set and other deprivations of liberty. of facts related to the claim, because a communication is Communication No. 22/2009— intended to resolve claims brought by individual victims. The T. P. F. (represented by the Centre for Reproductive communication may address systemic factors in consider- Rights and the Promotion and Protection of Sexual and ing the broader context at the national level within which Reproductive Rights) v. Peru the facts related to the individual claim took place, but com- The Committee found that, owing to her condition as a monly is more narrowly focused than in an inquiry. pregnant woman, L. C. did not have access to an effective and accessible procedure allowing her to establish her entitlement In considering the merits, the CEDAW Committee to the medical services that her physical and mental condition will consider whether: required. Those services included both spinal surgery and therapeutic abortion. a) The violation is within the “subject matter jurisdiction” of the OP-CEDAW. This means the violation must be of a right s )NTERPRETED AS A PRECONDITION FOR THE ENJOYMENT OF AN recognised in Articles 2-16 of the CEDAW Convention. If a explicitly recognised right (e.g. in the case of free- right is not explicitly spelled out in the Convention, it can dom of movement which is necessary to exercise still be within the “subject matter jurisdiction” of the OP- the right to participation in political life); or CEDAW if it can be: s $EFINED AS A SPECIFIC ASPECT OF A RIGHT THAT IS s $ERIVED FROM ONE OR MORE RIGHTS THAT ARE EXPLIC- recognised in more general terms (e.g. the right itly recognised (e.g. in the case of violence against to be informed of health hazards in the workplace women, which the Committee has found violates as an aspect of the right safe and healthy working multiple rights in the CEDAW Convention); conditions).
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Communication No. 18/2008— Communication No. 3/2004— Karen Tayag Vertido v. Philippines Ms. Dung Thi Thuy Nguyen v. The Netherlands The Committee noted that there was an implied right to The Committee found that the State had a margin of discretion remedy in Article 2 (c) of CEDAW which requires States to to determine the appropriate maternity benefits within the provide legal protection of the rights of women. meaning of Article 11, paragraph 2 (b) of the Convention for all employed women, and therefore there had been no violation. Communication No. 18/2008— The dissenting opinion found that while there was no direct Karen Tayag Vertido v. Philippines discrimination, the anti-accumulation clause could constitute The Committee notes that “by Articles 2 (f) and 5 (a), the a form of indirect discrimination based on sex against self- State Party is obligated to take appropriate measures to employed women. modify or abolish not only existing laws and regulations, but also customs and practices that constitute discrimination Communication No. 5/2005— against women. In this regard, the Committee stresses that The Vienna Intervention Centre against Domestic Violence stereotyping affects women’s right to a fair and just trial and and the Association for Women’s Access to Justice on THAT THE JUDICIARY MUST TAKE CAUTION NOT TO CREATE INmEXIBLE behalf of Hakan Goekce, Handan Goekce, and Guelue standards of what women or girls should be or what they Goekce (descendants of the deceased) v. Austria should have done when confronted with a situation of rape The Committee referred to the due diligence obligations based merely on preconceived notions of what defines a rape of the State as outlined in the CEDAW Committee General victim or a victim of gender-based violence, in general.” The Recommendation 19: “[U]nder general international law Committee found that the court had relied on stereotypes and specific human rights covenants, States may also be and gender-based myths in the judgment and the State failed responsible for private acts if they fail to act with due diligence to fulfil its obligations under Article 2 (c) and (f), and Article 5 to prevent violations of rights or to investigate and punish acts (a) read in conjunction with Article 1 of the Convention and of violence, and for providing compensation.” General Recommendation No. 19 of the Committee. Communication No. 17/2008— b)The act or failure to act (an “omission”) by a State Party Maria de Lourdes da Silva Pimentel, represented by the has adversely affected the victim’s enjoyment of a right Center for Reproductive Rights and Advocacia Cidadã under the CEDAW Convention; or that there is a real threat pelos Direitos Humanos v. Brazil In this case the Committee found that “Ms. da Silva Pimentel of such. The adverse affect must be shown to be causally Teixeira’s vulnerable condition required individualized medical linked to an act by the State Party or failure by the State treatment which was not forthcoming due to a potential Party to take action required under the CEDAW Convention. failure in the medical assistance provided by a private health To find that the State Party has committed a “violation institution, caused by professional negligence, inadequate through omission,” the Committee `would analyse whether infrastructure and lack of professional preparedness. The Committee concluded that Ms. da Silva Pimentel Teixeira has it has an obligation under the CEDAW Convention to take a not been ensured appropriate services in connection with her general and/or specific action, then consider the facts of the pregnancy.” case to see if the State Party has failed to take that action. The State Party has two types of obligations: Even though it was a private hospital that did not provide the appropriate treatment, the Committee concluded that s $UTIES TO TAKE A SPECIFIC MEASURE EG GRANTING in accordance with Article 2(e) of CEDAW the State has a women equal rights to administer property); and due diligence obligation to take measures to ensure that the s $UTIES TO ACHIEVE A RESULT BY USING MEASURES THAT THE activities of private actors in regard to health policies and State Party chooses (e.g. eliminating discrimination practices are appropriate. The State is directly responsible against women in the field of health care). for the action of private institutions when it outsources its Under the due diligence standard, State Parties must medical services, and has the duty to regulate and monitor take “reasonable steps” to prevent human rights violations, private health-care institutions. investigate, impose the appropriate punishment and provide The Committee will analyse the language of specific Arti- adequate redress to the victims. cles and then consider any interpretations of that language
45 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
or similar language in other human rights instruments. The socio-economic background, and referred to the Committee’s Committee could refer to its own General Recommenda- Concluding Observations of Brazil in 2007 in which it had tions and Concluding Observations, established interpreta- noted the de facto discrimination experienced by women from vulnerable sectors of society. tions of other human rights instruments that have provisions similar to those in CEDAW, and other sources of interna- Communication No. 23/2009—Inga Abramova v. Brazil tional law, such as the opinions of scholars and consensus “Violence which impairs or nullifies the enjoyment by women REGARDING BEST PRACTICE AS REmECTED IN COMMITMENTS MADE of human rights and fundamental freedoms” including “the in plans of action adopted at various UN world conferences. right not to be subjected torture, cruel, inhuman or degrading treatment punishment,” constitutes discrimination within the Communication No. 15/2007— meaning of Article 1 of the Convention (para. 7 (b)). Ms. Zhen Zhen Zheng v. The Netherlands The Committee recalled that in the Concluding Observations The Committee found that the inappropriate touching, issued to the State Party in 2007, the Committee urged the unjustified interference with the author’s privacy constitutes State Party to provide all necessary benefits to victims of sexual harassment and discrimination within the meaning of trafficking regardless of whether they are able to cooperate. Articles1 and 5 (a) of CEDAW.
Communication No. 23/2009— Given that violations may be based on one or more of the Inga Abramova v. Belarus CEDAW Convention rights, it may be assumed that as cases The Committee referred to Standard Rule 53 of the Minimum are brought recommendations will touch on many, if not all Rules for the Treatment of Prisoners, General Assembly areas, of the Convention. Therefore, although most States Resolution 65/299 on the United Nations Rules for the will have constitutional or legislative provisions that prohibit Treatment of Women Prisoners and Non-custodial Measures discrimination on the basis of sex, the concept of discrimina- for Women Offenders (the Bangkok Rules) and the Human tion—how it should be recognised and interpreted, and how Rights Committee’s General Comment No 28. it might be remedied—will be investigated and documented As increasing cases of violations of women’s human through this process. In turn, this documentation will be vital rights are brought before the CEDAW Committee, more IN INmUENCING THE ENACTMENT EXECUTION AND INTERPRETATION OF precise definitions of what constitute a violation of rights as laws within State Parties. enshrined in the CEDAW Convention will emerge. Once the Committee’s views and recommendations have Communication No. 17/2008— been adopted they are made publicly available on the Com- Maria de Lourdes da Silva Pimentel, represented by the mittee’s website at: http://www2.ohchr.org/english/law/ Center for Reproductive Rights and Advocacia Cidadã jurisprudence.htm). The texts of the decisions are also pub- pelos Direitos Humanos v. Brazil lished in the CEDAW Committee’s annual report to the UN The Committee referred to its General Recommendation No. General Assembly. 24, which notes that measures to eliminate discrimination against women are considered to be inappropriate in a health- care system which lacks services to prevent, detect and treat 4.2.6 Remedies illnesses specific to women. The remedies identified by the Committee if a violation is The Committee also referred to its recent General found typically focus on redress for the individual victim(s) Recommendation 28 on the Core Obligations of State Parties and aim at repairing the harm to the individual(s). They can under Article 2, noting that the lack of appropriate maternal also include a range of systemic recommendations aimed health services means the State is not meeting the specific at preventing future violations, many of which have a public distinctive health needs of women, which constitutes a interest component. violation of Article 12 on the right to health, Article 2 on non- discrimination, and has “a differential impact on the right to The kinds of recommendations that the CEDAW Com- life of women.” mittee may make include:
The Committee also found that the author experienced a) Restitution, compensation, rehabilitation, or any multiple discrimination as a woman of African descent and her other remedies for the victim(s):
46 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
o Restitution or actions necessary to restore the o The creation of appropriate support services for victims victim(s) to the conditions she/they would have been of abuse such as shelters, counselling services, legal in had the violation not occurred (e.g. release from aid etc. prison); The OP-CEDAW mandates the Committee to transmit its o Settlement, compensation and/or rehabilitation for the views and recommendations to the concerned parties to the victim(s); communication.
o Retrial; Communication No. 2/2003—Ms. A. T. v. Hungary o Enforcement of domestic court judgments establishing The Committee made the following recommendations for conditions to enable the victim(s) to exercise a right remedies to the State: (e.g. women’s inheritance rights, visitation rights). Concerning the author of the communication b) Steps to end ongoing violations against the victim(s): (a) Take immediate and effective measures to guarantee the o Interim guidelines, instructions and steps to end physical and mental integrity of A. T. and her family; continuing violations or prevent repetition of these in (b) Ensure that A. T. is given a safe home in which to live the future. with her children, receives appropriate child support and c) Law reform and changes in programmes and poli- legal assistance as well as reparation proportionate to the cies that are in violation of the Convention: physical and mental harm undergone and to the gravity of the o Including review of laws, administrative decisions violations of her rights; and/or policies which are disputed in the case. General d) Steps to prevent the repetition of the violation(s): (a) Respect, protect, promote and fulfil women’s human rights, o Development of directives, guidelines or policies to including their right to be free from all forms of domestic prevent similar violations in the future; violence, including intimidation and threats of violence;
o Adoption of measures and remedies to effectively (b) Assure victims of domestic violence the maximum address similar violations; protection of the law by acting with due diligence to prevent and respond to such violence against women; o Action and measures to ensure the full recognition, enjoyment and exercise of rights contained in the (c) Take all necessary measures to ensure that the national CEDAW Convention; strategy for the prevention and effective treatment of violence o General review or amendment of laws inconsistent within the family is promptly implemented and evaluated; with provisions of the CEDAW Convention (e.g. repeal (d) Take all necessary measures to provide regular training of legislation and/or a review of relevant legislation to on the CEDAW and the Optional Protocol thereto to judges, ensure that neither the law itself, nor its application, is lawyers and law enforcement officials; discriminatory); (e) Implement expeditiously and without delay the o Adoption of temporary special measures in a particular Committee’s Concluding Comments of August 2002 on field (e.g. quota system in parliament); the combined fourth and fifth periodic report of Hungary in respect of violence against women and girls, in particular o Recognition of the “justiciability” of specific rights the Committee’s recommendation that a specific law be enshrined in the CEDAW Convention as a whole; introduced prohibiting domestic violence against women, o Enactment of new legislation—if this was not available which would provide for protection and exclusion orders as previously—to recognise the right(s) alleged to have well as support services, including shelters; been violated; (f) Investigate promptly, thoroughly, impartially and seriously o Take steps to condemn, sanction or regulate all allegations of domestic violence and bring the offenders to discrimination by private and public actors; justice in accordance with international standards;
47 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
(g) Provide victims of domestic violence with safe and prompt o requires that the act take place in “coercive circumstances” access to justice, including free legal aid where necessary, and includes a broad range of coercive circumstances.19 in order to ensure them available, effective and sufficient (iii) Appropriate and regular training on the CEDAW, its Optional remedies and rehabilitation; and Protocol and its General Recommendations, in particular (h) Provide offenders with rehabilitation programmes and General Recommendation No. 19, for judges, lawyers and PROGRAMMES ON NON VIOLENT CONmICT RESOLUTION METHODS law enforcement personnel;
The State Party was required to submit to the Committee, (iv) Appropriate training for judges, lawyers, law enforcement within six months, a written response, including any officers and medical personnel in understanding crimes of information on any action taken in the light of the views rape and other sexual offences in a gender-sensitive manner and recommendations of the Committee. The State Party so as to avoid revictimization of women having reported rape was also requested to publish the Committee’s views and cases and to ensure that personal mores and values do not recommendations and to have them translated into the affect decision-making. Hungarian language and widely distributed in order to reach The State Party was required to provide within six months, all relevant sectors of society. a written response, including any information on any action taken in the light of the views and recommendations of the Communication No. 18/2008—Karen Tayag Vertido v. The Philippines Committee. The State Party is also requested to publish the The Committee made the following recommendations for Committee’s views and recommendations and to have them remedies to the State: translated into the Filipino language and other recognized regional languages, as appropriate, and widely distributed in Concerning the author of the communication order to reach all relevant sectors of society.
Provide appropriate compensation commensurate with the gravity of the violations of her rights. 4.2.7 Follow-up General Where the CEDAW Committee finds a violation has occurred, the State Party and the author of the communica- s 4AKE EFFECTIVE MEASURES TO ENSURE THAT COURT PROCEEDINGS involving rape allegations are pursued without undue delay; tion are provided written notice of the findings and recom- mendations. The State Party is required to submit a written s %NSURE THAT ALL LEGAL PROCEDURES IN CASES INVOLVING CRIMES response within 6 months, outlining the steps it has taken of rape and other sexual offenses are impartial and fair, to give effect to the Committee’s views and recommenda- and not affected by prejudices or stereotypical gender tions. Two Rapporteurs for follow-up are appointed by the notions. To achieve this, a wide range of measures are needed, targeted at the legal system, to improve the judicial Committee. They have the authority to monitor implemen- handling of rape cases, as well as training and education to tation through contacts with representatives of the respon- change discriminatory attitudes towards women. Concrete dent State. The CEDAW Committee is allowed to make fur- measures include: ther requests to the State Party for additional information and updates, including in its periodic reports. (i) Review of the definition of rape in the legislation so as to place the lack of consent at its centre; Enforcement of remedies and recommendations by State Parties will, in many ways rely on on-going dialogue and per- (ii) Remove any requirement in the legislation that sexual suasion rather than firm instructions regarding compliance. assault be committed by force or violence, and any requirement of proof of penetration, and minimize secondary If the Committee’s recommendations are employed for victimization of the complainant/survivor in proceedings by lobbying and awareness-raising by civil society, they can be enacting a definition of sexual assault that either: important tools to achieve maximum results from States try-
o requires the existence of “unequivocal and voluntary ing to fulfil their obligations under the Convention. Further, agreement” and requiring proof by the accused of steps it is important to note that the impact of recommendations taken to ascertain whether the complainant/survivor was should not be viewed as unique to the individual(s) subject of consenting; or the communication. Rather, they must be viewed as having
48 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
far-reaching impact that extends beyond the complaint of by women, including both civil and political and economic a particular violation(s). If used effectively, the OP CEDAW social and cultural rights. PROCEDURES CAN INmUENCE AND ENCOURAGE CHANGE Also of note is that the majority of communications under Brief Analysis of CEDAW Decisions to Date OP-CEDAW have been brought by authors based in Europe. (See page 50 for full list of decisions) Comparatively fewer communications have been brought by women in other geographical regions. This could in part In comparison with other more established communica- REmECT THE NUMBER OF WHICH 3TATE 0ARTIES IN OTHER REGIONS tion procedures, there have been comparatively fewer com- that have signed the OP-CEDAW (i.e. in the Pacific there munications submitted or decided under the OP-CEDAW. are 3 State Parties to the OP-CEDAW, and worldwide there Further, a violation was established in only four cases. The are only 104 State Parties); or the extent to which they are lack of a settled body of jurisprudence and practice means using regional mechanisms rather than the UN mechanism; that it is difficult to predict the Committee’s likely response or even the level of capacity and support that exists within to a particular issue. It also means there is an insufficient countries in other regions for women to firstly, exhaust jurisprudential base to make a general evaluation of the domestic remedies and, secondly, to bring a communication CEDAW Committee’s approach to the interpretation of the at the international level. Convention. It is also not yet possible to have a meaningful The evolving character of the CEDAW Committee’s work assessment of the effectiveness of the Committee’s follow- under the OP-CEDAW’s communication procedure presents up procedures. an opportunity for advocates to shape the approach to proce- A significant proportion of communications submitted dural and substantive questions through the types of cases have been declared inadmissible. The majority of these have submitted and the information presented in submissions. been inadmissible due to the failure to exhaust domestic remedies. Timing (i.e. the facts occurred before the OP- CEDAW came into force for the relevant State Party), lack of 4.3 Inquiry Procedure victim status and incompatibility with CEDAW are some of The inquiry procedure under the OP-CEDAW (Article 8) pro- the other reasons communications have been declared inad- vides for the CEDAW Committee to initiate an examination missible. Some commentators have noted that the Commit- where it has received reliable information indicating grave or tee has not yet clarified its approach to a number of ques- systematic violations by a State Party of rights in CEDAW. tions related to admissibility, leaving it unclear as to how The procedure was modelled on the OP inquiry procedure admissibility will be determined in future cases.20 available under the Convention Against Torture (Article 20). However, the CEDAW Committee’s findings of inadmissi- Information sent to the CEDAW Committee about a grave BILITY DO NOT APPEAR TO REmECT AN OVERLY STRICT APPROACH OR TO or systematic violation and a request for an inquiry related be obviously unsupported by the facts and the Committee to a given factual situation can be submitted by women’s has frequently referred to relevant jurisprudence from other groups and other NGOs, other UN bodies or experts, regional human rights bodies. Thus the OP-CEDAW results appear human rights bodies or experts and the media. to be largely consistent with the practice of other human The inquiry procedure can be useful for the CEDAW Com- rights bodies. mittee to respond urgently to serious violations that are The majority of communications to date have been in rela- occurring (e.g. the widespread rape of women during pro- tion to issues of violence against women, and most com- tests or the disappearance and assassination of women monly domestic violence. Some of the other subject mat- human rights defenders). It can also be useful for address- ters have included health, family name change, trafficking, ing the systematic nature of widespread violations of wom- nationality, gender stereotyping, employment and marriage en’s human rights, or where individuals or groups are unable and family among others. This shows a gradual expansion to submit communications due to practical constraints or of the use of the communications procedure under OP- fear of reprisals. CEDAW to a range of human rights violations experienced The Committee’s role in an inquiry is investigative in
49 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
Communications to Date under CEDAW Communication CEDAW Articles Communication CEDAW Articles alleged to be alleged to be violated violated
Ms. B.-J. v. Germany was adopted on 14 July 2004 1, 2 (a-f), 3, 5 (a and Karen Tayag Vertido v. The Philippines was adopted 2 (c), (d), (f) and 5 (a) b), 15 (2) and 16 (1.c, on 16 July 2010 d, g and h)
Ms. A. T. v. Hungary was adopted on 26 January 2 (a), (b) and (e), 5 (a) Maria de Lourdes da Silva Pimentel, represented by 2 (c) and 12 2005 and 16 the Center for Reproductive Rights and Advocacia Cidadã pelos Direitos Humanos v. Brazil was adopted on 25 July 2011
Ms. Dung Thi Thuy Nguyen v. The Netherlands was 11 (2) (b) Ms. V. K.(represented by counsel, Ms. Milena 1, 2 (a-c) (e-g), 5 (a) adopted on 14 August 2006 Kadieva) v. Bulgaria was adopted on 25 July 2011 and 16 (1, c, g and h in light of general recommendation No 19)
Ms. A. S. (represented by the European Roma Rights 10 (h), 12 and 16 Inga Abramova (represented by counsel, Roman 2 (a), (b), (d), (e), (f), Center and the Legal Defence Bureau for National (1) (e) Kisliak) v. Belarus was adopted on 25 July 2011 3 and 5 (a) (read in and Ethnic Minorities) v. Hungary was adopted on 14 conjunction with 1) August 2006
The Vienna Intervention Centre against Domestic 1, 2, 3 and 5 T.P.F.(represented by the Centre for Reproductive 1, 2 (c), (f), 3, 5, 12 Violence and the Association for Women’s Access to Rights and the Centre for the Promotion and and 16 (e) Justice on behalf of Hakan Goekce, Handan Goekce, Protection of Sexual and Reproductive Rights) v. and Guelue Goekce (descendants of the deceased) v. Peru was adopted on 17 October 2011 Austria was adopted on 6 August 2007
The Vienna Intervention Centre against Domestic 1, 2, 3 and 5 Guadalupe Herrera Rivera (represented by counsel, 1, 2(a), (b), (c), (d), 5 Violence and the Association for Women’s Access Rachel Benaroch) v. Canada was adopted on 18 (a) and 24 to Justice on behalf of Banu Akbak, Gülen Khan, and October 2011 Melissa Özdemir (descendants of the deceased) v. Austria was adopted on 6 August 2007
Cristina Muñoz-Vargas y Sainz de Vicuña v. Spain was 2 (c) and (f) Zhanna Mukhina v. Italy was adopted on 18 October 16 (f) adopted on 9 August 2007 2011
Rahime Kayhan v. Turkey was adopted on 27 January 11 Cecilia Kell v. Canada was adopted on 28 February 1; 2 ( (d) and (e)); 14 2006 2012 (2 (h)); 15 ( 1-4); 16 (1(h))
Ms. N. S. F. v. The United Kingdom of Great Britain 2 and 3 RKB v. Turkey was adopted on 24 February 2012 1; 2 ((a) and (c)); 5, and Northern Ireland was adopted on 30 May 2007 (a); 11 (1 (a) and (d))
Ms. Constance Ragan Salgado v. The United 1, 2 (f) and 9 (2) Isatou Jallow v. Bulgaria 23 July 2012 1, 2((b), (c), (d), (e), Kingdom of Great Britain and Northern Ireland was and (f)) 3, 4, 5 (a) and adopted on 22 January 2007 16.1 ((c), (d), and (f))
G. D. and S. F. v. France was adopted on 4 August 16 (1) (g) MPM v. Canada was adopted on 24 February 2012 2((c), (d)) ; 3; 15; 16 2009
Michèle Dayras, Nelly Campo-Trumel, Sylvie Delange, 16 SVP v. Bulgaria was adopted on 12 October 2012 1; 2 (b), (c), (d), (e), Frédérique Remy-Cremieu, Micheline Zeghouani, and (f); 3; 4; 5 (a); Hélène Muzard-Fekkar and Adèle Daufrene-Levrard 12; 15 (represented by SOS Sexisme) v. France was adopted on 4 August 2009
Ms. Zhen Zhen Zheng v. The Netherlands was 6 CJS v. UK was adopted on12 October 2012 1; 2; 3; 9 adopted on 27 October 2008
50 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
nature, whereby in addition to receiving information from violence against women and crimes of murder and NGOs and other groups, as well as the State Party, the Com- disappearances of women constituted grave and systematic mittee can conduct its own fact-finding activities in the form violations of the provisions of the CEDAW, as well as of of interviews, on-site visits and hearings, with the consent Recommendation No. 19 of the Committee. of the State Party. c) The third important requirement is that the information An inquiry is conducted confidentially and the cooperation provided must be considered “reliable” by the Commit- of the State Party is sought at all stages of the proceedings. tee. The diagram on pages 54-55 maps the main stages of the The reliability of the information can be determined by con- inquiry procedure, as outlined in the OP-CEDAW and Rules sideration of the level of specificity, the internal coherence of Procedure. and consistency in reporting from different sources; the credibility of the sources and the extent to which sources 4.3.1 Meeting the requirements for an inquiry such as the media are independent and bi-partisan.21 The technical requirements for submitting a request for an The scope of the factual information on which the Com- inquiry are less extensive than those under the communica- mittee bases its finding of fact is broad: it may encompass tions procedure and relate mainly to the nature of the infor- details of alleged violations against both named individu- mation which the Committee will consider. als and groups of unnamed victims; the content of national a) In the first instance the State Party must not have opted law and policy; statements by victims and witnesses; and out of the inquiry procedure under the OP-CEDAW. statements by government officials at local, regional and/or national levels. b) Secondly, the inquiry procedure applies only to viola- tions that are grave or systematic in nature. This means There are no other admissibility requirements as there are the main requirement to be satisfied when requesting with the communications procedure. It is not necessary to the CEDAW Committee to initiate an inquiry is to show identify specific victims or to show that domestic remedies that violations of this nature have taken place: have been exhausted before requesting an inquiry. As indi- vidual victims do not have to be identified, it may be better A “grave” violation refers to severe abuse (e.g. discrimi- suited than the communications procedure to situations in nation against women linked to violations of their right to life, which individual victims could face the threat of reprisals if physical and mental integrity, and security, torture, forced they seek redress at the international level. disappearances or killings; e.g. two hundred single mothers and their children being forcibly evicted from a public hous- d) As mentioned above, the only other requirement to be ing building). A single violation can be grave in nature and a aware of is that the State Party must not have opted out single act can violate more than one right. of the inquiry procedure through a declaration or reser- vation at the time of signature or ratification of the OP- The term “systematic” refers to the scale or prevalence CEDAW. of a violation, or to the existence of a scheme or policy directing a violation(s). A violation not rising to the level of IWRAW Asia Pacific has developed Guidelines for the severity implied by “grave” may still be the focus of inquiry drafting of a request for an inquiry to the CEDAW Commit- if there is a pattern, or if abuses are committed pursuant to tee which are available on its website (www.iwraw-ap.org). a scheme or policy. A violation may be systematic in char- acter without resulting from the direct intention of a State 4.3.2 The inquiry process Party (e.g. a government policy promoting population control The formal process of an inquiry can only be initiated by resulting in the sterilisation of a large group of indigenous the Committee itself. Information submitted by individuals, women without their consent). NGOs and others will be examined by the Committee to
Mexico Inquiry determine whether it is reliable and whether it indicates that The Committee found that the widespread and systematic grave or systematic violations have occurred.
51 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
Mexico Inquiry the examination and to submit observations with regard to Non-governmental organizations Equality Now and Casa the information concerned within six months. The Commit- Amiga, located in New York and Ciudad Juárez, Mexico, tee can proceed with the inquiry even if the State refuses respectively, requested the Committee to conduct an inquiry, to cooperate. However, in practice, the State’s cooperation under Article 8 of the Protocol, into the abduction, rape and will be necessary for an effective inquiry (e.g. an on-site visit murder of women in and around Ciudad Juárez, State of Chihuahua, Mexico. requires the consent of the State). As in the communications procedure, Committee members are expected to carry out Commonly, the Committee designates representatives(s) their work under the inquiry procedure impartially and inde- from among its members to evaluate the information pendently. received, request additional information and present an eval- All documents and proceedings related to an inquiry are uation of the factual record to the full Committee as the confidential. The meetings in which the Committee dis- basis for deciding whether to initiate an inquiry. cusses information related to an inquiry are closed. The The Committee invites the State concerned to submit members of the Committee, testifiers and interpreters are observations on the information received and it seeks the required to maintain confidentiality. cooperation of the State at all stages of the process. In these However, NGOs or the State Party are free to make infor- exchanges with the State, the Committee may be subject mation related to an inquiry public. In practice, the fact that to political pressure from the State not to launch an inquiry. an inquiry has been initiated will be public due to the Com- The confidential nature of the process may increase the like- mittee’s fact-finding activities, especially in connection with lihood of such pressure. an on-site visit. Upon confirming whether the information relates to a grave or systemic violation and whether the information is 4.3.3 Findings and Recommendations reliable, the CEDAW Committee can decide to establish an inquiry. The outcome of an inquiry by the Committee is in the form of “findings.” The findings outline the facts related of the At this point the Committee’s representative(s) are des- situation, the CEDAW Committee’s decision on whether ignated to conduct inquiry. The Committee’s representa- grave or systematic violations have been committed, and tives have a broad authority to determine their own methods the Committee’s recommendations for measures to correct of work. The Committee can conduct its own fact-finding any violations. The recommendations may set out specific activities in the form of interviews, on-site visits and hear- legal and non-legal steps to halt ongoing violations or estab- ings, with the consent of the State Party. During an on-site lish accountability for violations which have occurred, iden- visit members of the CEDAW Committee’s Working Group tify changes to bring domestic laws, policies or practices into may conduct hearings to review the facts and in which vic- line with the Convention, and measures to prevent future tims, witnesses and others can testify. It can meet with gov- violations, including policy reform and broad-based educa- ernment officials, NGOs representatives, victims, and wit- tional or other promotional initiatives. Such recommenda- nesses, and it can visit specific institutions or locations. tions can include: Mexico Inquiry s MEASURES TO COMBAT STRUCTURAL CAUSES OF DISCRIMINATION Ms. María Yolanda Ferrer Gómez and Ms. Maria Regina Tavares da Silva were the Committee members selected against women; and to conduct the inquiry and report to the full Committee. The s MEASURES TO ACHIEVE EQUALITY BETWEEN WOMEN AND Government of Mexico consented to the members’ request men. to conduct a visit to Mexico. During the visit the members met with government officials and bodies, UN representatives in Examples of remedies that could be made include: Mexico and representatives of civil society, including Casa s $EVELOPING DIRECTIVES GUIDELINES OR POLICIES TO MONITOR Amiga, Equality Now and victims’ relatives. provide early warning and address grave and/or system- The Committee invites the State Party to cooperate in atic violations of women’s human rights;
52 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
s 3TEPS TO STOP ON GOING VIOLATIONS AND PREVENT THE REPETI- Committee website at: http://www2.ohchr.org/english/bod- tion of similar violations in the future. These may include ies/cedaw/inquiry_procedure.htm. legal and administrative measures addressing a wide range of issues, including building the capacity of the 4.3.4 Follow-up authorities concerned and budgetary allocations; After a six-month period in which the State Party must sub- s 'ENERAL REVIEW OR AMENDMENT OF LAWS INCONSISTENT mit its observations to the CEDAW Committee’s findings, with the provisions of the CEDAW Convention; the Committee may request the State Party to inform it of s %NACTMENT OF NEW LAWS IF APPROPRIATE any measures the State has taken in response to the Com- mittee’s inquiry, or include information on its response in its s )MPROVING THE EFFECTIVENESS OF INVESTIGATIVE METHODS next periodic review. including strengthening of gender perspectives within this context; The CEDAW Committee’s findings are not legally binding but they are determinative. As with the communication pro- s 2EGULAR INSPECTIONS OF PUBLIC FACILITIES EG PRISONS AND cedure, enforcement of recommendations to State Parties detention centres where immigrants are housed); will, in many ways rely on on-going dialogue and persuasion s #REATION OF A NATIONAL MACHINERY FOR WOMEN OR A HUMAN rather than firm instructions regarding compliance. rights commission; s !DOPTION OF TEMPORARY SPECIAL MEASURES IN A PARTICULAR 4.3.5 Review of Inquiries to date field; As of April 2013 the CEDAW Committee has only consid- s %STABLISHMENT OF PROGRAMMES OR CENTRES TO ASSIST ered one inquiry. The inquiry related to facts in Mexico and women (e.g. legal aid); the first information for the inquiry was received from NGOs s 2ECOGNITION OF THE hJUSTICIABILITYv OF SPECIlC RIGHTS IN in October 2002. The Committee decided to initiate the the CEDAW Convention as a whole; inquiry in July 2003 and its report was adopted in January 2004. The subject of the inquiry was the pattern of violence s 4AKING STEPS TO CONDEMN AND SANCTION DISCRIMINATION BY against women in the area of Ciudad Juarez, Mexico. private and public actors; The inquiry took two years from the time information was s 0ROVISION OF LEGAL AND OTHER SUPPORT FOR VICTIMS TO ACCESS received from one Mexican NGO (Casa Amiga) and an inter- the justice system; national NGO (Equality Now), and placed under review until s $EVELOPING A PLAN OF ACTION TO IMPLEMENT RECOMMEN- the Committee issued its findings and recommendations. dations of the Committee and strengthen relationships The violations at issue in the inquiry were abductions, with civil society organisations to carry out the plan; and rapes and murders of women over the course of a ten year s 3ETTING OF A TIMEFRAME FOR THE GOVERNMENT TO GIVE FEED- period. More than 200 young women and girls, primarily back to the CEDAW Committee on steps taken to imple- maquila workers, students and employees of commercial ment its recommendations. companies, had been disappeared and murdered in the area The recommendations which are issued by the Commit- of Cuidad Juarez. tee if it finds a violation do not include specific measures of The Committee designated two members to assess the redress for the individual victim(s), such as compensation. information. Based on their assessment and the information After the Committee concludes an inquiry and adopts its itself, the Committee decided that the information before findings, comments and recommendations, it may consult it was reliable and indicated grave or systematic violations with the State Party concerned prior to issuing to a public were occurring. The nature of violations was both grave and report on the inquiry. The final report is described as a “sum- systematic: violations at issue were murders and disappear- mary of its activities” in connection with an inquiry. The ances, there had been a large number of victims, there was public report is included in the Committee’s annual report a pattern continuing over a lengthy period of time, and the to the General Assembly and is available on the CEDAW documented failures of the justice system demonstrated
53 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four # PartSection Four #
Inquiry Procedure
Applies to States Parties (SPs) that have not ‘opted-out’*
Committee selects Committee invites SP to Committee makes findings and one or more of its SP must respond to Committee receives reliable cooperate in the inquiry and recommendations based on all members to conduct Committee’s findings information about ‘grave or submit observations “available information,” and submits Confidential Stages inquiry and recommendations systematic violations’ SP consent and cooperation them to SP 1. considers info and SP within 6 months not required but desirable response 2. visits SP (if SP consents)
Information Made Public Requirements: must be Requirement: must be reliable information ‘grave or systematic’ violations 1. Reliable = credible 1. Grave violations = severe abuses, for example 2. Reliability can be assessed in light of factors such On-site visit with discrimination against women linked to violations of as: specificity, consistency among accounts, consent of SP may include Follow-Up their rights to life, physical and mental integrity, and corroborating evidence, source’s record (re: credibility interviews with: security of person (Art. 8) in fact-finding), and independence and 1. Committee may invite s government officials SP to include info on its 2. Systematic violations ‘Systematic’ refers to scale or non-partisanship of media responses to inquiry findings prevalence of violations, or to existence of scheme 3. No restriction on sources of info or format s judges or policy directing violations. Violations not rising to (discretionary) in periodic level of severity implied by ‘grave’ may still be focus 4. Potential sources of info s NGOs report under Convention of inquiry if there is pattern, or abuses are committed s women’s groups and NGOs s alleged victims 2. After 6 months, Committee pursuant to scheme or policy may invite SP to inform it of s other UN human rights bodies or experts s witnesses 3. Committee can use inquiry to address broad-based measures taken discrimination resulting from social and cultural s regional human rights bodies or experts s other individuals or groups factors, or widespread gap between law and policy at with relevant info implementation level s press accounts 4. Widescale violations, such as trafficking in women s groups working on humanitarian assistance for economic or sexual exploitation, may be more effectively addressed through inquiry than through a NGOs may submit info series of communications from individuals or groups regarding SP’s compliance with of individuals recommendations
Art. 10 allows the SP to exempt itself (’opt-out’) from the inquiry procedure at the time of ratification by declaring that it does not recognise the competence of the Committee under Art. 8. This declaration may be withdrawn at any time.
54 55 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
that government inaction or complicity had resulted in impu- agreed to initiate an inquiry procedure in relation to the mur- nity for the perpetrators. There was also clear evidence of ders and disappearances of Aboriginal women and girls official complicity in the violations at the local level, confirm- across Canada. No further information on this inquiry was ing the systematic nature of the violations. available at the time of publication. The Committee invited the Government of Mexico to sub- It is likely that the CEDAW Committee may not establish mit observations and the Government cooperated. In its inquiries frequently, due to the practical need for coopera- response the Government acknowledged the gravity of the tion from the State concerned, political pressures related to situation and measures being taken to respond. The Mexi- the State’s desire to avoid an inquiry, and the financial costs can Human Rights Commission and the two NGOs provided and administrative burdens associated with on-site visits to additional information indicating that the violations were the State concerned. ongoing. The Committee decided to initiate an inquiry and appointed the same two members to conduct it. 4.4 Conclusion The Mexican Government was fully cooperative and con- The CEDAW Convention and the OP are part of a broader, sented to an on-site visit in Mexico for nine days. The visit holistic framework for the protection of human rights. Like was conducted by the Committee’s representatives and all human rights, women’s human rights are interdependent included interviews with senior federal and State officials and the equality aims of the CEDAW Convention can only with the Public Prosecutors Office, Office of the Attorney be achieved in practice if States implement the rights guar- General, National Women’s Institute, Human Rights Unit of anteed in other human rights treaties. OP-CEDAW is a criti- Ministry of Interior and the National Human Rights Commis- cal tool in demanding the implementation and realization of sion; with Congressional representatives; the UNIFEM rep- women’s economic, social and cultural rights and should be resentative, and local, national and international NGOs. utilized to make violations specific to women related to food, The Committee’s principal findings were that the facts water, health, housing and work more visible at the national constituted grave and systematic violations of Articles 2 and international levels. and 5 of the Convention as well as of Recommendation No. In seeking to use the procedures under the OP-CEDAW, 19 and the UN Declaration on the Elimination of Violence women’s human rights advocates should take into account against Women. The Committee found that there had been the jurisprudence and practice of other human rights bod- serious lapses in compliance with the commitments made ies, because the CEDAW Committee and State Parties have by Mexico through its ratification of the Convention as evi- referred to those sources for guidance and will undoubtedly denced by the continuation of very widespread and system- continue to do so. A significant number of the procedural atic violence against women and by the crimes of murder and substantive issues that are raised in communications and disappearance of women as one of its most brutal man- are the subject of broadly agreed jurisprudence in interna- ifestations. tional human rights law, such as the exhaustion of domestic The Committee made a range of recommendations per- remedies and positive obligations to prevent and respond to taining to the framework for responses to the violations, violence by non-State actors. concerning the investigation of the violations, punishment of The Convention must be interpreted in light of its spe- perpetrators and support for victims’ family and concerning cific wording and its object and purpose. However, the general measures to prevent violence, guarantee security language and legal concepts used in other human rights and promote women’s human rights. The Mexican Govern- treaties parallel or resemble those found in the CEDAW ment issued a response and began undertaking measures to Convention. The Committee will look to approaches taken address the recommendations. by other human rights bodies for authoritative guidance on A second inquiry brought under the OP-CEDAW on the a range of questions, including methods of interpretation, reproductive rights of women in the city of Manila, Philip- procedural requirements, general international law princi- pines, is pending. In October 2011, the CEDAW Committee ples, and the types of measures necessary to remedy a
56 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
violation and prevent future violations. situation which is the subject of an inquiry. Article 3 of the Jurisprudence under other human rights treaties and gen- CEDAW Convention states that: eral human rights law is relevant not only with respect to State Parties shall take in all fields, in particular in the polit- procedural or technical questions, but also with respect ical, social, economic and cultural fields, all appropriate mea- to certain substantive issues. For example, a communica- sures, including legislation, to ensure the full development tion alleging gender discrimination with regard to the rights and advancement of women, for the purpose of guarantee- to housing or food would require the CEDAW Committee ing them the exercise and enjoyment of human rights and to look to general human rights law for clarification of the fundamental freedoms on a basis of equality with men. scope and content of the underlying rights if it wishes to rec- In thus extending the objectives to be achieved by States ommend effective measures to remedy the violation, rather beyond enjoyment of the specific rights recognized in the than merely finding that the acts or omission of the State Convention, Article 3 points to the need to situate the Con- were discriminatory. This is particularly true where claims vention within the wider human rights framework. relate to failure to fulfill the underlying rights. For example, a claim based on the indirectly discriminatory effects of the Notes types of measures taken by the State to fulfill the right to !"@2L"/"FEMR"2K">R/R&"C/LRE&M"R2"1BQ:A"M&&H"DRRGH[[RL&/RE&M(UI(2LS[C/S&M[ housing requires an evaluation of whether those measures PE&_Q&R/EFM(/MGfaML.q=,B:=r`'R%MSpI2q$P\]`.D/GR&Lq*`F/ISq&I(" are of the type understood in human rights law to be effec- @2L"/"FEMR"2K">R/R&"C/LRE&M"R2"RD&"?C"1BQ:A"M&&H"DRRGH[[RL&/RE&M(UI(2LS[C/S&M[ PE&_Q&R/EFM(/MGfaML.q=,B:=r`'R%MSpI2q$P\]\-`.D/GR&Lq*`F/ISq&I(" tive in fulfilling the State’s general obligations regarding the #" right to adequate housing. Similarly, a claim regarding gen- >&&"T.2I#)(-#."*./*31)%'*./*Q&.,%M1&%*;M.I-%M*RW*012("*3#45-'*L&%(-W* U.M#%':*;MM%"M12*58;"Q2."7,$[<&I[)[:%%(!6"!]":GLEF"#XX#H"C/LR"$$$n,UF&M" der discrimination in the context of government responses 2K"GL2.&%UL&"K2L"RD&"?GRE2I/F"CL2R2.2F"R2"RD&"12IJ&IRE2I"2I"RD&"BFE'EI/RE2I" to the disappearance of a woman human rights defender 2K":FF"@2L'M"2K"QEM.LE'EI/RE2I"/S/EIMR"A2'&IV"sP$nCL2.&%UL&M"K2L"RD&" 12IME%&L/RE2I"2K"12''UIE./RE2IM",&.&EJ&%"UI%&L"RD&"?GRE2I/F"CL2R2.2F( would require the Committee to consider general human )" rights law and practice related to the obligations of the State ,UF&"NO5-6"2K"RD&",UF&M"2K"7U'/I",ESDRM"12UI.EF"57,16"EI"12'GEF/RE2I"2K" ,UF&M"2K"CL2.&%UL&"/%2GR&%"-T"7U'/I",ESDRM"=L&/RT"Y2%E&M"7,1[
57 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS PartSection Four #
/-2LRE2I("=D&"$IR&L\:'&LE./I"12''EMME2I"/M3&%"RD&">R/R&"2K";E./L/SU/"R2"/%2GR" 12''EMME2I"2K"0ULEMRM"5$1064"12''&IR/LT"2I"RD&"?GRE2I/F"CL2R2.2F"R2"$1B\ WKHPHDVXUHVQHFHVVDU\WRHQVXUHWKDWWKHEHQH¿FLDU\KDVDFFHVVWRWKHPHGLFDO >1,"5#X!X6"G("NW( RL&/R'&IR"MD&"I&&%M"R2"RL&/R"D&L"'&R/MR/RE."./I.&LV"R2"/%2GR"RD&"'&/MUL&M"EI" DJUHHPHQWZLWKWKHEHQH¿FLDU\DQGKHUUHSUHVHQWDWLYHV DQGWRNHHSKHULGHQWLW\ /I%"RD/R"2K"D&L"K/'EFT"UI%&L"M&/F("AERDEI"RD&"%&/%FEI&"M&R"R2"L&.&EJ&"/I"/IM_&L4" RD&">R/R&"2K";E./L/SU/"EIK2L'&%"RD&"$:17,"RD/R"RD&"L&iU&MR&%"RL&/R'&IR"D/M" -&&I"EIERE/R&%V">&&"/FM24"B17,4*Y(0:*("M*G-5%&'*$:*H).$(^#(4"5:GGFE./RE2I" I2(")#]]![X*6V":17C,4"U:*$:*Y%"W(4"12''UIE./RE2I"#])[#XX)8">&J&IR&&IRD" :.REJERT",&G2LR( !#"2I¿FHRIWKH+LJK&RPPLVVLRQHUIRU+XPDQ5LJKWVa(,-*H5%%-g*0.V*-.*'1R2#-* #"M#$#M1()*,.2I)(#"-'*1"M%&*-5%*GI-#."()*Q&.-.,.)*-.*T`+;b4"/J/EF/-F&"/RH" DRRGH[[___(S22SF&(.2'[ULFaM/qR`L.Rq^`iq`&ML.qM`KL'q!`M2UL.&q_&-`.%q YHG &(N4)M$$ XUO KWWS$))ZZZRKFKURUJ)HQJOLVK)E RGLHV)FHGDZ)GRFV))6B0RGHO&RPPXQLFDWLRQ)RUPGRF HL 'XNM8- g)
58 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
Part Five: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
59 5 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Five
5. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 5.1 Overview of the Optional the obligations embodied therein and to ensure the compat- ibility of their national laws with their international duties, in Protocol to the International 2 Covenant on Economic, Social and a spirit of good faith. 1 Cultural Rights 5.1.2 The mechanisms introduced by the On December 10th, 2008,—International Human Rights OP-ICESCR Day and the 60th Anniversary of the Universal Declaration of Human Rights—the United Nations adopted the Optional The OP-ICESCR introduces three new mechanisms under Protocol to the International Covenant on Economic, Social the competence of the CESCR. These mechanisms are: and Cultural Rights (OP-ICESCR). This was the result of a s #OMMUNICATIONS PROCEDURE negotiation process which began in the early 1990’s. The s )NQUIRY PROCEDURE adoption of the OP-ICESCR brought a close to the significant imbalance of protections available for civil and political rights s )NTER 3TATE PROCEDURE versus economic, social and cultural rights and provided a Therefore, the OP-ICESCR provides women with interna- concrete means of demonstrating that there is no hierarchy tional accountability mechanisms to seek remedies for viola- between human rights. tions of ESC rights. As with the OP-CEDAW, these mecha- nisms are regulated by the OP-ICESCR itself and by Rules of 5.1.1 What is the Optional Protocol to the Procedure that complement it.3 International Covenant on Economic, Social and Cultural Rights? 5.2. The Communication procedure The OP-ICESCR is a new and separate instrument which The communication procedure enables an individual or complements the International Covenant on Economic, group of individuals to bring a complaint alleging violations Social and Cultural Rights. of economic, social and cultural rights contained in the Cov- Like the OP-CEDAW, the OP-ICESCR is a procedural pro- enant to the attention of the CESCR. By allowing receipt of tocol that gives the supervising bodies the ability to review individual complaints under the communications procedure, individual communications in a similar way to that of other the OP-ICESCR has the potential to increase the implemen- human rights courts such as the Inter-American Court or tation of ESC rights for individuals who have been unable to European Court of Human Rights. access or achieve justice at the domestic level. The CESCR In the case of the OP-ICESCR, the CESCR is the body will have the authority to study the case and determine in charge of overseeing the communications submitted. whether any of the rights under the ICESCR had been vio- The CESCR will therefore be competent to examine indi- lated. Cases decided under other Optional Protocols have vidual complaints, as well as inquiries in cases of grave changed the laws, policies and programs of governments and/or systematic violations of human rights and inter-State around the world.4 complaints. As with the OP-CEDAW, the procedure under the super- When a State ratifies a Covenant or its Optional Protocol, vising body is conducted in a similar way to that of a tribu- it voluntarily accepts a solemn responsibility to apply each of nal—it is quasi-judicial.
60 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Five
5.2.1 Admissibility criteria There are several requirements that the CESCR will review What is unique in the OP-ICESCR? to determine whether the communication is admissible.6 s ! NEW CRITERIA FOR ADMISSIBILITY !RTICLE A s ! hCLEAR DISADVANTAGE OR hSERIOUS ISSUE OF GENERAL a) Which violations can be claimed importance’ clause (Article 4) 5; in the communication? s 0ROVISION FOR REACHING A FRIENDLY SETTLEMENT !RTI- The CESCR is able to examine violations related to the rights cle 7); recognized under Articles 1 to 15 of the Covenant, including equality and non-discrimination (Articles 2.2 and 3). s %XPLICIT ALLOWANCE FOR THE #OMMITTEE TO CONSULT documentation emanating from other international According to Article 2 of the OP-ICESCR, in order for a and regional bodies and potentially third parties communication to be admissible, it has to be related to a (Article 8.3); violation of an economic, social or cultural right set forth in the ICESCR, including the right to work, the right to social s ! STANDARD OF REVIEWhREASONABLENESS OF STEPS taken by the State Party’—for considering com- security and social insurance; the right to protection and munications (Article 8.4); assistance for the family and the prohibition of child labor; the right to an adequate standard of living (adequate food, s ! CLAUSE ALLOWING THE COMMUNICATIONS PROCEDURE water, sanitation and housing), the right to health, and the to be linked to international assistance and coop- right to education. Therefore, the communication should eration mechanisms (Article 14); and identify the right or rights under the ICESCR that have been s %STABLISHMENT OF A TRUST FUND WITH A VIEW TO PRO- violated by the State Party. viding expert and technical assistance to State The CESCR interprets the provisions of the Covenant and Parties for the enhanced implementation of ESC the scope of these rights through General Comments. Gen- rights (Article 14). eral Comments allow the Committee to clarify the scope of substantive rights in the Covenant, to define the obliga- To contribute to the understanding of the content of ESC tions of the State in relation to those rights and to the types rights and what constitutes a violation, experts have adopted of laws, policies and programs that are required to respect, the Limburg Principles on the Implementation of the protect and fulfill these rights. Currently there are 21 General ICESCR,10 the Maastricht Guidelines on Violations of Comments that have been developed by the CESCR.7 The ESC rights11 and the Montreal Principles on Women’s General Comments provide a resource for your communica- Economic, Social and Cultural Rights12 each of which pro- tion by explaining the Committee’s analysis of the content of vide interpretations and clarifications of the provisions of the the ESC rights and State obligations. ICESCR. As an advocate or litigator interested in women’s The CESCR has increasingly emphasized the interconnec- ESC rights, these interpretations will be useful in your argu- tion and interdependence among economic, social and cul- ments and you should consider reviewing them all to get a tural rights in the understanding that the fulfillment of one better sense of what might constitute a violation of wom- right almost universally requires the recognition and realiza- en’s ESC rights but also as a source of potential arguments tion of the others. For instance, lack of education not only for you communication or advocacy document. negatively affects the right to work and the right to social Strategies security, but it can also be used as a means to justify exclud- ing individuals from fully participating in their communities When submitting a complaint, it is important, though not and government.8 Similarly, the Committee has recognized strictly necessary, to identify the Articles of the treaty that that women’s uneven patterns in the workforce and pay dis- have allegedly been violated. Although failure to name the crimination have affected their ability to equally enjoy the Articles of the Covenant that have been violated would not right to social security.9 affect the Committee’s decision regarding the admissibility
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OF THE COMMUNICATION IT CAN INmUENCE THE COMPREHENSION b) Who can submit a communication? 13 of the matter at issue. Article 2 of the OP-ICESCR establishes that “a communica- It is important to submit the communication as completely tion has to be submitted by or on behalf of an individual or a as possible and to include all relevant information to the group of individuals under the jurisdiction of a State that has case. The complainant should set out, ideally in chronologi- ratified the Optional Protocol.” cal order, all the facts on which her claim is based. Although s 3UBMISSION BY AN INDIVIDUAL OR GROUP OF INDIVIDUALS the complainant will not be asked to list all the Articles that According to the OP-ICESCR, any individual or group of have been violated, she will be expected to make the neces- individuals, claiming their rights under the Covenant have sary efforts to provide as much information as possible, such been violated by a State Party to that treaty, may bring a as: the population that lives in the area, the lack of access communication before the Committee. to the health system, the chronology of the facts, the con- text of the situation, whether there is disparate access for The inclusion of both individuals and groups of individuals men and women because of limited hours or lack of trans- is not new under the international treaty body system. The portation, whether female doctors are available where same International Convention on Elimination of Racial Discrimina- sex examinations are customary; to give the CESC RIGHTS tion and OP-CEDAW expressly provide standing for groups enough information in order to recognize the violation and of individuals, as do the rules of procedure for the Human examine the claim.14 It is also important to clearly identify the Rights Committee. State responsible for the violation. The system is intended to be as straightforward as
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possible. Thus, the complainant does not need to be a law- an agreement to legal representation, power of attorney, or yer or to have a legal representative to submit a communi- other documentation indicating that the victim(s) has autho- cation under OP-ICESCR. However, the assistance of a law- rized the representative to act on her or their behalf. yer or other trained advocate is advisable given the legal and Key Issues on Standing procedural intricacy of complaints. Legal advice may also improve the quality of the submissions in terms of the per- s 4HE NON CONSENT OF THE VICTIM suasiveness of the presentation of facts and how they repre- In certain cases, a third party may bring a case without the sent a violation of economic, social and cultural rights. consent of the victim if the individual or group submitting it The United Nations does not provide legal aid or finan- can justify acting on her or their behalf. cial assistance for complainants and does not mandate that The recognition in Article 2 of an exception to the general States Parties provide legal aid. Complainants should ver- requirement of consent aims to account for circumstances ify whether legal aid in their countries is available for bring- in which the consent of individual victims may be difficult or ing complaints under international mechanisms and whether impossible to obtain. This may include claims regarding vic- economic and social rights or women’s rights organizations tims who face a danger of reprisal including physical injury offer assistance free of charge. or economic loss if they consent to the presentation of a s 3TANDING FOR THIRD PARTIES claim on their behalf, women who are deceased, impris- oned, or detained; victims whose whereabouts cannot be Complaints may also be brought by third parties on behalf determined following displacement; or situations in which it of individuals or a group of individuals. A representative may would be unreasonable or impractical to require consent by be designated by the victim/s to submit a communication the victim(s). on her behalf. Representatives may include lawyers, fam- Under those circumstances the author must explain why ily members,16 a national or international NGO or any other representative designated by the victim. It is common for NGOs with expertise on human rights and litigation to bring Who can bring a complaint under cases and communications before international adjudicatory the OP-ICESCR? mechanisms on behalf of individuals and groups. (See Part a) a single individual whose rights under the ICESCR Six of this manual). have been violated; The basis for standing for third parties acting on behalf of victims is also found in the Inter-American and the Afri- b) a group of named individuals whose rights have can System of Human Rights. Both regional mechanisms been violated by the same act (or failure to act); allow various categories of petitioners to submit petitions on c) a group of individuals who have all suffered the behalf of victims, such as ordinary citizens, groups of individ- same violation(s) but who may not all be identified 17 uals, NGOs, including governmental agencies. There are a by name because their safety might be threatened variety of reasons that might require third parties to submit or because the group is so large that it would be a claim acting on behalf of a victim such as a women expe- impractical to get the consent of all victims; riencing violence who feels that going public with the claim will increase her risk; homeless persons who are unable d) those that have suffered violations as a group to identify and address or often cannot provide identifica- (e.g. women’s rights organizations that have been tion; and women’s human rights defenders or others whose prohibited by the State from organizing activities security might be at risk by going public with a case. to promote women’s ESC rights under ICESCR)15; According to the general rule set forth under OP-ICE- e) third parties (NGOs, legal representative) on SCR, individuals must have given their written consent in behalf of an individual; and order for a third party to have legitimacy in acting on her/his f) third parties (NGOs, legal representative) on behalf behalf. Evidence of consent can be offered in the form of of a group of individuals.
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s/he has been unable to obtain the victim’s consent and noted above, identified groups of individuals can submit a why s/he is authorized to bring the complaint on the victim’s complaint. behalf. Jurisdiction and Extraterritorial Obligations The Human Rights Committee has also allowed repre- sentation in the absence of authorization.18 The Commit- Article 2 says that communications may be submitted “by or tee indicated several circumstances in which there could on behalf” of “individuals or groups of individuals” who are be an exception to this rule: where it can be proven that the under the jurisdiction of a State Party. alleged victim is unable to submit the communication in per- Victims are not required to be in the State Party’s terri- son due to compelling circumstances, such as (i) following tory to submit a complaint before the CESCR, although, they an arrest the victim’s location is unknown;19 (ii) detained vic- must have been under the “jurisdiction” of the State Party tims;20 (iii) when the death of the victim was caused by an at the time the violation occurred. 21 act or omission of the State concerned; and (iv) proof that s *URISDICTION VS TERRITORY the alleged victim would approve of the representation.22 Jurisdiction and territory are not interchangeable con- In addition, there are situations that, by their nature, cepts. The jurisdiction of a State is not limited to the bound- involve collective interests in which it will be impractica- aries of its territory. That is why it is not the place where the ble to obtain consent from all those affected. Breaches of violation occurred but the relationship between the individ- rights protected by the Covenant will frequently have col- ual and the State in relation to the violation of the rights set lective dimensions and affect groups and communities as forth in the Covenant that has to be considered when ana- such, in contrast to violations of a purely individual nature. In lyzing the extent of responsibility of a State Party.25 A failure such situations of widespread or collective violations, it will to recognize the inherent differences between the two con- be impractical to obtain consent from large numbers of vic- cepts -jurisdiction and territory- limits the effectiveness and tims, and a communication submitted on behalf of a small universality of human rights.26 number of individual victims who have given consent may In this regard, the CESCR has indicated that jurisdiction not adequately represent the systemic or collective nature includes “any territory over which a State Party has geo- of the violations.23 graphical, functional or personal jurisdiction.”27 This is of par- The power to accept third party complaints, therefore, ticular importance in cases of alleged violations of the rights is important in order to ensure that violations, which may of migrants and non-nationals residing in States other than affect a diffuse group of individuals, do not fall outside the their own.28 jurisdiction of Committee. In addition, States are legally responsible for respecting s 7HO IS THE 6ICTIM and implementing international human rights law within their Another important issue to take into account is the iden- territories and in territories where they exercise effective tification of the victim/s. Under the jurisprudence of the UN control with respect to all persons, regardless of a particular Human Rights Committee, it has been established that to individual’s citizenship or migration status.29 Thus, jurisdic- satisfy the victim test the alleged violation of rights must tion is independent from a woman’s nationality: an individual relate to specific individuals at a specific time. A victim can- who claims to be a victim of a violation does not have to be not be hypothetical. To be a victim, the individual or group of a national of the State Party concerned. Immigrants or ref- individuals must be actually and personally affected by a law ugees can submit a communication where their rights are or practice which allegedly violated their rights. violated by the State or private actors in the country where s #OLLECTIVE COMPLAINTS 3TANDING FOR .'/S she/they is/are working or living; including an undocumented 30 THE REQUIREMENT OF A VICTIM worker. Her migratory status does not restrict her right to claim a violation of the Covenant. Abstract legal claims (actio popularis claims), challenging policy advanced by NGO’s without identifying a specific vic- s %XTRATERRITORIAL /BLIGATIONS tim are not allowed under the OP-ICESCR.24 However, as Under certain circumstances, many human rights
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advocates argue that States can be held accountable under international human rights law for acts and omissions com- To avoid delays in the procedure, mitted outside of their territory and these are called extra- when submitting a communication, territorial obligations. In particular, the Maastricht Princi- in order to meet the exhaustion ples on Extraterritorial Obligations have been launched by key civil society organizations and academics. Extraterri- requirement, the author must show the torial obligations are based on an understanding that policies following: implemented in one country can have negative human rights s &INAL DECISION 4HE COMPLAINANT HAS OBTAINED A implications for people living in another country. Whenever a final decision from the highest court to which State, its agents or corporations engage in activities in other recourse is available. States, which have an impact on the human rights of people s !DEQUATE USE 4HE COMPLAINANT HAS ADEQUATELY in that foreign State the originator State has an obligation to utilized the remedy provided by the State. ensure respect for human rights by its citizens and corpora- s 3UBSTANCE !LTHOUGH IT IS NOT NECESSARY TO RAISE tion abroad.31 the claim in exactly the same form domestically As the first United Nations Special Rapporteur on the and in the communication presented at the inter- Right to Food underlined in his reports on missions to India national level, the substance of the claims pre- and Bangladesh, extraterritorial obligations mean that when SENTED IN THE COMMUNICATION SHOULD REmECT THE States exploit trans-boundary watercourses, they must give substance of the domestic complaint.47 priority to the satisfaction of basic human needs of the pop- ulations that depend on these water courses, in particular The OP-ICESCR establishes a time limit during which safe drinking water, and the water needed for basic subsis- a communication is admissible. The CESCR will consider tence agriculture.32 those petitions that are lodged within a period of one year Claimants should bear in mind that under the OP-ICESCR, following the date on which the alleged victim has been noti- petitioners will have the burden of proof in establishing that fied of the decision that met the exhaustion requirement— a violation occurring outside a State’s territory occurs de jure i.e., a decision by a domestic appeals court. The exception 33 (by law) under the State’s jurisdiction. The inquiry proce- to the rule would apply if it was not possible to respect the dure, for reasons which are more fully explained later in the time limit or domestic remedies are unreasonably prolonged section 5.3 may have more potential for advancing this type or where the violation is continuing (as it will be explained of claim. below). s %XTRATERRITORIAL /BLIGATIONS Why does the OP-ICESCR require exhaustion )NTERNATIONAL ASSISTANCE AND COOPERATION34 of domestic remedies? Article 2.1 of the ICESCR requires States to recognize the The underlying aim of the exhaustion rule is to provide the essential role of international cooperation and assistance and State with the opportunity to redress a violation using the to take joint and separate action to achieve the full realization domestic legal system before a claim is brought to an inter- of the rights in the Covenant. In addition, as opposed to the national body. This is an intrinsic aspect of the subsidiary ICCPR and the CRC, Article 2.1 does not contain express ref- character of the OP-ICESCR and international mechanisms erence to jurisdictional limitations of the State Party.35 in general.36 The exhaustion requirement in Article 3(1) is c) Exhaustion of Domestic Remedies inextricably linked to the duty of the State to provide domes- Article 3 of the OP-ICESCR establishes that a communica- tic remedies as a means of giving full effect to the rights rec- 37 tion has to be submitted within 1 year after the exhaustion ognized in the Covenant. of available domestic remedies unless it was not possible to Human rights bodies have frequently underlined the need respect the time limit or domestic remedies are unreason- TO APPLY THE RULE WITH A DEGREE OF mEXIBILITY AND WITHOUT ably prolonged. excessive formalism, bearing in mind that it is being applied
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in the context of protecting human rights and that the appli- case. Thus, the availability of a remedy depends on its de cation of the rule requires an assessment of the particular jure and de facto accessibility to the victim in the specific circumstances of each individual case.38 Exceptions to the circumstances of the case. In other words, “remedies, the exhaustion requirement have been recognized on the basis availability of which is not evident, cannot be invoked by of the facts of the individual case and the facts concerning the State to the detriment of the complainant.”41 the general legal, political and socioeconomic context within In considering the claims under the OP-ICESCR it should which the remedy operates, particularly when a case has be noted that for vulnerable groups, the actual availabil- been unduly prolonged in the domestic court system. ity of the remedies, even where they exist in the law, is In light of this, factors particular to violations of ESC rights restricted by social and economic obstacles of a structural UNDER THE #OVENANT THAT WILL NECESSARILY INmUENCE THE APPLI- or systemic character. Domestic remedies may prove illu- cation of the exhaustion requirement under the OP-ICESCR sory due to economic barriers, such as lack of free legal should be considered. These include: the systemic or collec- aid, the location of courts or administrative tribunals, pro- tive nature of many violations that involve economic, social cedural costs, or due to the broad-based effects of struc- and cultural rights; the absence of recogni- tural inequalities, such as illiteracy, on tion or judicial remedies for ESC rights in Exhaustion of women, migrants, indigenous communi- many domestic systems; and the need to ties, marginalized racial and ethnic groups, clarify standards regarding the adequacy domestic remedies and other sectors of society that face sys- and effectiveness of quasi-judicial reme- is not a condition temic discrimination.42 dies for violations. Therefore, if the actual situation of the or requirement for Which remedies have to be exhausted? complainant does not allow her to meet the substantive requirements for exhaust- The term domestic remedy is understood the exercise of the ing domestic remedies or she lacks legal in human rights jurisprudence to refer pri- Committee’s discretion standing, the remedy is in practice unavail- marily to judicial remedies, as the most able. For example, if the State Party does effective means of redressing human rights to grant interim not provide court-appointed interpreters violations, but if there are other remedies, measures. for women who are deaf or provide sup- such as administrative remedies, if these port for women who are illiterate to be are accessible, affordable, timely and effec- able to file a petition, or fails to ensure a safe space to tive in the particular circumstances of the case, it may be nec- stay for a victim of domestic violence during the duration 39 essary to exhaust these as well. If available, administrative of the trial and afterwards, or does not provide transpor- remedies must be delivered by a decision-making body that tation for a women in a rural area to go to the relevant tri- is impartial and independent, has the competence to issue bunal, she will not be able to access to justice even if the enforceable decisions, and applies clearly defined legal stan- remedy is recognized in the law. dards. The proceedings must also ensure basic due process An intersectional approach should also be taken into guarantees, such as the possibility for judicial review, and the account in the evaluation of the access to justice. In ana- prompt implementation of the remedy. lyzing the exhaustion of remedies, the Committee will The exhaustion rule under the OP-ICESCR is similar to examine the grounds of discrimination (e.g. race, gen- 40 other international and regional human rights treaties, and der, ethnic, nationality, economic condition, etc.) and the although its interpretation can slightly vary, human rights social, economic, political and legal environment that con- jurisprudence makes clear that in order for a claimant to be tributes to discrimination and structured experiences of required to exhaust a remedy, it must be: oppression and privilege. Therefore, evidence of a pat- s Available in practice: it is not sufficient that a rem- tern of defects in the administration of justice with regard edy be available theoretically under the law but it must be to women’s human rights, such as discriminatory rules capable of being applied in practice; and is applicable to the of evidence or a widespread refusal by the judiciary and/
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or the police to apply existing legal protections for immi- Key Issues for Exhaustion of Domestic Remedies grant, or disabled women, or women from racial and eth- s Burden of proof: Where a State contests admissibil- nic minorities, demonstrates the ineffectiveness of the ity on grounds of non-exhaustion, it bears the burden of remedies in question. demonstrating that a remedy was available in practice, b) Adequate to provide relief for the violation suffered that it was one which was capable of providing redress in the particular circumstances of the case. The adequacy in respect of the applicant”s complaints, offered rea- of a remedy depends on the nature of the violation, the sonable prospects of success and would have been type of relief that may be obtained in the event of a suc- effective in the particular circumstances of the case;45 cessful outcome, and the objective sought by the vic- thus, the burden of proof shifts to the State. The infor- tims in the particular circumstances of the case. Thus, the mation provided by the State as to effectiveness must Committee will have the duty to evaluate the adequacy of be detailed and relate to the specific circumstances of domestic remedies as a means of addressing the partic- the case46 If the State advances such proof, the bur- ular violation which occurred under the facts in the com- den shifts back to the complainant to show that the munication. remedies identified by the State were exhausted or an exception to the rule applies. c) Effective for the object for which it was conceived. This depends both on the nature of the remedy and the Therefore, when planning to submit a communication, relationship between the remedy and the facts of the the author must either provide: case.43 To be effective, a remedy must be capable of pro- (1) Information indicating that domestic remedies have ducing the result for which it was designed and it must been exhausted, including the specific remedies utilized, offer a reasonable prospect of success or a reasonable the substance of the claim raised in domestic proceed- possibility that it will prove effective. Core elements of ings, and whether a final decision has been issued in the an effective remedy include enforceability, the indepen- proceedings; or dence of the decision-making body and its reliance on (2) In the alternative, present information supporting argu- legal standards, the adequacy of due process protec- ments that no domestic remedies are available or, if they tions afforded the victim, and promptness. The express are available, one or more of the recognized exceptions reference in Article 3(1) to the exception for remedies to the requirement applies (not available in practices, not that are unreasonably prolonged points to the particular effective, or not adequate to provide relief. importance of promptness or timeliness as an aspect of Taking into account the experiences of other interna- effectiveness.44 tional and regional human rights treaties, particularly OP- However, the OP-ICESCR has taken a more restrictive CEDAW, exhaustion of domestic remedies is consistently approach than OP-CEDAW and has eliminated an express contested by State Parties and complainants must ensure exception to the exhaustion rule when domestic rem- they present all the facts clearly in their communication edies are ineffective. Advocates will need to remain and relate those facts to the rule and its exceptions, if aware of this difference and consider taking a pro-active necessary. approach through argumentation to overcome this restric- Practice under international bodies has also recog- tive interpretation. nized that if the State fails to raise non-exhaustion in Many domestic systems lack adequate remedies for vio- the first available opportunity, it will be unable to do so lations of the rights protected under the ICESCR, including at a later stage. The European Court of Human Rights, judicial remedies or enforceable administrative remedies the Inter-American Commission and the Inter-American that guarantee due process of law. In the absence of avail- Court of Human Rights have held that the State may able domestic remedies, complainants will need to argue to tacitly or expressly waive the exhaustion requirement, the CESCR that the exhaustion requirement in Article 3(1) since the rule is designed for the benefit of the State and does not apply. operates for it as a defense. If the State fails to assert
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non-exhaustion during the first stages of the proceed- restrictions on the rights of women on a daily, direct and con- ings, tacit waiver of the requirement by the State will be tinuing basis (...) Given the nature of the claims raised, which presumed. Once in effect, waiver is irrevocable.48 This concern the ongoing effects of legislation which remains in approach is supported by principles of fairness and judi- force, the six-months rule creates no bar to the admissibility cial economy, bearing in mind that exhaustion is an admis- of this case under the circumstances analyzed above. Like- sibility requirement of procedural character that is for the wise, in the case of Yean Bosico, the Inter-American Court State”s benefit. found that the denial of the right to nationality was a continu- ing violation for which the State could be held responsible.55 d) Violations occurring after entry into force of OP-ICESCR / Continuing violations e) Violations have not already been examined by the The CESCR will only examine violations occurring after the Committee or another international procedure; entry into force of the OP-ICESCR for the State Party con- The rationale behind the prohibition of the duplication of pro- cerned, unless those facts arose prior to and continued after cedures is to refrain from faulting member States twice for that date—or “continuing violations.” the same alleged violations of human rights.56 As a matter of general principle, only acts or omissions s #ONSIDERATIONS BY THE SAME BODY occurring after the date in which the treaty is enforceable There are some important exceptions to this general rule against the State Party can be considered by the CESCR. that advocates should keep in mind: However, if the violation continues after that date; or if the effects of a violation, which originated before the State’s rat- (1) There is no restriction on the CESCR from examin- ification of the treaty, continue thereafter, the State can be ing a case involving the same or similar facts under the held responsible for a continuing violation. inquiry procedure that previously arose in an individ- ual communication. However, the reverse is not true. The concept of continuing violations “extends jurisdiction If a case has been the subject of an inquiry or individ- to cases that originated before the entry into force of the declaration of acceptance (the “critical date”), but that pro- ual communication under OP-ICESCR or another treaty, duced legal effects after that date.”49 CESCR cannot accept review under the individual com- munication procedure. The UN Human Rights Committee stated that it would consider alleged violations which, although relating to events (2) “The discussion of specific facts in the Concluding that took place before the entry into force, “continue, or Observations of the CESCR should not constitute previ- have effects which themselves constitute violations, after ous review by the body.” This was the position adopted that date.”50 And that “a continuing violation is to be inter- by the Inter-American Commission when confronted with preted as an affirmation, after the entry into force of the the question in which the State of Colombia argued that Optional Protocol, by act or clear implication, of previous vio- the subject matter of the petition –the massive and sys- lations of the State Party.”51 In its General Comment 33 on tematic extra judicial killings of many members of the the Obligations of State Parties under the First Optional Pro- Union Patriotica Party– were already subject of a pro- tocol to the ICCPR, the HRC states that “in responding to nouncement by the Commission in its Second Report on a communication that appears to relate to a matter arising the Situation of Human Rights in Colombia.57 before the entry into force of the Optional Protocol for the In a similar understanding of this rule and the different State Party, the State Party should invoke that circumstance approach of the individual communication mechanism vis a explicitly, including any comment on the possible “continu- vis the periodic reporting procedure, CEDAW, when analyz- 52 ing effect” of a past violation.” . ing the case of Ms. A.T. vs. Hungary recalled its recommen- The Inter-American Commission,53 in analyzing the case dations under the reporting procedure and noted its con- of Maria Eugenia Morales de Sierra,54 stated that “the leg- cern about the prevalence of violence against women and islation in question [the Civil Code of Guatemala in respect girls, including domestic violence and the lack of protec- of the role of each partner within marriage] gives rise to tion or exclusion orders or shelters exist for the immediate
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For instance, it would be admissible to submit a commu- A communication will be nication under the OP-ICESCR about a case that has already considered “manifestly ill-founded” been sent to the Special Rapporteur on Violence against if: Women because a reporting procedure of the latter is not another “procedure of international investigation or settle- s THE COMMUNICATION ALLEGES VIOLATIONS OF RIGHTS THAT ment.” As in the Mamerita Mestanza case (see page 108), are not guaranteed by the ICESCR; in which it was possible to submit a petition before the s THE COMMUNICATION RELIES ON AN INCORRECT INTERPRE- IACHR ¬and, at the same time, address the situation of tation of the ICESCR; or forced sterilization in Peru under the HRC reporting mech- s THE COMMUNICATION ALLEGES FACTS THAT UNQUESTION- anism.61 ably indicate that the State Party’s act or omis- However, a matter that has been examined by the OP- sion is consistent with its obligations under the CEDAW would not be admissible under the OP-ICESCR ICESCR. unless it addresses different rights or obligations or is sub- mitted on behalf of a different complainant. protection of women victims of domestic violence.58 This f) Communication it is not manifestly ill- founded, (I.e., it therefore, can be interpreted as also confirming that the con- is sufficiently substantiated) cluding observations issued by treaty bodies do not consti- tute a previous consideration by that body. Another technical requirement for admissibility is the pro- vision of sufficient information to assist the CESCR to make s #ASES PENDING OR DECIDED BY ANOTHER the necessary identification of a rights violation in the course INTERNATIONAL BODY of its examination of the case. A communication will be declared inadmissible if the same The communication has to be sufficiently substantiated, matter has been examined under another international pro- meaning that it must contain particulars of when, where and cedure. how the alleged violation occurred. Specifics should be pro- To determine whether it is the “same matter,” the Commit- vided concerning the violation of the rights of the victim. It tee will consider both the facts underlying the claim and the is not sufficient to make broad claims about the general sit- content of the rights in question. If it finds that the facts have uation, such as “the health care system fails to address the changed significantly, or that the claims raised under other needs of women” or to merely present global statistics (e.g. international procedures concerned different rights or obliga- the rate of illiteracy among women, the percentage of lack tions –even though the facts were the same– the Committee of access to health care etc.). The facts about the general sit- may decide that the communication is admissible. uation will help to contextualize the specific violation of the More specifically, the Human Rights Committee held that victims, but the author must detail the actual experiences of “the concept of “the same matter” within the meaning of the individual or group of individuals who initiate the com- Article 5 (2) (a) of the Optional Protocol had to be understood munication. as including the same claim concerning the same individual, If on a preliminary examination of the communication this submitted by him or someone else who has the standing to requirement is not met, the CESCR is no longer required to act on his behalf before the other international body.”59 examine the communication on the merits.62 The application Another key element to take into consideration is the nature of this rule, however, should be restrictive since the ESCR of the other procedure. This element should be analyzed in Committee can always request further information from the such a way to exclude procedures that do not: (i) assess com- complainants, such as detailed under Article 2 of the Rules plaints about specific individuals or groups; (ii) require both of Procedure. the victim(s) and the State Party to submit their arguments, (iii) issue a pronouncement directed to the State regarding to Key Issues on Substantiating a Claim the decision; and (iv) order remedies for the victim.60 s %VIDENCE
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Because claims involving economic, social and cultural rights treaty bodies dealing with individual communications, rights often involve policy decisions and sometimes com- including the Human Rights Committee, the Committee plex decisions around allocation of resources, it can be against Torture and the CEDAW Committee and regional important to help support the claims made in the commu- human rights mechanisms. Initials or pseudonyms are sub- nication by integrating the use of indicators, human rights stituted for the names of victims and/or authors.63 budgeting and disaggregated data as sources of evidence. The Committee could also agree not to reveal the victim’s Also, previous reports by the State to any of the other name to the State in certain circumstances in which the indi- international human rights bodies during periodic review vidual lodging the complaint might be at risk—when, for sessions as well as findings by regional bodies, where example, the victim faces a threat of retaliation—and this related, can be critical sources of information. For a further measure would guarantee the physical and psychological discussion on the development of evidence relevant to a integrity of the complainant and her family. claim on women’s ESC rights, refer to Part Six of this man- ual, on strategic litigation. Consequently, the exclusion of anonymous communi- cations does not necessarily exclude the protection of the In addition, under Article 8(3) of the OP-ICESCR allows for identity of the author from the State Party.64 the CESCR to receive evidence from third parties, potentially including amicus curiae. The rationale behind confidentiality is the safety of the victim. However, complainants should be aware that so far g) Communication is in writing and not anonymous; there are few examples under international human rights Article 3 of the OP-ICESCR requires the communication to systems’ practice that applies the anonymity of the victim be in writing and not anonymous. in all stages of the procedure. At some point, if a remedy is The communication can be filed in any of the six official requested, disclosure of victim’s name might be necessary UN languages: English, French, Spanish, Chinese, Arabic to implement the Committee’s recommendations. Given the and Russian. Oral, recorded or video-taped communications lack of international exercise regarding this issue, clarifica- are not allowed. This by no means implies that communica- tion will be needed. However, it remains clear that if the vic- tions cannot be accompanied by documentation and infor- tim and/or his/her legal representatives ask for confidential- mation in various formats to support and/or to prove the vio- ity, personal information should never be disclosed. lation of the rights at issue. In addition, anonymous communications are not admissi- 5.2.2. Communication is Inadmissible ble under existing communications procedures. This require- If the CESCR concludes that the communication is inadmis- ment has been controversial, as many groups have argued sible, it will communicate its decision and reasons as soon that it makes it more difficult for the most vulnerable groups, as possible to the author of the communication and the such as women victims of violence, to bring complaints for- State concerned. ward. Similar considerations were made when OP-CEDAW The decision of the Committee is irrevocable, however, was adopted, however, the requirement has remained. it can be reviewed by the Committee if it receives a writ- Confidentiality vs. Anonymity ten request submitted by or on behalf of the author/authors Although a communication cannot be anonymous, the of the communication containing the information indicating author of the communication (the victim or legal representa- that the reasons for inadmissibility no longer apply. tive acting on behalf of the victim/s) may request that identi- fying information is concealed during the consideration and 5.2.3 Interim Measures in the Committee’s final decision. In special circumstances requiring urgent attention, the The Committee will normally agree, if requested, to sup- CESCR may request that the State takes protective mea- press the name of the alleged victim in published docu- sures in order to prevent irreparable harm to the victim in ments. This is the established practice of other UN human relation to all the rights set forth in the Covenant.
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A request for interim measures can be issued at any time Kingdom of Great Britain and Northern Ireland, the Commit- after the receipt of a communication and before a determi- tee requested the State Party not to deport the author and nation on the merits, on the basis of a request by the victim, her two children as an interim measure while their case was the authors of the communication, or any other concerned pending.69 party, or at the initiative of the CESCR itself when the facts It should also be noted, that situations necessitating the before it indicate the necessity for such measures. request and imposition of interim measures for ESC rights It should be noted that exhaustion of domestic reme- violations do not have to rise to the level of potential right to dies is not required for the exercise of the Committee’s life violations, or that there be a threat of irreparable harm. discretion to grant interim measures, which follows the For example, the threat of missing one or two years or lon- practice of other international adjudicatory bodies.65 ger of school (the potential length of time for the communi- cation to be received, reviewed and decided) could be con- The provision of interim measures is essential to the effec- sidered an irreparable harm.70 tiveness of the OP-ICESCR as a means of redressing viola- tions of rights protected by the Covenant, as the objectives of the communications procedure would be defeated if irrep- 5.2.4 Clear Disadvantage arable damage to the victims of an alleged violation were to Article 4 of the OP-ICESCR is a controversial addition to occur while a communication is pending. the Protocol and is unique within the UN treaty body sys- The refusal of a State Party to comply with an order of tem. During the development of the OP-ICESCR support- interim measures constitutes a breach of the international ers of the addition of this provision claimed it was not an obligations of the State. In this regard, the Human Rights additional admissibility requirement, but rather allowed Committee has characterized a refusal to abide by interim the Committee to dismiss certain claims if their caseload measures as a violation of the Covenant: “a State Party com- became too unwieldy. mits grave breaches of its obligations under the Optional As advocates, it is critical that we remind the Committee Protocol if it acts to prevent or frustrate consideration by the of this history of the inclusion of the provision. Communica- Committee of a communication alleging a violation of the tions should not be required to show any particular “clear Covenant, or to render examination by the Committee moot disadvantage” or “issue of general importance” beyond the and the expression of its Views nugatory and futile.” Com- violation itself in the initial admissibility phase. pliance with a request for interim measures under Article 5 Once a communication is declared admissible, at that should be considered as an aspect of compliance with the point, if necessary due to an unwieldy caseload, the Com- objectives of the OP-ICESCR, and the Committee should mittee may take steps to request additional information from characterize a refusal to implement interim measures as a complainants regarding the particular disadvantage suffered breach of the State Party”s obligations.66 or whether the communication involves a serious issue of The use of interim measures in the Inter-American system general importance. has been significant in protecting the right to health of peo- Article 4 is a unique provision throughout the international ple living with HIV/AIDS seeking access to essential medi- human rights system, so the CESCR will have little guidance cines67 or to protect displaced women who have been vic- in its application. Until the CESCR begins receiving cases, it tims of sexual violence.68 is difficult to predict their application of this provision. In the first case examined by the CEDAW Committee, As advocates bringing communications under the OP-ICE- Ms. A.T. vs. Hungary, the Committee granted interim mea- SCR, it will important to note in your complaint that Article sures. The Committee requested that the author be immedi- 4 was not intended as an additional admissibility criteria, but ately offered a safe place for her and her children to live and rather a way to deal with their workload should the need that the State Party ensure that the author receive adequate arise. But strategically, if possible, it could be useful to argue financial assistance, if needed. Although the communication in your complaint that should the CESCR choose to invoke was later declared inadmissible, in Ms N.S.F. vs. the United this provision, your communication can demonstrate clear
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separation of the consideration of admissibility from mer- Standard of review its is the best way to ensure that relevant information from “reasonableness of steps” third parties, UN agencies or international organizations, is obtained in appropriate cases. Given that the procedure In assessing whether the measures taken by the State remains confidential until the publication of the views of the Party are reasonable, the Committee may take into Committee, without a prior decision on admissibility, these account, inter alia, the following considerations: organizations may have no way of knowing, prior to the (a) the extent to which the measures taken were publication of the Committee”s views on the merits, that deliberate, concrete and targeted towards the ful- communications raising important public policy or systemic fillment of economic, social and cultural rights; issues in which they have relevant expertise or views, were to be considered by the Committee.71 (b) whether the State Party exercised its discretion After the communication is examined, the CESCR will in a non-discriminatory and non-arbitrary manner; transmit the petition to the State Party, who will have six (c) whether the State Party’s decision (not) to allo- months to submit written explanations or statements clari- cate available resources is in accordance with fying the matter and the remedy, if any, that it may have pro- international human rights standards; vided (Article 6). (d) where several policy options are available, The Committee will then proceed with the examination on whether the State Party adopts the option that the merits, analyzing the facts and the arguments contained least restricts Covenant rights; in the communication and submitted by the State Party to determine whether the State concerned has complied with (e) the time frame in which the steps were taken; its obligations under the ICESCR. (f) whether the steps had taken into account the pre- The examination will be based on the explanations and carious situation of disadvantaged and marginal- statements of both parties and on documentation from ized individuals or groups and, whether they were other sources. Article 8.3 of the OP-ICESCR was modeled non-discriminatory, and whether they prioritized on provisions in the rules of procedure of the CERD, CAT grave situations or situations of risk. and CEDAW Committees, which allow those Committees Source: Statement by the Committee: An evaluation of the obligation to take to obtain, through the Secretary-General, additional informa- steps to the “Maximum of available resources’ under an Optional Protocol to tion from UN bodies or specialized agencies. However, the the Covenant UN. Doc. E/C.12/2007/1 (2007) 10, May 2007. OP-ICESCR goes further to also identify a range of possible sources beyond those within the UN system, including from disadvantage and a serious issue of general importance and other UN bodies specialized agencies, funds, programs and then explain how. mechanisms, and other international organizations, includ- ing from regional human rights systems and interested third 5.2.5 Merits parties (Article 8).72 The CESCR may also look, for example, to Concluding Observations or General Recommendations If the communication is considered admissible, the CESCR made by the CEDAW Committee for the State in question in will proceed with an examination of the facts to determine relation to the women’s economic, social and cultural rights whether the State concerned has complied with its obliga- issues raised in the communication; or to reports released tions under the ICESCR. by regional human rights systems, among others. The analysis of the admissibility and the merits of the com- Based on their review of all the information provided by munication can occur in one or two steps. Where the Com- both sides, the Committee will adopt “views and recom- mittee, for reasons of efficiency and effectiveness, does mendations” on whether a violation has occurred and if so, not feel it necessary to separate the analysis of admissibil- identify the steps that must be taken to provide a remedy. ity from that of merits, the steps may be merged. However, These “views and recommendations” will be sent to the
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author of the communication and the State Party, be pub- case, the Committee will evaluate whether the steps the lished in the Committee’s annual report and posted on the State took were reasonable in light of its obligation to real- website. Decisions under comparable procedures for the ize the right/s in question on a progressive basis using maxi- ICCPR, CERD and CAT are posted on the website of the mum available resources. Office of the High Commissioner for Human Rights regu- The criteria developed by the CESCR reiterates similar ele- larly and the CESCR is expected to follow this practice. See ments to those developed under existing jurisprudence at Resource section at the end of this Guide for contact infor- the national, regional and international levels. For instance, mation. the South African Constitutional Court has explored the rea- As discussed in Part Two of this manual, in considering sonableness of measures taken by the State with regard to the merits, the CESCR will look to see if the actions or omis- the right to health, the right to adequate housing, access to sions in your complaint show failure by the state to take water, right to education and the right to food.73 steps on a basis of non-discrimination to progressively real- The reasonableness test gives governments the space to ize women’s ESCR using maximum available resources, as design and formulate appropriate policies to meet its socio- well as meeting minimum core obligations. To make this economic rights obligations. The acceptable implementation assessment, the OP-ICESCR has integrated a standard of of women’s ESC rights could entail a range of potential pol- review, largely drawn from South African jurisprudence, of icy choices and policy-making is not the role of the courts in the reasonableness of State action or omission. a democracy. Therefore, under Article 8.4 the State retains Reasonable steps the responsibility for developing and implementing laws, pol- icies and programs to realize women’s ESC rights that are Article 8.4 states that when examining communications the most relevant to the national context. Committee shall consider the reasonableness of the steps taken by the State Party in accordance with Part II of the However, it is important for complainants to be clear that Covenant. In doing so, the Committee shall bear in mind that the reasonableness standard does not direct the Commit- the State Party may adopt a range of possible policy mea- tee to defer to the decisions of the State Party on the ques- sures for the implementation of the rights set forth in the tion of compliance with Article 2.1 of the ICESCR. The Com- Covenant. mittee may recognize that a range of measures and policies could be implemented to progressively realize women’s ESC The Optional Protocol to the ICESCR is different from the rights within maximum available resources, but the Commit- other similar procedures in that it provides the CESCR with tee retains the clear jurisdiction to analyze State action or a standard of review to determine if a violation of the Cov- inaction and identify violations of an ESC right.74 This analy- enant has occurred. The CESCR must consider the reason- sis must be grounded in the circumstances of the claimant, ableness of the measures taken by the State in relation to its obligations under Article 2.1 of the Covenant, while keeping in mind that the State Party can adopt a variety of measures Factors in Determining to implement the rights protected by the Covenant. Reasonableness Article 8.4 makes clear that the unique wording of Arti- In applying a reasonableness standard, a number of cle 2.1 of the ICESCR— acknowledgement of the progres- questions might be asked such as: is the program or sive dimension of fulfillment, the link with the availability of policy comprehensive, coherent, and coordinated; are resources and the necessity to adopt positive measures— appropriate financial and human resources made avail- is not to be used as a basis for denying effective adjudica- able for the program; is there appropriate provision for tion and relief. short, medium and long-term plans; is the policy rea- In considering a communication, the Committee will sonably conceived and implemented; and does it cater examine the measures that the State Party has taken or to those in most urgent need? (See, Government of failed to take, legislative or otherwise, to realize women’s the Republic of South Africa. & Ors v Grootboom & ESC rights. Based on the facts and analysis submitted in the Ors, 2000).
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the right at issue, the context of the State, together with the and the measures required to remedy the situation and pre- values and purposes of the ICESCR. Hence, reasonableness vent similar harms from occurring in the future. Educating will be developed on a case by case basis, with reference the Committee (within the complaint) will be key in order to not only to measurable indicators but also the broader pur- encourage the Committee to incorporate remedies with a poses and values of the ICESCR. public interest or structural component in its recommenda- For example, a State can not evade its duty to respect tions. These remedies could include: and enforce the rights guaranteed in international trea- s $EVELOPING DIRECTIVES GUIDELINES OR POLICIES TO MONITOR ties by citing its government structure and decentraliza- implementation of views and recommendations issued tion of health care services to local government units as by the CESCR, provide early warning and address viola- justification for non-compliance. See, for instance, case tions of women’s ESC rights; 75 study Lourdes Osil et al. v. Mayor of Manila (page 113). s %NDORSING A GENERAL REVIEW AND AMENDMENT OF LAWS Further, in the TAC case in South Africa, using a reason- policies and practices inconsistent with the provisions ableness standard of review, the South African Consti- of the ICESCR using a substantive equality lens;80 tutional Court found that the States failure to progres- s %NACTING NEW LAWS IF APPROPRIATE81 sively increase access to anti-retroviral drugs, which inhibit mother to child transmission of HIV/AIDS during child birth, s %NCOURAGING 3TATE REPORTING INCLUDING DISAGGREGATED was unreasonable as there were available resources which data on ESC rights, not only highlighting disparities were not fully utilized.76 between women and men, but also between women, such as women with disabilities, women of racial or It must be acknowledged that if interpreted narrowly, the ethnic minorities, migrant women, indigenous women, reasonableness standard could be used by State Parties to older women, etc.; inappropriately “focus the adjudication of ESC rights on the rationale for State decision-making rather than on the con- s 4AKING CONCRETE STEPS TO STOP ON GOING VIOLATIONS AND tent of rights, and …as a basis for denying concrete, enti- preventing the repetition of similar violations in the 82 tlement based remedies to claimants.”77 If exercised in har- future. These may include legal and administrative mony with the intentions and purpose of the OP-ICESCR, measures addressing a wide range of issues, including “reasonableness review means determining whether the building capacity of the authorities concerned and bud- State has met the standard of reasonableness in the mea- getary allocations; sures or steps taken—in resource allocation and program s 0ROMOTING TRAINING PROGRAMS ON WOMENS ECONOMIC design—in order to ensure the petitioners’ rights.”78 social and cultural rights with a substantive equality per- spective, for personnel in the relevant implementing 5.2.6 Remedies agency and other government employees;83 Remedies, under international law, are aimed at providing s %STABLISHING ACCESSIBLE AFFORDABLE PROGRAMS OR INSTITU- redress to victims through restitution, compensation, reha- tions to assist women (e.g. legal aid, shelters, adult edu- bilitation, satisfaction and guarantees of non-repetition to cation programs, rural health clinics, etc.); those who suffered a human rights violation.79 s )MPROVING THE EFFECTIVENESS OF INVESTIGATIVE METHODS Complainants can have a key role in the articulation and from a substantive equality perspective; and improving 84 creativity of the remedies adopted by the Committee. the involvement of victim in the process; When designing the strategy for a communication under s )MPLEMENTING REGULAR INSPECTIONS OF PUBLIC FACILITIES TO the OP-ICESCR, complainants should have in mind what ensure compliance with the Covenant (e.g. women’s they expect to obtain from the litigation and what they want prisons; detention centers where women immigrants 85 the CESCR to say and order the State to do. Individuals and are housed, public and private health centers; ) women’s groups are, in general, in a better position to ana- s #REATING A NATIONAL HUMAN RIGHTS COMMISSION ANDOR lyze the context and circumstances that lead to the violation commission for women’s human rights;
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s 4AKING STEPS TO CONDEMN AND SANCTION DISCRIMINATION BY 5.2.7 Friendly Settlement private and public actors;86 Article 7 establishes a friendly settlement procedure by s !DOPTING TEMPORARY SPECIAL MEASURES stating that “[t]he Committee shall make available its good s )MPLEMENT A MECHANISM OR CHANNELS FOR EFlCIENT AND offices to the parties concerned with a view to reaching a expeditious receipt and processing of claims of vio- friendly settlement of the matter on the basis of the respect lations of women’s human rights by public or private for the obligations set forth in the Covenant. An agreement actors;87 on a friendly settlement closes consideration of the commu- nication under the present Protocol.” s %NSURING LEGAL AND OTHER SUPPORT FOR VICTIMS TO ACCESS the justice system;88 A friendly settlement consists of a conciliation procedure s $EVELOPING A PLAN OF ACTION TO IMPLEMENT RECOMMEN- in which both parties agree to terminate the Committee’s dations of the Committee and strengthen relationships review of the communication by committing themselves to with civil society organizations to carry out the plan; certain obligations; provided that this agreement is in compli- ance with the obligations under the ICESCR. s 3ETTING OF A TIMEFRAME FOR THE GOVERNMENT TO GIVE FEED- back to the CESCR on steps taken to implement its rec- The success of a friendly settlement mechanism depends ommendations; on its ability to protect the rights of victims while ensuring States Parties act in good faith. The friendly settlement proce- s &UNDING OF WOMENS .'/S PROMOTING EQUALITY dure often allows petitioners and victims to have a more par- s 'ENDER AUDITS AND GENDER AND HUMAN RIGHTS BUDGET ticipatory role and voice in the definition of the terms and con- analysis; and ditions to remedy the violation. Accordingly, the State could s $EVELOPMENT OF GENDER BASED INDICATORS ON EQUALITY be more willing to comply with the measure that itself agreed upon. Negotiation can also potentially allow both parties to As analyzed in the case study Yean and Bosico case,89 explore more comprehensive, creative and integral solutions. (see page 17 ) the Inter-American Court ordered the State, as a non-repetition guarantee, to adopt measures to elimi- The most important consideration to make in deciding nate the historical discrimination caused by its birth record whether or not to make use of the friendly settlement option system and education system. In particular, the State was is the goal of the communication. If the communication was ordered to adopt simple, accessible and reasonable proce- submitted under OP-ICESCR as part of a strategic litigation dures for Dominican children of Haitian descent to obtain a strategy on a particular issue or to advance jurisprudence birth certificate; and the Court requested the State to guar- generally under the OP-ICESCR, agreeing to a friendly set- antee access to free elementary education for all children tlement will undermine this goal. Any agreements or admis- regardless of their background or origin. sions of violations made by the State in a friendly settlement In the case of Mamérita Mestanza v. Perú, (see page procedure do not become part of the established law of 108) the Peruvian Government signed a friendly settle- the CESCR. The agreement cannot be cited by future com- ment agreement committing itself to provide education, plaints on the issue. psychological and medical attention, and housing to the Monitoring by the Committee on implementation of a family of a woman who was victimized by the State’s prac- friendly settlement is essential, especially in ensuring that tice of forced sterilization. But the State was also required the friendly settlement is consistent with the objects and to reform and pass legislation related to family planning as purpose of the Covenant and that the mechanism is not measures of non repetition (or systemic remedy). These used to delay a case indefinitely. The terms of a friendly set- measures were proposed by the national and international tlement should be subject to review and approval by the NGOs involved in the case in consultation with the victim’s Committee, and must also be subject to follow-up proce- family and in light of the impact of forced sterilization on dures in order to monitor its implementation. Further, if a women in Peru and the social and economic factors that State Party fails to comply with the terms of the friendly set- surrounded this violation. tlement, the complainant should have the ability to revive
75 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
the communication from the last point of consideration by causes of violations that would not be possible under the the CESCR, without having to resubmit.90 Further, advocates individual complaints mechanism. The OP-ICESCR enables also need to ensure that use of the friendly settlement pro- the CESCR to initiate and conduct investigations on a large- cedure will not expose the complainant to undue pressure or scale and into widespread violations of economic and social intimidation by the State. rights occurring within the jurisdiction of a State Party. It also contemplates situations where individuals or groups 5.2.8 Follow Up are unable to submit communications due to practical con- straints, fear of reprisals, lack of resources or other reasons Article 9 of the OP-ICESCR establishes the Committee’s unrelated to the merits of the communication. competence to issue its views and recommendations on a communication and creates the basic framework for follow- Therefore, one of the main differences between an inquiry up procedures with the State. procedure and a communications procedure is that the inquiry procedure does not require a formal complaint or a After examining a communication, if the Committee finds victim for the Committee to initiate the procedure; individu- that the State Party has committed the violation/s alleged in als, civil society, local, national or international human rights the communication, it will transmit its views together with organizations, may submit reliable information about a situa- its recommendations to the parties concerned. tion of a grave or systematic violation. However, their partic- As a follow up mechanism, the State Party must submit ipation and involvement in the process differ from the com- to the Committee, within six months after the Committee munication in which they are not considered a party of the releases its recommendations, a written response including procedure.93 information on any action taken in the light of the views of Contrasts between the individual communications and the Committee. inquiry procedures: The Committee can ask the State Party to submit further s THE INQUIRY MECHANISM DOES NOT REQUIRE A FORMAL COM- information about any measures the State Party has taken in plaint or a victim for the Committee to initiate the pro- response to its views or recommendations in the State Par- cedure; while the individual communication needs an ty’s subsequent periodic reports under Articles 16 and 17 of identified victim; the Covenant.91 s A PETITION FOR INQUIRY MAY BE MADE ANONYMOUSLY OP-ICESCR is the first treaty Optional Protocol in which a although this may undermine the requirement that the follow-up procedure has been expressly included in the text, information be reliable before an investigation is com- building on the existing practice of other treaty bodies.92 menced; a communication may not be anonymous; 5.3 The Inquiry procedure s AN INVESTIGATION MAY BE SOUGHT ON BEHALF OF OTHERS unlike a communication; In addition to the examination of individual communications s DOMESTIC REMEDIES NEED NOT BE EXHAUSTED AS A PREREQ- on alleged violations, Article 11 of the Optional Protocol pro- uisite to an inquiry; vides the CESCR with the ability to conduct inquiries when it has received reliable information on grave or system- s INTERIM MEASURES ARE NOT AVAILABLE PURSUANT TO THE INVES- atic violations by a State Party of rights of the ICESCR. The tigation procedure; CESCR then would be able to launch inquiries into grave or s UNLIKE WITH THE INDIVIDUAL COMMUNICATION PROCEDURE THE systematic violations of economic, social or cultural rights on State must explicitly recognize the competence of the its own initiative in response to information it receives from CESCR to conduct an inquiry when ratifying or acceding “reliable” sources. the OP-ICESCR; and The value of the mechanism is that it complements the OP- s ACCORDING TO THE EXPERIENCE OF OTHER 5. TREATY BODIES ICESCR communications procedure as it allows the CESCR there have been very few inquiry investigations as com- to address a broader range of issues, including structural pared to individual communications;
76 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
In the acknowledgment that violations of economic, social 5.3.2 Reliable information and cultural rights are widespread, the inquiry procedure The term “reliable” means that the Committee must find also allows the Committee to respond directly to serious the information to be plausible and credible. In assessing the violations taking place within a State Party to the ICESCR standard of reliability the Committee can examine the spec- instead of waiting until the next State report is due to be ificity of the information submitted; whether there is cor- submitted. However, this procedure is not necessarily more roborating evidence; whether the information is consistent timely than an individual communication.94 with that from other sources; and whether the source has However, this procedure must be explicitly accepted by a credible record in fact-finding and reporting. The CESCR States Parties. The CESCR can only undertake this proce- can also examine the context and situation of the country, dure if the State expressly recognizes the competence through the examination, for example, of country reports of the CESCR to do so when ratifying or acceding the under the periodic reporting mechanism; information from OP-ICESCR. The “opt-in” formula constitutes a step back other UN bodies or experts, regional human rights bodies, from other instruments, such as OP-CEDAW,95 which do not from NGOs, women’s groups, agencies, organizations work- require States to take the explicit step of affirming their will- ing with refugees and internally displaced persons,99 etc. ingness to be subject to this procedure, rather it requires There are no restrictions regarding the sources of such infor- them to “opt-out.”Therefore, before considering possibili- mation or the format in which it may be received. ties for encouraging an inquiry in a particular case, claimants The inquiry procedure is most commonly initiated by must ensure the relevant State has accepted this provision. NGO’s which may be in a better position to document a pat- tern of violations.100 Nevertheless, individuals are not barred 5.3.1 Grave and systematic violation from providing information to CESCR and suggesting to the A “grave” violation refers to the severity of the violation Committee that an investigation is warranted according to -e.g. discrimination against women linked to violations of the information provided.101 their right to life, physical and mental integrity, and security. A grave violation can be a single act. The Committee may 5.3.3 Procedure for Requesting an Inquiry determine that an inquiry into a single “grave” violation is The information submitted to the Committee for the pur- appropriate on the basis of the facts of a particular situation, pose of triggering an inquiry should state explicitly that it is e.g., State failing to take measures to eliminate female gen- submitted for this purpose. The information can be received ital mutilation, or forced virginity testing by the State to hold from any source (individuals, civil society, local, national or certain jobs.96 international human rights organizations). In addition, infor- The term “systematic” refers to the scale or prevalence of mation arising from the State reporting process may be suf- a violation, or to the existence of a scheme or policy direct- ficient in form and substance to suggest to the Committee ing a violation. A violation not rising to the level of severity that an Article 20 investigation is warranted. implied by “grave” may still be the focus of inquiry if there is After the CESCR receives information concerning a grave a pattern, or if abuses are committed pursuant to a scheme or systematic violations of any of the rights set forth in the or policy. A violation may be systematic in character with- ICESCR, the CESCR will study it and decide whether the out resulting from the direct intention of a State Party -e.g. information is reliable and indicative of grave or systematic a government policy promoting population control in rural violations of rights. Nothing impedes the Committee from areas resulting in the sterilization of a large group of indige- requesting further information (from the same source or a nous women without their consent, such as was done in the different one), when necessary in order to proceed with case of Mamerita Mestanza in the Inter-American Court of the inquiry. Human Rights (see page 108 ).97 In addition a policy may pro- duce systematic restriction on women’s rights even without The entire inquiry process is confidential, and is conducted implementation if, for example, it deters women from enjoy- in consultation and cooperation with the concerned State. ing their social and cultural practices.98 s )NVITATION TO COOPERATE
77 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five # SectionPart Five #
Individual Communication Procedure Sources of information: s .'/ REPORTS s /THER 5. AGENCIES AND BODIES REPORTS s $OCUMENTARY EVIDENCE TESTIMONIES videos, etc.
Prior to assessing 2. If the Committee 4. Once the Committee 1. The Committee the admissibility of a decides that has made it decision receives an individual 5. The State must complaint, The Committee the complaint is 3. The Committee regarding whether complaint and respond within 6 has the option to impose admissible, examines the merits of a rights violation determines whether months stating what interim measures to the complaint in light of occurred, it transmits it is permitted to s IT SENDS THE COMPLAINT action it has taken. prevent irreparable damage available information its decision to both examine. to the State to request information. parties.
The Committee can If the Committee decides that the Admissibility criteria: If both parties are The CESCR may, with the willing, the CESCR agreement of the State, ask the State to provide complaint is not eligible for examination, s "E SUBMITTED BY OR ON BEHALF OF AN can facilitate a friendly inform UN and other further information. it informs the complainant and the State. individual or group of individuals under settlement between bodies of any need by the The process comes to an end. There is THE JURISDICTION OF A STATE THAT IS PARTY TO them, which then ends State for technical advice no appeal possible. the Protocol the process. or assistance, along with s )T INVOLVES FACTS THAT OCCURRED AFTER THE the State’s suggestions. entry into force of the Protocol for the The CESCR can also inform State Party concerned, unless those these bodies, again with facts continued after that date the State’s agreement, Reasons of inadmissibility: s "E SUBMITTED AFTER THE COMPLAINANT of international measures s )T HAS ALREADY BEEN EXAMINED BY THE TRIED AND WAS UNABLE TO OBTAIN JUSTICES likely to assist States CESCR or under another international domestically, or if domestic remedies implement the ICESCR. complaints body were taking an unreasonably long time s )T IS AND ABUSE OF THE RIGHT TO SUBMIT s "E SUBMITTED NO MORE THAN ONE a complaint year after the exhaustion of available s )T CLEARLY HAS NO JUSTIlCATION DOES NOT domestic remedies, unless it was not provide enough proof or is based solely possible to respect this time limit on media reports without any further s "E IN WRITING evidence The OP-ICESCR does not provide for a separate s )T IS ANONYMOUS OR NOT IN WRITING follow-up procedure based on whether a violation was found. The State is always required to give a report s )T IS INCOMPATIBLE WITH PROVISIONS of the Covenant after 6 months.
78 79 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
After receiving the information regarding a systematic vio- narrower space for women and NGO’s to request specific lation of ESC rights by a State Party that has consented to be remedies. However, individuals and NGOs can take advan- subject to the inquiry procedure, the CESCR will invite the tage of CESCR country visits to provide information to the State Party to cooperate by submitting a response or infor- Committee, denounce the situation through other UN bod- mation with regard to the information concerned. ies (to which the CESCR may reach out according to Article s $ECISION TO PROCEED AND TRANSMISSION TO THE 3TATE 14) or though the submission of shadow reports under the periodic review. On the basis of this information, the Committee decides whether to conduct a confidential inquiry and submit an The inquiry mechanism, although confidential in its pro- 102 urgent report. ceeding, can influence systematic patterns of human rights violations; challenge the content, orientation or imple- 5.3.4 Country Visits mentation of public policies that affect broad social sectors; and promote legal and structural reforms that improve the The inquiry procedure can include a visit to the territory. quality of democratic institutions. Hearings may also be conducted as part of the visit. The State Party’s consent is a prerequisite to any visit and any hearings that occurs during the visit. The visits are also 5.3.6 Extraterritorial obligations envisaged under the CAT and CEDAW procedures. As discussed on page 64, the OP-ICESCR offers a platform to discuss States’ extraterritorial obligations. The restric- Country visits can be a key component of the inquiry to tions in doing so through an individual communication were open constructive dialogue with the State, victims, and other analyzed above; however, the inquiry procedure –as well as relevant organizations, and examine the situation in more Inter-State103 complaint procedure—could be seen as more depth. likely possibilities for the articulation of complaints of viola- Most UN treaty bodies, UN Special Rapporteurs and tions of extraterritorial obligations before the CESCR.104 This regional human rights mechanisms provide the competent is because the text of the OP-ICESCR with regards to indi- bodies with the capacity to do in situ (on site) examination of vidual communications introduces a limitation on the sub- the situation of human rights in the country under scrutiny. mission of communications to individuals or groups of indi- viduals “under the jurisdiction” of the State Party indicated 5.3.5 Remedies in the communication. The text on initiation of the inquiry Under the inquiry procedure, the CESCR will address and procedure, however, does not include this language. analyze patterns of illegal conduct—patterns that some- The United Nations Special Rapporteur on Violence against times reveal structural or institutionally sanctioned actions or Women has noted that a State “can not delegate its obliga- omissions—that are responsible for systematic ESC rights tion to exercise due diligence, even in situations where cer- violations. The comprehensive analysis will offer the CESCR tain functions are being performed by another State or by a the opportunity to think broadly about measures, remedies non-State actor. It is the territorial State as well as any other and reparations to respond to the context and circumstances States exercising jurisdiction or effective control in the terri- of the illegal conduct. tory that remain, in the end, ultimately responsible for ensur- Therefore, and given its rationale, remedies for inquiries ing that obligations of due diligence are met. Related to this are expected to be more public interest oriented than for point is the notion that due diligence may imply extraterrito- communications. rial obligations for States that are exercising jurisdiction and The CESCR must strive to address structural inequalities effective control abroad.”105 that shape the lives of women. While under the communication procedure complainants 5.3.7 Follow-up are able to strategize around the remedies that they would Article 12 regulates the follow-up to the recommendations like the CESCR to endorse, the inquiry mechanism leaves a made in the inquiry procedure.
80 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
Inter-State Procedure under the OP-ICESCR
Before submitting the matter to the CESCR
If a State considers that another State Party is Within three months after the receipt of not fulfilling its obligations under the Covenant it the communication the receiving State will bring the matter to the attention of that State will afford the State an explanation, Party clarifying the matter s BY WRITTEN COMMUNICATION s )N WRITTEN s 4HE 3TATE 0ARTY MAY ALSO INFORM THE #OMMITTEE s IT CAN INCLUDE REFERENCE TO DOMESTIC of the matter. procedures and remedies taken, pending or available;
Proceure Before The CESCR
If the matter concerned is not settled within six Admissibility criteria: months after the initial communication, either Exhaustion of domestic remedies State shall have the right to refer the matter to (unless the application of the remedies the Committee. Notice must also be given to the other State. is unreasonably prolonged);
During the procedure, the CESCR will Friendly solution: The Committee will make s (old closed meetings available its good offices to the State Parties concerned with a view to a friendly solution on s Request information the basis of the respect for the obligations set s Receive States submissions orally forth in the Covenant. and/or in writing;
81 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
The Committee has two mechanisms through which it 5.4. The Inter-State procedure can follow up on its recommendations. The Inter-State procedure (see diagram on page 81) allows a) Six months after the State has been notified of the find- for a State to submit a complaint to the CESCR about alleged ings of the inquiry and the Committee’s comments and violations of the ICESCR committed by another State. Both recommendations, the Committee may ask the State to States must be parties to the OP-ICESCR and both States inform it of any measures it has taken in response to the must have “opted-in” to this procedure in order to submit inquiry (Article 12.2). The CESCR may also ask the State this complaint. The State must first bring the matter to the Party to keep it informed about further measures. attention of that State Party and may also inform the Com- b)It can request the State Party concerned to include mittee. If the matter is not settled to the satisfaction of both details of any measures it takes to comply with the rec- State Parties concerned within six months, either State can ommendations in its next periodic report (Article 12.1). refer the matter to the Committee. So far, this procedure has never been used by any of the Given the nature of economic, social and cultural rights four of the human rights treaties that contain provisions to and the obligation of progressive realization within maximum allow for States Parties to complain to the relevant treaty available resources, which also applies to remedies; includ- body about alleged violations of the treaty by another State ing a procedure for long-term follow-up is in line with the Party,107 which is mostly likely due to the political implica- spirit of the ICESCR.106 tions of this type of procedure. Technical Assistance Article 13.1 allows the Committee, with the consent of the Notes !" State concerned, to request United Nations specialized agen- $R"MD2UF%"-&"I2R&%"RD/R"/R"RD&"RE'&"2K"GU-FE./RE2I"2K"RDEM"SUE%&4"RD&"?C\$1B>1," D/M"I2R"T&R".2'&"EIR2"K2L.&"/I%"ERM",UF&M"2K"CL2.&%UL&"D/J&"I2R"T&R"-&&I" cies, funds and programmes and other competent bodies, for /%2GR&%("=D&L&K2L&4"'U.D"2K"_D/R"K2FF2_M"EM"EIK2L'&%"-T"RD&"1B>1,"<&I&L/F" technical advice or regarding measures included in the Com- 12''&IRM4"12I.FU%EIS"?-M&LJ/RE2IM"/I%"/GGL2/.D"2K"RD&"1B>1,"%ULEIS" RD&"%L/KREIS"2K"RD&"?C\$1B>1,("$I"/%%ERE2I4"ER"EIR&SL/R&M"RD&"JE&_M"2K"RD&" mittee’s findings, conclusions and recommendations. $IR&LI/RE2I/F";1,4".2'G2M&%"2K"'/IT"2K"F&/%EIS" .EJEF"M2.E&RT"&fG&LRM"2I"RDEM"MU-^&.R( As highlighted under each section, this can be done in the #"=D&"I&.&MMERT"2K"E'GF&'&IREIS"RD&"GL2JEME2IM"2K"RD&"12J&I/IR"RDL2USD"%2'&MRE." context of both communications procedures and inquiry pro- F&SEMF/RE2I"EM".2IMEMR&IR"_ERD":LRE.F&"#W"2K"RD&"!NON"PE&II/"12IJ&IRE2I"2I"RD&" cedures. Given that many of the rights included in the ICE- Z/_"2K"=L&/RE&M4"_DE.D"MR/R&M"RD/R"d/"G/LRT"'/T"I2R"EIJ23&"RD&"GL2JEME2IM"2K"ERM" SCR also fall within the sphere of competence and opera- LQWHUQDOODZDVMXVWL¿FDWLRQIRULWVIDLOXUHWRSHUIRUPDWUHDW\´ )" tion of several different specialized bodies and programmes =D&"B>1,"12''ERR&&"EM"EI"RD&"GL2.&MM"2K"/%2GREIS",UF&M"2K"CL2.&%UL&"K2L"RD&" 23,&(6&5$QXPEHURINH\LVVXHVWKDWZLOOEHLQÀXHQWLDOLQGHWHUPLQLQJWKH in the UN and regional human rights system, including '&.D/IEM'Mh"GL2.&&%EIS"/M"_&FF"/M"RD&"&KK&.REJ&I&MM"/I%".2'G&R&I.&"2K"RD&" the Office of the High Commissioner for Human Rights B>1,"12''ERR&&"_EFF"-&".2IME%&L&%"UI%&L"RDEM"M&R"2K",UF&M"5F&RbM"M&&"_D&RD&L" RD&"LUF&M"_EFF"-&"L&F&/M&%"-T"RD&"RE'&"_&"GU-FEMD"RD&"'/IU/F6 (OHCHR), International Labour Organization (ILO), the World *">&&4"K2L"&f/'GF&4"?C\1BQ:A4"./M&M"ùDKLGH*RHNFH GHFHDVHG Y$XVWULD Health Organization (WHO), the United Nations Food and 6M.2%'-#,*$#.)%",%78*1BQ:A[1[)N[Q[+[#XX+4"O":USUMR"#XXWV"/I%"a(-2(* Agriculture Organization (FAO), the United Nations Educa- [#)M#*6M%,%('%M7*$:*;1'-&#(*6M.2%'-#,*$#.)%",%7"1BQ:A[1[)N[Q[O[#XX+4"!" tional, Scientific and Cultural Organization (UNESCO), UN- ?.R2-&L"#XXWV"?C\$11C,4"./M&"U&.145*$*;1'-&()#(4"11C,[1[]O[Q[!!]*[#XX)4" #W":GLEF"#XXOV"/'2IS"2RD&LM( Habitat, UNAIDS, UNFPA, the United Nations Development +"?C\$1B>1,4"d:LRE.F&"*n=D&"12''ERR&&"'/T4"EK"I&.&MM/LT4"%&.FEI&"R2".2IME%&L" Programme (UNDP), UN Women, the IASHR, the EHRS and /".2''UIE./RE2I"_D&L&"ER"%2&M"I2R"L&J&/F"RD/R"RD&"/URD2L"D/M"MUKK&L&%"/".F&/L" the ACHPR; the CESCR could benefit from and enhance the %EM/%J/IR/S&4"UIF&MM"RD&"12''ERR&&".2IME%&LM"RD/R"RD&".2''UIE./RE2I"L/EM&M" /"M&LE2UM"EMMU&"2K"S&I&L/F"E'G2LR/I.&(h":..2L%EIS"R2"RD&"12IME%&L/RE2IM"2K" work they do in ensuring those rights are realized. RD&"$IR&LI/RE2I/F";2.E/F"/I%"1UFRUL/F",ESDRM"EI"L&F/RE2I"R2"RD&" In addition, it mandates the establishment of a trust fund ?C\$1B>1,"/I%"ERM",UF&M"2K"CL2.&%UL&":LRE.F&"*"MD2UF%"I2R"5/I%"%2&M" to provide expert and technical assistance to State Parties QRW FRQVWLWXWHDQDGGLWLRQDOUHTXLUHPHQWWREHVDWLV¿HGE\WKHDXWKRUVRI .2''UIE./RE2IM("d$K"ER"_&L&"R2"-&"/GGFE&%"L2UREI&FT"EI"RDEM"'/II&L"2L">R/R&M"_&L&" for the “enhanced implementation” of the rights contained R2"-&"G&L'ERR&%"R2"EIJ23&"ER"/M"/I"/%%ERE2I/F"%&K&IM&4":LRE.F&"*"_2UF%"D/J&"RD&" in the Covenant. 2GG2MER&"&KK&.R"R2"ERM"EIR&I%&%"GULG2M&4"-T"&fG/I%EIS"L/RD&L"RD/I"L&%U.EIS"RD&"
82 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
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83 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
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84 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
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85 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
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86 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
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87 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Five #
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88 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section #
Part Six: Advocacy and Litigation on Women’s ESC Rights
89 6 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Six
6. Advocacy and Litigation on Women’s ESC Rights
Women globally have witnessed a strong resistance to their to advocate on human rights at international and national activism in the recognition and realisation of their univer- level indicates that it is important for women’s groups and sal human rights to equality and non-discrimination. There human rights organizations to expand their approaches to is still a long way to go for women to be acknowledged and integrate their advocacy on women’s rights and their advo- accepted as full and equal participants in shaping and imple- cacy on economic, social and cultural rights. menting international as well as national norms and stan- dards guaranteeing basic rights and fundamental freedoms. 6.1 International Advocacy Advocacy on economic, social and cultural rights has NGOs working on ESC rights and women’s rights groups increasingly been integrated into the work of mainstream have to be strategic in identifying and engaging with the human rights groups and organisations, but women’s real- mechanisms at international level. There is a wide range ities in relation to violations of economic, social and cul- of mechanisms available for ESC rights NGOs and wom- tural rights are rarely given specific attention in terms of en’s organisations to pursue their advocacy on recognition the nature and scope of violations as well as the relevance and implementation of women’s ESC rights. The nature of a for the realisation of economic, social and cultural rights human rights mechanism at international level usually deter- for all. Moreover, women’s rights groups have not inte- mines the scope and impact of advocacy by activists and grated a focus on ESC rights in their work to this same organisations, as well as its relevance for national level activ- degree, rther entrenching the silence around women’s ESC ism and lobbying. rights in human rights debates. Within NGOs and women’s rights organisations there has been a high reliance on using 6.1.1 Human Rights Council CEDAW to understand, interpret and analyse the realities of The special procedures of the Human Rights Council, for women in the context of ESC rights and a strategic focus on example, the Special Rapporteur on Education, the Right the effectiveness of using ICESCR to advance women’s ESC to Health, etc., do not have an elaborate process to moni- rights has not been considered as a priority. The significance tor human rights implementation nationally, but these pro- of looking at the intersections of CEDAW based discourse cedures are of immense value and importance for NGOs on women’s equality rights together with the the meaning, and human rights groups when urgent attention is required scope and impact of specific rights recognised and articu- to be brought to an urgent or ongoing violation of women’s lated in the ICESCR, and vice versa, is critical for addressing ESC rights. These procedures are strategic for “naming the gaps and challenges faced by NGOs and groups advo- and shaming” of the government and key actors and initi- cating on women’s ESC rights. This section aims to provide ating a public debate on fulfilment by the State of its inter- interested NGOs and women’s rights groups with informa- national obligations. tion on the range of mechanisms and strategies/tools avail- The Human Rights Council itself, along with its mechanism able for building evidence-based advocacy and litigation on of Universal Periodic Review, provides another opportunity women’s ESC rights. for NGOs to advocate for women’s ESC rights as does the Both NGOs advocating on ESC rights and women’s rights Commission on the Status of Women which meets annually groups advocating women’s ESC rights have success- in New York and various ad hoc international conferences, fully utilised the multiple opportunities to advocate for ESC platforms and NGO events such as World Conferences and rights at the international and national levels. Analysis of and follow-up activities to the Beijing Platform of Action, follow- engagement by international organisations (such as IWRAW up to the Earth Summit such as Rio +20 and annual NGO Asia Pacific and ESCR-Net) with the mechanisms available events such as the AWID Conference. Further venues for
90 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Part Six UN PHOTO/ALBERT GONZÁLEZ FARRAN UN PHOTO/ALBERT
international advocacy exist at the regional level in various the interpretation of the normative standards contained in regions such as through the European human rights system the treaties and clarify State obligation with regard to spe- including the European Court of Human Rights, the African cific rights or issues. The General Comments by the CESCR Union and the African Court of Human and People’s Rights, and General Recommendations by the CEDAW Committee the Inter-American human rights system and the Inter-Amer- can be extremely useful advocacy tools for NGOs as they ican Court of Human Rights, and the newly developing Asso- set out in detail the extent to which States are obliged to ciation of South East Asian Nations regional system. respect, protect and fulfill women’s ESC rights. Some partic- ularly useful General Recommendations/General Comments 6.1.2 UN Human Rights Treaty for advocacy on women’s ESC rights are GC 16 and 20 of the CESCR and GR 24, 26 and 28 of the CEDAW Committee.1 Monitoring Bodies The reporting procedure under each treaty, including Each of the nine core international human rights treaties, is CEDAW and the ICESCR, mandates State Parties to submit supported by a Committee of independent experts. periodically a detailed report on the status of implementation Each of these Committees carries out a variety of functions, of the rights recognised under these human rights treaties. including the examination of complaints under the Optional The Committees constituted under these treaties have obli- Protocols and the development of General Comments/Rec- gated the State to undertake a consultative process towards ommendations. Through the development of General Com- the compilation of the State report, and at the same time ments/Recommendations, the Committees elaborate on these Committees have encouraged civil society groups
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and organisations to provide alternative information on the Observations) to effect change. extent to which the State has undertaken measures or steps Although the two treaties relate to specific and distinct towards the realisation of rights under CEDAW and ICE- areas of human rights both the CEDAW and ESCR Com- SCR. The result of this reporting process at the international mittees have recognized the need for a greater integration level will greatly contribute towards shaping the agenda and of women’s rights and economic social and cultural rights development of strategies for women’s organisations and in their respective processes. Thus in reporting on wom- ESC rights NGOs in their advocacy on women’s ESC rights. en’s ESC rights there can be substantial value in not limiting Using the Reporting Process as a platform to advocate reporting to one of these treaties, but rather reporting under for Women’s ESC Rights both CEDAW and ICESCR. At the international level, the human rights treaty report- In addition to producing reports for the CEDAW and CESCR ing process is a key mechanism through which NGOs can Committees, women’s ESC rights can also be addressed advocate for the recognition of women’s through shadow/alternative reports to ESC rights and for the redress of violations Using litigation as human rights treaty bodies under other Conventions including the ICCPR, CAT, of these rights. It is an important means a strategy or as a by which NGOs can advocate for States CERD, CRC CPRD and the CMW. Par- to be held accountable to their obligations tool in national level ticularly where States may not have rat- under a treaty. The main way that NGOs ified CEDAW or ICESCR, or have reser- vations to CEDAW and ICESCR, it can can contribute to the treaty reporting pro- advocacy is critical be useful to advocate for women’s ESC cess is through producing shadow reports for the domestication rights through other treaties that have or alternative reports to be considered as been ratified. For example, the CRPD is part of the regular review of State Parties of standards and of an important means for advocating for who have ratified a treaty. the legal framework the economic, social and cultural rights NGOs have successfully raised wom- adopted under the of women with disabilities. Further, build- en’s narratives and specific case studies ing on the indivisible and inter-related that illustrate systemic problems or pat- international human nature of rights, some NGOs have been terns of human rights violations of wom- rights treaties. successful in advocating for economic, en’s ESC rights in shadow reports. Shadow/ social and cultural rights such as the right alternative reports can be produced for both to housing, by reporting on the impact of violations of eco- the CEDAW Committee and the CESCR, on women’s ESC nomic, social and cultural rights on other rights such as the rights that are recognised under their respective treaties. right to life under the ICCPR. 2 The reporting guidelines developed by IWRAW Asia Pacific NGO shadow reporting can be strategically utilized to on CEDAW and on women’s ESC rights jointly with ESCR-Net increase awareness of the rights and obligations contained (see page 63) provide assistance to individuals and organisa- in the treaties, promote integration of all women’s human tions who are working within the shadow reporting processes rights and improve State accountability for fulfilling its obli- of CEDAW and ICESCR on how to incorporate information on gations under the treaties. the women’s rights related dimensions of economic, social and cultural rights in parallel reports for both processes. The guidelines provide clarity on how NGOs should package infor- 6.2. National Level Advocacy mation to ensure a more effective impact on the review pro- cess in a way that is useful for the CEDAW and CESCR Com- Bringing International Human mittees. They also contain information about how to most Rights Law Home effectively use the review process and the outcomes of the Often the international advocacy advancing women’s ESC review (the recommendations contained in the Concluding rights using human rights monitoring mechanisms provides
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support to national level advocacy. The specific recommen- Strategic litigation is a useful strategy when the change dations given by the Committees through concluding obser- desired is of broader application, such as seeking the vations in their review of State reports can provide a plat- enforcement of an existing law, remedy a widespread vio- form for NGOs and women’s rights groups to raise issues of lation of State’s obligations, change or establish a national/ women’s ESCR. provincial policy, reform public institutions, or inspire social/ political change. Also, strategic litigation is very useful in To maximise the transformative potential of human rights cases where an issue may be unpopular, is not in line with treaty processes, NGOs can hold States accountable to the current power structure in the country, there are strong their obligations under both CEDAW and ICESCR through opposing interests, or represents the rights of marginalized a range of advocacy strategies at the national level, includ- groups, and would therefore have little traction in the formal ing monitoring, policy and law reform, litigation, and com- legislative process. Strategic litigation at the international munity education. It is important that capacity building of LEVEL HAS THE ADDED IMPORTANCE OF HELPING TO mESH OUT THE NGOs and activists on strategic use of international human scope and obligations of women’s ESC rights, which can be rights mechanisms is undertaken to enhance the impact of used in other international fora as well as for domestic litiga- international level advocacy, and make a shift in the under- tion and advocacy. standing of NGOs and local level women’s rights organisa- Strategic litigation at the international level can also be a tions on the potential and scope of international advocacy useful strategy for civil law States. For example, although on women’s ESC rights. NGOs can also advocate for policy decisions made in cases at the national level in civil law juris- and law reform initiatives to be consistent with the human dictions will not generally apply beyond the specifics of that rights standards and obligations expressed in CEDAW and case, a pronouncement by an international legal body on ICESCR. For example, advocating for national development the content and obligations related to women’s ESCR could plans or framework legislations to incorporate specific poli- potentially be used quite broadly in national level advocacy cies and programs for the implementation of women’s rights and future national level cases on the issue. to housing, food, education and health care. Primary Elements to Consider 1. Is there a clear violation of an economic, social or cul- 6.3. Using Strategic Litigation as a tural right? strategy in national level advocacy 2. Can the issue be adjudicated in court? Do adequate and on Women’s ESC Rights effective remedies exist at the national level? Litigation can be used as a strategy both at international and 3. Will it be possible to sustain support (both human and national levels to advance women’s ESC rights. NGOs can financial) for the duration of the case? use litigation as a source of remedy, and ensure that the 4. If successful, will the outcome of the case have wide- #%$!7 AND )#%3#2 STANDARDS AND OBLIGATIONS ARE REmECTED spread effects on the right at issue? in their litigation strategy. Using litigation as a strategy or as a tool in national level advocacy is critical for the domestica- Critical Factors in Determining a Strong Case for tion of standards and of the legal framework adopted under Strategic Litigation the international human rights treaties. In legal systems, for 1. Will successful litigation of the case encourage social example the common law system, where the decisions by change and legal reform? an appellate level or apex court become law with equal stat- 2. Can you link the individual or group case to a more sys- ure as that of a law enacted by a national legislature or parlia- temic/collective remedy? ment, litigation is a critical tool for local NGOs and women’s rights organisations in raising discrimination experienced by 3. How political is the particular issue in the case in both women in the context of their ESC rights, as well as towards the domestic and international context? setting standards for national level implementation of inter- 4. Is there internal capacity to litigate the case or will you national human rights. need external support?
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5. Can you link with allies and other stakeholders to question. Also, if the main goal is to raise public awareness strengthen support for the case? and support for an issue, a media campaign will likely be 6. Can a positive decision in the case be effectively moni- more effective. tored and implemented? It is also important to assess whether the relevant group of women implicated in the litigation will be supportive of Integrating Substantive Equality and ESCR in your Case the case and if they are aware of the violation of their rights 1. Ensure intersectional experience of rights violation (if by the practice or policy. If not, perhaps awareness-raising present) is highlighted in the complaint. needs to happen first to ensure that future litigation not only 2. Look for opportunities to build capacity of the court to changes law or policy, but is also inclusive and empowering understand the unique nature of women’s ESCR vio- for the women affected. You also must consider whether lations—could be through amicus curiae submissions. there could be retaliation or further marginalization for the women involved in the case. If so, it might be safer and/or 3. Use the case to build capacity of service providers, more effective to engage in public education prior to litiga- local lawyers and government agencies to recognize tion. Finally, practical considerations like availability of evi- human rights violations and address them through pol- dence or available funds will also be highly relevant to the icy change. strategy chosen. 4. Be aware of when to use an integrated approach to The ultimate consideration in deciding whether to engage issues and when it might not be successful. on strategic litigation in a particular case, however, is whether litigation as part of a larger advocacy strategy or indeed lit- 6.3.1 Developing a Case Strategy igation at all is the best option for the particular woman or It is important to keep in mind in developing a case selec- women involved. If there are more effective ways for the vic- tion criteria and identifying cases which have the poten- tim to obtain redress or to obtain more appropriate redress, tial of being used for strategic litigation that most often she must be fully informed of these options and facilitated in these cases will emerge on an ad hoc basis. It will be infre- making the decision that is right for her. quent that you will have an array of strong potential cases to Assessment of impact of potential case choose from. However, because litigation is often a long and expensive process, it remains important to have an under- One important consideration on whether a case is poten- standing of what some of the key factors are to be able to tially good for strategic litigation is the expected impact it identify a potentially successful case. Below some of these may have on the affected group represented by the facts in key factors are explored. the case. There are a variety of reasons that it is important to develop Is litigation the right strategy? clear criteria for selecting cases for strategic litigation. First, Before beginning to identify a case for strategic litigation, the it will benefit your organization to have an equitable and most important question to consider is whether litigation is transparent process for choosing cases to help dispel poten- in fact the best strategy for that issue. In many cases, tra- TIAL CONmICT IF A CASE NEEDS TO BE REJECTED OR TO ENSURE COM- ditional legislative processes and popular social reform can pliance with the mission and focus of your organization. Fur- be equally or more effective in changing law and policy. This ther, if additional funding will need to be acquired to pursue will depend on many factors, but particularly, the political/ the case, the likelihood of finding support for a particular social climate surrounding the issue. If there is an opportu- issue or group will also be relevant. nity to gain support for the issue from a majority of the pub- The “representative victim” and the seriousness of the lic, if you have support of the media, or key allies within the violations involved in the case should also be considered. legislative or executive branch, the traditional legislative pro- Also, support for the individual or group in the case will likely cess may be the faster, less expensive and more effective be critical to her willingness to pursue it over the long-term. means of making change on the particular law or policy in If an individual is represented, does she have a family and/or
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Case Selection Criteria
The Importance Of The Issue For Women’s ESC rights What is the likelihood of a successful judgment s (OW WIDESPREAD IS THE ISSUEPRACTICE IN THE COUNTRY being enforced/implemented? s $OES IT REmECT A SYSTEMIC PROBLEM s 7HAT WOULD YOUR ORGANIZATIONS ROLE BE IN ENFORCE- s $OES IT AFFECT AN INDIVIDUAL OR GROUP OF INDIVIDUALS ment? Who could you work with? s (OW SERIOUS IS THE VIOLATION COMPLAINED OF Your Organization’s Contribution
Anticipated Impact Of Case On Women’s ESC rights s #OULD YOUR INVOLVEMENT BRING REAL ADDED VALUE TO THE Standards case? s 7HAT IS THE LIKELIHOOD OF hSUCCESS s $O YOUYOUR ORGANIZATION HAVE SUFlCIENT EXPERTISE ON the subject matter? s 7HAT IS THE POTENTIAL IMPACT ON WOMENS ACCESS TO ESC rights likely to be? s )S THERE RELEVANT EXPERIENCE FROM OTHER LAWYERS s $OES THE ANTICIPATED SCOPE OF IMPACT REACH BEYOND organizations with whom you work? the individual woman or group of women in the case? s !RE THERE OTHER ORGANIZATIONS BETTER PLACED TO DO THIS s 7HAT OTHER POSSIBLE IMPACT MIGHT THE CASE HAVE EG or with whom you could usefully collaborate e.g. on public opinion)? through partnerships. s )S THERE SOME OTHER OBJECTIVE NOTABLY CAPACITY BUILD- Resources ing or relationship building that might, exceptionally, s (OW MUCH TIME IS LIKELY TO BE TAKEN ON THIS CASE justify case selection? s $O YOU HAVE THE TIME TO DO IT IN VIEW OF OTHER COM- s 7HAT ARE THE POTENTIAL CONSEQUENCESNEGATIVE mitments? impacts on women or other rights? s !RE THERE COST IMPLICATIONS s )S THE CASE POLITICALLY SENSITIVE s )S THIS THE MOST APPROPRIATE AND BEST USE OF LIMITED s )S THERE A RISK THAT SUCCESS IN THIS CASE MIGHT NEGA- resources? tively impact on standards of human rights protection Source: adapted from International Centre for the Legal Protection of Human elsewhere? Rights (INTERIGHTS), Background Note on Case Selection (2010). community that are supportive of the case? If the clients are the impacts actual implementation of the judgement may a group of individuals, do they have support from the com- have. In case of international communication/litigation, it munity or class in which they are a part? is clear that getting complete implementation of the views In relation to strategic litigation at the international level and recommendations of the Committee may be very diffi- through use of Optional Protocols, the communications to cult. However, sometimes there can be positive impacts for CEDAW and CESCR must be on behalf of an individual or the affected groups in the case even where implementa- group of individuals. To be a good candidate for strategic lit- tion is lacking. For example, if a large amount of national and igation it should be representative of a wider pattern of vio- international attention is brought to the issue, the State may lations or the impact of a law or policy on different groups refrain from moving forward with a policy which violated of women, such as women with disabilities, poor women, women’s human rights, or it may better educate the public indigenous women, etc. and advance domestic discourse on the issue making legis- Furthermore, potential impact should be assessed beyond lative change more likely in the future.
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critical to ensuring the broader impacts of the case and that Important Strategies to Increase the claim advanced is truly representative of a widespread the Likelihood of Implementation: violation that needs to be addressed. It is always impor- tant to also engage in non-legal strategies and to reach out s 4HE ENFORCEMENT STRATEGY SHOULD BE DEVELOPED to social movements or other civil society groups. Strategic and integrated into the overall litigation strategy litigation on a particular case is greatly strengthened when from the start of the case; linked with domestic and international advocacy and a media s "E SPECIlC IN THE COMMUNICATION ABOUT THE DESIRED awareness campaign. Linking with a variety of stakeholders, remedy and be aware of the current institutional and particularly social movements, will increase awareness capacity of the relevant national agencies which of human rights within society and build popular pressure will be responsible for implementing the recom- and support during the litigation itself, but often more impor- mendations—consider working with the relevant tantly afterward, to ensure the State implements the recom- government agency to better implement a deci- mendations of the Committee. sion; s !SK THE #OMMITTEE TO APPOINT A SPECIAL RAPPORTEUR Financing the case / finding litigation support to oversee follow up and require the State to spe- Issues of financing or legal costs will primarily arise at the cifically report on progress in implementation of domestic level, for example whether the court requires the the case in its periodic review; losing party to cover both parties legal fees, in addition to s $EVELOP A LARGE CROSS SECTION OF ALLIES FOR THE the actual costs of the litigation itself. In most countries, case, including social movements and grassroots legal aid organizations exist which can help cover some groups, academics, the media and a broad cross- costs of the litigation, however, most often it is necessary to section of national civil society groups and interna- undertake fundraising work to locate funds to cover impact tional NGOs; litigation at the national level. It may also be possible to link with regional/international groups that may be interested in s "UILD NATIONAL AND INTERNATIONAL AWARENESS AROUND potentially working collaboratively to take the case through the case through a concerted media strategy and the appeal process and to the regional/international level to relationships with international groups; also help cover some of the national level litigation costs. s 5SE HUMAN RIGHTS BUDGETING GENDER BUDGETING On page 119, you can find a list of potential sources of litiga- and tax information to oppose State arguments on tion support or funding for national level litigation on wom- lack of resources for implementation; en’s ESC rights s 0RESENT THE VIEWS AND RECOMMENDATIONS MADE BY Once the case is ready for presentation before OP- the Committee to domestic level courts to support CEDAW or OP-ICESCR, financial resources may present enforcement; and less of a barrier. There are no filing fees for communica- s 7IDELY DISSEMINATE THE RECOMMENDATIONS OF THE tions, evidence, etc., in international treaty bodies. In addi- Committee so all stakeholders are aware if there tion, international NGO’s are often available to support the is a lack of implementation. development of a communication and may also be willing to Source: ESCR-Net, Analytical Report—Enforcement of Judgments on Eco- submit amicus curiae briefs in support of the case on certain nomic, Social and Cultural Rights (2010). issues. On page 119 of this Guide, you can find a list of inter- national organizations available to assist in presenting com- munications or potentially calling for an inquiry under OP- Non-legal strategies and ensuring strong coalitions CEDAW or OP-ICESCR. of strategic actors In strategic litigation, the involvement of various stakehold- Litigation at international and regional level: ers and particularly affected groups and social movements is There are many potential venues for any complaint and it is
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Comparison of Regional Human Rights Mechanisms
Feature Inter-American system European Ct HR ECSR African System (Commission and Court) (Commission and Court)
Actio Popularis X Collective complaints from registered NGOs only
Time limits Within 6 months of Within 6 months Not specified within a “reasonable” exhaustion of domestic of exhaustion of period of time after remedies domestic remedies exhaustion of remedies
Admissible if X X Not specified Not specified Examined by other systems/bodies
Evidence Written Communications / Written Written Written Communication Public Oral hearings Communications Communications /Oral (Commission) / Written / Public and Oral hearings and third Communications, Oral hearings/on-site parties intervention hearing, witnesses and investigations/ experts (Court) witnesses/experts
Remedies Individual remedies Individual measures Decides on whether Individual measures; (monetary and symbolic (just satisfaction the Charter’s limited remedies reparation, restitution, and restoration of provisions have been (Commission)/ General rehabilitation; investigation the injured party) / violated and provides measures /Commission) and punishment of those General measures— recommendations, in charge of the violation)/ policy and legislative but does not provide Structural or General amendments specific remedies measures (Non-repetition; legislative amendments; and policy changes)
Follow-up An interpretation of the Committee of Committee of The Executive Council on procedure judgment /Hearings for Ministers of the CoE Ministers of the behalf of the Assembly monitoring compliance of CoE/ States submit (Court) the judgments reports on the implementation of the decision
Legally binding (Court) X X (Commission) (Court- stipulated only in its Rules of Procedure)
Enforcement X (Committee of X X Mechanism Ministers— a political body)
Filing Costs X X X X
97 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Six # UN PHOTO/Eskinder Debebe important that you are aware of all relevant possibilities to 1) First, is your State a party to both instruments? If not, make an informed decision in the best interests of the vic- then you will be limited to the mechanism your country tim. (See table on page 97). has ratified. If yes, then there are several more factors to consider: Forum Selection: When is the OP-ICESCR /OP- CEDAW the most strategic venue for a complaint? 2) It might be important to analyze any reservations made by your country to Articles of both Conventions. If there Deciding whether to bring your case to OP-CEDAW or OP- was a reservation made on a relevant Article in one of ICESCR or another international or regional mechanism will the Conventions to your claim, you should use the other depend on many factors: mechanism instead. s 4HE lRST QUESTION SHOULD BE WHAT IS THE PRIMARY RIGHT AT issue in the claim? If it relates to women and issues of 3) Another important factor to consider is the facts under- economic, social or cultural rights, OP-CEDAW or OP- lying your case. Is the focus of the claim on the substan- ICESCR may not be the only relevant forum, however, tive aspects of economic, social and cultural rights, i.e. given their greater expertise on these issues respec- fulfilment and access; or is the focus of the claim on tively they are likely to be the best choice. inequality / discrimination against women and girls in rela- tion to the right? s /NCE YOU ESTABLISH THE MAIN ISSUE OF THE CASE RELATES TO a violation of women’s ESC Rights, then you will need 4) Another factor to consider is the political position of to choose between OP-CEDAW and OP-ICESCR. your State. For example, some States are more likely to
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work constructively with the UN on issues of economic object and purpose of the treaty. If the right at issue in your and social rights than issues around discrimination against complaint is subject to a reservation by your State, you will women and vice versa. Having an awareness of your need to argue this reservation violates one of the three State’s position both domestically and internationally on exceptions above. Legal argumentation around the inter- these issues is important in the assessment. pretation of State reservations can be quite technical. The 5) If the issue in your case has already been the subject Human Rights Committee decisions and the International of communication before either body and, the result was Law Commission provide the most authoritative interpreta- positive, this would be a good indication that a favour- tions on this issue, however, it would be advisable to reach able decision might also be made on your submission. If out to experts with specific expertise to help develop your the Committee’s finding was negative, are there signif- argument on this issue. icant differences between your case and the one previ- Effect of OP-ICESCR /OP-CEDAW decision on domes- ously considered? If so, you might still choose to submit tic legal system to this body. Treaty monitoring bodies are the definitive source of inter- 6) Has more than one year passed since a final decision pretation of rights and obligations under their treaty of com- was made in the case at the domestic level? If so, the petence. State Parties have the obligation to implement the case is ineligible for review under OP-ICESCR, and will views and recommendations made under OP-CEDAW and have to be submitted to OP-CEDAW. OP-ICESCR.3 This arises from the obligation to fulfill trea- 7) The OP-ICESCR allows for the possibility of a friendly ties in good faith (1969 Vienna Convention on the Law of settlement, whereas this is not possible under OP- Treaties, Article 26). The failure to implement the views and #%$!7 4HIS CAN BE USEFUL FOR ITS mEXIBILITY IN THE TYPE recommendations made under OP-CEDAW or OP-ICESCR of remedies available and it may allow the process to should be considered violations of the States duty to work resolve much quicker than proceeding through to a Com- with the Committee and the duty to act in good faith in com- mittee decision, however, it is critical to remember that pliance with the treaty itself.4 friendly settlements do not establish law. Implementation of OP-CEDAW/OP-ICESCR Decisions 8) Once you have chosen between OP-CEDAW and OP- ICESCR, you will also need to decide whether to file a It is important to keep in mind that the UN treaty bodies have communication or request an inquiry. Both ICESCR and no enforcement mechanisms. As mentioned above, States CEDAW prohibit the Committees to review a case which are obligated to work with CEDAW and CESCR and imple- has previously been reviewed by it or another UN body, so ment their views and recommendations, however, this pro- this choice should be carefully made. There are also signif- cess will almost always require advocates to be involved in icant differences in the two procedures, i.e. the severity pressing for implementation. and widespread nature of the violation. In addition, there is 4HERE ARE SEVERAL IMPORTANT FACTORS INmUENCING LIKELIHOOD OF not a formal mechanism for requesting an inquiry—it is the enforcement such as: will of Committee which is the sole determinant for the ini- s INVOLVEMENT OF SOCIAL MOVEMENTS OR OTHER AFFECTED tiation of an inquiry procedure—although compelling evi- groups in the case to ensure there is broad-based pres- dence may support such a decision. sure on the government to enforce the decision once finalized; Reservations to OP-CEDAW or OP-ICESCR s SOCIAL ECONOMIC AND POLITICAL COSTS OF COMPLIANCE A reservation to a treaty is a statement by a State claim- i.e. the internal/external pressure to comply or not to ing to exclude or to modify the legal effect of certain provi- comply; sions of the treaty in their application to that State. A reser- vation is allowed unless the treaty itself prohibits it, or the s BREADTH OF THE REMEDY SOUGHTPOTENTIALLY THE BROADER treaty permits only certain reservations not including the or more resource-intensive the remedy the less likely it one in question, or the reservation is incompatible with the will be implemented; and
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Comparison of UN Human Rights Treaty Complaint Mechanisms Yes, or has competence X No, or does not have competence ? Not yet sure approach Committee will take
Mechanism CERD CESCR HRC CEDAW CAT CRC CRPD
Competency to consider indi- X vidual communications
Competency to consider com- X munications from groups of individuals
Time Limits after the exhaus- 6 months 1 year 5 years Not specified, but not Not specified, but not X Not specified tion of domestic remedies unreasonably prolonged unreasonably prolonged
Admissible if Examined by X Inadmissible if the case is X X X X other systems/bodies being examined under another procedure of international investigation or settlement
Evidence / - Written communications—Oral - Written communications Written communications Written communications Oral hearings X Written communications Victim can Testify hearings Statement Complaints may be submitted in alternative formats, including Braille, large print, accessible multimedia as well as written, audio, plain-language, human- reader and augmentative and alternative modes, means and formats of communication
Remedies Structural/ Specific Individual but not specific ? Individual but few specific Individual and relatively specific / Individual but not specific X X remedies / Occasionally remedies / Occasionally prescriptive / Structural remedies / Occasionally structural structural structural
Friendly Settlement X X X X X X
Conduct inquiries through X X X country visits
Competency to consider Inter- X X X State complaints
Follow-up procedure X
Early-warning or urgent action X X X X X X procedure
Interim Measures X
Enforcement Mechanism X X X X X X X
Filing Costs X X X X X X X
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s RESOURCE AND KNOWLEDGE CAPACITY OF NATIONAL LEVEL AGEN- for advancing women’s ESC rights nationally and interna- cies to implement the remedy.5 tionally, but in a given national context and in relation to Advocates who are interested in using these mechanisms the discrimination or violation of women’s ESC rights, the should develop a plan to create pressure for effective respective NGO or coalition of NGOs need to work out enforcement within the litigation and advocacy strategy best possible strategies for pushing its advocacy agenda from the beginning of the case. towards realisation of women’s ESC rights. The impact of advocacy nationally and internationally is 6.3.2 Need for Strengthening Advocacy determined by: on Women’s ESC Rights s IDENTIlCATION OF THE VIOLATIONDISCRIMINATION Consideration should also be given to how NGOs can com- s FRAMING OF THE ISSUE BASED ON EXISTING NATIONAL AND INTER- bine their international and national level advocacy strategies national legal & human rights normative standards, for women’s ESC rights. This can be important in ensuring that international and national level advocacy are mutually s IDENTIlCATION OF KEY ACTORS AND STAKEHOLDERS INVOLVED reinforcing and States Parties are held accountable at both s MAPPING AND ASSESSMENT OF OPPORTUNITIES RESOURCES levels. For example, in the Philippines, NGOs built into a challenges and strategies, campaign for the protection of women’s right to access s ABILITY TO MOBILISE A CRITICAL MASS TO SUPPORT THE ADVO- reproductive health care, the following range of national and cacy—within the NGO or civil society sector as well as international strategies: within the bodies capable and mandated to make a deci- s International—producing shadow reports for the sion in regards to the violation/discrimination, and finally CEDAW and ICESCR Committee; reporting to specific s CAPACITY AND ABILITY OF THE .'/ OR ITS COALITION TO CONSOLI- UN Special Rapporteurs; submitting a request for an date its gains and positive outcomes from the advocacy inquiry under OP-CEDAW. and to build a consensus amongst the key stakeholders s National—education campaigns on women’s right to on recognition, protection and implementation of wom- health recognised under both CEDAW and ICESCR and en’s ESC rights towards necessary policy change or law the ways this is being violated in the Philippines; law reform. reform campaigns to challenge existing laws that lim- ited women’s right to reproductive health care; national 6.4 Case Studies level litigation; and working with both women’s groups and economic, social and cultural rights groups to moni- Alyne Da Silva Pimentel v. Brazil tor the ways in which women’s right to health care was (CEDAW, 2011) being addressed in the Philippines. 1. Facts and Issues in the Case Advocacy on women’s ESC rights is not without any challenges. There is still a widespread lack of understand- Alyne da Silva Pimentel, an Afro-Brazilian woman who ing of CEDAW and ICESCR in most countries, across gov- resided in one of Rio de Janerio’s poorest districts died as a ernment agencies, the private sector, in the community result of repeated delays in receiving access to emergency 6 and the media. Community education on the standards obstetric care when she was six months pregnant. Timely and obligations in CEDAW and ICESCR and, specifically, access to induced delivery and post-delivery care would what these are in relation to women’s ESC rights, is an have prevented life-threatening complications and ultimately important aspect of ensuring there is widespread aware- saved Alyne’s life. ness and understanding of women’s ESC rights, the obliga- Alyne first sought medical attention at her local health cen- tion of States to respect, protect and fulfil these rights, and ter when she experienced vomiting and severe abdominal how women’s ESC rights can be implemented at the local pain. Although these signs indicated a high-risk pregnancy, and national level. There is no set of perfect strategies doctors performed no tests and Alyne was sent home with
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vitamins, vaginal cream, and anti-nausea medication. She remedy. Unable to obtain any effective state relief for over continued to experience severe pain and returned to the four and a half years, Alyne’s family, in conjunction with the health center two days later. At this time, doctors discov- Center for Reproductive Rights (CRR) and ADVOCACI, a Bra- ered that there was no fetal heartbeat. Alyne was left unat- zilian nongovernmental organization, filed an individual com- tended, and a few hours later, she delivered a stillborn fetus. plaint before the Committee on the Elimination of Discrimi- Despite medical standards dictating that Alyne should have nation against Women (CEDAW Committee) on November undergone an immediate curettage surgery to remove pla- 30, 2007.7 The petition alleges that Brazil’s state-sponsored cental parts and to prevent hemorrhage and infection, she healthcare system was responsible for Alyne’s death and as did not undergo surgery until approximately 14 hours later. such, the government violated her rights to life, health, non- Following surgery, Alyne experienced discrimination, and redress. These rights are grounded in severe hemorrhaging, low blood pressure, both Brazil’s constitution and international and disorientation. Despite these serious Alyne’s case human rights treaties, including Conven- tion for the Elimination of All Forms of Dis- symptoms, doctors once again neglected highlights Brazil’s to perform any tests. As her condition crimination against Women (CEDAW) and worsened, it was determined that she systemic failure to the International Covenant on Economic, needed to be transferred to a hospital with Social and Cultural Rights (ICESCR). adequate equipment to treat her condition reduce maternal 2. Context in Country and Legal (General Hospital of Nova Iguaçu). How- mortality and provide Framework ever, the health center refused to use their only ambulance to transport Alyne. Alyne’s access to quality Article 196 of the constitution of Brazil mother and husband attempted to secure maternal healthcare. explicitly guarantees the right to health a private ambulance, to no avail. Eventu- “by means of social and economic poli- ally, the General hospital authorized the Furthermore, this case cies aimed at reducing the risk of illness use of their ambulance to transport Alyne. highlights the barriers and other hazards and at universal and However, the health center failed to trans- equal access to all actions and services fer Alyne’s medical records to the hospital in accessing justice for for the promotion, protection and recov- ery of health.”8 Maternal health is also pro- where doctors were only given a brief oral violations of women’s account of Alyne’s medical condition and, tected under Article 6, which concerns according to subsequent medical records, economic and social rights, whereby the State is further they treated Alyne without knowledge that required to allocate a percentage of pub- she had just delivered a stillborn fetus. social rights. lic funds for the protection of maternal health.9 The right to be free from discrim- After arriving at the hospital, Alyne’s blood pressure plummeted to zero, but she was resusci- ination on the basis of sex and race is enshrined in Brazil’s 10 tated. She was then placed in an emergency room hallway constitution as well. where she was largely left unattended. She was found there Notwithstanding these constitutional-level protections for by her mother with blood on her mouth and clothes. Alyne the right to health generally and maternal health specifically, died on November 16, 2002, 21 hours after her arrival at the the Brazilian state has failed systematically to guarantee hospital, of an entirely preventable condition. Alyne is sur- these rights and to provide an effective remedy and redress. vived by her family and young daughter. Despite making significant strides in other areas of public A few months after Alyne’s death, her family sought civil health, Brazil has failed to prioritize the reduction of mater- redress within the Brazilian court system by filing a peti- nal mortality. With approximately 1,800 women dying every tion for civil indemnification for material and moral damages year, Brazil’s maternal deaths account for 20% of all mater- against the state-sponsored healthcare system. To date, the nal deaths in Latin America and the Caribbean.11 Racial, gen- Brazilian judiciary has failed to provide any effective or timely der and socio-economic factors play an important role in
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Argentina—Campaign against compulsory inculcate in students a neutral belief guarantee- religious education in public schools ing all citizens freedom of consciousness. In 2008 the Province of Salta, Argentina,12 adopted law The Catholic Church’s statements in public education 7.456/09 which imposed compulsory religious education prevent children from access to qualified and reliable sex in public schools.13 education. The absence of comprehensive sexuality edu- cation and reproductive health services increases the risk Although in practice religion already existed as part of of unwanted pregnancy and STIs including HIV; which the curricula of public schools and was taught in class has direct impact in girls’ access to education since preg- before the enactment of the law, the enactment of the nancy and motherhood in teenage girls are also common law came to provide legal support for the incorporation motives for discrimination in education. of religion in schools, thus violating rights and freedoms established under the Argentinean National Constitution, In reaction to the enactment of the law, some non- Salta’s Constitution, as well as under international human Catholic students’ parents decided to make public their rights instruments. dissatisfaction in various local media. This group of par- Law 7.456/09 proclaims religious plurality but the lack ents, with the support of the National Institute against of governmental policies, through the Ministry of Edu- Discrimination, Xenophobia and Racism (INADI), and the cation and other State agencies, make the law uncon- Association for Civil Rights (ADC) decided to fight the stitutional in its implementation and practical application law in courts. The litigation strategy was accompanied by because the only religion that has presence in the class- mobilization and street demonstrations, broadcast jour- room is the Roman Catholic Church. nalism and testimony gathering of children and parents. The role of education is essential since through edu- The campaign and litigation strategies seek to eliminate cation children are able to build their autonomy, freedom the provision that in applying this standard, imposes the of personality and critical thinking. Privileging one reli- compulsory teaching of Catholic religion in public schools gion over others through religious education creates the in the province, violating the constitutional rights of free- impression that the State professes a particular religious dom of religion, religion and beliefs, right to equality, right belief. States must assure religious neutrality in the con- to education free from discrimination, privacy and the text of public education and guaranteeing access to edu- principle of freedom of conscience, and respect for eth- cation regardless of the individual religion. States should nic and religious minorities. maternal mortality rates, as Afro-descendant, indigenous not decreased in the past fifteen years, despite subsequent and low-income women are disproportionately affected by economic improvements.”15 maternal mortality. Alyne’s case highlights Brazil’s systemic failure to reduce Brazil identified seven health priorities in its Multi-Year maternal mortality and provide access to quality maternal Plan for 2004-2007; however, not one of those priorities healthcare. Furthermore, this case highlights the barriers in was reducing maternal mortality. Brazil’s failure to even ref- accessing justice for violations of women’s economic and erence maternal mortality indicates the country’s failure to social rights. As the report of the Special Rapporteur on the treat it as a pressing problem. Generally, maternal mortal- independence of judges and lawyers indicated, Brazil has ity is easily preventable and at a low cost. In fact, the Fed- eral Parliamentary Commission of Inquiry on Maternal Mor- problems with “access to justice…slowness and notorious tality in Brazil recently reported that 90% of maternal death delays,” and the people who are most affected by this denial cases in Brazil are preventable.14 Nevertheless, according to of access to justice are, among others, women and people the Commission, “maternal mortality rates [in Brazil] have of low-income.16
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3. Legal Framework 4. Impact of the case As a party to CEDAW, Brazil has a duty to ensure women’s Around the world, pregnancy poses profound risks for equal enjoyment of the rights to life and health.17 The State is women: one woman dies every minute from causes related obliged to eliminate discrimination in the field of health care, to pregnancy and childbirth, with over half a million women ensure access to quality medical treatment in conditions of dying each year.24 Men between the ages of 15 and 44 face equality and ensure appropriate services to women in con- no single threat to their health and lives that is comparable nection with pregnancy and childbirth including pre-natal to maternal death and disability. Complications from preg- services and timely emergency obstetric care. The govern- nancy and childbirth are the leading cause of death for young ment “cannot, under any circumstances whatsoever, justify women and girls between the ages of 15-19 in developing its non-compliance with core obligations,” particularly the countries.25 Rural and low-income women are at greatest right to health18 and should devote the maximum available risk of suffering maternal death and disability. resources to guarantee that women can go safely through The Alyne case is aimed at bringing to light and remedy- 19 pregnancy and childbirth. In addition, the State has an obli- ing the stark injustices surrounding maternal mortality, par- gation to protect women’s right to equality and non-discrim- ticularly in the context of Brazil. It is the first individual case ination through competent national tribunals and other pub- filed before a UN human rights body, the CEDAW Commit- 20 lic institutions. Article 2(c) of CEDAW not only requires tee, to frame maternal mortality as a human rights viola- States to establish legal and other remedies to combat dis- tion and to seek government accountability for the system- crimination against women, but to also strengthen imple- atic failure to prevent maternal deaths. The claims set forth 21 mentation of and monitoring of relevant laws. The Brazil- in the complaint build upon international reproductive rights ian government has a duty to put into place a system that standards, which have gained increasing recognition over ensures effective judicial action and protection in the context the last 15 years. of reproductive health violations. The CEDAW Committee, in deciding this case, has the These obligations to provide quality healthcare services in potential to issue a landmark precedent that would impact the context of pregnancy and childbirth are also enshrined in interpretation and application of women’s human rights the ICESCR, which Brazil is a party. The ICESCR guarantees worldwide. It also has the opportunity to clarify the extent of the right to the highest attainable standard of health, includ- governments’ obligations to reduce maternal mortality, par- ing sexual and reproductive health (Article 12); the right to ticularly in countries with social, economic, and political con- non discrimination (Article 3); the special rights of pregnant ditions that are similar to Brazil’s. women (Article 10); the right to an effective remedy (Article 4), and the right to benefit from scientific progress (Article 5. Factors affecting the result in this case/ 15).22 In General Comment No. 14 on the right to the high- Strategies used to advance the case est attainable standard of the health, the Committee on Eco- The case is still pending before the CEDAW Committee. As nomic, Social, and Cultural Rights made specific reference to part of the strategy to gain support for the case at the national the application of Article 12 to reproductive health: “[r]epro- level and prepare for the implementation once a decision ductive health means that women and men have…the right comes out, the Center has engaged with civil society organi- to…have access to safe, effective, affordable and accept- zations, academics, health professionals and other key stake- able methods of family planning of their choice as well as the holders. In addition, it has organized various advocacy activ- right of access to appropriate health-care services that will, ities to raise the public profile of the case. In 2008, on the for example, enable women to go safely through pregnancy Maternal Health Day, the Center together with various Brazil- 23 and childbirth.” ian networks and organizations held a vigil outside the Con- In the Alyne case the State clearly violated its obligations gress in Rio de Janeiro. The Center developed a media strat- under the CEDAW and ICESCR by not providing appropriate egy and the case appeared in the most important newspapers and quality maternal health care serviced and by failing to in the country and a long article about the case appeared in provide an effective remedy and redress to Alynes’ family. one of the most prestigious magazines. In 2009, the Center
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and the national NGO Center for Citizenship and Democracy CEDAW pertaining to the restriction of access to modern organized a seminar on maternal mortality and human rights contraception in Manila City and the harassment of pro- in Brazil. The seminar brought together academics, health viders of contraception. The submission claimed violation professionals, and civil society representatives to discuss the of CEDAW Articles 2, 3, 5, 10, 11, 12, and 16 (i.e. rights to obstacles and challenges in improving maternal health in the life, health, non-discrimination, self-determination and bodily country. The Alyne case was discussed in depth and some of integrity, education, an adequate standard of living, freedom the strategies that can be used to push for the implementa- from violence, freedom of religion and belief). tion of the decision of the case were discussed. These activ- ities have been very important to consolidate a strong infor- Four submissions have been made in total including: mal coalition of supporters for the case, to raise its profile and s )NITIAL 2EQUEST FOR )NQUIRY*UNE to shape an implementation strategy. s ND 3UPPLEMENTAL 2EQUEST FOR )NQUIRY October 27, 2008 Inquiry in the Republic of Philippines26 s RD 3UPPLEMENTAL 2EQUEST FOR )NQUIRY!PRIL (CEDAW, requested June 4, 2008) s TH 3UPPLEMENTAL 2EQUEST FOR )NQUIRY*ULY 1. Facts and issues in the inquiry The NGOs also submitted to the CEDAW Committee a In 2000, former Manila City Mayor Jose “Lito” Atienza, Jr. Petition and signatures in January 2010. introduced Executive Order No. 003: Declaring Total Com- mitment and Support to the Responsible Parenthood Move- In addition the NGOs made a submission for urgent ment in the City of Manila and Enunciating Policy Declara- action to the following UN Special Rapporteurs in 2009: tions in Pursuit Thereof (the Executive Order) in the City of s -R !NAND 'ROVER 3PECIAL 2APPORTEUR ON THE RIGHT OF Manila, the Philippines. everyone to the enjoyment of the highest attainable The implementation of this Executive Order resulted in a standard of physical and mental health ban in all Manila public health facilities on the provision of s -S 9AKIN %RTURK 3PECIAL 2APPORTEUR ON VIOLENCE AGAINST modern contraceptives, on information about contracep- women, its causes and consequences tives, and in referrals for family planning services.27 s -R 6ERNOR -UNOZ 6ILLALOBOS 3PECIAL 2APPORTEUR ON THE The implementation of the Executive Order has harmed right to education women by causing unwanted pregnancies, which in turn, have contributed to the high incidence of unsafe abortion s -S -ARGARET 3EKAGGYA 3PECIAL 2APPORTEUR ON THE SITU- and maternal mortality and morbidity. The Center for Repro- ation of human rights defenders ductive Rights has also documented many cases where the s -S !SMA *AHANGIR 3PECIAL 2APPORTEUR ON FREEDOM OF Executive Order has resulted in increased hunger and pov- religion or belief erty for women and their families.28 Approximately 30% of s -S -ARIA -AGDALENA 3EPULVEDA #ARMONA )NDEPENDENT Filipinos live under the poverty line,29 and the lack of access Expert on the question of human rights and extreme to modern contraception has particularly impacted on low- poverty income women in Manila, most of whom simply cannot afford to purchase their own contraceptive supplies. 2. Context in the Philippines In 2008 the Centre for Reproductive Rights, IWRAW Asia The Philippines has a population of about 90 million people, Pacific and Taskforce CEDAW Inquiry (Philippines) submit- the 12th largest in the world. Of the estimated 11.2 million ted a request to the CEDAW Committee to undertake an people living in Metro Manila, 5.7 million are women. In the inquiry under article 8 of the OP CEDAW on systematic and Metro Manila area, more than 1.1 million people (10.4% of grave violations of women’s rights in the City of Manila, Phil- the population) live below the official poverty threshold ippines. and of these, 17, 214 are classified as extremely poor.30 The initial submission claimed violation of rights under Women from the poorest households have six children on
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average, while the national average is 3.5 children, accord- reproductive health law. Under the Local Government Code ing to the Manila-based University of the Philippines Popu- of 1991, the Philippines has decentralized responsibility for lation Institute.31 “people’s health and safety” to the local level. Section 17 Nearly half of all Filipino women have an unmet need for of the Code provides that the local government units are contraception. According to the 2003 National Demographic responsible for the provision of basic services and facilities, and Health Survey, the total contraceptive prevalence rate among which are health services, family planning services, among all women was 31.6% (any method), but only 21.6% and population development services. For most Filipinos, used modern methods.32 Notably, the contraceptive preva- the government is the major source of family planning ser- lence rate in the Philippines is far lower than that in neigh- vices, with about 70% of people relying on the public sec- bouring countries in the region.33 tor for services, including female sterilization, oral pills, intra- uterine devices (IUDs) and injectables.35 Women die from pregnancy-related causes in significant numbers in the Philippines. The maternal mortality rate in The Executive Order introduced in 2000, has continued 2005 was 230 maternal deaths per 100,000 live births, one to be implemented since the change in administration from 36 of the highest rates in East and South East Asia. Nation- Mayor Lito Atienza to Mayor Alfredo Lim in 2007. wide, approximately one-third of women who experience an There is national legislation pending before the Philippine unintended pregnancy have an abortion. An estimated 800 Congress, the Reproductive Health and Population Develop- women die due to unsafe abortion each year, as a result of ment Bill, which would require all levels of government to unplanned and/or unwanted pregnancy and lack of access provide free or low-cost reproductive health services, includ- to safe abortion services. In 2000, it is estimated that more ing condoms, birth control pills, tubal ligations and vasecto- than 473,000 Filipino women unsafely terminated their preg- mies. Should the reproductive health bill be adopted it would NANCY A STATISTIC THAT REmECTS THE REALITY THAT A SUBSTANTIAL nullify the EO.37 proportion of women in the Philippines are forced to rely on pregnancy termination to control their fertility.34 3. The Decision Contraceptive use in the Philippines is strongly correlated The CEDAW Committee asked the Philippines Govern- to wealth. In the richest quintile, 35.2% used modern meth- ment and the UN Country Team to submit a response to the ods of contraception, while in the poorest quintile the rate of CEDAW Committee by February 2009. The Government of use was less than 24%. Philippines. In 2004, there were a total of 2,719,781 Catholics in the The UN Country Team submitted their confidential report Archdiocese of Manila out of an estimated total population to the CEDAW Committee during the first quarter of 2009. of 2,993,000. Although the Philippines is a constitutionally Subsequently, the Philippine Department of Foreign Affairs secular state the Catholic Church has involved itself with submitted two responses to the CEDAW Committee: 1) the various political issues, such as pending legislation on repro- response from the Philippine Commission on Women con- ductive health and rights, and the abolition of capital punish- firming the importance of the conduct of the inquiry and con- ment. The Catholic Bishops Conference of the Philippines’ senting to the visit; and 2) the response from the Manila City (CBCP) has opposed the introduction of any bills on sexual Office alleging that the EO is no longer being implemented.38 and reproductive health, through prayer rallies, petitions, ser- Currently, the CEDAW Committee is awaiting permission mons and adverts in the media. to conduct a Country Visit. Should the Philippines Govern- ment not consent to a country visit, the CEDAW Commit- Legal context tee can still proceed with the inquiry based on the informa- The Philippines ratified CEDAW in 1981 and ratified the OP tion provided to the Committee and information provided by CEDAW in 2004. At the time of ratifying the OP CEDAW, Filipino women affected by the contraception ban in Manila Philippines did not opt-out of the inquiry procedure (Article 8). City provided in meetings with the CEDAW Committee con- The Philippines does not have a national sexual and ducted outside of the Philippines.
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4. Strategies to undergo surgical sterilization, claiming that having more than five children was a crime.39 Under coercion, Ms. Mes- The NGOs involved in this submission have used a combina- tanza a rural woman about 32 years old and mother of seven tion of strategies in the course of the Inquiry. children, agreed to have tubal ligation surgery. The proce- The NGOs have developed a small coalition of interna- dure was performed on March 27, 1998 at the Cajamarca tional and national NGOs to work together on the Inquiry. Regional Hospital, without any pre-surgery medical examina- This has enabled the demands of the inquiry to be shared tion. Ms. Mestanza was released few hours later, although amongst several organisations, and has maximised the ben- she had serious symptoms including nausea and sharp head- efits of drawing on the different areas of expertise of differ- aches. In the following days her husband reported to person- ent organisations. The national NGOs have used a number of nel of La Encañada Health Center on Ms. Mestanza’s condi- data gathering methods to collect information directly from tion, which worsened daily, and was told by them that this women in Manila affected by the Executive Order—includ- was due to post-operative effects of the anesthesia. Ms. ing surveys, interviews, meetings etc. It has been beneficial Mestanza died at home on April 5, 1998 due to a post-opera- to link this work of national NGOs with the work of interna- tive general infection as the direct cause of death.40 tional NGOs on this issue. A few days later a doctor from the Health Center offered One of the factors of this inquiry has been the long time- a sum of money to Mr. Jacinto Salazar to cover funeral frame for the inquiry which has currently been running for costs and to sign a document (an “agreement”) in an effort three years. The NGOs have countered this by providing to put an end to the matter. Despite this, on April 15, 1998 updated information through supplementary submissions. In Mr. Jacinto Salazar filed charges with the Provisional Com- addition the NGOs have collaborated on taking supplemen- bined Prosecutor of Baños del Inca against Martín Ormeño tary action including making submissions to Special Rappor- Gutiérrez, Chief of La Encañada Health Center, in connec- teurs and creating a petition. Such actions have also assisted tion with the death of Ms. Mestanza, for crimes against in raising awareness within Manila and internationally of the life, body, and health, and premeditated homicide (first issues as well as of the Inquiry. degree murder). On May 15, 1998, the Provincial Prosecu- tor indicted Mr. Ormeño Gutiérrez and others before the 5. Importance of OP-CEDAW local provincial judge, who on June 4, 1998 ruled that there were insufficient grounds to prosecute. This decision was During its 45th session (1—19 November 2010), the Com- confirmed on July 1, 1998 by the Circuit Criminal Court; on mittee on Economic, Social and Cultural rights held a Day December 16, 1998 the Provincial Prosecutor ordered the of General Discussion on the right to sexual and reproduc- case dismissed. tive health in accordance with articles 12 and 10 (2) of ICE- The Mestanza case is one among a large number of SCR. The Day of General Discussion is part of the prepara- cases of women affected by a massive, compulsory, and tory work leading to the formulation of a general comment systematic government policy to stress sterilization as a on the right to sexual and reproductive health. A General means for rapidly altering the reproductive behavior of the Comment on right to sexual and reproductive health will population, especially poor, Indigenous, and rural women. positively inform any future consideration of these issues The Ombudsman had received several complaints on this under either CEDAW or ICESCR or their relative Optional matter and between November 1996 and November 1998 Protocols. CLADEM documented 243 cases of human rights viola- tions through the performance of birth control surgery in Maria Mamerita Mestanza v. Peru Peru. (IACHR, 2008) Having exhausted domestic remedies, on June 19th, 1999 41 1. Facts and issues in the case petitioners brought a case against the Peruvian Govern- ment before the Inter-American Commission on Human In 1996, officials from the Encañada District Health Center Rights (IACHR). The petitioners alleged that the facts consti- in Peru continually threatened to report Ms. María Mamérita tuted violation of the rights to life (article 4), personal integ- Mestanza and her partner to the police if she did not agree rity (article 5), and equality before the law (articles 1 and 24),
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of the American Convention on Human Rights; and violation the State must guarantee free access to public health of Articles 3, 4, 7, 8, and 9 of the Inter-American Convention care. This constitutional recognition is complemented by on the Prevention, Punishment, and Eradication of Violence domestic laws that define Peruvian public health policy and Against Women (hereinafter the “Convention of Belém do makes it a justiciable right.44 Reproductive and sexual policy Pará”), Articles 3 and 10 of the Additional Protocol to the is defined by Peru’s National Population Policy, Legislative- American Convention on Human Rights in the Area of Eco- Decree Nº 346, of July 5, 1995—article 1.2 promotes and nomic, Social, and Cultural Rights (hereinafter the “Protocol ensures free and informed decision and responsibility of of San Salvador.”) and Articles 12 and 14(2) of the Conven- individuals and couples about the number of births (family tion on the Elimination of All Forms of Discrimination against planning);45 and by the National Health General Act, law Women (CEDAW). 26.842 of July 15, 1997—article 6 establishes the right On October 3, 2000 the Inter-American of women to choose a contraceptive method, including Commission on Human Rights approved natural ones. the Report on Admissibility Nº 66/00. The The Mestanza case However, during the regime of former Report opened the scenario for the explo- is among a large President Alberto Fujimori the govern- ration of a possible friendly settlement ment developed a “birth control policy” procedure.42 On March 2, 2001, during number of cases of as a way to bring equal access to contra- the 110th session of the Inter-American women affected by a ception for the nation’s poor. In 1992, the Commission on Human Rights, the Peru- Government approved the Family Plan- vian State and the victims’ representa- massive, compulsory, ning Manual -RM Nº 0738-92-SA/DM, to tives signed the Preliminary Agreement permit sterilization as a family planning for Friendly Settlement with intervention and systematic method in cases of “reproductive risk”; and approval by the IACHR. The Peruvian government policy which was the antecedent for steriliza- State recognized its responsibility for the tions in public clinics in urban and rural violation of article 1.1, 4, 5 and 24 of the to stress sterilization areas of Peru. American Convention and article 7 of the as a means for At the same time, Fujimori attended Convention of Belem do Para. The final the Fourth International World Confer- friendly settlement was agreed upon on rapidly altering the ence on Women (Beijing, 1995) where August 26, 2003, when the act setting reproductive behavior his statements made clear that the ster- out the friendly settlement reached by the ilization law was approved to reduce the parties was signed in Lima.43 of the population. birth rate and combat poverty rather than To date, Peru has partially complied with as an expression of women’s reproduc- the provisions established in the friendly settlement. Peru tive health or rights. At the convening he argued that Peru has not complied with the portion of the agreement in which had to implement rational policies to reduce family size in they had pledged to “conduct a judicial review of all crim- order to eliminate poverty and to “democratized” family inal cases on violations of human rights committed in the planning services in order to guarantee the poorest people execution of the National Program of Reproductive Health access to these methods.46 and Family Planning, to break out and duly punish the per- In September 1995, to support Fujimori’s regime, the petrators.” There has been no investigation or prosecution Congress modified the National Family Planning Program, of those responsible for Maria Mamérita Mestanza’s death, (law No. 26,530) and implemented sterilization as a fam- wand her case has been archived. ily planning method. Pursuant to this law, the Ministry of 2. Context in Peru Health began an intensive campaign to raise awareness, through health fairs, to induce women to make use of irre- Health is recognized as a fundamental right under the versible contraceptive methods to control the birth rate, Peruvian Constitution (Article 7 and 11) according to which especially in peasant women. This was followed, in 1996, by
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Government’s approval of the National Program of Reproduc- out administrative and criminal investigations to the attacks tive Rights and Family Planning (Programa Nacional de Salud on the personal liberty, life, body, and health of the victim.50 Reproductiva y Planificación Familiar 1996-2000 (PNSRPF The government agreed to modify discriminatory legis- 1996-2000) -RM No. 0738-92-SA/DM- through which it was lation and implement policies that included: improving pre- legalized the Voluntary Contraceptive Surgery (VCS) - (AQV: operative evaluations of women being sterilized; requiring Anticoncepción Quirúrgica Voluntaria). better training of health personnel; creating a procedure The government’s aggressive Family Planning Program to ensure timely handling of patient complaints within focused on increasing the number of sterilizations performed the health care system; and implementing measures to on Peruvian women, specifically targeting low-income and ensure that women give genuine informed consent, includ- indigenous women, through “tubal ligation festivals,” fairs ing enforcing a 72-hour waiting period for sterilization. This and campaigns. According to a CLADEM report “Nothing agreement represents an important precedent, not only for Personal” reports released by the Peruvian Ombudsman47 Peruvian women but also for international human rights law on health care provider practices, measures that did not and for future cases where reproductive rights and women’s include informed consent such as subjecting women to access to family planning violations occur in Latin America aggression, intimidation, and humiliation were allowed. For and around the world. example, health care providers stated that sterilization was the only free method of contraception available, deliber- 4. Impact of Case on Women’s ESC Rights ately gave inaccurate information about the risks and conse- The agreement had broad implications for Peru’s quences of surgical sterilization procedures, and did not give reproductive health policies, as well as improved access women time between the decision and the surgery. of women to family planning and reproductive healthcare. There were at least 18 documented cases of women that Through this landmark settlement Peru agreed to modify died after forced sterilization procedures48 due to conditions discriminatory legislation and policies including those that of health services and lack of pre and post-surgery monitor- fail to ensure women’s right to be autonomous decision- ing. This coercive policy of sterilization increased the num- makers in the context of their exercise of thee right to ber of surgeries from 81.762 in 1996 to 109.689 in 1997.49 health. 3. The Decision Through settlement negotiations the Minister of Health committed to evaluate practices and modify legislation On October 10th, 2003, the IACHR approved and published accordingly. Consequently, in 2004, the National Health Care the Friendly Settlement, signed by the representatives of Strategy on Sexual and Reproductive Health (Estrategia San- the victims and the State. One of the main outcomes of itaria Nacional de Salud Sexual y Reproductiva) was imple- the settlement was Peru’s recognition of its international mented. This Program included national guidelines, which responsibility for violating the victim’s human rights. The incorporated the friendly settlement’s recommendations. rights violated included, among others, the right to life, Most of these recommendations, concerning public policies to physical integrity and humane treatment, to equal on reproductive health and family planning, were made by protection before the law, and to be free from gender- the Peruvian Ombudsman. based violence. One of the main concerns raised during the litigation was In the settlement agreement signed, the Peruvian govern- the lack of (or inaccurate) information provided to women ment agreed to pay moral damages to Mestanza’s husband subject to surgical sterilization and the deficient pre-surgery and seven children, as well as significant compensation for evaluation of women who underwent sterilization, which their health care, education and housing. The government speaks to international human rights standards of the qual- also agreed to conduct an in-depth investigation and to pun- ity of the service. Therefore, the State was urged to adopt ish those responsible for the violations of Peruvian and inter- the necessary administrative measures ensuring that the national legal standards. The Peruvian State pledged to carry respect for the right to informed consent is scrupulously
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followed by health personnel; to take strict measures to and recommendations on the issue. Another important fac- ENSURE THAT THE COMPULSORY REmECTION PERIOD OF HOURS IS tor was the alliance between organizations as petitioners in faithfully and universally honored; to guarantee “drastic mea- the case. It brought together the feminist organizations of sures against those responsible for the deficient pre-surgery CLADEM and DEMUS, with APRODEH, a leading human evaluation of women who undergo sterilization, including rights NGO in Peru, and international human rights organiza- health professionals in some of the country’s health centers. tions, CEJIL and CRR. The political context of transition after Although the rules of the Family Planning Program required the Fujimori government was also favorable, as it gave prior- this evaluation in practice those were not followed. In addi- ity attention to cases of human rights violations striving for tion, the government was committed to implement a mech- accountability of the regime. anism for efficient and expeditious receipt and processing In addition, since 1990, a new paradigm has emerged of complaints for the violation of human rights in the health from two UN World Conferences held in Cairo and Beijing establishments, in order to prevent or redress injury caused. which place women’s reproductive rights within the human Despite these important changes to national policy and rights framework, and recognize them as part of the right to practices, Mestanza’s family has encountered many obsta- health and core human rights. This profound shift stemmed cles in accessing education and health services, despite the from the emerging international consensus that “reproduc- commitment of the State to “to give the victim’s children tive rights embrace certain human rights that are already free primary and secondary education in public schools” and recognized in national law, international human rights doc- “tuition-free university education for a single degree at state uments and other consensus documents. These rights rest schools”; as well as psychological rehabilitation treatment” on the recognition of the basic right of all couples and indi- and “permanent health insurance” for her husband and the viduals to decide freely and responsibly the number, spacing children. Because the family lives in a rural area, second- and timing of their children and to have the information and ary education is not available nearby and the distance to the means to do so, and the right to attain the highest standard nearest school prevents their attendance, therefore the chil- of sexual and reproductive health.”51 Since Cairo, an increas- dren are currently not receiving secondary education. Fur- ing framework of norms and jurisprudence has advanced ther, living in a rural area also limits their access to health- interpretation of the right to access reproductive healthcare. care services. 6. Strategies 5. Factors affecting the result in this case Litigation of Mamerita Mestanza case was complemented There are internal and external factors that affected the out- with a communication strategy aimed at denouncing the come of the particular case. The internal factors relate to the Peruvian program of massive sterilization of mainly poor methodology used in its development and the alliances to women in Peru. The media strategy was also useful to cre- file it. The external factors relate to the political context after ate pressure on the government to sign and implement the the Fujimori regime and the collective desire for accountabil- settlement in the case; the dissemination and publication of ity, as well as the instrumental changes on the view of repro- the agreements signed before the Commission were key to 52 ductive rights in the international human rights standards. this end. The methodology used by the petitioners through research, In addition, given the difficulties in the execution of the documentation of cases nationwide and systematization of obligations related to access to health care and education for information (interviews, archive news, testimonials, etc..) victim’s children, the petitioners held several meetings with allowed the identification of an emblematic case, as well state representatives of the agencies involved in the imple- as substantial support of the case through the documenta- mentation of those measures. tion of systemic impact of the policy. Another important fac- To assist in the judicial investigation and prosecution tor was the intervention of the Ombudsman who received of those responsible for Mestanza’s death, the petition- numerous complaints about cases of forced sterilization, as ers prepared a report in which the organization presented researched and published in CLADEM’s report with findings arguments based in international human rights law for the
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judiciary to take into consideration. The goal was to encour- In Mamérita Mestanza case, although organizations intro- age courts to apply human rights standards in the investi- duced this perspective that links the traditional understand- gation, however, the report was rejected and the case was ing of human rights with ESC rights through a gender per- finally archived by the public prosecutor. The petiti0ners spective, the arguments could have been developed more have communicated this decision to the IACHR arguing that thoroughly. Such fact has to take into consideration the lack the archive of the investigation is in breach of the friendly of international human rights standards at such point, and settlement. possibly a strategy to incorporate such understandings in Therefore, if litigants are able to combine litigation with an increasing fashion. Organizations need to elaborate on movement building and a media strategy, it increases suc- the interrelationship between women human rights viola- cess in achieving the legal remedies by broadening the tions and the economic and social rights at issue and use the standards that today have been created, not only in knowledge of the case as a systematic problem, pressur- the regional human rights systems but also in the universal ing the government through a shaming strategy, and gener- human rights systems. ating a grassroots movement that can hold the government accountable for its actions. Likewise, such strategy broad- In addition, organizations should insist on including ESC ens and deepens the understanding of each right to include rights with a gender perspective in their work. In this case, the international human rights legal framework on women while the initial petition framed the violations in terms of ESC and ESC rights within the larger public. rights –particularly violations of article 3 and 8 of San Salva- dor Protocol- during the negotiations of the friendly settle- The case in itself constitutes a strategy towards the build- ment that strategy was abandoned. This was a strategic deci- ing of what has been addressed as an external factor in the sion due to the progressive nature of ESC rights and if they previous section in relation to the advances of the interna- are judicially enforceable. In spite of this the IACHR, it has tional human rights framework around the recognition and stated that both the Commission and the Court can consider protection of reproductive rights. The decision to make an the Protocol of San Salvador in the interpretation of other emblematic case accountable in the international human applicable provisions, in light of the content of Articles 26 and rights fora builds regional precedents that, as this case, nur- 29 of the American Convention.53 With this in mind, and the ture the international legal standards and understanding of few precedents issued by IAHR system regarding ESC rights, reproductive rights, as a framework applicable in the region, women rights advocates should relate and reinforce their and possible worldwide. arguments on ESC rights violations of the Protocol of San Sal- 7. Lessons Learned vador in harmony with the provisions of the ACHR. Finally, despite the fact that international law is sometimes When strategizing for the presentation of future cases, challenging to enforce, settlements such as that in the Mes- careful attention should be given to the development of tanza case prove that the threat of international admonish- convincing gender-sensitive legal arguments. It remains key ment can be an effective motivator in securing redress. to take the time to frame the violation of the rights at issue in light of international human rights standards on ESC 8. What new possibilities could exist for rights and women discrimination under the Belem do Para realization of the rights at issue in the and CEDAW Conventions. case if it was brought before OP-CEDAW / Initiatives should include broader and more targeted alle- OP-ICESCR? gations to further expand human rights interpretations Under OP-CEDAW the petitioners could have used Article 12 and recognition of women’s rights. Arguments presented of CEDAW, relating to equality in health services, especially should seek to enhance a global understanding that access family planning in combination with Article 14.2(a) to clearly to healthcare is in fact a human right and one which is nec- show how Mestanza’s experience of intersectional discrimi- essary to ensure the protection and exercise of other rights nation as a rural woman was central in her experience of the such as the rights to life, equality and non-discrimination. rights violation. The CEDAW Committee has also developed
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specific legal interpretation on this issue including General 1. Facts and issues in the case Recommendation 21, which stresses the importance of In February 2000, the mayor of Manila issued Executive access to information, specifically in the context of steriliza- Order 003 (EO 003) to “promote” natural family planning tion, noting the need for women to access information about and “discourage” so-called “artificial methods of contra- sexual and reproductive health in order to make informed ception.” Since then, EO 003 has operated as a de facto decisions, according to paragraph h) of Article 10 of the Con- ban on modern contraceptives in public health centers in vention. Additionally, in its General Recommendation 24, the Manila City. In addition to preventing women in Manila City CEDAW Committee explains that services that are accept- from being able to obtain modern contraceptives from public able are those that are delivered in a way that ensures that health facilities, EO 003 has had a “chilling effect” on private a woman delivering their full informed consent, respect for and non-city health service providers who, as a result of the their dignity, guarantees her confidentiality and is sensitive to order, are afraid of reprisals for giving information to women their needs and perspectives. The Committee urges States about modern methods of family planning. parties not to permit forms of coercion, such as non-consen- Thus, for 9 years, women, especially low-income women, sual sterilization ... that violate women’s rights to dignity and have been arbitrarily denied access to a full range of mod- informed consent.” OP-CEDAW has also established impor- ern contraceptives in blatant violation of their right to access tant precedents on this issue under the case of A. S. v. Hun- the full range of family planning methods and services as rec- gary, involving lack of informed consent in the sterilization ognized in international law. The withdrawal of modern con- of a Roma woman, in which the CEDAW Committee found traceptives from clinics funded by the local government in Hungary in violation of the rights set out in paragraph h) of Manila City has left low-income women of childbearing age Article 10, Article 12 and paragraph e) of paragraph 1 of Arti- residing in Manila City without access to their main source of cle 16 of CEDAW. family planning methods, information and services, thereby Under OP-ICESCR, the right to highest attainable degree significantly increasing the risk of unplanned and unwanted of physical and mental health becomes justiciable as a sub- pregnancy among these women. Examples of the devastat- stantive right defined under international law, which can ing impact of EO 003 and its implementation on women have also include references to interpretations by CEDAW, CRC been documented in CRR’s, Likhaan and REPROCEN report and ICCPR, among others. According to CESCR, the right Imposing Misery: The Impact of Manila’s Contraception Ban to health must be understood as “a right to enjoy a range on Women and Families.54 The report found that already poor of facilities, goods, services and conditions necessary to families are driven deeper into poverty; that women’s life and achieve the highest level of health” both physically and men- physical and mental health are jeopardized by too-frequent tally. In General Comment 14, the CESCR has also empha- deliveries; and that more women resort to unsafe abortions, sized the close relationship the right to health and other fun- causing injuries, disabilities and numerous deaths. damental rights such as the right to education, which could In January 2008, a group of 20 men and women filed a enhance claims on the relationship between violations of lawsuit against the Office of the Mayor of Manila in the these rights, particularly in relation to access to informa- Court of Appeals, asking the court to declare EO 003 uncon- tion and family planning. Finally, the ESCR Committee is cur- stitutional and to call for its revocation. The petitioner relied rently elaborating a General Comment on the content and on their individual experiences of being denied access to scope of state’s obligations related to sexual and reproduc- modern contraception and evidence from Imposing Misery, tive health. This will be an important source of law for the to claim that EO 003 had severely and irreparably damaged Committee to draw upon once it begins receiving cases their lives and health, as well as that of many low-income under the OP-ICESCR on these issues. women and families in Manila City. Unfortunately, the case was dismissed by the Court of Appeals in May 2008, on Lourdes Osil et. al. v. Mayor Of Manila ARGUABLY mAWED PROCEDURAL GROUNDS (Court of Appeals, 2008) The petitioners next filed an appeal with the Philippine
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Supreme Court in September 2008, but it was dismissed the Philippines is the world’s 12th most populous country.60 following month on the ground that one of the petitioners Nearly half of all Filipino women have an unmet need for failed to sign the petition. Notably, the past practice of the contraception. Approximately 48.8% of women in the Philip- Supreme Court in these circumstances has been to simply pines use contraception, but only 35.1% use modern meth- drop the non-signing petitioner from the case and to proceed ods. Notably, the Metro Manila region has experienced a with rendering a decision on the merits. A Motion for Recon- decline in modern contraceptive use in recent years, while sideration was filed with the Supreme Court, but it was sub- other in other regions, use of modern methods is on the sequently denied in February 2009. increase.61 In 2000, it was estimated that more than 473,000 62 In April 2009, the petitioners re-filed the case with the unsafe abortions took place in the Philippines. An esti- Regional Trial Court in a final attempt to obtain redress mated 100,000 women are hospitalized and treated each 63 through the Philippine judicial system. The Manila City May- year for complications due to induced abortion. or’s Office then filed a motion asking the Regional Trial Court In effect, the EO 003 has forcibly required women and to dismiss the suit. Soon thereafter, in December 2009, families, particularly from low-income backgrounds, to use the Petitioners filed a response opposing natural family planning to the exclusion the potential dismissal of their suit. The In effect, the of any other method. Through depriva- Regional Trial Court has yet to issue a deci- tion of access to contraception, the City sion on this matter. The failed trajectory EO 003 has forcibly of Manila has dictated petitioners’ repro- of the Osil case confirms the Philippine ductive choices for them. The implemen- judiciary’s general unwillingness to engage required women and tation of EO 003 has led to higher rates of with the issue of modern contraception families, particularly unwanted pregnancies and unsafe abor- and refusal to enforce Filipino women’s tions, increased maternal mortality and sexual and reproductive health and rights. from low-income morbidity, undermined women’s and girls’ backgrounds, to use education and employment opportuni- 2. Context in Philippines ties, and driven women and their families natural family planning Article 15 of the Constitution of the deeper into poverty. The EO 003 violates Philippines protects the “right of spouses to the exclusion of any the petitioners’ rights to family planning, to found a family in accordance with their health, privacy, gender equality, including religious convictions and the demands other method. as it relates to access to healthcare ser- of responsible parenthood.”55 Article 15 vices, and to autonomy and decision mak- guarantees that spouses’ right to use whatever form of ing. Moreover, the EO 003 exceeds the contraception they choose must be ensured by the state.56 executive’s scope of authority, as the State has a legal duty Furthermore, the Philippines’ National Population Act, Act to provide access to reproductive healthcare, and that the No. 6365, states that “family planning will be made part City of Manila abused its discretion by passing and continu- of a broad educational program; safe and effective means ing to enforce EO 003 in an unconstitutional manner. Finally, will be provided to couples desiring to space or limit family under Article 2 of the Constitution, Petitioners make two size.”57 Article 2 of the Constitution protects the right to arguments relating to the constitutional protection concern- health, and further specifies that the state must “make ing equality in access to health and equality in autonomy and essential goods, health and other social services available decision-making. to all the people at an affordable cost. There should be In addition, the Philippines is a party to several interna- priority for the needs of the underprivileged …women, tional treaties, including CEDAW, ICESCR, and the Interna- and children. The State shall endeavor to provide free tional Covenant on Civil and Political Rights (ICCPR), which medical care to paupers.”58 The right to privacy is also protect women’s rights to life, health, and non-discrimina- constitutionally protected, under Article 3.59 tion. These treaties and several other international policy doc- With a population of almost 90 million people, the uments support the right to contraception and to information
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on family planning. Under Article 23 (2) of the ICCPR, men LGUs are left to pass laws and develop policies and pro- and women have the equal right “to found a family.”64 This grams with little to no oversight by the national government. article has been interpreted by the Human Rights Committee Unfortunately, LGUs often lack institutional capacity, thus (HRC) to mean that “women should be given access to fam- exacerbating inequities in access to health services, and are ily planning methods.”65 In addition, under Article 16(1)(e) of subject to the caprice and individual biases of local politi- CEDAW, women have the right “to decide freely and respon- cians such as former Mayor Atienza and current Mayor Lim, sibly on the number and spacing of their children and to have in Manila City. access to the information, education and means to enable ,'5S ARE ALSO HEAVILY INmUENCED BY CONSERVATIVE RELI- 66 them to exercise these rights.” Accordingly, CEDAW Gen- gious forces when addressing issues of contraception and eral Recommendation No. 21 states that “women must have family planning. In a nation where 90 million people are information about contraceptive measures and their use, and PREDOMINANTLY #ATHOLIC THE #HURCH HAS IMMENSE INmU- guaranteed access to sex education and family planning ser- ence over the public and government policy making. In vices.”67 Moreover, Article 12 of the ICESCR, provides for fact, the Catholic Church has been known to spread mis- the right to “the highest attainable standard of health.”68 information about modern methods of contraception, cre- The Committee on Economic, Social and Cultural Rights has ating a hostile environment preventing women from mak- noted that the right to health includes “access to health- ing informed choices about their sexual and reproductive related…information, including on sexual and reproductive health and family planning. health.”69 5. Strategies 3. Impact of the case Since the issuance of the EO 003 a decade ago, national and The EO 003 constitutes a violation of a number of women’s international non-governmental organizations have devel- human rights. By allowing the EO 003--a de facto contra- oped a variety of advocacy strategies to get the EO 003 ception ban--to continue, the government of the Philippines revoked and to restore access to family planning information is failing to uphold its international treaty obligations and is and services in Manila City. These efforts have been impor- violating Philippine constitutional law. This case is being fol- tant to unveil at the national and international level, the dev- lowed by activists around the world, as it has implications for astating impact of the EO 003. However, they have proven the recognition of women’s right to control their fertility and unsuccessful in getting the EO 003 revoked. for the application of international human rights norms in the Nonetheless, advocacy efforts have been instrumental face of religious-based laws and policies. in generating an international outcry against the contracep- 4. Factors affecting the result in this case tion ban in Manila City. Due to the Philippine government’s overall unwillingness to address women’s lack of access to The State has inappropriately attempted to evade its duty comprehensive sexual and reproductive health information to respect and enforce the rights guaranteed in interna- and services, advocates have attempted to seek recourse tional treaties by citing its government structure as justifica- within the UN human rights system. Notably, a number of UN tion for non-compliance, in part, through decentralization of human rights bodies and Special Procedures have spoken out health care services to local government units (LGUs). As a against the dire state of Filipino women’s sexual and repro- matter of international law, devolution of functions to lower ductive health and rights. For example, the CEDAW Commit- level government authorities does not reduce the scope of a tee has articulated its apprehension about the availability of government’s obligations and, in any event, as noted above, family planning services and information in the Philippines. the acts and omissions of local government authorities are As recently as 2006, the CEDAW Committee “request[ed]” attributable to the Philippine government. that the Philippines “strengthen measures aimed at the pre- Since the Philippines lacks a national reproductive health vention of unwanted pregnancies, including by making a policy which ensures women’s access to sexual and repro- comprehensive range of contraceptives more widely avail- ductive health information and services in the Philippines, able and without any restriction and by increasing knowledge
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and awareness about family planning.”70 Despite the con- The post 1994 era saw the enactment of a new Constitu- crete concerns and recommendations voiced by these treaty tion which guaranteed fundamental rights for the first time monitoring bodies and other UN representatives, the Phil- through the Bill of Rights, as well as the creation of a liberal ippine government has failed to heed the principled recom- Constitutional Court. The 1997 Constitution provided a wide mendations, particularly as they relate to promoting wom- array of opportunities for effective public interest litigation. en’s access to contraception and family planning information These included extensive fundamental rights –including jus- and services. ticiable socioeconomic rights– as well as generous standing In light of the limited success of these non-adversarial provisions and wide remedial powers. advocacy strategies, the Osil case represents an appeal to In addition, the period since 2000 has seen a major shift the judicial branch of the Philippine government to recog- in the nature of public interest litigation. The litigation in nize that the continued implementation of EO 003 perpetu- question has tended to focus to a far greater degree on ates the violation of a spectrum of rights guaranteed by both socio-economic rights and has, in many ways, been ground- domestic and international law. breaking. Nevertheless, this has been insufficient and there remains an inadequate focus on socio-economic rights litiga- 6. Importance of OP-CEDAW tion given how critical these are to addressing the persistent The Manila City EO 003 and the highly discriminatory pol- concerns of poor and marginalized South African people. icy that it embodies has caused, and will continue to cause, systematic and grave violations of women’s human rights as 3. The Inheritance Cases guaranteed by the CEDAW Convention in Articles 1, 2, 3, 5, The cases under study challenge the constitutionality of 10, 11, 12 and 16, the ICESCR in articles 2, 3, 10 and 12, and domestic legal provisions related to women’s inheritance the ICCPR in articles 2, 3, 17, 23 and 26, as well as article 14 rights under customary law. WLC has dealt with many cases of the Declaration on Human Rights Defenders. The adjudi- over the past few years involving the rights of women mar- cation of this case before an international treaty monitoring ried under Muslim personal law, including those in polyga- body would serve as a critical recognition of these violations. mous marriages. a) The Amod case Women’s Inheritance Rights — The Amod case was one of the first articulations that South African cases women married under Islamic law in South Africa, whose 1. Introduction marriages did not constitute valid legal marriages due to the historical lack of recognition under apartheid, were The following “case study” includes a series of cases liti- nevertheless entitled to claim loss of support on the death gated by the Women’s Legal Centre challenging the con- of their spouses. Given that the Islamic marriage was not stitutionality of domestic legal provisions related to wom- registered as a civil marriage in terms of the provisions of en’s inheritance rights under customary law in South Africa. the South African Marriage Act of 1961, these marriages Although cases were litigated separately, they are all part are not recognized as a legal under South African law. the Women’s Legal Centre strategy for claiming women’s ESC rights. This case was one of the first in a line of cases which have created limited protections for widows and orphans 2. Context in South Africa whose rights of inheritance had not enjoyed protection Prior to 1994 very few mechanisms existed in South Africa under the prevailing statutory and common law regimes. for public interest litigation. There was no Bill of Rights, The case firmly established that the arbitrary, intolerant almost complete parliamentary sovereignty, very strict pre- and unequal treatment of certain cultures could not be scriptive laws that favoured the state and a judiciary that fol- tolerated under the new legal structure which established lowed the strict letter of the law and was not responsive to the protection of fundamental human rights for all. injustice. b) Case Nontupheko Maretha Bhe (Ms Bhe)
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The case was brought by Nonkululeko Bhe, whose father- customary marriage was nullified because her husband in-law had planned to sell the house she and her daughters had previously married another woman in terms of the were living in when her husband died.71 At the time, black Marriage Act. The ruling relied on the Black Laws Amend- South African women were denied inheritance rights ment Act, an apartheid-era law which remains on the under the customary law of primogeniture which gives statute books. On November 21 the Supreme Court of the entire estate to the eldest male child of the deceased. Appeal, by agreement between the parties, awarded Mrs 5NDER THE SYSTEM OF INTESTATE SUCCESSION mOWING FROM Gasa her damages claim. section 23 of the Black Administration Act 38 of 1927 and The case was another in the growing line of cases which its regulations, the female children did not qualify to be recognized the rights of widows in customary and/or reli- the heirs in the intestate estate of their deceased father. In 2004 the Constitutional Court struck down the Afri- gious unions to claim loss of support on the death of their can customary law rule of primogeniture and affirmed the spouses where such claims had been denied in the past. rights of women and girls to inherit and to claim mainte- This is an important case not only for Ms Gasa but for all nance from deceased estates. women in her position with claims for loss of support. It also lays the groundwork for future challenges to the c) Mrs Daniels discrimination against women inherent in a dual system This case established that surviving partners in a monog- where civil law enjoys primacy over customary law. amous Muslim marriage can claim maintenance from their deceased partner’s estate and inherit as an intestate g) Robinson and Another v. Volks NO and Others heir if their deceased partner dies without a will. The case This case is significant in that it limits the protections was brought at a time when the effects of non-recogni- offered by the law to women in vulnerable economic sit- tion of Muslim marriages had been highlighted in a num- uations. However, the significance of the case lies in the ber of cases. The WLC realized that the attitudes of soci- two dissenting opinions which highlight the gendered ety had changed to such an extent that there was broad nature of marital relationships and the limited bargaining support for equitable treatment of widows who had been power of women to force the issue of marriage, and on disadvantaged due to legal regimes established under the inequalities faced by women on dissolution of mar- apartheid. The case builds on the decision in Amod and riage in particular in respect of the economic and other further establishes that Muslim women must be treated patrimonial consequences of marriage where no legal equally in society. protection is offered. d) Ms Gumede72 4. Factors Impacting the Results in these cases The judgment in this case abolished the customary law which vested the ownership of property in a marriage in As mentioned above, despite some important gains, there the husband for customary marriages which commenced has been an inadequate focus on socio-economic rights lit- following the establishment of the Customary Marriages igation as it specifically relates to poor and marginalized Act 120 of 1998. After Gumede, all customary marriages South African women. These inadequacies in the socio-eco- are in community of property, providing women with fair nomic rights litigation include access to resources acquired during the course of their 1. A focus on certain socio-economic rights—for example customary marriages. housing, health care and land—to the exclusion of others f) Gasa vs Road Accident Fund73 which have not yet been addressed; Mrs Gasa had been a partner in a polygamous marriage. 2. Inadequate attention being given to considering new After her husband was killed in a road accident, Mrs Gasa issues that could have been the subject of public interest and her husband’s first wife both applied for compensa- litigation; and tion. Mrs Gasa was refused on the grounds that although 3. Insufficient monitoring, awareness-raising and related the law now recognises polygamous marriages, her lobbying and advocacy initiatives.
117 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Six #
4. Limited integration of a fulsome gender analysis in the case.75 Similarly, the cooperation of various religious and cul- highest profile ESCR cases, even where a woman was tural groups that supported the case in the media ensured the lead applicant. wide spread public backing for the case (especially in cases The limited attention on women’s socio-economic rights of polygamous marriages, such as the Gasa case). is often due to the inability of women and communities that Interestingly, in the Gasa case, WCL was invited to inter- were the victims of such violations to bring their concerns to vene as amicus curiae by the Court which allowed WLC an a legal forum. opportunity to fully canvas the issues in the case. It sub- Another obstacle to effective public interest litigation is mitted a brief in which they analyzed the relevant statutory the attitude of the government. In addition to the difficulty and customary law provisions which were used by the High of getting the government to comply with court orders, the Court and offered an alternative interpretation of these provi- apparent strategy of certain government departments is to sions in line with the Constitution’s provisions on dignity and settle matters at the last moment, thereby avoiding legal equality; in so doing thay were able to highlight the inherent precedents being set that would inform future public inter- inequality in the High Court’s reasoning as well as offering est litigation and that would allow proper jurisprudence to be the Court an opportunity to reinterpret the common law in a built. This is of particular concern as it should not be taken manner which did not violate the Constitution. for granted that South Africa will necessarily have judges 6. Legal framework sympathetic to public interest positions beyond the next few years. South Africa has committed itself to some international and regional African human rights instruments. Women’s right 5. Strategies to equality must be protected even where communities are The Women’s Legal Centre primary goal is to further wom- governed by customary laws. This principle is enshrined in en’s equality in South Africa, with particular attention to the the South African Constitution. rights of socially and economically disadvantaged women. While customary law has place in the Constitution, like The involvement of the Centre in the litigation strategy is other law it is still subject to the Bill of Rights and interna- conducted through the submission of amicus curiae which tional law. Article 18(3) of the African Charter places an obli- has allowed it to place arguments regarding the broader gation upon states to “ensure the elimination of every dis- social and economic context before the court without being crimination against women and also ensure the protection of restricted to the facts of a particular case. the rights of the woman and the child as stipulated in inter- On some occasions, the Centre partner with another orga- national declarations and conventions.” Article 6 of the Pro- nization –for instance the Human Rights Commission- for tocol on the Rights of Women in Africa (entitled “Marriage’) direct access the Court in the public interest - to advance obliges state parties to enact “appropriate national legisla- arguments to strike down legislation due to its pervasively tive measures to guarantee that the rights of women in mar- discriminatory nature.74 This strategy has allowed the Cen- riage and family, including in polygamous marital relation- tre to ensure individual claimant’s interests while granting it ships are promoted and protected.” the opportunity of advancing arguments in the public inter- Article 16 of CEDAW requires States to “… take all appro- est which went beyond the relief sought the individual. Simi- priate measures to eliminate discrimination against women larly, the Centre also join with allies as amicus curiae to place in all matters relating to marriage and family relations” and more risky arguments before the Court while still ensuring that that States parties should “take all appropriate mea- that client’s rights were safeguarded through the litigation. sures to eliminate discrimination against women in other In the cases discussed above, the WLC harnessed the areas of economic and social life in order to ensure, on a excitement and uncertainty surrounding the new Constitu- basis of equality of men and women, the same rights” (Arti- tion to make incremental but significant gains for women’s cle 13). It also states that States should ensure “on a basis %3# RIGHTS )N ADDITION THE SUPPORT OF THE PUBLIC AND INmU- of equality of men and women … [t]he same rights for both ential public figures proved to be key to the success of the spouses in respect of ownership, acquisition, management,
118 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS SectionPart Six #
administration, enjoyment and disposition of property, )"7U'/I",ESDRM"12''ERR&&4"<&I&L/F"12''&IR"))4"G/L/("!+( whether free of charge or for valuable consideration” (Arti- *"$IR&LI/RE2I/F";1,4"12IME%&L/RE2IM4"5#XXN6"/R"G(")!4" cle 16). /J/EF/-F&"/RH"DRRGH[[___(&M.L\I&R(2LS[UMLp%2.[;1,p2Ip?C\$1B>1,(G%K(
The ICESCR also requires “the equal right of men and +">&&4"B>1,\;&R4":I/FTRE./F",&G2LR"KL2'"/I"BIK2L.&'&IR"2K"0U%S'&IRM"A2L3MD2G4" women to the enjoyment of all economic, social, and cultural D&F%"EI"Y2S2R/4"12F2'-E/"59/T"O\W4"#X!X6"/J/EF/-F&"/RH"DRRGH[[___(&M.L\I&R(2LS[ UMLp%2.[:I/FTRE./Fp,&G2LRp\pBIK2L.&'&IRp2Kp0U%S'&IRMp_2L3MD2G4p9/TpO\ rights.” Through General Comment 16 the CESCR makes W4p#X!X(G%K clear that States have to “ensure that women have equal O""H%%"1B;=B,"@?,",BC,?Q81=$PB",$<7=>4"Z$=$<:=$?;"Y,$B@$;<" rights to marital property and inheritance upon their hus- >B,$B>H":Zr;B"Q:">$ZP:"C$9B;=BZ"5#XXN6( 76 band’s death.” W""H%%*;)W"%*M(*H#)$(*Q#2%"-%)*$:*U&(n#)4"8IER&%";/RE2IM"12''ERR&&"2I"RD&" (OLPLQDWLRQRI'LVFULPLQDWLRQDJDLQVW:RPHQ ¿OHG1RYHPEHU 6.5 Organizations Supporting ]""YL/l("12IMR("#":,=("!NO"5!N]]6( Strategic Litigation on Women’s N""?M("/R":,=("O( ESCR !X""?M:"/R":,=("+( !!""A7?4"8;@C:4"8;$1B@4"A?,ZQ"Y:;gH"9:=B,;:Z"9?,=:Z$=r"$;" s %3#2 .ET WWWESCR NETORG INFO ESCR NETORG #X!X4"/II&f"!"5#XX]64"j5%&%#"(/-%&"9:=B,;:Z"9?,=:Z$=r",BC?,="#X!Xk" s )72!7 !SIA 0ACIlC WWWIWRAW APORG /J/EF/-F&"/R"DRRGH[[_DiFE-%2.(_D2(EIR[GU-FE./RE2IM[#X!X[NW]N#*!+XX#O+p&IS(G%K [email protected] !#"=D&"GL2JEI.&"2K">/FR/"EM"F2./R&%"EI"RD&"I2LRD"_&MR"2K":LS&IREI/(":..2L%EIS"R2" RI¿FLDOLQIRUPDWLRQFUHHGVDUHUHJLVWHUHGZLWKWKH0LQLVWU\RI5HOLJLRXV s #ENTER FOR 2EPRODUCTIVE 2IGHTS WWWREPRORIGHTSORG :KK/ELM"2K"RD&";/RE2I("ZE3&"RD&"L&MR"2K":LS&IREI/bM"I2LRD_&MR&LI4">/FR/4"D/M"/" [email protected] .2IM&LJ/REJ&"M2.E&RT"_ERD"2F%"&FER&M"_D2"D2F%"G2_&L"EI"/".2IR&fR"2K"SL&/R"M2.E/F" /I%"&RDIE."EI&iU/FERT( s )NTERIGHTS %UROPE AND !FRICA FOCUS WWWINTERIGHTSORG !)"3XEOLVKHGLQ%ROHWtQ2¿FLDORI6DOWD-DQXDU\ DQGHQDFWHGE\'HFUHH http://www.interights.org/contact-us/index.html +(N]O"2I"Q&.&'-&L"##I%4"#XX](""
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121 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Appendix
122 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Appendix
Appendix 7.1 Convention on the Elimination of All Forms of Discrimination against Women Adopted and opened for signature, ratification and Convinced that the establishment of the new international accession by General Assembly resolution 34/180 of 18 economic order based on equity and justice will contrib- December 1979 entry into force 3 September 1981, in ute significantly towards the promotion of equality between accordance with article 27(1) men and women, The States Parties to the present Convention, Emphasizing that the eradication of apartheid, of all forms Noting that the Charter of the United Nations reaffirms faith of racism, racial discrimination, colonialism, neo-colonialism, in fundamental human rights, in the dignity and worth of the aggression, foreign occupation and domination and interfer- human person and in the equal rights of man and women, ence in the internal affairs of States is essential to the full enjoyment of the rights of men and women, Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination Affirming that the strengthening of international peace and proclaims that all human beings are born free and equal and security, relaxation of international tension, mutual co- in dignity and rights and that everyone is entitled to all the operation among all States irrespective of their social and rights and freedoms set forth therein, without distinction of economic systems, general and complete disarmament, any kind, including distinction based on sex, and in particular nuclear disarmament under strict and effective international control, the affirmation of the prin- Noting that the States Parties to the International Covenants ciples of justice, equality and mutual benefit in relations on Human Rights have the obligation to ensure the equal among countries and the realization of the right of peo- right of men and women to enjoy all economic, social, cul- ples under alien and colonial domination and foreign occu- tural, civil and political rights, pation to self-determination and independence, as well as Considering the international conventions concluded under respect for national sovereignty and territorial integrity, will the auspices of the United Nations and the specialized agen- promote social progress and development and as a con- cies promoting equality of rights of men and women, sequence will contribute to the attainment of full equality between men and women, Noting also the resolutions, declarations and recommen- dations adopted by the United Nations and the specialized Convinced that the full and complete development of a coun- agencies promoting equality of rights of men and women, try, the welfare of the world and the cause of peace require Concerned, however, that despite these various instruments the maximum participation of women on equal terms with extensive discrimination against women continues to exist, men in all fields, Recalling that discrimination against women violates the Bearing in mind the great contribution of women to the wel- principles of equality of rights and respect for human dig- fare of the family and to the development of society, so far nity, is an obstacle to the participation of women, on equal not fully recognized, the social significance of maternity and terms with men, in the political, social, economic and cul- the role of both parents in the family and in the upbringing tural life of their countries, hampers the growth of the pros- of children, and aware that the role of women in procreation perity of society and the family and makes more difficult the should not be a basis for discrimination but that the upbring- full development of the potentialities of women in the ser- ing of children requires a sharing of responsibility between vice of their countries and of humanity, men and women and society as a whole, Concerned that in situations of poverty women have the Aware that a change in the traditional role of men as well as least access to food, health, education, training and opportu- the role of women in society and in the family is needed to nities for employment and other needs, achieve full equality between men and women,
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Determined to implement the principles set forth in the Dec- f. To take all appropriate measures, including legislation, laration on the Elimination of Discrimination against Women to modify or abolish existing laws, regulations, customs and, for that purpose, to adopt the measures required for the and practices which constitute discrimination against elimination of such discrimination in all its forms and mani- women; festations, g. To repeal all national penal provisions which constitute Have agreed on the following: discrimination against women. Article 3 Part I States Parties shall take in all fields, in particular in the Article I political, social, economic and cultural fields, all appropriate For the purposes of the present Convention, the term “dis- measures, including legislation, to en sure the full devel- crimination against women” shall mean any distinction, opment and advancement of women , for the purpose of exclusion or restriction made on the basis of sex which has guaranteeing them the exercise and enjoyment of human the effect or purpose of impairing or nullifying the recogni- rights and fundamental freedoms on a basis of equality tion, enjoyment or exercise by women, irrespective of their with men. marital status, on a basis of equality of men and women, of Article 4 human rights and fundamental freedoms in the political, eco- nomic, social, cultural, civil or any other field. 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and Article 2 women shall not be considered discrimination as defined States Parties condemn discrimination against women in in the present Convention, but shall in no way entail as all its forms, agree to pursue by all appropriate means and a consequence the maintenance of unequal or separate without delay a policy of eliminating discrimination against standards; these measures shall be discontinued when the women and, to this end, undertake: objectives of equality of opportunity and treatment have a. To embody the principle of the equality of men and women been achieved. in their national constitutions or other appropriate legislation 2. Adoption by States Parties of special measures, includ- if not yet incorporated therein and to ensure, through law ing those measures contained in the present Convention, and other appropriate means, the practical realization of this aimed at protecting maternity shall not be considered dis- principle; criminatory. b. To adopt appropriate legislative and other measures, Article 5 including sanctions where appropriate, prohibiting all discrimination against women; States Parties shall take all appropriate measures: c. To establish legal protection of the rights of women on a. To modify the social and cultural patterns of conduct of an equal basis with men and to ensure through compe- men and women, with a view to achieving the elimi- tent national tribunals and other public institutions the nation of prejudices and customary and all other prac- effective protection of women against any act of dis- tices which are based on the idea of the inferiority or crimination; the superiority of either of the sexes or on stereotyped d. To refrain from engaging in any act or practice of dis- roles for men and women; crimination against women and to ensure that public b. To ensure that family education includes a proper under- authorities and institutions shall act in conformity with standing of maternity as a social function and the recog- this obligation; nition of the common responsibility of men and women e. To take all appropriate measures to eliminate discrim- in the upbringing and development of their children, it ination against women by any person, organization or being understood that the interest of the children is the enterprise; primordial consideration in all cases.
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Article 6 a. The same conditions for career and vocational guidance, States Parties shall take all appropriate measures, includ- for access to studies and for the achievement of diplo- ing legislation, to suppress all forms of traffic in women and mas in educational establishments of all categories in exploitation of prostitution of women. rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional Part II and higher technical education, as well as in all types of Article 7 vocational training; States Parties shall take all appropriate measures to elimi- b. Access to the same curricula, the same examinations, nate discrimination against women in the political and public teaching staff with qualifications of the same stan- life of the country and, in particular, shall ensure to women, dard and school premises and equipment of the same on equal terms with men, the right: quality; a. To vote in all elections and public referenda and to be eli- c. The elimination of any stereotyped concept of the roles gible for election to all publicly elected bodies; of men and women at all levels and in all forms of edu- cation by encouraging coeducation and other types of b. To participate in the formulation of government pol- education which will help to achieve this aim and, in icy and the implementation thereof and to hold pub- particular, by the revision of textbooks and school pro- lic office and perform all public functions at all levels of grammes and the adaptation of teaching methods; government; d. The same opportunities to benefit from scholarships c. To participate in non-governmental organizations and and other study grants; associations concerned with the public and political life of the country. e. The same opportunities for access to programmes of continuing education, including adult and functional lit- Article 8 eracy programmes, particulary those aimed at reduc- States Parties shall take all appropriate measures to ensure ing, at the earliest possible time, any gap in education to women, on equal terms with men and without any dis- existing between men and women; crimination, the opportunity to represent their Governments f. The reduction of female student drop-out rates and the at the international level and to participate in the work of organization of programmes for girls and women who international organizations. have left school prematurely; Article 9 g. The same Opportunities to participate actively in sports 1. States Parties shall grant women equal rights with men to and physical education; acquire, change or retain their nationality. They shall ensure h. Access to specific educational information to help to in particular that neither marriage to an alien nor change of ensure the health and well-being of families, including nationality by the husband during marriage shall automati- information and advice on family planning. cally change the nationality of the wife, render her stateless or force upon her the nationality of the husband. Article 11 2. States Parties shall grant women equal rights with men 1. States Parties shall take all appropriate measures to elim- with respect to the nationality of their children. inate discrimination against women in the field of employ- ment in order to ensure, on a basis of equality of men and Part III women, the same rights, in particular: Article 10 a. The right to work as an inalienable right of all human States Parties shall take all appropriate measures to elimi- beings; nate discrimination against women in order to ensure to them b. The right to the same employment opportunities, includ- equal rights with men in the field of education and in particu- ing the application of the same criteria for selection in lar to ensure, on a basis of equality of men and women: matters of employment;
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c. The right to free choice of profession and employment, access to health care services, including those related to the right to promotion, job security and all benefits family planning. and conditions of service and the right to receive voca- 2. Notwithstanding the provisions of paragraph I of this arti- tional training and retraining, including apprenticeships, cle, States Parties shall ensure to women appropriate ser- advanced vocational training and recurrent training; vices in connection with pregnancy, confinement and the d. The right to equal remuneration, including benefits, and post-natal period, granting free services where necessary, to equal treatment in respect of work of equal value, as well as adequate nutrition during pregnancy and lactation. as well as equality of treatment in the evaluation of the Article 13 quality of work; States Parties shall take all appropriate measures to elim- e. The right to social security, particularly in cases of retire- inate discrimination against women in other areas of eco- ment, unemployment, sickness, invalidity and old age nomic and social life in order to ensure, on a basis of equality and other incapacity to work, as well as the right to paid of men and women, the same rights, in particular: leave; f. The right to protection of health and to safety in work- a. The right to family benefits; ing conditions, including the safeguarding of the func- b. The right to bank loans, mortgages and other forms of tion of reproduction. financial credit; 2. In order to prevent discrimination against women on the c. The right to participate in recreational activities, sports grounds of marriage or maternity and to ensure their effective and all aspects of cultural life. right to work, States Parties shall take appropriate measures: Article 14 a. To prohibit, subject to the imposition of sanctions, dis- 1. States Parties shall take into account the particular prob- missal on the grounds of pregnancy or of maternity lems faced by rural women and the significant roles which leave and discrimination in dismissals on the basis of rural women play in the economic survival of their families, marital status; including their work in the non-monetized sectors of the b. To introduce maternity leave with pay or with compara- economy, and shall take all appropriate measures to ensure ble social benefits without loss of former employment, the application of the provisions of the present Convention seniority or social allowances; to women in rural areas. c. To encourage the provision of the necessary support- 2. States Parties shall take all appropriate measures to elim- ing social services to enable parents to combine fam- inate discrimination against women in rural areas in order to ily obligations with work responsibilities and participa- ensure, on a basis of equality of men and women, that they tion in public life, in particular through promoting the participate in and benefit from rural development and, in par- establishment and development of a network of child- ticular, shall ensure to such women the right: care facilities; a. To participate in the elaboration and implementation of d. To provide special protection to women during preg- development planning at all levels; nancy in types of work proved to be harmful to them. b. To have access to adequate health care facilities, 3. Protective legislation relating to matters covered in this including information, counselling and services in article shall be reviewed periodically in the light of scientific family planning; and technological knowledge and shall be revised, repealed c. To benefit directly from social security programmes; or extended as necessary. d. To obtain all types of training and education, formal and Article 12 non-formal, including that relating to functional literacy, 1. States Parties shall take all appropriate measures to elimi- as well as, inter alia, the benefit of all community and nate discrimination against women in the field of health care extension services, in order to increase their technical in order to ensure, on a basis of equality of men and women, proficiency;
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e. To organize self-help groups and co-operatives in order their children; in all cases the interests of the children to obtain equal access to economic opportunities shall be paramount; through employment or self employment; e. The same rights to decide freely and responsibly on f. To participate in all community activities; the number and spacing of their children and to have access to the information, education and means to g. To have access to agricultural credit and loans, market- enable them to exercise these rights; ing facilities, appropriate technology and equal treat- f. The same rights and responsibilities with regard to ment in land and agrarian reform as well as in land guardianship, wardship, trusteeship and adoption of resettlement schemes; children, or similar institutions where these concepts h. To enjoy adequate living conditions, particularly in rela- exist in national legislation; in all cases the interests of tion to housing, sanitation, electricity and water supply, the children shall be paramount; transport and communications. g. The same personal rights as husband and wife, includ- ing the right to choose a family name, a profession and Part IV an occupation; Article 15 h. The same rights for both spouses in respect of the 1. States Parties shall accord to women equality with men ownership, acquisition, management, administration, before the law. enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. States Parties shall accord to women, in civil matters, a 2. The betrothal and the marriage of a child shall have no legal capacity identical to that of men and the same oppor- legal effect, and all necessary action, including legislation, tunities to exercise that capacity. In particular, they shall give shall be taken to specify a minimum age for marriage and women equal rights to conclude contracts and to administer to make the registration of marriages in an official registry property and shall treat them equally in all stages of proce- compulsory. dure in courts and tribunals. 3. States Parties agree that all contracts and all other private Part V instruments of any kind with a legal effect which is directed Article 17 at restricting the legal capacity of women shall be deemed 1. For the purpose of considering the progress made in the null and void. implementation of the present Convention, there shall be 4. States Parties shall accord to men and women the same established a Committee on the Elimination of Discrimination rights with regard to the law relating to the movement of per- against Women (hereinafter referred to as the Committee) sons and the freedom to choose their residence and domicile. consisting, at the time of entry into force of the Convention, Article 16 of eighteen and, after ratification of or accession to the Con- vention by the thirty-fifth State Party, of twenty-three experts 1. States Parties shall take all appropriate measures to elim- of high moral standing and competence in the field covered inate discrimination against women in all matters relating to by the Convention. The experts shall be elected by States marriage and family relations and in particular shall ensure, Parties from among their nationals and shall serve in their on a basis of equality of men and women: personal capacity, consideration being given to equitable geo- a. The same right to enter into marriage; graphical distribution and to the representation of the differ- b. The same right freely to choose a spouse and to enter ent forms of civilization as well as the principal legal systems. into marriage only with their free and full consent; 2. The members of the Committee shall be elected by secret c. The same rights and responsibilities during marriage ballot from a list of persons nominated by States Parties. and at its dissolution; Each State Party may nominate one person from among its d. The same rights and responsibilities as parents, irre- own nationals. spective of their marital status, in matters relating to 3. The initial election shall be held six months after the date
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of the entry into force of the present Convention. At least of the United Nations, for consideration by the Committee, three months before the date of each election the Secre- a report on the legislative, judicial, administrative or other tary-General of the United Nations shall address a letter to measures which they have adopted to give effect to the pro- the States Parties inviting them to submit their nominations visions of the present Convention and on the progress made within two months. The Secretary-General shall prepare a in this respect: list in alphabetical order of all persons thus nominated, indi- cating the States Parties which have nominated them, and a. Within one year after the entry into force for the State shall submit it to the States Parties. concerned; 4. Elections of the members of the Committee shall be b. Thereafter at least every four years and further when- held at a meeting of States Parties convened by the Secre- ever the Committee so requests. tary-General at United Nations Headquarters. At that meet- 2. Reports may indicate factors and difficulties affecting ing, for which two thirds of the States Parties shall con- the degree of fulfilment of obligations under the present stitute a quorum, the persons elected to the Committee Convention. shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the repre- Article 19 sentatives of States Parties present and voting. 1. The Committee shall adopt its own rules of procedure. 5. The members of the Committee shall be elected for a 2. The Committee shall elect its officers for a term of two term of four years. However, the terms of nine of the mem- years. bers elected at the first election shall expire at the end of two years; immediately after the first election the names of Article 20 these nine members shall be chosen by lot by the Chairman 1. The Committee shall normally meet for a period of not of the Committee. more than two weeks annually in order to consider the 6. The election of the five additional members of the Com- reports submitted in accordance with article 18 of the pres- mittee shall be held in accordance with the provisions of ent Convention. paragraphs 2, 3 and 4 of this article, following the thirty-fifth 2. The meetings of the Committee shall normally be held ratification or accession. The terms of two of the additional at United Nations Headquarters or at any other convenient members elected on this occasion shall expire at the end of place as determined by the Committee. two years, the names of these two members having been chosen by lot by the Chairman of the Committee. Article 21 7. For the filling of casual vacancies, the State Party whose 1. The Committee shall, through the Economic and Social expert has ceased to function as a member of the Commit- Council, report annually to the General Assembly of the tee shall appoint another expert from among its nationals, United Nations on its activities and may make suggestions subject to the approval of the Committee. and general recommendations based on the examination of reports and information received from the States Parties. 8. The members of the Committee shall, with the approval Such suggestions and general recommendations shall be of the General Assembly, receive emoluments from United included in the report of the Committee together with com- Nations resources on such terms and conditions as the ments, if any, from States Parties. Assembly may decide, having regard to the importance of 2. The Secretary-General of the United Nations shall transmit the Committee’s responsibilities. the reports of the Committee to the Commission on the Sta- 9. The Secretary-General of the United Nations shall pro- tus of Women for its information. vide the necessary staff and facilities for the effective per- Article 22 formance of the functions of the Committee under the pres- ent Convention. The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions Article 18 of the present Convention as fall within the scope of their 1. States Parties undertake to submit to the Secretary-General activities. The Committee may invite the specialized agencies
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to submit reports on the implementation of the Convention in acceding to it after the deposit of the twentieth instrument areas falling within the scope of their activities. of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its Part VI own instrument of ratification or accession. Article 23 Article 28 Nothing in the present Convention shall affect any provi- 1. The Secretary-General of the United Nations shall receive sions that are more conducive to the achievement of equal- and circulate to all States the text of reservations made by ity between men and women which may be contained: States at the time of ratification or accession. a. In the legislation of a State Party; or 2. A reservation incompatible with the object and purpose of b. In any other international convention, treaty or agree- the present Convention shall not be permitted. ment in force for that State. 3. Reservations may be withdrawn at any time by notifica- Article 24 tion to this effect addressed to the Secretary-General of the States Parties undertake to adopt all necessary measures at United Nations, who shall then inform all States thereof. the national level aimed at achieving the full realization of the Such notification shall take effect on the date on which it is rights recognized in the present Convention. received. Article 25 Article 29 1. The present Convention shall be open for signature by all 1. Any dispute between two or more States Parties concern- States. ing the interpretation or application of the present Conven- tion which is not settled by negotiation shall, at the request 2. The Secretary-General of the United Nations is designated of one of them, be submitted to arbitration. If within six as the depositary of the present Convention. months from the date of the request for arbitration the par- 3. The present Convention is subject to ratification. Instru- ties are unable to agree on the organization of the arbitration, ments of ratification shall be deposited with the Secretary- any one of those parties may refer the dispute to the Inter- General of the United Nations. national Court of Justice by request in conformity with the Statute of the Court. 4. The present Convention shall be open to accession by 2. Each State Party may at the time of signature or ratifica- all States. Accession shall be effected by the deposit of an tion of the present Convention or accession thereto declare instrument of accession with the Secretary-General of the that it does not consider itself bound by paragraph I of this United Nations. article. The other States Parties shall not be bound by that Article 26 paragraph with respect to any State Party which has made 1. A request for the revision of the present Convention may such a reservation. be made at any time by any State Party by means of a noti- 3. Any State Party which has made a reservation in accor- fication in writing addressed to the Secretary-General of the dance with paragraph 2 of this article may at any time with- United Nations. draw that reservation by notification to the Secretary-Gen- 2. The General Assembly of the United Nations shall decide eral of the United Nations. upon the steps, if any, to be taken in respect of such a request. Article 30 Article 27 The present Convention, the Arabic, Chinese, English, 1. The present Convention shall enter into force on the thirti- French, Russian and Spanish texts of which are equally eth day after the date of deposit with the Secretary-General authentic, shall be deposited with the Secretary-General of of the United Nations of the twentieth instrument of ratifica- the United Nations. tion or accession. IN WITNESS WHEREOF the undersigned, duly authorized, 2. For each State ratifying the present Convention or have signed the present Convention.
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Appendix 7.2 Optional Protocol to the Convention on the Elimination of Discrimination against Women
Adopted by General Assembly resolution A/54/4 on 6 Article 2 October 1999 and opened for signature on Communications may be submitted by or on behalf of indi- 10 December 1999, Human Rights Day entry into force viduals or groups of individuals, under the jurisdiction of a 22 December 2000 State Party, claiming to be victims of a violation of any of The States Parties to the present Protocol, the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individu- Noting that the Charter of the United Nations reaffirms faith als or groups of individuals, this shall be with their consent in fundamental human rights, in the dignity and worth of the unless the author can justify acting on their behalf without human person and in the equal rights of men and women, such consent. Also noting that the Universal Declaration of Human Rights Article 3 Resolution 217 A (III). proclaims that all human beings are Communications shall be in writing and shall not be anony- born free and equal in dignity and rights and that everyone mous. No communication shall be received by the Commit- is entitled to all the rights and freedoms set forth therein, tee if it concerns a State Party to the Convention that is not without distinction of any kind, including distinction based a party to the present Protocol. on sex, Article 4 Recalling that the International Covenants on Human Rights Resolution 2200 A (XXI), annex. and other international 1. The Committee shall not consider a communication unless human rights instruments prohibit discrimination on the it has ascertained that all available domestic remedies have basis of sex, been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. Also recalling the Convention on the Elimination of All Forms of Discrimination against Women4 (“the Convention”), in 2. The Committee shall declare a communication inadmissi- which the States Parties thereto condemn discrimination ble where: against women in all its forms and agree to pursue by all a. The same matter has already been examined by the appropriate means and without delay a policy of eliminating Committee or has been or is being examined under discrimination against women, another procedure of international investigation or set- Reaffirming their determination to ensure the full and equal tlement; enjoyment by women of all human rights and fundamental b. It is incompatible with the provisions of the Convention; freedoms and to take effective action to prevent violations of c. It is manifestly ill-founded or not sufficiently substanti- these rights and freedoms, ated; Have agreed as follows: d. It is an abuse of the right to submit a communication; Article 1 e. The facts that are the subject of the communication occurred prior to the entry into force of the present Pro- A State Party to the present Protocol (“State Party”) rec- tocol for the State Party concerned unless those facts ognizes the competence of the Committee on the Elimina- continued after that date. tion of Discrimination against Women (“the Committee”) to receive and consider communications submitted in accor- Article 5 dance with article 2. 1. At any time after the receipt of a communication and
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before a determination on the merits has been reached, the response to its views or recommendations, if any, including Committee may transmit to the State Party concerned for as deemed appropriate by the Committee, in the State Par- its urgent consideration a request that the State Party take ty’s subsequent reports under article 18 of the Convention. such interim measures as may be necessary to avoid possi- Article 8 ble irreparable damage to the victim or victims of the alleged 1. If the Committee receives reliable information indicating violation. grave or systematic violations by a State Party of rights set 2. Where the Committee exercises its discretion under forth in the Convention, the Committee shall invite that State paragraph 1 of the present article, this does not imply a Party to cooperate in the examination of the information and determination on admissibility or on the merits of the com- to this end to submit observations with regard to the infor- munication. mation concerned. Article 6 2. Taking into account any observations that may have been 1. Unless the Committee considers a communication inad- submitted by the State Party concerned as well as any other missible without reference to the State Party concerned, reliable information available to it, the Committee may des- and provided that the individual or individuals consent to the ignate one or more of its members to conduct an inquiry and disclosure of their identity to that State Party, the Commit- to report urgently to the Committee. Where warranted and tee shall bring any communication submitted to it under the with the consent of the State Party, the inquiry may include present Protocol confidentially to the attention of the State a visit to its territory. Party concerned. 3. After examining the findings of such an inquiry, the Com- 2. Within six months, the receiving State Party shall submit mittee shall transmit these findings to the State Party con- to the Committee written explanations or statements clari- cerned together with any comments and recommendations. fying the matter and the remedy, if any, that may have been 4. The State Party concerned shall, within six months of provided by that State Party. receiving the findings, comments and recommendations Article 7 transmitted by the Committee, submit its observations to 1. The Committee shall consider communications received the Committee. under the present Protocol in the light of all information 5. Such an inquiry shall be conducted confidentially and the made available to it by or on behalf of individuals or groups cooperation of the State Party shall be sought at all stages of individuals and by the State Party concerned, provided of the proceedings. that this information is transmitted to the parties concerned. Article 9 2. The Committee shall hold closed meetings when examin- 1. The Committee may invite the State Party concerned to ing communications under the present Protocol. include in its report under article 18 of the Convention details 3. After examining a communication, the Committee shall of any measures taken in response to an inquiry conducted transmit its views on the communication, together with its under article 8 of the present Protocol. recommendations, if any, to the parties concerned. 2. The Committee may, if necessary, after the end of the 4. The State Party shall give due consideration to the views period of six months referred to in article 8.4, invite the of the Committee, together with its recommendations, if State Party concerned to inform it of the measures taken in any, and shall submit to the Committee, within six months, response to such an inquiry. a written response, including information on any action Article 10 taken in the light of the views and recommendations of 1. Each State Party may, at the time of signature or ratifica- the Committee. tion of the present Protocol or accession thereto, declare 5. The Committee may invite the State Party to submit further that it does not recognize the competence of the Commit- information about any measures the State Party has taken in tee provided for in articles 8 and 9.
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2. Any State Party having made a declaration in accordance to it after its entry into force, the present Protocol shall enter with paragraph 1 of the present article may, at any time, with- into force three months after the date of the deposit of its draw this declaration by notification to the Secretary-General. own instrument of ratification or accession. Article 11 Article 17 A State Party shall take all appropriate steps to ensure that No reservations to the present Protocol shall be permitted. individuals under its jurisdiction are not subjected to ill treat- Article 18 ment or intimidation as a consequence of communicating 1. Any State Party may propose an amendment to the pres- with the Committee pursuant to the present Protocol. ent Protocol and file it with the Secretary-General of the Article 12 United Nations. The Secretary-General shall thereupon com- The Committee shall include in its annual report under article municate any proposed amendments to the States Par- 21 of the Convention a summary of its activities under the ties with a request that they notify her or him whether they present Protocol. favour a conference of States Parties for the purpose of con- sidering and voting on the proposal. In the event that at least Article 13 one third of the States Parties favour such a conference, the Each State Party undertakes to make widely known and to Secretary-General shall convene the conference under the give publicity to the Convention and the present Protocol auspices of the United Nations. Any amendment adopted and to facilitate access to information about the views and by a majority of the States Parties present and voting at the recommendations of the Committee, in particular, on mat- conference shall be submitted to the General Assembly of ters involving that State Party. the United Nations for approval. Article 14 2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations The Committee shall develop its own rules of procedure to and accepted by a two-thirds majority of the States Parties be followed when exercising the functions conferred on it by to the present Protocol in accordance with their respective the present Protocol. constitutional processes. Article 15 3. When amendments come into force, they shall be bind- 1. The present Protocol shall be open for signature by any ing on those States Parties that have accepted them, other State that has signed, ratified or acceded to the Convention. States Parties still being bound by the provisions of the pres- 2. The present Protocol shall be subject to ratification by any ent Protocol and any earlier amendments that they have State that has ratified or acceded to the Convention. Instru- accepted. ments of ratification shall be deposited with the Secretary- Article 19 General of the United Nations. 1. Any State Party may denounce the present Protocol at any 3. The present Protocol shall be open to accession by any time by written notification addressed to the Secretary-Gen- State that has ratified or acceded to the Convention. eral of the United Nations. Denunciation shall take effect six 4. Accession shall be effected by the deposit of an instru- months after the date of receipt of the notification by the ment of accession with the Secretary-General of the United Secretary-General. Nations. 2. Denunciation shall be without prejudice to the continued Article 16 application of the provisions of the present Protocol to any communication submitted under article 2 or any inquiry initi- 1. The present Protocol shall enter into force three months ated under article 8 before the effective date of denunciation. after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or Article 20 accession. The Secretary-General of the United Nations shall inform all 2. For each State ratifying the present Protocol or acceding States of:
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(a) Signatures, ratifications and accessions under the pres- ent Protocol; (b) The date of entry into force of the present Protocol and of any amendment under article 18; (c) Any denunciation under article 19. Article 21 1. The present Protocol, of which the Arabic, Chinese, Eng- lish, French, Russian and Spanish texts are equally authen- tic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 25 of the Convention.
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Appendix 7.3 OP-CEDAW Rules of Procedure (Excerpt taken from A/56/38) Rule 58 Request for clarification or additional information Part three 1. The Secretary-General may request clarification from the author of a communication, including: Rules of procedure for the Optional Protocol to (a) The name, address, date of birth and occupation of the the Convention on the Elimination of All Forms of victim and verification of the victim’s identity; Discrimination against Women (b) The name of the State party against which the commu- XVI. Procedures for the consideration of nication is directed; communications received under the Optional Protocol (c) The objective of the communication; (d) The facts of the claim; Rule 56 (e) Steps taken by the author and/or victim to exhaust Transmission of communications to the Committee domestic remedies; 1. The Secretary-General shall bring to the attention of the (f) The extent to which the same matter is being or has Committee, in accordance with the present rules, communi- been examined under another procedure of interna- cations that are, or appear to be, submitted for consideration tional investigation or settlement; by the Committee under article 2 of the Optional Protocol. (g) The provision or provisions of the Convention alleged 2. The Secretary-General may request clarification from the to have been violated. author or authors of a communication as to whether she, he 2. When requesting clarification or information, the Secre- or they wish to have the communication submitted to the tary-General shall indicate to the author or authors of the Committee for consideration under the Optional Protocol. communication a time limit within which such information is Where there is doubt as to the wish of the author or authors, to be submitted. the Secretary-General will bring the communication to the attention of the Committee. 3. The Committee may approve a questionnaire to facilitate requests for clarification or information from the victim and/ 3. No communication shall be received by the Committee or author of a communication. if it: 4. A request for clarification or information shall not preclude (a) Concerns a State that is not a party to the Protocol; the inclusion of the communication in the list provided for in (b) Is not in writing; rule 57 above. (c) Is anonymous. 5. The Secretary-General shall inform the author of a com- Rule 57 munication of the procedure that will be followed and in List and register of communications particular that, provided that the individual or individuals 1. The Secretary-General shall maintain a permanent regis- consent to the disclosure of her identity to the State party concerned, the communication will be brought confidentially ter of all communications submitted for consideration by the to the attention of that State party. Committee under article 2 of the Optional Protocol. Rule 59 2. The Secretary-General shall prepare lists of the commu- nications submitted to the Committee, together with a brief Summary of information summary of their contents. 1. A summary of the relevant information obtained with
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respect to each registered communication shall be prepared Rule 63 and circulated to the members of the Committee by the Interim measures Secretary-General at the next regular session of the Com- 1. At any time after the receipt of a communication and mittee. before a determination on the merits has been reached, the 2. The full text of any communication brought to the atten- Committee may transmit to the State party concerned, for tion of the Committee shall be made available to any mem- its urgent consideration, a request that it take such interim ber of the Committee upon that member’s request. measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of the alleged Rule 60 violation. Inability of a member to take part in the examination of 2. A working group or rapporteur may also request the a communication State party concerned to take such interim measures as 1. A member of the Committee may not take part in the the working group or rapporteur considers necessary to examination of a communication if: avoid irreparable damage to the victim or victims of the alleged violation. (a) The member has a personal interest in the case; 3. When a request for interim measures is made by a work- (b) The member has participated in the making of any deci- ing group or rapporteur under the present rule, the work- sion on the case covered by the communication in any ing group or rapporteur shall forthwith thereafter inform the capacity other than under the procedures applicable to Committee members of the nature of the request and the this Optional Protocol; communication to which the request relates. (c) The member is a national of the State party concerned. 4. Where the Committee, a working group or a rapporteur 2. Any question that may arise under paragraph 1 above shall requests interim measures under this rule, the request shall be decided by the Committee without the participation of state that it does not imply a determination of the merits of the member concerned. the communication. Rule 61 Rule 64 Withdrawal of a member Method of dealing with communications If, for any reason, a member considers that she or he should 1. The Committee shall, by a simple majority and in accor- not take part or continue to take part in the examination of a dance with the following rules, decide whether the com- communication, the member shall inform the Chairperson of munication is admissible or inadmissible under the Optional her or his withdrawal. Protocol. 2. A working group may also declare that a communication Rule 62 is admissible under the Optional Protocol, provided that it Establishment of working groups and designation of is composed of five members and all of the members so rapporteurs decide. 1. The Committee may establish one or more working Rule 65 groups, each comprising no more than five of its members, and may designate one or more rapporteurs to make recom- Order of communications mendations to the Committee and to assist it in any manner 1. Communications shall be dealt with in the order in which in which the Committee may decide. they are received by the Secretariat, unless the Committee or a working group decides otherwise. 2. In the present part of the rules, reference to a working group or rapporteur is a reference to a working group or rap- 2. The Committee may decide to consider two or more com- porteur established under the present rules. munications jointly. 3. The rules of procedure of the Committee shall apply as far Rule 66 as possible to the meetings of its working groups. Separate consideration of admissibility and merits
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The Committee may decide to consider the question of provided in the matter. admissibility of a communication and the merits of a com- 4. The Committee, working group or rapporteur may request munication separately. a written explanation or statement that relates only to the Rule 67 admissibility of a communication but, in such cases, the Conditions of admissibility of communications State party may nonetheless submit a written explanation or statement that relates to both the admissibility and the mer- With a view to reaching a decision on the admissibility of its of a communication, provided that such written expla- a communication, the Committee, or a working group, nation or statement is submitted within six months of the shall apply the criteria set forth in articles 2, 3 and 4 of the Committee’s request. Optional Protocol. 5. A State party that has received a request for a written Rule 68 reply in accordance with paragraph 1 of the present rule Authors of communications may submit a request in writing that the communication be 1. Communications may be submitted by individuals or rejected as inadmissible, setting out the grounds for such groups of individuals who claim to be victims of violations of inadmissibility, provided that such a request is submitted the rights set forth in the Convention, or by their designated to the Committee within two months of the request made representatives, or by others on behalf of an alleged victim under paragraph 1. where the alleged victim consents. 6. If the State party concerned disputes the contention of 2. In cases where the author can justify such action, com- the author or authors, in accordance with article 4, paragraph munications may be submitted on behalf of an alleged vic- 1, of the Optional Protocol, that all available domestic reme- tim without her consent. dies have been exhausted, the State party shall give details 3. Where an author seeks to submit a communication in of the remedies available to the alleged victim or victims in accordance with paragraph 2 of the present rule, she or he the particular circumstances of the case. shall provide written reasons justifying such action. 7. Submission by the State party of a request in accordance Rule 69 with paragraph 5 of the present rule shall not affect the period of six months given to the State party to submit its Procedures with regard to communications received written explanation or statement unless the Committee, 1. As soon as possible after the communication has been working group or rapporteur decides to extend the time for received, and provided that the individual or group of individ- submission for such a period as the Committee considers uals consent to the disclosure of their identity to the State appropriate. party concerned, the Committee, working group or rap- 8. The Committee, working group or rapporteur may request porteur shall bring the communication confidentially to the the State party or the author of the communication to sub- attention of the State party and shall request that State party mit, within fixed time limits, additional written explanations to submit a written reply to the communication. or statements relevant to the issues of the admissibility or 2. Any request made in accordance with paragraph 1 of merits of a communication. the present rule shall include a statement indicating that 9. The Committee, working group or rapporteur shall trans- such a request does not imply that any decision has been mit to each party the submissions made by the other party reached on the question of admissibility of the communi- pursuant to the present rule and shall afford each party an cation. opportunity to comment on those submissions within fixed 3. Within six months after receipt of the Committee’s time limits. request under the present rule, the State party shall sub- Rule 70 mit to the Committee a written explanation or statement that relates to the admissibility of the communication and Inadmissible communications its merits, as well as to any remedy that may have been 1. Where the Committee decides that a communication is
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inadmissible, it shall, as soon as possible, communicate its examination, obtain through the Secretary-General any docu- decision and the reasons for that decision through the Sec- mentation from organizations in the United Nations system retary-General to the author of the communication and to the or other bodies that may assist in the disposal of the commu- State party concerned. nication, provided that the Committee shall afford each party 2. A decision of the Committee declaring a communica- an opportunity to comment on such documentation or infor- tion inadmissible may be reviewed by the Committee upon mation within fixed time limits. receipt of a written request submitted by or on behalf of 3. The Committee may refer any communication to a work- the author or authors of the communication, containing ing group to make recommendations to the Committee on information indicating that the reasons for inadmissibility the merits of the communication. no longer apply. 4. The Committee shall not decide on the merits of the com- 3. Any member of the Committee who has participated in the munication without having considered the applicability of all decision regarding admissibility may request that a summary of the admissibility grounds referred to in articles 2, 3 and 4 of her or his individual opinion be appended to the Commit- of the Optional Protocol. tee’s decision declaring a communication inadmissible. 5. The Secretary-General shall transmit the views of the Rule 71 Committee, determined by a simple majority, together with Additional procedures whereby admissibility may be any recommendations, to the author or authors of the com- considered separately from the merits munication and to the State party concerned. 1. Where the issue of admissibility is decided by the Commit- 6. Any member of the Committee who has participated in tee or a working group before the State party’s written expla- the decision may request that a summary of her or his indi- nations or statements on the merits of the communication vidual opinion be appended to the Committee’s views. are received, that decision and all other relevant information Rule 73 shall be submitted through the Secretary-General to the State party concerned. The author of the communication shall, Follow-up to the views of the Committee through the Secretary-General, be informed of the decision. 1. Within six months of the Committee’s issuing its views 2. The Committee may revoke its decision that a communi- on a communication, the State party concerned shall submit cation is admissible in the light of any explanation or state- to the Committee a written response, including any informa- ments submitted by the State party. tion on any action taken in the light of the views and recom- mendations of the Committee. Rule 72 2. After the six-month period referred to in paragraph 1 of Views of the Committee on admissible the present rule, the Committee may invite the State party communications concerned to submit further information about any mea- 1. Where the parties have submitted information relating sures the State party has taken in response to its views or both to the admissibility and to the merits of a communica- recommendations. tion, or where a decision on admissibility has already been taken and the parties have submitted information on the 3. The Committee may request the State party to include merits of that communication, the Committee shall con- information on any action taken in response to its views or sider and shall formulate its views on the communication in recommendations in its subsequent reports under article 18 the light of all written information made available to it by the of the Convention. author or authors of the communication and the State party 4. The Committee shall designate for follow-up on views concerned, provided that this information has been transmit- adopted under article 7 of the Optional Protocol a rapporteur ted to the other party concerned. or working group to ascertain the measures taken by States 2. The Committee or the working group set up by it to con- parties to give effect to the Committee’s views and recom- sider a communication may, at any time in the course of the mendations.
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5. The rapporteur or working group may make such contacts the State party concerned to make public any submission or and take such action as may be appropriate for the due per- information bearing on the proceedings. formance of their assigned functions and shall make such 8. Subject to paragraphs 5 and 6 of the present rule, the recommendations for further action by the Committee as Committee’s decisions on admissibility, merits and discon- may be necessary. tinuance shall be made public. 6. The rapporteur or working group shall report to the Com- 9. The Secretariat shall be responsible for the distribution of mittee on follow-up activities on a regular basis. the Committee’s final decisions to the author or authors and 7. The Committee shall include information on any follow- the State party concerned. up activities in its annual report under article 21 of the Con- 10. The Committee shall include in its annual report under vention. article 21 of the Convention a summary of the communi- Rule 74 cations examined and, where appropriate, a summary of Confidentiality of communications the explanations and statements of the States parties con- cerned, and of its own suggestions and recommendations. 1. Communications submitted under the Optional Protocol shall be examined by the Committee, working group or rap- 11. Unless the Committee decides otherwise, information porteur in closed meetings. furnished by the parties in follow-up to the Committee’s views and recommendations under paragraphs 4 and 5 of 2. All working documents prepared by the Secretariat for the article 7 of the Optional Protocol shall not be confidential. Committee, working group or rapporteur, including summa- Unless the Committee decides otherwise, decisions of the ries of communications prepared prior to registration and the list of summaries of communications, shall be confidential Committee with regard to follow-up activities shall not be unless the Committee decides otherwise. confidential. 3. The Committee, working group or rapporteur shall not Rule 75 make public any communication, submissions or informa- Communiqués tion relating to a communication prior to the date on which The Committee may issue communiqués regarding its activ- its views are issued. ities under articles 1 to 7 of the Optional Protocol, through 4. The author or authors of a communication or the individu- the Secretary-General, for the use of the information media als who are alleged to be the victim or victims of a violation and the general public. of the rights set forth in the Convention may request that the names and identifying details of the alleged victim or victims XVII. Proceedings under the inquiry procedure of the (or any of them) not be published. Optional Protocol 5. If the Committee, working group or rapporteur so decides, Rule 76 the name or names and identifying details of the author Applicability or authors of a communication or the individuals who are Rules 77 to 90 of the present rules shall not be applied to a alleged to be the victim or victims of a violation of rights set State party that, in accordance with article 10, paragraph 1, forth in the Convention shall not be made public by the Com- of the Optional Protocol, declared at the time of ratification mittee, the author or the State party concerned. or accession to the Optional Protocol that it does not recog- 6. The Committee, working group or rapporteur may request nize the competence of the Committee as provided for in the author of a communication or the State party concerned article 8 thereof, unless that State party has subsequently to keep confidential the whole or part of any submission or withdrawn its declaration in accordance with article 10, para- information relating to the proceedings. graph 2, of the Optional Protocol. 7. Subject to paragraphs 5 and 6 of the present rule, nothing Rule 77 in this rule shall affect the right of the author or authors or Transmission of information to the Committee
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In accordance with the present rules, the Secretary-General ascertain the reliability of the information and/or the sources shall bring to the attention of the Committee information of the information brought to its attention under article 8 that is or appears to be submitted for the Committee’s con- of the Optional Protocol and may obtain additional relevant sideration under article 8, paragraph 1, of the Optional Pro- information substantiating the facts of the situation. tocol. 2. The Committee shall determine whether the information Rule 78 received contains reliable information indicating grave or Register of information systematic violations of rights set forth in the Convention by the State party concerned. The Secretary-General shall maintain a permanent register of information brought to the attention of the Committee in 3. The Committee may request a working group to assist it accordance with rule 77 of the present rules and shall make in carrying out its duties under the present rule. the information available to any member of the Committee Rule 83 upon request. Examination of information Rule 79 1. If the Committee is satisfied that the information received Summary of information is reliable and indicates grave or systematic violations of The Secretary-General, when necessary, shall prepare and rights set forth in the Convention by the State party con- circulate to members of the Committee a brief summary of cerned, the Committee shall invite the State party, through the information submitted in accordance with rule 77 of the the Secretary-General, to submit observations with regard present rules. to that information within fixed time limits. 2. The Committee shall take into account any observations Rule 80 that may have been submitted by the State party concerned, Confidentiality as well as any other relevant information. 1. Except in compliance with the obligations of the Commit- 3. The Committee may decide to obtain additional informa- tee under article 12 of the Optional Protocol, all documents tion from the following: and proceedings of the Committee relating to the conduct of the inquiry under article 8 of the Optional Protocol shall (a) Representatives of the State party concerned; be confidential. (b) Governmental organizations; 2. Before including a summary of the activities undertaken (c) Non-governmental organizations; under articles 8 or 9 of the Optional Protocol in the annual (d) Individuals. report prepared in accordance with article 21 of the Conven- 4. The Committee shall decide the form and manner in which tion and article 12 of the Optional Protocol, the Committee such additional information will be obtained. may consult with the State party concerned with respect to 5. The Committee may, through the Secretary-General, the summary. request any relevant documentation from the United Nations Rule 81 system. Meetings related to proceedings under article 8 Rule 84 Meetings of the Committee during which inquiries under Establishment of an inquiry article 8 of the Optional Protocol are considered shall be 1. Taking into account any observations that may have closed. been submitted by the State party concerned, as well as Rule 82 other reliable information, the Committee may designate Preliminary consideration of information by the one or more of its members to conduct an inquiry and to Committee make a report within a fixed time limit. 1. The Committee may, through the Secretary-General, 2. An inquiry shall be conducted confidentially and in
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accordance with any modalities determined by the Commit- held in accordance with paragraph 1 of the present rule shall tee. be established by the designated members of the Commit- 3. Taking into account the Convention, the Optional Proto- tee visiting the State party in connection with an inquiry, and col and the present rules of procedure, the members desig- the State party concerned. nated by the Committee to conduct the inquiry shall deter- 3. Any person appearing before the designated members mine their own methods of work. of the Committee for the purpose of giving testimony shall 4. During the period of the inquiry, the Committee may defer make a solemn declaration as to the veracity of her or his the consideration of any report that the State party con- testimony and the confidentiality of the procedure. cerned may have submitted pursuant to article 18 of the 4. The Committee shall inform the State party that it shall Convention. take all appropriate steps to ensure that individuals under its Rule 85 jurisdiction are not subjected to ill-treatment or intimidation Cooperation of the State party concerned as a consequence of participating in any hearings in connec- tion with an inquiry or with meeting the designated mem- 1. The Committee shall seek the cooperation of the State bers of the Committee conducting the inquiry. party concerned at all stages of an inquiry. Rule 88 2. The Committee may request the State party concerned to nominate a representative to meet with the member or Assistance during an inquiry members designated by the Committee. 1. In addition to the staff and facilities that shall be pro- vided by the Secretary-General in connection with an inquiry, 3. The Committee may request the State party concerned to provide the member or members designated by the Com- including during a visit to the State party concerned, the des- mittee with any information that they or the State party may ignated members of the Committee may, through the Sec- consider relates to the inquiry. retary-General, invite interpreters and/or such persons with special competence in the fields covered by the Conven- Rule 86 tion as are deemed necessary by the Committee to provide Visits assistance at all stages of the inquiry. 1. Where the Committee deems it warranted, the inquiry may 2. Where such interpreters or other persons of special com- include a visit to the territory of the State party concerned. petence are not bound by the oath of allegiance to the United 2. Where the Committee decides, as a part of its inquiry, that Nations, they shall be required to declare solemnly that they there should be a visit to the State party concerned, it shall, will perform their duties honestly, faithfully and impartially, through the Secretary-General, request the consent of the and that they will respect the confidentiality of the proceed- State party to such a visit. ings. 3. The Committee shall inform the State party concerned of Rule 89 its wishes regarding the timing of the visit and the facilities Transmission of findings, comments or suggestions required to allow those members designated by the Com- 1. After examining the findings of the designated members mittee to conduct the inquiry to carry out their task. submitted in accordance within rule 84 of the present rules, Rule 87 the Committee shall transmit the findings, through the Sec- Hearings retary-General, to the State party concerned, together with 1. With the consent of the State party concerned, visits any comments and recommendations. may include hearings to enable the designated members of 2. The State party concerned shall submit its observations on the Committee to determine facts or issues relevant to the the findings, comments and recommendations to the Com- inquiry. mittee, through the Secretary-General, within six months of 2. The conditions and guarantees concerning any hearings their receipt.
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Rule 90 the proposal for the amendment has been circulated, pro- Follow-up action by the State party vided that the amendment is not inconsistent with the provi- sions of the Convention. 1. The Committee may, through the Secretary-General, invite a State party that has been the subject of an inquiry Rule 94 to include, in its report under article 18 of the Convention, Suspension details of any measures taken in response to the Commit- Any of the present rules may be suspended by a decision of tee’s findings, comments and recommendations. the Committee taken by a two-thirds majority of the mem- 2. The Committee may, after the end of the period of six bers present and voting, provided such suspension is not months referred to in paragraph 2 of rule 89 above, invite inconsistent with the provisions of the Convention and is the State party concerned, through the Secretary-General, restricted to the circumstances of the particular situation to inform it of any measures taken in response to an inquiry. requiring the suspension. Rule 91 Obligations under article 11 of the Optional Protocol 1. The Committee shall bring to the attention of the States parties concerned their obligation under article 11 of the Optional Protocol to take appropriate steps to ensure that individuals under their jurisdiction are not subjected to ill- treatment or intimidation as a consequence of communicat- ing with the Committee under the Optional Protocol. 2. Where the Committee receives reliable information that a State party has breached its obligations under article 11, it may invite the State party concerned to submit written explanations or statements clarifying the matter and describ- ing any action it is taking to ensure that its obligations under article 11 are fulfilled. Part four Interpretative rules
XVIII. Interpretation and amendments Rule 92 Headings For the purpose of the interpretation of the present rules, the headings, which were inserted for reference purposes only, shall be disregarded. Rule 93 Amendments The present rules may be amended by a decision of the Committee taken by a two-thirds majority of the members present and voting, and at least twenty-four (24) hours after
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Appendix 7.4 International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and 2. All peoples may, for their own ends, freely dispose of their accession by General Assembly resolution 2200A (XXI) natural wealth and resources without prejudice to any obli- of 16 December 1966 entry into force 3 January 1976, in gations arising out of international economic co-operation, accordance with article 27 based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means Preamble of subsistence. The States Parties to the present Covenant, 3. The States Parties to the present Covenant, including Considering that, in accordance with the principles pro- those having responsibility for the administration of Non- claimed in the Charter of the United Nations, recognition of Self-Governing and Trust Territories, shall promote the real- the inherent dignity and of the equal and inalienable rights of ization of the right of self-determination, and shall respect all members of the human family is the foundation of free- that right, in conformity with the provisions of the Charter of dom, justice and peace in the world, the United Nations. Recognizing that these rights derive from the inherent dig- Part II nity of the human person, Article 2 Recognizing that, in accordance with the Universal Declara- 1. Each State Party to the present Covenant undertakes to tion of Human Rights, the ideal of free human beings enjoy- take steps, individually and through international assistance ing freedom from fear and want can only be achieved if and co-operation, especially economic and technical, to the conditions are created whereby everyone may enjoy his eco- maximum of its available resources, with a view to achiev- nomic, social and cultural rights, as well as his civil and polit- ing progressively the full realization of the rights recognized ical rights, in the present Covenant by all appropriate means, including Considering the obligation of States under the Charter of the particularly the adoption of legislative measures. United Nations to promote universal respect for, and obser- 2. The States Parties to the present Covenant undertake to vance of, human rights and freedoms, guarantee that the rights enunciated in the present Cove- Realizing that the individual, having duties to other individ- nant will be exercised without discrimination of any kind as uals and to the community to which he belongs, is under a to race, colour, sex, language, religion, political or other opin- responsibility to strive for the promotion and observance of ion, national or social origin, property, birth or other status. the rights recognized in the present Covenant, 3. Developing countries, with due regard to human rights Agree upon the following articles: and their national economy, may determine to what extent they would guarantee the economic rights recognized in the Part I present Covenant to non-nationals. Article 1 Article 3 1. All peoples have the right of self-determination. By vir- The States Parties to the present Covenant undertake to tue of that right they freely determine their political status ensure the equal right of men and women to the enjoyment and freely pursue their economic, social and cultural devel- of all economic, social and cultural rights set forth in the opment. present Covenant.
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Article 4 (i) Fair wages and equal remuneration for work of equal The States Parties to the present Covenant recognize that, in value without distinction of any kind, in particular the enjoyment of those rights provided by the State in con- women being guaranteed conditions of work not infe- formity with the present Covenant, the State may subject rior to those enjoyed by men, with equal pay for equal such rights only to such limitations as are determined by law work; only in so far as this may be compatible with the nature of (ii) A decent living for themselves and their families in these rights and solely for the purpose of promoting the gen- accordance with the provisions of the present Cove- eral welfare in a democratic society. nant; Article 5 (b) Safe and healthy working conditions; 1. Nothing in the present Covenant may be interpreted as (c) Equal opportunity for everyone to be promoted in his implying for any State, group or person any right to engage employment to an appropriate higher level, subject to in any activity or to perform any act aimed at the destruc- no considerations other than those of seniority and tion of any of the rights or freedoms recognized herein, or at competence; their limitation to a greater extent than is provided for in the (d ) Rest, leisure and reasonable limitation of working present Covenant. hours and periodic holidays with pay, as well as remu- neration for public holidays 2. No restriction upon or derogation from any of the funda- mental human rights recognized or existing in any country Article 8 in virtue of law, conventions, regulations or custom shall be 1. The States Parties to the present Covenant undertake to admitted on the pretext that the present Covenant does not ensure: recognize such rights or that it recognizes them to a lesser (a) The right of everyone to form trade unions and join the extent. trade union of his choice, subject only to the rules of the organization concerned, for the promotion and pro- Part III tection of his economic and social interests. No restric- Article 6 tions may be placed on the exercise of this right other 1. The States Parties to the present Covenant recognize than those prescribed by law and which are necessary the right to work, which includes the right of everyone to in a democratic society in the interests of national secu- the opportunity to gain his living by work which he freely rity or public order or for the protection of the rights and chooses or accepts, and will take appropriate steps to safe- freedoms of others; guard this right. (b) The right of trade unions to establish national feder- 2. The steps to be taken by a State Party to the present Cov- ations or confederations and the right of the latter to enant to achieve the full realization of this right shall include form or join international trade-union organizations; technical and vocational guidance and training programmes, (c) The right of trade unions to function freely subject to policies and techniques to achieve steady economic, social no limitations other than those prescribed by law and and cultural development and full and productive employ- which are necessary in a democratic society in the ment under conditions safeguarding fundamental political interests of national security or public order or for the and economic freedoms to the individual. protection of the rights and freedoms of others; Article 7 (d) The right to strike, provided that it is exercised in con- The States Parties to the present Covenant recognize the formity with the laws of the particular country. right of everyone to the enjoyment of just and favourable 2. This article shall not prevent the imposition of lawful conditions of work which ensure, in particular: restrictions on the exercise of these rights by members of (a) Remuneration which provides all workers, as a mini- the armed forces or of the police or of the administration of mum, with: the State.
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3. Nothing in this article shall authorize States Parties to the shall take, individually and through international co-opera- International Labour Organisation Convention of 1948 con- tion, the measures, including specific programmes, which cerning Freedom of Association and Protection of the Right are needed: to Organize to take legislative measures which would preju- (a) To improve methods of production, conservation and dice, or apply the law in such a manner as would prejudice, distribution of food by making full use of technical and the guarantees provided for in that Convention. scientific knowledge, by disseminating knowledge of Article 9 the principles of nutrition and by developing or reform- The States Parties to the present Covenant recognize the ing agrarian systems in such a way as to achieve the right of everyone to social security, including social insurance. most efficient development and utilization of natural resources; Article 10 (b) Taking into account the problems of both food-import- The States Parties to the present Covenant recognize that: ing and food-exporting countries, to ensure an equi- 1. The widest possible protection and assistance should be table distribution of world food supplies in relation to accorded to the family, which is the natural and fundamen- need. tal group unit of society, particularly for its establishment and Article 12 while it is responsible for the care and education of depen- 1. The States Parties to the present Covenant recognize the dent children. Marriage must be entered into with the free right of everyone to the enjoyment of the highest attainable consent of the intending spouses. standard of physical and mental health. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such 2. The steps to be taken by the States Parties to the pres- period working mothers should be accorded paid leave or ent Covenant to achieve the full realization of this right shall leave with adequate social security benefits. include those necessary for: 3. Special measures of protection and assistance should be (a) The provision for the reduction of the stillbirth-rate and taken on behalf of all children and young persons without of infant mortality and for the healthy development of any discrimination for reasons of parentage or other condi- the child; tions. Children and young persons should be protected from (b) The improvement of all aspects of environmental and economic and social exploitation. Their employment in work industrial hygiene; harmful to their morals or health or dangerous to life or likely (c) The prevention, treatment and control of epidemic, to hamper their normal development should be punishable endemic, occupational and other diseases; by law. States should also set age limits below which the (d) The creation of conditions which would assure to all paid employment of child labour should be prohibited and medical service and medical attention in the event of punishable by law. sickness. Article 11 Article 13 1. The States Parties to the present Covenant recognize the 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for him- right of everyone to education. They agree that education self and his family, including adequate food, clothing and shall be directed to the full development of the human per- housing, and to the continuous improvement of living con- sonality and the sense of its dignity, and shall strengthen the ditions. The States Parties will take appropriate steps to respect for human rights and fundamental freedoms. They ensure the realization of this right, recognizing to this effect further agree that education shall enable all persons to par- the essential importance of international co-operation based ticipate effectively in a free society, promote understand- on free consent. ing, tolerance and friendship among all nations and all racial, 2. The States Parties to the present Covenant, recognizing ethnic or religious groups, and further the activities of the the fundamental right of everyone to be free from hunger, United Nations for the maintenance of peace.
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2. The States Parties to the present Covenant recognize action for the progressive implementation, within a reason- that, with a view to achieving the full realization of this right: able number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all. (a) Primary education shall be compulsory and available free to all; Article 15 (b) Secondary education in its different forms, including 1. The States Parties to the present Covenant recognize the technical and vocational secondary education, shall be right of everyone: made generally available and accessible to all by every (a) To take part in cultural life; appropriate means, and in particular by the progressive (b) To enjoy the benefits of scientific progress and its appli- introduction of free education; cations; (c) Higher education shall be made equally accessible (c) To benefit from the protection of the moral and material to all, on the basis of capacity, by every appropriate interests resulting from any scientific, literary or artistic means, and in particular by the progressive introduction production of which he is the author. of free education; 2. The steps to be taken by the States Parties to the pres- (d) Fundamental education shall be encouraged or intensi- ent Covenant to achieve the full realization of this right shall fied as far as possible for those persons who have not include those necessary for the conservation, the develop- received or completed the whole period of their primary ment and the diffusion of science and culture. education; 3. The States Parties to the present Covenant undertake to (e) The development of a system of schools at all levels respect the freedom indispensable for scientific research shall be actively pursued, an adequate fellowship sys- and creative activity. tem shall be established, and the material conditions of teaching staff shall be continuously improved. 4. The States Parties to the present Covenant recognize the 3. The States Parties to the present Covenant undertake to benefits to be derived from the encouragement and devel- have respect for the liberty of parents and, when applicable, opment of international contacts and co-operation in the sci- legal guardians to choose for their children schools, other entific and cultural fields. than those established by the public authorities, which con- form to such minimum educational standards as may be laid Part IV down or approved by the State and to ensure the religious Article 16 and moral education of their children in conformity with their 1. The States Parties to the present Covenant undertake to own convictions. submit in conformity with this part of the Covenant reports 4. No part of this article shall be construed so as to interfere on the measures which they have adopted and the prog- with the liberty of individuals and bodies to establish and ress made in achieving the observance of the rights recog- direct educational institutions, subject always to the obser- nized herein. vance of the principles set forth in paragraph I of this article 2. and to the requirement that the education given in such insti- (a) All reports shall be submitted to the Secretary-General tutions shall conform to such minimum standards as may be of the United Nations, who shall transmit copies to the laid down by the State. Economic and Social Council for consideration in accor- Article 14 dance with the provisions of the present Covenant; Each State Party to the present Covenant which, at the time (b) The Secretary-General of the United Nations shall of becoming a Party, has not been able to secure in its met- also transmit to the specialized agencies copies of the ropolitan territory or other territories under its jurisdiction reports, or any relevant parts therefrom, from States compulsory primary education, free of charge, undertakes, Parties to the present Covenant which are also mem- within two years, to work out and adopt a detailed plan of bers of these specialized agencies in so far as these
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reports, or parts therefrom, relate to any matters which recommendation in any report of the Commission on Human fall within the responsibilities of the said agencies in Rights or any documentation referred to therein. accordance with their constitutional instruments. Article 21 Article 17 The Economic and Social Council may submit from time to 1. The States Parties to the present Covenant shall furnish time to the General Assembly reports with recommenda- their reports in stages, in accordance with a programme to tions of a general nature and a summary of the information be established by the Economic and Social Council within received from the States Parties to the present Covenant one year of the entry into force of the present Covenant and the specialized agencies on the measures taken and the after consultation with the States Parties and the specialized progress made in achieving general observance of the rights agencies concerned. recognized in the present Covenant. 2. Reports may indicate factors and difficulties affecting Article 22 the degree of fulfilment of obligations under the present The Economic and Social Council may bring to the atten- Covenant. tion of other organs of the United Nations, their subsidiary 3. Where relevant information has previously been furnished organs and specialized agencies concerned with furnishing to the United Nations or to any specialized agency by any technical assistance any matters arising out of the reports State Party to the present Covenant, it will not be necessary referred to in this part of the present Covenant which may to reproduce that information, but a precise reference to the assist such bodies in deciding, each within its field of com- information so furnished will suffice. petence, on the advisability of international measures likely Article 18 to contribute to the effective progressive implementation of the present Covenant. Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamen- Article 23 tal freedoms, the Economic and Social Council may make The States Parties to the present Covenant agree that inter- arrangements with the specialized agencies in respect of national action for the achievement of the rights recognized their reporting to it on the progress made in achieving the in the present Covenant includes such methods as the con- observance of the provisions of the present Covenant fall- clusion of conventions, the adoption of recommendations, ing within the scope of their activities. These reports may the furnishing of technical assistance and the holding of include particulars of decisions and recommendations on regional meetings and technical meetings for the purpose such implementation adopted by their competent organs. of consultation and study organized in conjunction with the Governments concerned. Article 19 The Economic and Social Council may transmit to the Com- Article 24 mission on Human Rights for study and general recommen- Nothing in the present Covenant shall be interpreted dation or, as appropriate, for information the reports concern- as impairing the provisions of the Charter of the United ing human rights submitted by States in accordance with Nations and of the constitutions of the specialized agen- articles 16 and 17, and those concerning human rights sub- cies which define the respective responsibilities of the var- mitted by the specialized agencies in accordance with arti- ious organs of the United Nations and of the specialized cle 18. agencies in regard to the matters dealt with in the pres- ent Covenant. Article 20 The States Parties to the present Covenant and the spe- Article 25 cialized agencies concerned may submit comments to Nothing in the present Covenant shall be interpreted as the Economic and Social Council on any general recom- impairing the inherent right of all peoples to enjoy and utilize mendation under article 19 or reference to such general fully and freely their natural wealth and resources.
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Part V the event that at least one third of the States Parties favours Article 26 such a conference, the Secretary-General shall convene the 1. The present Covenant is open for signature by any State conference under the auspices of the United Nations. Any Member of the United Nations or member of any of its spe- amendment adopted by a majority of the States Parties pres- cialized agencies, by any State Party to the Statute of the ent and voting at the conference shall be submitted to the International Court of Justice, and by any other State which General Assembly of the United Nations for approval. has been invited by the General Assembly of the United 2. Amendments shall come into force when they have been Nations to become a party to the present Covenant. approved by the General Assembly of the United Nations 2. The present Covenant is subject to ratification. Instru- and accepted by a two-thirds majority of the States Parties ments of ratification shall be deposited with the Secretary- General of the United Nations. to the present Covenant in accordance with their respective constitutional processes. 3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article. 3. When amendments come into force they shall be binding 4. Accession shall be effected by the deposit of an instru- on those States Parties which have accepted them, other ment of accession with the Secretary-General of the United States Parties still being bound by the provisions of the pres- Nations. ent Covenant and any earlier amendment which they have 5. The Secretary-General of the United Nations shall inform accepted. all States which have signed the present Covenant or Article 30 acceded to it of the deposit of each instrument of ratifica- Irrespective of the notifications made under article 26, para- tion or accession. graph 5, the Secretary-General of the United Nations shall Article 27 inform all States referred to in paragraph I of the same arti- 1. The present Covenant shall enter into force three months cle of the following particulars: after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification (a) Signatures, ratifications and accessions under article or instrument of accession. 26; 2. For each State ratifying the present Covenant or acceding (b) The date of the entry into force of the present Cove- to it after the deposit of the thirty-fifth instrument of ratifica- nant under article 27 and the date of the entry into force tion or instrument of accession, the present Covenant shall of any amendments under article 29. enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession. Article 31 Article 28 1. The present Covenant, of which the Chinese, English, The provisions of the present Covenant shall extend to all French, Russian and Spanish texts are equally authentic, parts of federal States without any limitations or exceptions. shall be deposited in the archives of the United Nations. Article 29 2. The Secretary-General of the United Nations shall trans- 1. Any State Party to the present Covenant may propose mit certified copies of the present Covenant to all States an amendment and file it with the Secretary-General of the referred to in article 26. United Nations. The Secretary-General shall thereupon com- municate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In
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Appendix 7.5 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
The General Assembly, political and social rights, Taking note of the adoption by the Human Rights Council, by Reaffirming the universality, indivisibility, interdependence its resolution 8/2 of 18 June 2008, of the Optional Protocol and interrelatedness of all human rights and fundamental to the International Covenant on Economic, Social and Cul- freedoms, tural Rights, Recalling that each State Party to the International Covenant 1. Adopts the Optional Protocol to the International Cove- on Economic, Social and Cultural Rights (hereinafter referred nant on Economic, Social and Cultural Rights, the text of to as the Covenant) undertakes to take steps, individually which is annexed to the present resolution; and through international assistance and cooperation, espe- cially economic and technical, to the maximum of its avail- 2. Recommends that the Optional Protocol be opened for able resources, with a view to achieving progressively the signature at a signing ceremony to be held in 2009, and full realization of the rights recognized in the Covenant by all requests the Secretary-General and the United Nations High appropriate means, including particularly the adoption of leg- Commissioner for Human Rights to provide the necessary islative measures, assistance. Considering that, in order further to achieve the purposes Annex Optional Protocol to the International Covenant on of the Covenant and the implementation of its provisions, Economic, Social and Cultural Rights it would be appropriate to enable the Committee on Eco- Preamble nomic, Social and Cultural Rights (hereinafter referred to as the Committee) to carry out the functions provided for in the The States Parties to the present Protocol, present Protocol, Considering that, in accordance with the principles pro- Have agreed as follows: claimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of Article 1 Competence of the Committee to receive and all members of the human family is the foundation of free- consider communications dom, justice and peace in the world, 1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Commit- Noting that the Universal Declaration of Human Rights1 pro- tee to receive and consider communications as provided for claims that all human beings are born free and equal in dig- by the provisions of the present Protocol. nity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any 2. No communication shall be received by the Committee if kind, such as race, colour, sex, language, religion, political it concerns a State Party to the Covenant which is not a Party or other opinion, national or social origin, property, birth or to the present Protocol. other status, Article 2 Communications Recalling that the Universal Declaration of Human Rights and Communications may be submitted by or on behalf of indi- the International Covenants on Human Rights2 recognize viduals or groups of individuals, under the jurisdiction of a that the ideal of free human beings enjoying freedom from State Party, claiming to be victims of a violation of any of the fear and want can only be achieved if conditions are cre- economic, social and cultural rights set forth in the Covenant ated whereby everyone may enjoy civil, cultural, economic, by that State Party. Where a communication is submitted
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on behalf of individuals or groups of individuals, this shall such interim measures as may be necessary in exceptional be with their consent unless the author can justify acting on circumstances to avoid possible irreparable damage to the their behalf without such consent. victim or victims of the alleged violations. Article 3 Admissibility 2. Where the Committee exercises its discretion under 1. The Committee shall not consider a communication unless paragraph 1 of the present article, this does not imply a it has ascertained that all available domestic remedies have determination on admissibility or on the merits of the com- been exhausted. This shall not be the rule where the applica- munication. tion of such remedies is unreasonably prolonged. Article 6 Transmission of the communication 2. The Committee shall declare a communication inadmissi- 1. Unless the Committee considers a communication inad- ble when: missible without reference to the State Party concerned, the Committee shall bring any communication submitted to it (a) It is not submitted within one year after the exhaus- under the present Protocol confidentially to the attention of tion of domestic remedies, except in cases where the the State Party concerned. author can demonstrate that it had not been possible to submit the communication within that time limit; 2. Within six months, the receiving State Party shall submit (b) The facts that are the subject of the communication to the Committee written explanations or statements clari- occurred prior to the entry into force of the present Pro- fying the matter and the remedy, if any, that may have been tocol for the State Party concerned unless those facts provided by that State Party. continued after that date; Article 7 Friendly settlement (c) The same matter has already been examined by the 1. The Committee shall make available its good offices to the Committee or has been or is being examined under parties concerned with a view to reaching a friendly settle- another procedure of international investigation or set- ment of the matter on the basis of the respect for the obliga- tlement; tions set forth in the Covenant. (d) It is incompatible with the provisions of the Covenant; 2. An agreement on a friendly settlement closes consider- (e) It is manifestly ill-founded, not sufficiently substanti- ation of the communication under the present Protocol. ated or exclusively based on reports disseminated by Article 8 Examination of communications mass media; 1. The Committee shall examine communications received (f) It is an abuse of the right to submit a communication; under article 2 of the present Protocol in the light of all docu- or when mentation submitted to it, provided that this documentation (g) It is anonymous or not in writing. is transmitted to the parties concerned. Article 4 Communications not revealing a clear 2. The Committee shall hold closed meetings when examin- disadvantage ing communications under the present Protocol. The Committee may, if necessary, decline to consider a 3. When examining a communication under the present Pro- communication where it does not reveal that the author has tocol, the Committee may consult, as appropriate, relevant suffered a clear disadvantage, unless the Committee con- documentation emanating from other United Nations bod- siders that the communication raises a serious issue of gen- ies, specialized agencies, funds, programmes and mecha- eral importance. nisms, and other international organizations, including from Article 5 Interim measures regional human rights systems, and any observations or 1. At any time after the receipt of a communication and comments by the State Party concerned. before a determination on the merits has been reached, the 4. When examining communications under the present Pro- Committee may transmit to the State Party concerned for tocol, the Committee shall consider the reasonableness of its urgent consideration a request that the State Party take the steps taken by the State Party in accordance with part
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II of the Covenant. In doing so, the Committee shall bear in communication an explanation, or any other statement mind that the State Party may adopt a range of possible pol- in writing clarifying the matter, which should include, to icy measures for the implementation of the rights set forth the extent possible and pertinent, reference to domes- in the Covenant. tic procedures and remedies taken, pending or available in the matter; Article 9 Follow-up to the views of the Committee (b) If the matter is not settled to the satisfaction of both 1. After examining a communication, the Committee shall States Parties concerned within six months after the transmit its views on the communication, together with its receipt by the receiving State of the initial communica- recommendations, if any, to the parties concerned. tion, either State shall have the right to refer the mat- 2. The State Party shall give due consideration to the views ter to the Committee, by notice given to the Committee of the Committee, together with its recommendations, if and to the other State; any, and shall submit to the Committee, within six months, a (c) The Committee shall deal with a matter referred to it written response, including information on any action taken only after it has ascertained that all available domestic in the light of the views and recommendations of the Com- remedies have been invoked and exhausted in the mat- mittee. ter. This shall not be the rule where the application of 3. The Committee may invite the State Party to submit fur- the remedies is unreasonably prolonged; ther information about any measures the State Party has (d) Subject to the provisions of subparagraph (c) of the taken in response to its views or recommendations, if any, present paragraph the Committee shall make available including as deemed appropriate by the Committee, in the its good offices to the States Parties concerned with State Party’s subsequent reports under articles 16 and 17 of a view to a friendly solution of the matter on the basis the Covenant. of the respect for the obligations set forth in the Cov- Article 10 Inter-State communications enant; 1. A State Party to the present Protocol may at any time (e) The Committee shall hold closed meetings when declare under the present article that it recognizes the com- examining communications under the present article; petence of the Committee to receive and consider commu- (f) In any matter referred to it in accordance with subpara- nications to the effect that a State Party claims that another graph (b) of the present paragraph, the Committee may State Party is not fulfilling its obligations under the Cove- call upon the States Parties concerned, referred to in nant. Communications under the present article may be subparagraph (b), to supply any relevant information; received and considered only if submitted by a State Party (g) The States Parties concerned, referred to in subpara- that has made a declaration recognizing in regard to itself the graph (b) of the present paragraph, shall have the right competence of the Committee. No communication shall be to be represented when the matter is being considered received by the Committee if it concerns a State Party which by the Committee and to make submissions orally and/ has not made such a declaration. Communications received or in writing; under the present article shall be dealt with in accordance (h) The Committee shall, with all due expediency after the with the following procedure: date of receipt of notice under subparagraph (b) of the (a) If a State Party to the present Protocol considers that present paragraph, submit a report, as follows: another State Party is not fulfilling its obligations under (i) If a solution within the terms of subparagraph (d) of the the Covenant, it may, by written communication, bring present paragraph is reached, the Committee shall con- the matter to the attention of that State Party. The State fine its report to a brief statement of the facts and of Party the solution reached; may also inform the Committee of the matter. Within (ii) If a solution within the terms of subparagraph (d) is not three months after the receipt of the communication reached, the Committee shall, in its report, set forth the the receiving State shall afford the State that sent the relevant facts concerning the issue between the States
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Parties concerned. The written submissions and record concerned together with any comments and recommenda- of the oral submissions made by the States Parties con- tions. cerned shall be attached to the report. The Committee 6. The State Party concerned shall, within six months of may also communicate only to the States Parties con- receiving the findings, comments and recommendations cerned any views that it may consider relevant to the transmitted by the Committee, submit its observations to issue between them. the Committee. In every matter, the report shall be communicated to the 7. After such proceedings have been completed with regard States Parties concerned. to an inquiry made in accordance with paragraph 2 of the 2. A declaration under paragraph 1 of the present article shall present article, the Committee may, after consultations with be deposited by the States Parties with the Secretary-Gen- the State Party concerned, decide to include a summary eral of the United Nations, who shall transmit copies thereof account of the results of the proceedings in its annual report to the other States Parties. A declaration may be withdrawn provided for in article 15 of the present Protocol. at any time by notification to the Secretary-General. Such a 8. Any State Party having made a declaration in accordance withdrawal shall not prejudice the consideration of any mat- with paragraph 1 of the present article may, at any time, ter that is the subject of a communication already transmit- withdraw this declaration by notification to the Secretary- ted under the present article; no further communication by General. any State Party shall be received under the present article after the notification of withdrawal of the declaration has Article 12 Follow-up to the inquiry procedure been received by the Secretary-General, unless the State 1. The Committee may invite the State Party concerned to Party concerned has made a new declaration. include in its report under articles 16 and 17 of the Covenant Article 11 Inquiry procedure details of any measures taken in response to an inquiry con- ducted under article 11 of the present Protocol. 1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee 2. The Committee may, if necessary, after the end of the provided for under the present article period of six months referred to in article 11, paragraph 6, invite the State Party concerned to inform it of the measures 2. If the Committee receives reliable information indicating taken in response to such an inquiry. grave or systematic violations by a State Party of any of the economic, social and cultural rights set forth in the Covenant, Article 13 Protection measures the Committee shall invite that State Party to cooperate in A State Party shall take all appropriate measures to ensure the examination of the information and to this end to submit that individuals under its jurisdiction are not subjected to any observations with regard to the information concerned. form of ill-treatment or intimidation as a consequence of 3. Taking into account any observations that may have been communicating with the Committee pursuant to the pres- submitted by the State Party concerned as well as any other ent Protocol. reliable information available to it, the Committee may des- Article 14 International assistance and cooperation ignate one or more of its members to conduct an inquiry and 1. The Committee shall transmit, as it may consider appro- to report urgently to the Committee. Where warranted and priate, and with the consent of the State Party concerned, to with the consent of the State Party, the inquiry may include United Nations specialized agencies, funds and programmes a visit to its territory. and other competent bodies, its views or recommendations 4. Such an inquiry shall be conducted confidentially and the concerning communications and inquiries that indicate a cooperation of the State Party shall be sought at all stages need for technical advice or assistance, along with the State of the proceedings. Party’s observations and suggestions, if any, on these views 5. After examining the findings of such an inquiry, the Com- or recommendations. mittee shall transmit these findings to the State Party 2. The Committee may also bring to the attention of such
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bodies, with the consent of the State Party concerned, any Article 18 Entry into force matter arising out of communications considered under the 1. The present Protocol shall enter into force three months present Protocol which may assist them in deciding, each after the date of the deposit with the Secretary-General of within its field of competence, on the advisability of interna- the United Nations of the tenth instrument of ratification or tional measures likely to contribute to assisting States Par- accession. ties in achieving progress in implementation of the rights 2. For each State ratifying or acceding to the present Proto- recognized in the Covenant. col, after the deposit of the tenth instrument of ratification or 3. A trust fund shall be established in accordance with the accession, the Protocol shall enter into force three months relevant procedures of the General Assembly, to be admin- after the date of the deposit of its instrument of ratification istered in accordance with the financial regulations and rules or accession. of the United Nations, with a view to providing expert and Article 19 Amendments technical assistance to States Parties, with the consent of the State Party concerned, for the enhanced implementation 1. Any State Party may propose an amendment to the pres- of the rights contained in the Covenant, thus contributing to ent Protocol and submit it to the Secretary-General of the building national capacities in the area of economic, social United Nations. The Secretary-General shall communicate and cultural rights in the context of the present Protocol. any proposed amendments to States Parties, with a request to be notified whether they favour a meeting of States Par- 4. The provisions of the present article are without prejudice ties for the purpose of considering and deciding upon the pro- to the obligations of each State Party to fulfil its obligations posals. In the event that, within four months from the date under the Covenant. of such communication, at least one third of the States Par- Article 15 Annual report ties favour such a meeting, the Secretary-General shall con- The Committee shall include in its annual report a summary vene the meeting under the auspices of the United Nations. of its activities under the present Protocol. Any amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Article 16 Dissemination and information Secretary-General to the General Assembly for approval and Each State Party undertakes to make widely known and thereafter to all States Parties for acceptance. to disseminate the Covenant and the present Protocol and 2. An amendment adopted and approved in accordance with to facilitate access to information about the views and rec- paragraph 1 of the present article shall enter into force on ommendations of the Committee, in particular, on matters the thirtieth day after the number of instruments of accep- involving that State Party, and to do so in accessible formats tance deposited reaches two thirds of the number of States for persons with disabilities. Parties at the date of adoption of the amendment. Thereaf- Article 17 Signature, ratification and accession ter, the amendment shall enter into force for any State Party 1. The present Protocol is open for signature by any State on the thirtieth day following the deposit of its own instru- that has signed, ratified or acceded to the Covenant. ment of acceptance. An amendment shall be binding only on those States Parties which have accepted it. 2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Covenant. Instruments of Article 20 Denunciation ratification shall be deposited with the Secretary-General of 1. Any State Party may denounce the present Protocol at any the United Nations. time by written notification addressed to the Secretary-Gen- 3. The present Protocol shall be open to accession by any eral of the United Nations. Denunciation State that has ratified or acceded to the Covenant. shall take effect six months after the date of receipt of the 4. Accession shall be effected by the deposit of an instru- notification by the Secretary-General. ment of accession with the Secretary-General of the United 2. Denunciation shall be without prejudice to the continued Nations. application of the provisions of the present Protocol to any
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communication submitted under articles 2 and 10 or to any procedure initiated under article 11 before the effective date of denunciation. Article 21 Notification by the Secretary-General The Secretary-General of the United Nations shall notify all States referred to in article 26, paragraph 1, of the Covenant of the following particulars: (a) Signatures, ratifications and accessions under the pres- ent Protocol; (b) The date of entry into force of the present Protocol and of any amendment under article 19; (c) Any denunciation under article 20. Article 22 Official languages 1. The present Protocol, of which the Arabic, Chinese, Eng- lish, French, Russian and Spanish texts are equally authen- tic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 26 of the Covenant.
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Appendix 7.6 OP-ICESCR Rules of Procedure
15 January 2013 summary of their contents. The full text of any such com- Original: English munication may be made available in the language of sub- mission, to any member of the Committee upon request by Committee on Economic, Social and Cultural Rights that member. Provisional rules of procedure under the Optional Protocol to Request for clarification or additional information the International Covenant on Economic, Social and Cultural Rule 3 Rights, adopted by the Committee at its forty-ninth session (12-30 November 2012) 1. The Secretary-General may request clarification or addi- tional information from the author/s of a communication, Procedures for the consideration of individual communica- including: tions received under the Optional Protocol (a) The name, address, date of birth and occupation of the Transmission of communications to the Committee author/s and verification of the author’s identity; Rule 1 (b) The name of the State party against which the commu- 1. The Secretary-General shall bring to the attention of the nication is directed; Committee, in accordance with the present rules, communi- (c) The objective of the communication; cations that are, or appear to be, submitted for consideration (d) The facts of the claim; by the Committee under article 2 of the Optional Protocol. (e) Steps taken by the author/s to exhaust domestic rem- 2. The Secretary-General may request clarification from the edies; author/s of a communication as to whether she, he or they (f) The extent to which the same matter is being or has wish to have the communication submitted to the Commit- been examined under another procedure of interna- tee for consideration under the Optional Protocol. Where tional investigation or settlement; there is doubt as to the wish of the author/s, the Secretary- General will bring the communication to the attention of the (g) The provision or provisions of the Covenant alleged to Committee. have been violated. 3. No communication shall be received by the Committee 2. When requesting clarification or additional information, if it: the Secretary-General shall indicate to the author/s of the communication a time limit within which such information (a) Concerns a State that is not a party to the Optional Pro- should be submitted. tocol; 3. The Committee may approve a questionnaire to facilitate (b) Is not in writing; requests for clarification or additional information from the (c) Is anonymous. author/s of a communication. Record and list of communications Authors of communications Rule 2 Rule 4 1. The Secretary-General shall maintain a record of all com- Communications may be submitted by or on behalf of indi- munications submitted for consideration by the Committee viduals or groups of individuals, under the jurisdiction of a under the Optional Protocol. State Party, claiming to be victims of a violation of any of the 2. The Secretary-General shall prepare a list of the commu- economic, social and cultural rights set forth in the Covenant nications registered by the Committee, together with a brief by that State Party. Where a communication is submitted
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on behalf of individuals or groups of individuals, this shall be victim/s of the alleged violations. with their consent unless the author/s can justify acting on 2. When the Committee requests interim measures under their behalf without such consent. this rule, the request shall state that it does not imply a Non-participation of a member in the examination of a determination on the admissibility or the merits of the com- communication munication. Rule 5 3. The State party may present arguments at any stage of 1. A member of the Committee shall not take part in the the proceedings on why the request for interim measures examination of a communication if: should be lifted or is no longer justified. (a) The member has a personal interest in the case; 4. The Committee may withdraw a request for interim mea- sures on the basis of submissions received from the State (b) The member has participated in the making and adop- party and the author/s of the communication. tion of any decision on the case covered by the com- munication in any capacity other than under the proce- Order of communications dures applicable to this Optional Protocol; Rule 8 (c) The member is a national of the State party concerned. 1. Communications shall be dealt with in the order in which 2. In deciding any question that may arise under paragraph they are received by the Secretary-General, unless the Com- 1 of the present rule, the member concerned shall not take mittee decides otherwise. part in the decision reached. 2. The Committee may decide to consider two or more com- 3. If a member considers that he or she should not take part munications jointly. or continue to take part in the examination of a communica- 3. The Committee may divide a communication and consider tion, the member shall inform the Committee through the its parts separately, if it addresses more than one issue or it Chairperson of his or her decision to withdraw. refers to persons or alleged violations not interconnected in Establishment of Working Groups time and place. and designation of Rapporteurs Method of dealing with communications Rule 6 Rule 9 1. In any matter related to communications under the 1. The Committee shall, by a simple majority and in accor- Optional Protocol, the Committee may establish a Working dance with the present rules, decide whether the communi- Group and/or may designate a Rapporteur to make recom- cation is admissible or inadmissible under the Optional Pro- mendations thereon to the Committee and/or to assist it in tocol. any manner in which the Committee may decide. 2. The decision to consider a communication admissible or 2. The Working Group or Rapporteur established under this inadmissible may also be taken by the Working Group estab- rule shall be bound by the present rules and the Commit- lished under the present rules provided that all its members tee’s rules of procedure, where applicable. so decide. The decision is subject to confirmation by the Interim measures Committee plenary which may do so without formal discus- sion, unless a Committee member requests for such a dis- Rule 7 cussion. 1. The Committee may, in exceptional circumstances, after Procedures with regard to communications received the receipt of a communication and before a determination on the merits has been reached transmit to the State party Rule 10 concerned, for its urgent consideration, a request that it 1. As soon as possible after the receipt of a communica- take such interim measures as the Committee consid- tion, and provided that the individual or group of individu- ers necessary to avoid possible irreparable damage to the als consent to the disclosure of their identity to the State
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party concerned, the Committee, or the Committee through reply in accordance with paragraph 1 of rule 10 may submit a Working Group or a Rapporteur, shall bring the communi- a request in writing that the communication be rejected as cation confidentially to the attention of the State party and inadmissible, setting out the grounds for such inadmissibil- request that the State party submit a written reply. ity, provided that such a request is submitted to the Com- 2. Any request made in accordance with paragraph 1 of the mittee within two months of the request made under para- present rule shall include a statement indicating that such a graph 1 of rule 10. request does not imply that any decision has been reached 2. The Committee, or the Committee through a Working on the question of admissibility or the merits of the commu- Group or a Rapporteur, may decide to consider the admissi- nication. bility separately from the merits. 3. Within six months after receipt of the Committee’s 3. Submission by the State party of a request in accordance request under the present rule, the State party shall submit with paragraph 1 of the present rule shall not extend the to the Committee written explanations or statements that period of six months given to the State party to submit its relate to the admissibility and the merits of the communica- written explanations or statements, unless the Committee, tion, as well as to any remedy that may have been provided or the Committee through a Working Group or a Rappor- in the matter. teur, decides to consider the admissibility separately from 4. The Committee, or the Committee through a Working the merits. Group or a Rapporteur, may request written explanations or statements that relate only to the admissibility of a com- Inadmissible communications munication but, in such cases, the State party may nonethe- Rule 12 less submit written explanations or statements that relate 1. Where the Committee decides that a communication is to both the admissibility and the merits of a communication inadmissible, it shall communicate its decision and the rea- within six months of the Committee’s request. sons for it, through the Secretary-General, to the author/s of 5. If the State party concerned disputes the contention of the communication and to the State party concerned. the author/s, in accordance with article 3, paragraph 1, of the 2. A decision of the Committee declaring a communica- Optional Protocol, that all available domestic remedies have tion inadmissible may be reviewed by the Committee upon been exhausted, the State party shall give details of the rem- receipt of a written request submitted by or on behalf of the edies available to the alleged victim or victims and said to be author/s indicating that the reasons for inadmissibility no lon- effective in the particular circumstances of the case. ger apply. 6. The Committee, or the Committee through a Working Group or a Rapporteur, may request the State party or the Communications declared admissible prior to the submis- author of the communication to submit, within fixed time lim- sion of the State party’s observations on merits its, additional written explanations or statements relevant to Rule 13 the issues of the admissibility or merits of a communication. 1. Decisions declaring a communication admissible prior to 7. The Committee, or the Committee through a Working the submission of the State party’s observations on mer- Group or a Rapporteur, shall transmit to each party the sub- its shall be transmitted, through the Secretary-General, to missions made by the other party pursuant to the present the author/s of the communication and to the State party rule and shall afford each party an opportunity to comment concerned. on those submissions within fixed time limits. 2. The Committee may revoke its decision that a communi- State party’s request for consideration of the admissibility cation is admissible in the light of any explanation or state- separately from the merits ments submitted by the State party and the author/s. Rule 11 Examination of communications on their merits 1. A State party that has received a request for a written Rule 14
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1. At any time after the receipt of a communication and 2. The friendly settlement procedure shall be conducted on before a determination on the merits has been reached, the the basis of consent of the parties. Committee, or the Committee through a Working Group or a 3. The Committee may designate one or more of its mem- Rapporteur, may consult, as appropriate, relevant documen- bers to facilitate negotiations between the parties. tation emanating from other United Nations bodies, special- ized agencies, funds, programmes and mechanisms, and 4. The friendly settlement procedure shall be confidential other international organizations, including from regional and without prejudice to the parties’ submissions to the human rights systems that may assist in the examination Committee. No written or oral communication and no offer of the communication, provided that the Committee shall or concession made in the framework of the attempt to afford each party an opportunity to comment on such third secure a friendly settlement may be used against the other party in the communication proceedings before the Com- party documentation or information within fixed time limits. mittee. 2. The Committee shall formulate its Views on the commu- 5. The Committee may terminate its facilitation of the nication in the light of all information made available to it in friendly settlement procedure if it concludes that the mat- accordance with article 8, paragraph 1, of the Optional Proto- ter is not susceptible to reaching a resolution or any of the col, provided that this information has been duly transmitted parties does not consent to its application, decides to dis- to the parties concerned. continue it, or does not display the requisite will to reach a 3. Consideration by the Committee of information submitted friendly settlement based on respect for the obligations set by third parties, pursuant to paragraph 1 of the present rule, forth in the Covenant. does not in any way imply that these third parties become a 6. Once both parties have expressly agreed to a friendly set- party to the proceedings. tlement, the Committee shall adopt a decision with a state- 4. The Committee may refer any communication to a Work- ment of the facts and of the solution reached. The decision ing Group to make recommendations to the Committee on will be transmitted to the parties concerned and published in the merits of the communication. the Committee’s annual report. Prior to adopting that deci- 5. The Committee shall not decide on the merits of the com- sion, the Committee shall ascertain whether the victim/s of munication without having considered the applicability of all the alleged violation have consented to the friendly settle- of the admissibility grounds referred to in articles 2 and 3 of ment agreement. In all cases, the friendly settlement must the Optional Protocol. be based on respect for the obligations set forth in the Cov- enant. 6. The Secretary-General shall transmit the Views of the Committee, together with any recommendations, to the 7. If no friendly settlement is reached, the Committee shall author/s of the communication and to the State party con- continue the examination of the communication in accor- cerned. dance with the present rules. Individual opinions Friendly settlement Rule 16 Rule 15 Any member of the Committee who has participated in the 1. At the request of any of the parties, at any time after decision may request that the text of his or her individual receipt of a communication and before a determination on opinion be appended to the Committee’s decision or Views. the merits has been reached, the Committee shall make The Committee may fix time limits for the submission of available its good offices to the parties with a view to reach- such individual opinions. ing a friendly settlement of the matter said to amount to a Discontinuance of communications violation of the Covenant and submitted for consideration under the Optional Protocol, on the basis of respect for the Rule 17 obligations set forth in the Covenant. The Committee may discontinue consideration of a
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communication, when inter alia the reasons for its sub- author/s and victim/s of the communications and other rele- mission for consideration under the Optional Protocol have vant sources. become moot. 8. The Rapporteur or Working Group shall report to the Com- Follow-up to Views of the Committee and Friendly mittee on follow-up activities at each session of the Com- Settlement Agreements mittee. Rule 18 9. The Committee shall include information on follow-up 1. Within six months of the Committee’s transmittal of its activities in its annual report under article 21 of the Covenant Views on a communication or decision that a friendly set- and article 15 of the Optional Protocol. tlement has closed its consideration of a communication, Confidentiality of communications the State party concerned shall submit to the Committee a Rule 19 written response, which shall include information on action taken, if any, in the light of the Views and recommendations 1. Communications submitted under the Optional Protocol of the Committee. shall be examined by the Committee, a Working Group or Rapporteur in closed meetings. 2. After the six-month period referred to in paragraph 1 of the present rule, the Committee may invite the State party 2. All working documents prepared by the Secretary-General concerned to submit further information about any mea- for the Committee, Working Group or Rapporteur shall be sures the State party has taken in response to its Views or confidential unless the Committee decides otherwise. recommendations or in response to a friendly settlement 3. The Secretary-General, the Committee, Working Group or agreement. Rapporteur shall not make public any communication or sub- 3. The Committee shall, through the Secretary-General, missions relating to a communication prior to the date on transmit the information received from the State party to the which a decision of admissibility is issued. This is without author/s of the communication. prejudice of the Committee’s prerogatives under article 8, paragraph 3, of the Optional Protocol. 4. The Committee may request the State party to include information on any action taken in response to its Views, 4. The Committee may decide ex officio or upon request recommendations or decisions closing the consideration of of the author/s or alleged victim/s, that the names of the a communication following a friendly settlement agreement author/s of a communication or the individuals who are in its subsequent reports under article 16 and 17 of the Cov- alleged to be the victim/s of a violation of the rights set forth enant. in the Covenant not be published in its decision of admissi- bility or Views or decision closing the consideration of a com- 5. The Committee shall designate for follow-up on Views munication following a friendly settlement agreement. adopted under article 9 of the Optional Protocol a Rappor- teur or Working Group to ascertain the measures taken by 5. The Committee, a Working Group or Rapporteur may States parties to give effect to the Committee’s Views, rec- request the author of a communication or the State party ommendations or decisions closing its consideration follow- concerned to keep confidential the whole or part of any sub- ing a friendly settlement agreement. mission or information relating to the proceedings. 6. The Rapporteur or Working Group may make such con- 6. Subject to paragraphs 4 and 5 of the present rule, noth- tacts and take such action as may be appropriate for the due ing in this rule shall affect the right of the author/s, alleged performance of their assigned functions and shall make such victim/s or the State party concerned to make public any recommendations for further action by the Committee as submission or information bearing on the proceedings. may be necessary. 7. Subject to paragraphs 4 and 5 of the present rule, the Committee’s final decisions on inadmissibility and Views 7. In addition to written representations and meetings with shall be made public. duly accredited representatives of the State party, the Rap- porteur or Working Group may seek information from the 8. The Secretary-General shall be responsible for the
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transmittal of the Committee’s final decisions to the author/s Record of information and the State party concerned. Rule 23 9. Unless the Committee decides otherwise, information The Secretary-General shall maintain a permanent record related to follow-up to the Committee’s Views and recom- of information brought to the attention of the Committee in mendations under article 9 of the Optional Protocol and in accordance with rule 22 of the present rules and shall make follow-up of a friendly settlement agreement under article 7 the information available to any member of the Committee of the Optional Protocol shall not be confidential. upon request. 10. The Committee shall include in its annual report a sum- Summary of information mary of the communications examined and, where appropri- Rule 24 ate, a summary of the explanations and statements of the The Secretary-General, as appropriate, shall prepare and cir- States parties concerned, and of its own suggestions and culate to members of the Committee a brief summary of the recommendations. information received in accordance with rule 22 of the pres- Protection measures ent rules. Rule 20 Confidentiality Where the Committee receives reliable information that a Rule 25 State party has not complied with its obligations under arti- 1. All documents and proceedings of the Committee relating cle 13 of the Optional Protocol to take all appropriate mea- to the conduct of the inquiry shall remain confidential, with- sures to ensure that individuals under its jurisdiction are not out prejudice to the provisions of article 11, paragraph 7 of subjected to any form of ill-treatment or intimidation, it may the Optional Protocol. seek from the State party concerned written explanations or 2. Meetings of the Committee during which inquiries under statements clarifying the matter and describing any action article 11 of the Optional Protocol are considered shall be it is taking to ensure that its obligations under article 13 are closed. fulfilled. Thereafter, the Committee may request the State party to adopt and take urgently all appropriate measures to Preliminary consideration of information by the stop the breach reported. Committee Rule 26 Proceedings under the Inquiry Procedure of the 1. The Committee may, through the Secretary-General, Optional Protocol ascertain the reliability of the information and/or the sources Applicability of the information brought to its attention under article 11 Rule 21 of the Optional Protocol. It may seek to obtain additional rel- evant information substantiating the facts of the situation. Rules 21 to 35 of the present rules only apply to a State party that has made the declaration under article 11, paragraph 1, 2. The Committee shall determine whether the information of the Optional Protocol. received contains reliable information indicating grave or systematic violations of rights set forth in the Covenant by Transmission of information to the Committee the State party concerned. Rule 22 3. The Committee may designate one or more of its mem- In accordance with the present rules, the Secretary-General bers to assist it in discharging its duties under the present shall bring to the attention of the Committee reliable infor- rule. mation that is received for the Committee’s consideration Examination of information indicating grave or systematic violations by a State party of any of the economic, social and cultural rights set forth in Rule 27 the Covenant. 1. If the Committee considers that the information received
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and/or compiled on its own initiative is reliable and appears 2. The Committee may request the State party concerned to indicate grave or systematic violations of rights set forth in to nominate a representative to meet with the member or the Covenant by the State party concerned, the Committee, members designated by the Committee. through the Secretary-General, shall invite the State party to 3. The Committee may request the State party concerned to submit observations with regard to that information within provide the member or members designated by the Com- fixed time limits. mittee with any information that they or the State party may 2. The Committee shall take into account any observations consider relevant to the inquiry. submitted by the State party concerned, as well as any other Visits relevant information. Rule 30 3. The Committee may seek to obtain additional information, 1. Where the Committee deems it warranted, the inquiry inter alia, from the following: may include a visit to the territory of the State party con- (a) Representatives of the State party concerned; cerned. (b) Governmental organizations; 2. Where the Committee decides, as a part of its inquiry, that (c) United Nations bodies, specialized agencies, funds, there should be a visit to the State party concerned, it shall, programmes and mechanisms; through the Secretary-General, request the consent of the (d) International organizations, including from regional State party to such a visit. human rights systems; 3. The Committee shall inform the State party concerned of (e) National Human Rights Institutions; its wishes regarding the timing of the visit and the facilities (f) Non-governmental organizations; required to allow the member or members designated by the Committee to conduct the inquiry to carry out their task. Establishment of an inquiry Rule 28 Hearings 1. Taking into account any observations that may have been Rule 31 submitted by the State party concerned, as well as other reli- 1. Visits may include hearings to enable the designated able information, the Committee may designate one or more member or members of the Committee to determine facts of its members to conduct an inquiry and to make a report or issues relevant to the inquiry. within an appropriate time limit. 2. The conditions and guarantees concerning any hearings 2. An inquiry shall be conducted confidentially and in accor- held in accordance with paragraph 1 of the present rule shall dance with any modalities determined by the Committee. be established by the designated member or members of the Committee visiting the State party in connection with 3. The member or members designated by the Committee an inquiry. to conduct the inquiry shall determine their own methods of 3. Any person appearing before the designated member or work, taking into account the Covenant, the Optional Proto- members of the Committee for the purpose of giving testi- col and the present rules. mony shall make a solemn declaration as to the veracity of 4. During the period of the inquiry, the Committee may defer her or his testimony and the confidentiality of the procedure. the consideration of any report that the State party con- 4. The Committee shall request that the State party take all cerned may have submitted pursuant to articles 16 and 17 appropriate steps to ensure that individuals under its jurisdic- of the Covenant. tion are not subjected to reprisals as a consequence of pro- Cooperation of the State party concerned viding information or participating in any hearings or meet- Rule 29 ings in connection with an inquiry. 1. The Committee shall seek the cooperation of the State Assistance during an inquiry party concerned at all stages of an inquiry. Rule 32
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1. In addition to the staff and facilities that shall be pro- Where the Committee receives reliable information that a vided by the Secretary-General in connection with an inquiry, State party has not complied with its obligations under arti- including during a visit to the State party concerned, the cle 13 of the Optional Protocol to take all appropriate mea- designated member or members of the Committee may, sures to ensure that individuals under its jurisdiction are not through the Secretary-General, invite interpreters and/or subjected to any form of ill-treatment or intimidation, it may such persons with special competence in the fields covered seek from the State party concerned written explanations or by the Covenant, as are deemed necessary by the Commit- statements clarifying the matter and describing any action tee to provide assistance at all stages of the inquiry. it is taking to ensure that its obligations under article 13 are fulfilled. Thereafter, the Committee may request the State 2. Where such interpreters or other persons of special com- party to adopt and take urgently all appropriate measures to petence are not bound by the oath of allegiance to the stop the breach reported. United Nations, they shall be required to declare solemnly Proceedings under the Inter-State Communications Proce- that they will perform their duties honestly, faithfully and dure of the Optional Protocol impartially, and that they will respect the confidentiality of the proceedings. Declarations by States parties Transmission of findings, comments or suggestions Rule 36 Rule 33 1. Rules 36 to 46 of the present rules only apply to a State party that has made a declaration under article 10, paragraph 1. After examining the findings of the designated member 1, of the Optional Protocol. or members submitted in accordance with rule 28 of the present rules, the Committee shall transmit the findings, 2. The withdrawal of a declaration made under article 10 of through the Secretary-General, to the State party concerned, the Optional Protocol shall not prejudice the consideration together with any comments and recommendations. of any matter that is the subject of a communication already transmitted under that article; no further communication 2. Such transmission of findings, comments and recommen- by any State party shall be received under that article after dations is without prejudice to article 11, paragraph 7, of the the notification of withdrawal of the declaration has been Optional Protocol. received by the Secretary-General, unless the State party 3. The State party concerned shall submit its observations on has made a new declaration. the findings, comments and recommendations to the Com- Notification by the States parties concerned mittee, through the Secretary-General, within six months of Rule 37 their receipt. 1. A communication under article 10 of the Optional Proto- Follow-up action by the State party col may be referred to the Committee by either State party Rule 34 concerned by notice given in accordance with paragraph 1 1. The Committee may, after the end of the period of six (b) of that article. months referred to in paragraph 2 of rule 33 above, invite the 2. The notice referred to in paragraph 1 of this rule shall con- State party concerned, to provide it with additional informa- tain or be accompanied by information regarding: tion on measures taken in response to an inquiry. (a) Steps taken to seek adjustment of the matter in accor- 2. The Committee may request a State party that has been dance with article 10, paragraphs 1 (a) and (b), of the the subject of an inquiry to include, in its report under article Optional Protocol, including the text of the initial com- 16 and 17 of the Covenant, details of any measures taken in munication and of any subsequent written explanations response to the Committee’s findings, comments and rec- or statements by the States parties concerned which ommendations. are pertinent to the matter; Protection measures (b) Steps taken to exhaust domestic remedies; Rule 35 (c) Any other procedure of international investigation or
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settlement resorted to by the States parties concerned. obligations provided for in the Covenant. Record of communications 2. For the purpose indicated in paragraph 1 of this rule, the Rule 38 Committee may, as appropriate, establish an ad hoc concili- The Secretary-General shall maintain a record of all commu- ation commission. nications received by the Committee pursuant to article 10 Request for information of the Optional Protocol. Rule 44 Information to the members of the Committee The Committee may, through the Secretary-General, request Rule 39 the States parties concerned or either of them to submit The Secretary-General shall inform the members of the additional information or observations orally or in writing. Committee without delay of any notice given under rule 37 The Committee shall set a time limit for the submission of of these rules and shall transmit to them as soon as possible such written information or observations. copies of the notice and relevant information. Attendance by the States parties concerned Meetings Rule 45 Rule 40 1. The States parties concerned shall be entitled to represen- The Committee shall examine communications under article tation when the matter is considered by the Committee and 10 of the Optional Protocol in closed meetings. to make submissions orally and/or in writing. Issue of communiqués concerning closed meetings 2. The Committee shall, through the Secretary-General, Rule 41 notify the States parties concerned as early as possible of The Committee may, after consultation with the States par- the opening date, duration and place of the session at which ties concerned, issue communiqués, through the Secre- the matter will be examined. tary-General, for the use of the media and the general public 3. The procedure for making oral and/or written submissions regarding the activities of the Committee under article 10 of shall be decided by the Committee, after consultation with the Optional Protocol. the States parties concerned. Requirements for the consideration of communications Report of the Committee Rule 42 Rule 46 A communication shall not be considered by the Commit- 1. The Committee shall adopt a report in accordance with tee unless: article 10, paragraph 1 (h), of the Optional Protocol with due (a) Both States parties concerned have made declarations expediency after the date of receipt of a notice under article under article 10, paragraph 1, of the Optional Protocol; 10, paragraph 1 b) of the Optional Protocol, (b) The time limit prescribed in 10, paragraph 1, of the 2. The provisions of paragraph 1 of rule 45 of these rules Optional Protocol has expired; shall not apply to the deliberations of the Committee con- (c) The Committee has ascertained that all available and cerning the adoption of the report. effective domestic remedies have been invoked and 3. The Committee’s report shall be communicated, through exhausted in the matter, or that the application of such the Secretary-General, to the States parties concerned. remedies has been unreasonably prolonged. Good offices Communiqués on the Committee’s activities under the Optional Protocol Rule 43 Rule 47 1. Subject to the provisions of rule 42 of these rules, the Committee shall proceed to make its good offices available The Committee may issue press communiqués on its activi- to the States parties concerned with a view to reaching a ties under the Optional Protocol for the use of the media and friendly solution of the matter on the basis of respect for the the general public.
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Appendix 7.7 Participating in ICESCR and CEDAW Reporting Processes Guidelines for Writing on Women’s Economic, Social and Cultural Rights in Shadow/Alternative Reports (NGO)
Co-authored by ESCR-Net and IWRAW Asia Pacific how essential economic, social and cultural rights are to achieving gender equality and the full realization of wom- This document is a practical guide for NGOs reporting on en’s human rights. Throughout the world, women make women’s economic social and cultural rights within the reporting processes for the Convention on the Elimination significant contributions to the economy and labour mar- of all forms of Discrimination Against Women (CEDAW) and ket through their paid and unpaid work in the public and pri- the International Covenant on Economic, Social and Cultural vate spheres. However, globally, women represent approxi- Rights (ICESCR). mately 70% of the global poor and 60% of the working poor, and disproportionately suffer when economic, social and cul- The main motivation of this guide is to encourage the par- tural rights are not fulfilled. The feminization of poverty has ticipation of NGOs in the treaty body reporting process and reinforced women’s political, economic and social inequality use it as another tool to advance women’s human rights and in all regions. In today’s economy, gender inequality remains in particular, women’s economic, social and cultural rights, at a significant issue as evidenced by the increasing poverty the national level. It also aims to bring about the greater rec- and economic exploitation of women and their concentration ognition, protection and promotion of women’s economic, in the informal labor sector. Trends towards the implemen- social and cultural rights through the treaty body system at tation of neo liberal economic policies (including privatization the international level. and deregulation) as well as the current global economic cri- The treaty reporting process is about holding states sis has made the need for strategies to address the roots accountable to their obligations under a treaty and NGOs of women’s poverty even more critical. As States recede have a role to play in participating and monitoring a treaty from providing for social needs, the burden falls on women and NGOs have a role to play in participating in and monitor- because of socialized gender roles to ensure adequate food, ing that process. NGO shadow reporting within the CEDAW education and healthcare for their families. and the ICESCR country review processes can be strate- As a result of this situation, there is a pressing need to gically utilized to increase awareness and integration of all improve understanding, recognition and implementation of women’s human rights and improve state accountability. women’s economic, social and cultural rights as integral to Different treaties have developed in recognition of the and indivisible from civil and political rights. Furthermore, it need for a specific focus on particular human rights issues is crucial that women are able to access justice and bring or the rights of particular groups of people. Having distinct international visibility to these issues as a means to enforce treaties and reporting processes for economic, social and women’s human rights both domestically and internationally. cultural rights and women’s rights has enabled States and NGO shadow reporting within the CEDAW and the ICE- treaty bodies to focus on these specific areas of human SCR country review processes can be strategically utilized rights. However, it has also meant that the issues can some- to increase awareness on the rights and obligations con- times be looked at in isolation from each other. tained in the treaties, promote integration of all women’s Women from around the world are increasingly recognizing human rights and improve state accountability for fulfilling its
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obligations under the treaties. Discrimination Against Women and the Optional Proto- col and International Covenant on Economic, Social and Both the CEDAW and ESCR Committees have recognized Cultural Rights the need for a greater integration of women’s rights and eco- nomic social and cultural rights in their processes. Equally, s )72!7 !SIA 0ACIlC 0ARTICIPATION IN THE #%$!7 REPORT- the shadow reporting for CEDAW and ICESCR to date have ing process: Process and guidelines for writing a contained limited analysis of the integration of women’s shadow/alternative report rights with economic, social and cultural rights. s )72!7 !SIA 0ACIlC .'/ )NTERVENTIONS DURING AND AFTER the CEDAW Session: How and when to lobby The aim of this guide is to provide assistance for individ- uals and organisations who are working within the shadow For the full guide, go to: http://www.escr-net.org/ reporting processes of CEDAW and ICESCR to incorporate usr_doc/CEDAW_CESCR_reporting_guidelines_FINAL_ information on women’s rights related dimensions of eco- Oct_6_2010.pdf nomic, social and cultural rights in the shadow reports for both processes. The guide provides clarity on how NGOs should package information to ensure a more effective impact on the review process and in a way that is useful for the CEDAW and ESCR Committee. It also contained infor- mation about how to most effectively use the review pro- cess and the outcomes of the review (the recommendations contained in the Concluding Observations) to effect change nationally.
These guidelines for reporting on women’s economic, social and cultural rights to the CEDAW and ESCR Com- mittees are organized into five parts: 1. State Party reporting processes for CEDAW and ICESCR. 2. Processes for preparing and submitting a shadow or alternative report to the CEDAW and ESCR Committees 3. Guidelines for writing a shadow or alternative report for CEDAW and ICESCR. 4. NGO Interventions during and after the CEDAW and ESCR Committee sessions: how and when to lobby 5. Resources Supplementary to these guidelines, information on report- ing on women’s economic, social and cultural rights through the CEDAW and ESCR Committee processes are also con- tained in: s )72!7 !SIA 0ACIFIC AND %3#2 .ET #LAIMING 7OM- en’s Economic, Social and Cultural Rights: A Guide to Advocacy and Litigation Using the Optional Proto- col and Convention on the Elimination of All Forms of
164 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Appendix
Appendix 7.8 Model Communications Form
The Optional Protocol to the Convention on the Elimination any relevant information which becomes available after you of All Forms of Discrimination against Women entered into have submitted this form. force on 22 December 2000. It entitles the Committee on the Elimination of Discrimination against Women, a body of Guidelines for submission 23 independent experts, to receive and consider commu- The following provides a guideline for those who wish to nications (complaint) from, or on behalf of, individuals or a submit a communication for consideration by the Commit- group of individuals who claim to be victims of violations of tee on the Elimination of Discrimination against Women the rights protected by the Convention. under the Optional Protocol to the Convention on the Elimi- To be considered by the Committee, a communication: nation of All Forms of Discrimination against Women. Please provide as much information as available in response to the s SHALL BE IN WRITING items listed below. s SHALL NOT BE ANONYMOUS Send your communication to: s MUST REFER TO A 3TATE WHICH IS A PARTY TO BOTH THE #ON- Petitions Team vention on the Elimination of All Forms of Discrimination Office of the High Commissioner for Human Rights against Women and the Optional Protocol; United Nations Office at Geneva s MUST BE SUBMITTED BY OR ON BEHALF OF AN INDIVIDUAL OR A 1211 Geneva 10, Switzerland group of individuals under the jurisdiction of a State which E-Mail : [email protected] is a party to the Convention and the Optional Protocol. In cases where a communication is submitted on behalf of an 1. Information concerning the author(s) of the individual or a group of individuals, their consent is neces- communication sary unless the person submitting the communication can s &AMILY NAME justify acting on their behalf without such consent. s &IRST NAME A communication will not normally be considered by s $ATE AND PLACE OF BIRTH the Committee: s .ATIONALITYCITIZENSHIP s UNLESS ALL AVAILABLE DOMESTIC REMEDIES HAVE BEEN s 0ASSPORTIDENTITY CARD NUMBER IF AVAILABLE exhausted; s 3EX s WHERE THE SAME MATTER IS BEING OR HAS ALREADY BEEN EXAM- s -ARITAL STATUSCHILDREN ined by the Committee or another international procedure; s 0ROFESSION s IF IT CONCERNS AN ALLEGED VIOLATION OCCURRING BEFORE THE ENTRY into force of the Optional Protocol for the State. s )F RELEVANT ETHNIC BACKGROUND RELIGIOUS AFlLIATION SOCIAL group In order for a communication to be considered the victim or s 0RESENT ADDRESS victims must agree to disclose her/their identity to the State against which the violation is alleged. The communication, if s -AILING ADDRESS FOR CONlDENTIAL CORRESPONDENCE IF OTHER admissible, will be brought confidentially to the attention of than present address) the State party concerned. s 4ELEPHONEE MAIL If you wish to submit a communication, please follow the s )NDICATE WHETHER YOU ARE SUBMITTING THE COMMUNICA- guidelines below as closely as possible. Also, please submit tion as:
165 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Appendix
- Alleged victim(s). If there is a group of individuals 5. Steps taken to exhaust domestic remedies alleged to be victims, provide basic information about Describe the action taken to exhaust domestic remedies; for each individual. example, attempts to obtain legal, administrative, legislative, - On behalf of the alleged victim(s). Provide evidence policy or programme remedies, including: showing the consent of the victim(s), or reasons that s 4YPES OF REMEDY SOUGHT justify submitting the communication without such s $ATES consent. s 0LACES 2. Information concerning the alleged victim(s) (if s 7HO INITIATED THE ACTION other than the author) s 7HICH AUTHORITY OR BODY WAS ADDRESSED s &AMILY NAME s .AME OF COURT HEARING THE CASE IF ANY s &IRST NAME s )F YOU HAVE NOT EXHAUSTED DOMESTIC REMEDIES ON THE s $ATE AND PLACE OF BIRTH ground that their application would be unduly pro- longed, that they would not be effective, that they are s .ATIONALITYCITIZENSHIP not available to you, or for any other reason, please s 0ASSPORTIDENTITY CARD NUMBER IF AVAILABLE explain your reasons in detail. s 3EX Please note: Enclose copies of all relevant documentation. s -ARITAL STATUSCHILDREN s 0ROFESSION 6. Other international procedures s %THNIC BACKGROUND RELIGIOUS AFlLIATION SOCIAL GROUP IF Has the same matter already been examined or is it being relevant) examined under another procedure of international investi- gation or settlement? If yes, explain: s 0RESENT ADDRESS s -AILING ADDRESS FOR CONlDENTIAL CORRESPONDENCE IF OTHER s 4YPE OF PROCEDURES than present address) s $ATES s 4ELEPHONEE MAIL s 0LACES s 2ESULTS IF ANY 3. Information on the State party concerned Please note: Enclose copies of all relevant documentation. s .AME OF THE 3TATE PARTY COUNTRY 7. Disclosure of your name (s) 4. Facts of the complaint and nature of the Do you consent to the disclosure of your name(s) to the alleged violation(s) State party should your communication be registered by the Please detail, in chronological order, the facts and circum- Committee in accordance with article 6, paragraph 1 of the stances of the alleged violations,, including: Optional Protocol and rule 69, paragraph 1 of the Commit- s $ESCRIPTION OF ALLEGED VIOLATIONS AND ALLEGED PERPETRATORS tee’s rules of procedure? s $ATES 8. Date and signature s 0LACES s $ATEPLACE s 0ROVISIONS OF THE #ONVENTION ON THE %LIMINATION OF !LL s 3IGNATURE OF AUTHORS ANDOR VICTIMS Forms of Discrimination against Women that were alleg- edly violated. If the communication refers to more than 9. List of documents attached one provision, describe each issue separately. (Do not send originals, only copies).
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Appendix 7.9 General Recommendations to CEDAW1
RIGHTS RECOGNISED UNDER THE CONVENTION GENERAL RECOMMENDATIONS BY THE COMMITTEE ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED IN THE CONVENTION PREAMBLE 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;
PART –I
ART 1 Definition of Discrimination against Women
PART – II
ART 2 Nature and scope of State GR 28 (2010) Nature and Scope of State Obligation under the Convention Obligation under Art 2
ART 3 State obligation to undertake GR 3 (1987) Education and public information special and appropriate measures to programmes ensure that women are guaranteed Effective national machinery and exercise and enjoyment of rights – GR 6 (1988) publicity civil, political, economic, social and cultural, on the basis of equality with GR 7 (1988) State Parties to make resources men. available for implementation of the Convention GR 9 (1989) State Parties obligation to gather and compile statistical data GR 18 (1991) Disabled Women GR 27 (2010) Older Women
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RIGHTS RECOGNISED UNDER THE CONVENTION GENERAL RECOMMENDATIONS BY THE COMMITTEE ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED IN THE CONVENTION ART 4 Temporary Special Measures to GR 5 (1988) Temporary Special Measures aimed accelerating de facto equality GR 25 (2004) Art 4 para 1 Temporary Special between men and women Measures
ART 5 State Obligation to undertake GR 12 (1989) Violence against women appropriate measures to address GR 19 (1992) Female circumcision discrimination faced by women because of gender stereotyping, GR 14 (1990) Measurement and quantification based on culture, religion and of the unremunerated domestic GR 17 (1991) traditions. activities of women and their recognition in the GNP
PART – III
ART 6 State’s Obligation to suppress GR 26 (2008) Women migrant workers all forms of traffic in women and exploitation of prostitution of women.
ART 7 Discrimination against women in the GR 23 (1997) Women in political and public life political and public life
ART 8 Measures to promote participation GR 8 (1988) Women’s participation at of women at international level international level
ART 9 Discrimination against women in context of nationality and citizenship rights
ART 10 Discrimination against women in the field of education
ART 11 Discrimination against women in GR 13 (1989) Equal remuneration for work of the field of employment; Maternity equal value benefits; Equal pay for equal work; Unpaid women workers in rural and Safe working conditions at work and GR 16 (1991) urban family enterprises of employment; Right of protection to health and safety conditions;
ART 12 Discrimination against women in GR 15 (1990) Women and AIDS the field of health; Access to health GR 24 (1999) Women and Health services including family planning; Sexual and Reproductive health rights;
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RIGHTS RECOGNISED UNDER THE CONVENTION GENERAL RECOMMENDATIONS BY THE COMMITTEE ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED IN THE CONVENTION ART 13 Discrimination against women in the field of economic and social life; Family benefits such as pension, etc; access to credit including bank loans and subsidies; right to participate in leisure and entertainment activities;
ART 14 Discrimination against Rural Women in relation to exercise and enjoyment of rights recognized in the Convention;
ART 15 Equality before and in law; Property rights; Freedom to choose domicile and residence, including freedom to movement;
ART 16 Discrimination against women in GR 21 (1994) Equality in marriage and family matters of marriage and family relations relations
PART – IV
ART 17-22 GR 1 (1986) Reporting guidelines GR 2 (1987) Reporting guidelines GR 10 (1989) Tenth anniversary of the adoption of CEDAW GR 11 (1989) Technical advisory services for reporting GR 22 (1995) Article 20 of the Convention
PART – V
ART 23-30 GR 4 (1987) Reservations GR 20 (1992) Reservations
Currently the CEDAW Committee is considering following General Recommendations: 1. General Recommendation on Economic Consequences of Divorce Notes 1 The Convention on Elimination of All Forms of Discrimination against Women 2. General Recommendation on Human Rights of Women in Situations of Con- flict and Post-conflict ( Committee held general day of discussion on 18 July (CEDAW) came in force on 3 September 1981. As of 13 December 2011 it has 2011, and currently organizing regional consultation to bring in regional spec- EHHQUDWL¿HGE\81PHPEHU6WDWHV,QDQ2SWLRQDO3URWRFROWRWKH ificities to elaborate the scope and provisions of the GR) &('$:FDPHLQWRIRUFHDQGDVRI'HFHPEHU6WDWH3DUWLHVKDYH 3. General Recommendation on Access to Justice UDWL¿HGWKH3URWRFRODOORZLQJFRPPXQLFDWLRQVDQGUHTXHVWVIRULQTXLULHVWREH VXEPLWWHGWRWKH&('$:E\ZRPHQRUJURXSVRIZRPHQRU1*2VRQEHKDOIRI 4. General Recommendation on Rural Women WKHYLFWLPVZKRVHULJKWVXQGHUWKH&RQYHQWLRQKDYHEHHQYLRODWHG 5. General Recommendation on Stateless, Refugees and Natural Disasters 169 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Appendix
Appendix 7.10 General Comments Under ICESCR
RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED PREAMBLE Recognition to universal, inherent and inalienable nature of human rights and fundamental freedoms; Obligation of State Parties to respect economic, social and cultural rights as well as civil and political rights; and Acknowledgement to the duty of individuals to others and to the community towards respect and observance of human rights.
PART –I
ART 1 Right of self-determination s to determine political status s o freely pursue their economic, social and cultural development s to freely dispose of one’s natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law, and which does not deprived people of its own means of subsistence.
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED PART – II
ART 2 Obligation of State Parties to undertake: GC 3 (1990) The nature of State Parties Obligations (Art 2, para 1) s guarantee all exercise of the economic, social and cultural rights GC 9 (1998) The domestic application of the without discrimination of any kind as Covenant to race, colour, sex, language, religion, GC8 (1997) The relationship between economic political or other opinion, national or sanctions and respect for economic, social origin, property, birth or other social and cultural rights status. GC 10 (1998) The role of national human rights s To take steps, individually and institutions in protection of economic, through international assistance and social and cultural rights co-operation, especially economic and technical, to the maximum of GC 20 (2009) Non-discrimination in economic, social its available resources, with a view and cultural rights (Art 2 clause 2) to achieving progressively the full realization of economic, social and cultural rights by all appropriate means, including particularly the adoption of legislative measures. In specific reference to the Developing Countries the obligation under Art 2 allows these countries to determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals, with due regard to human rights and their national economy.
ART 3 Equal right of men and women to the GC 16 (2005) The equal right of men and women to enjoyment of all economic, social and the enjoyment of all economic, social cultural rights and cultural rights (Art. 3) GC 20 (2009) Non-discrimination in economic, social and cultural rights (Art. 2 para 2)
ART 4 Any restrictions or limitations on the enjoyment of the economic, social and cultural rights can only be determined by law, and which is compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 5 Any State, group or person have no right to interpret the Covenant giving justification to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent
PART – III GC9 (1998) The domestic application of the Covenant
ART 6 Right to work, which includes the GC 5 (1994) Persons with Disabilities right of everyone to the opportunity GC 16 (2005) The equal right of men and women to to gain his living by work which he the enjoyment of all economic, social freely chooses or accepts, and will take and cultural rights (Art 3) appropriate steps to safeguard this right. State Obligation to take measures to achieve full realisation of everyone’s right to work.
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 7 Right of everyone to the enjoyment of GC 5 (1994) Persons with Disabilities just and favourable conditions of work GC 16 (2005) The equal right of men and women to which ensure, in particular: the enjoyment of all economic, social (a) Remuneration which provides all and cultural rights (Art 3) workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 8 Right of everyone to form trade GC 5 (1994) Persons with Disabilities unions and join the trade union of GC 16 (2005) The equal right of men and women to his choice, subject only to the rules the enjoyment of all economic, social of the organization concerned, for and cultural rights (Art 3) the promotion and protection of his economic and social interests. This right includes the right of national trade union federations or confederations join international trade- union organizations; to function and manage their affairs freely subject to necessary limitations; and Right to strike provided that it is exercised in conformity with the laws of the particular country. Exception: Imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; State Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize are prevention to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
ART 9 Right of everyone to social security, GC 19 (2008) The right to social security including social insurance GC 6 (1995) The economic, social and cultural rights of older persons*
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 10 Protection guaranteed to family as a GC 16 (2005) The equal right of men and women to natural and fundamental group unit the enjoyment of all economic, social of society, in its establishment and and cultural rights (Art. 3) responsibility for care and education of dependent children, including free consent for marriages entered into, special protection to mothers during a reasonable period before and after childbirth, maternity leave for working mothers with adequate social security benefits, protection and assistance to children and young persons without any discrimination for reasons of parentage or other conditions, including child labour to be prohibited by law.
ART 11 Right of everyone to an adequate GC 12 (1999) The right to adequate food (Art 11) standard of living for himself and GC 15 (2002) The right to water (Arts 11 & 12) his family, including adequate food, clothing and housing, and to the GC 4 (1991) The right to adequate housing continuous improvement of living GC 7 (1997) The right to adequate housing: forced conditions. evictions (Art 11-1) Right of everyone to be free from hunger- mandating State to take individually and through international co-operation, the measures, including specific programmes, which are needed: Right to food security
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 12 Right of everyone to the enjoyment GC 14 (2000) The right to the highest attainable of the highest attainable standard standard of mental and physical health of physical and mental health, and it (Art 12) covers State’s obligation to ensure (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 13 Right of everyone to education that is GC 13 (1999) Right to education (Art. 13) directed to the full development of the human personality and the sense of its dignity, and which emphasizes that (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. Right to education must be realized respecting liberty of parents and their & children’s own convictions in imparting moral and religious education, in particular but at the same time ensuring minimum educational standards This right includes the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and regulations as determined by law and/or policy laid down by the State.
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RIGHTS RECOGNISED UNDER THE COVENANT GENERAL COMMENTS BY THE COMMITTEE ON ECONOMIC, SOCIAL & CULTURAL RIGHTS TO EXPAND MEANING, NATURE AND SCOPE OF THE RIGHTS RECOGNISED ART 14 State’s obligation to ensure free and GC11 (1999) Plans of actions for primary education compulsory education by adopting a (Art 14) national action plan within 2 years
ART 15 Right of everyone to take part in cultural GC 21 (2009) Right to everyone to take part in life; to enjoy the benefits of scientific cultural life progress and its applications; to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
PART – IV
ART 16-25 Reporting obligation of the State Parties GC 1 (1989) Reporting by State Parties
PART – V
ART 26-31 GC 2 (1989) International technical assistance
Notes 1 7KH,QWHUQDWLRQDO&RYHQDQWRQ(FRQRPLF6RFLDODQG&XOWXUDO5LJKWV ,&(6&5 ZDVVLJQHGDQGDGRSWHGE\WKH81*HQHUDO$VVHPEO\RQ'HFHPEHU DQGFDPH LQIRUFHRQ-DQXDU\ $VRI'HFLWKDVEHHQUDWL¿HGE\81PHPEHU6WDWHV,QDQ2SWLRQDO3URWRFROWRWKH,&(6&5ZDVDGRSWHGDQGDVRI 6WDWH3DUWLHVKDYHUDWL¿HGWKH3URWRFRODOORZLQJFRPPXQLFDWLRQWREH¿OHGWRWKH&RPPLWWHHRQWKH(FRQRPLF6RFLDODQG&XOWXUDO5LJKWVE\LQGLYLGXDOVRUJURXSRI LQGLYLGXDOVZKRVHHFRQRPLFVRFLDODQGRUFXOWXUDOULJKWVDUHYLRODWHGE\WKH6WDWHRUERGLHVDFWLQJDVDJHQWVRIWKH6WDWH
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Appendix 7.11 Special Procedures of Human Rights Council related to Economic, Social and Cultural Rights The above list of Special Procedures established under the Human Rights Council with the exception of the WG on the issue of discrimination against women in law and practice address issues, gaps and challenges faced in full enjoyment of eco- nomic, social and cultural rights. However, this doesn’t limit activists and groups advancing women’s ESC rights to approach other existing special procedures whose mandate is more focused on promotion and protection of civil and political rights.
Title /Mandate Name and country of origin of the Contact Information Mandate Holder/s
Special Rapporteur on adequate housing Ms. Raquel ROLNIK [email protected] as a component of the right to an adequate (Brazil) standard of living, and on the right to non- discrimination in this context
Independent Expert in the field of Ms. Farida SHAHEED [email protected] cultural rights (Pakistan)
Special Rapporteur on the right to education Mr. Kishore SINGH [email protected] (India)
Special Rapporteur on extreme poverty and Ms. Maria Magdalena [email protected] human rights SEPÚLVEDA CARMONA (Chile)
Special Rapporteur on the right to food Mr. Olivier de SCHUTTER [email protected] (Belgium)
Independent expert on the effects of foreign Mr. Cephas LUMINA [email protected] debt and other related international financial (Zambia) obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights
Special Rapporteur on the right of everyone Mr. Anand GROVER [email protected] to the enjoyment of the highest attainable (India) standard of physical and mental health
Special Rapporteur on the rights of Mr. James ANAYA [email protected] indigenous peoples (United States of America)
Special Rapporteur on the human rights of Mr.Chaloka BEYANI [email protected] internally displaced persons (Zambia)
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Title /Mandate Name and country of origin of the Contact Information Mandate Holder/s
Special Rapporteur on the human rights of Mr. François CREPEAU [email protected] migrants (Canada)
Special Rapporteur on the human rights Mr. Calin GEORGESCU [email protected] obligations related to environmentally sound (Romania) management and disposal of hazardous substances and waste
Working Group on the issue of human rights Ms. Margaret JUNGK [email protected] and transnational corporations and other (USA) business enterprises Chair-Rapporteur Mr. Michael K. ADDO (Ghana) Ms. Alexandra GUAQUETA (Colombia/USA) Mr. Puvan J. SELVANATHAN (Malaysia) Mr. Pavel SULYANDZIGA (Russian Federation)
Special Rapporteur on the human right to safe Ms. Catarina de ALBUQUERQUE [email protected] drinking water and sanitation (Portugal)
Working Group on the issue of discrimination Ms. Kamala CHANDRAKIRANA wgdiscriminationwomen@ against women in law and in practice (Indonesia) ohchr.org Chair-Rapporteur Ms. Emna AOUIJ (Tunisia) Ms. Mercedes BARQUET (Mexico) Ms. Frances RADAY (Israel/United Kingdom) Ms. Eleonora ZIELINSKA (Poland)
Special Rapportuer on Human Rights Margaret SEKAGGYA (Uganda) [email protected] Defenders
Special Rapportuer on Violence Against Rashida MANJOO [email protected] Women (South Africa)
For more information on how to submit information to these special procedures, please visit the webpage on the Official website of OHCHR at http://www.ohchr.org/EN/HRBodies/SP/Pages/Communications.aspx
180 CLAIMING WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Appendix
Appendix 7.12 Resources Resources on OP-CEDAW International Women’s Rights Action Watch Asia Pacific, The OP-CEDAW as a mechanism for Implementing Women’s Human Rights: An analysis of the first five cases under the communications procedure of the OP- CEDAW (2008). International Women’s Rights Action Watch Asia Pacific, The OP-CEDAW as a mechanism for Implementing Women’s Human Rights: An analysis of cases 6-10 under the Communications Procedure of the OP-CEDAW (2009).
Donna Sullivan, Overview of the Rule Requiring the Exhaustion of Domestic Remedies Under the OP-CEDAW, International Women’s Rights Action Watch Asia-Pacific (2009).
Simone Cusack, Mechanisms for advancing women’s human rights: A guide to using the Optional Protocol to CEDAW and other international complaint mechanisms, Australian Human Rights Commission (2011).
Resources on OP-ICESCR ESCR-Net, Toolkit for Action for the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, NGO Coalition for the OP-ICESCR (2011), available in English, Spanish, Portuguese Arabic, and French.
Inter-American Institute of human Rights, International Commission of Jurists, Commentary on the Optional Pro- tocol to the International Covenant on Economic, Social and Cultural Rights (2010).
Other Relevant Resources for Litigation and Advocacy on Women’s ESCR Rebecca Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010).
Simone Cusack, Optional Protocol to CEDAW Blog.
International Commission of Jurists, ‘Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability’, Human Rights and Rule of Law Series No.2 (2008)
Open Society Justice Initiative, From Judgment to Justice: Implementing International and Regional Human Rights Decisions (2010).
Principles and Guidelines on the Interpretation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (2010).
Inter-American Commission on Human Rights (IACHR), The Labor, Education and Resources of Women: The Road to Equality in Guaranteeing Economic, Social and Cultural Rights, (2011).
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