Leilani Farha 1 , Centre for Equality Rights in Accommodation
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WOMEN’S ECONOMIC, SOCIAL AND CULTURAL RIGHTS Leilani Farha1, Centre for Equality Rights in Accommodation with Diana C. Portal Farfán2
I. Introduction The purpose of this paper is to provide background information on women’s economic, social and cultural rights (ESC rights) globally and to encourage discussion on the potential for collaborative activities in this area of practice. It is informed by the following key questions: . What economic, social and cultural rights issues are most pressing for women in different regions of the world?
. What strategies are being employed locally, regionally and internationally to claim and implement these rights?
. What are the central challenges facing this area of practice?
. What are the opportunities for collaborative activities that might address these challenges and move this area of practice forward, that could be supported through ESCR-Net? The scope of these questions is, of course, too broad to be comprehensively answered in a short paper. Instead, this paper is a tool to assist in the investigation into the status of women’s ESC rights practice, and the ways in which collaborative activities coordinated through an international network structure, such as ESCR-Net, could benefit this area.
Despite these limitations, this paper is conclusive that women’s ESC rights practice is progressing conceptually and practically, locally and internationally. Grassroots and non- governmental organizations and projects focused on particular ESC rights of women such as housing, food, and health are increasingly emerging, cases which claim or are of relevance to women’s ESC rights are being litigated, international instruments and standards to assist women in claiming their ESC rights are being established, and at the same time, the unique socio-
1 Leilani Farha (BA, LLB, MSW), Director, Women’s Program, CERA – Centre for Equality Rights in Accommodation. Thanks to Narmeen Hashim for her research assistance.
2 Lawyer, member of the Legal Area at DEMUS - Estudio para la Defensa de los Derechos de la Mujer, Lima, Peru, June 16, 2008. Second Reader: Priiti Darooka, Programme on Women’s Economic, Social and Cultural Rights
1 | P a g e economic and cultural issues which women face are being examined and framed in terms of rights claims. II. Understanding Women’s Economic, Social and Cultural Rights3
Economic, social and cultural rights have a particular significance for women because as a group, women are disproportionately affected by poverty, and by social and cultural marginalization. Women’s poverty is a central manifestation, and a direct result of women’s lesser social, economic and political power. In turn, women’s poverty reinforces their subordination, and constrains their enjoyment of every other right. The lack of priority accorded to securing universal enjoyment of economic, social and cultural rights hurts women disproportionately.
The inequality and oppression in the lives of women that is deeply embedded in history, tradition, patriarchy, culture, and the structures of society affects women’s access to, and enjoyment of, economic, social and cultural rights. To ensure women’s enjoyment of these rights, they must be implemented in a way that takes into account the context in which women live. For example, the traditional assignment to women and girls of the role of primary care-giver for children, older persons and the sick, producer of food, collector of fuel, and water, restricts women’s freedom of movement and consequently their access to paid employment and education. The economic and social structures which devalue the work, paid and unpaid, that women traditionally do from a very young age, contributes further to fixing women in a position of economic and social inequality. These factors taken together contribute to the high rates of poverty among women worldwide. Traditional, historical, religious or cultural attitudes are also used to justify and perpetuate discrimination against women in the delivery of economic, social and cultural rights, including health services and education, by public and private agencies.
Inequality in women’s enjoyment of economic, social and cultural rights contributes to their economic dependence, denial of personal autonomy and lack of empowerment. These in turn limit still further women’s ability to be full citizens, to participate in public life, including fora for economic, social, political and legal policy and decision-making. As the Committee on the
3 This section is largely reproduced from the introduction to the Montréal Principles on Women’s Economic, Social and Cultural Rights, Human Rights Quarterly, August 2004.
2 | P a g e Elimination of Discrimination against Women (CEDAW) has noted, “[p]olicies developed and decisions made by men alone reflect only part of human experience and potential.”(General Recommendation No. 23: Political and Public Life, 1997). Such policies and decisions are less likely to take account of gendered consequences, and the economic and social factors that affect women’s lives.
Economic, social and cultural rights and civil and political rights are particularly indivisible and interconnected in the lives of women: inequality in economic, social and cultural rights undermines women’s ability to enjoy their civil and political rights, which then limits their capacity to influence decision and policy-making in public life. Since “‘[a]ll human rights are universal, indivisible and interdependent and interrelated’” (Vienna Declaration and Program of Action) equality in civil and political rights is undermined unless equality in the exercise and enjoyment of economic, social and cultural rights is secured.
Women’s particular vulnerability to social and economic deprivation is deepened further as a result of natural and other disasters, and in conflict and post-conflict situations and when economic sanctions are imposed. The Committee on Economic, Social and Cultural Rights (CESCR) has stated that economic, social and cultural rights must be taken into account when imposing sanctions, and State Parties to the Covenant should take account of the suffering that such sanctions are likely to inflict on certain sectors, such as women (CESCR, General Comment No.8). As the UN Security Council has recognized, peace and women’s equality are inextricably linked.
It is especially important that women’s entitlement to full and equal enjoyment of ESC rights is acknowledged and re-emphasized in the current climate of neo-liberalism and economic globalization. Policies of privatization, economic austerity and structural adjustment have negative impacts for women (Report of the Independent Expert, Mr. Fantu Cheru, Effects of Structural Adjustment Policies on the full enjoyment of human rights). For example, women are often the hardest hit by economic transition, financial crises and rising unemployment. In part, this is because women are relied upon to provide services that are cut such as caring for children, older persons and the sick. Also, women who are in formal employment are often in insecure, part-time jobs, that are the first to be eliminated. Furthermore, poverty can lead to a decrease in
3 | P a g e food intake among women and girls; girls are the first to drop out of schools; greater numbers of women are forced to migrate; and women are vulnerable to trafficking, violence and ill health. Economic and political insecurity provoke private and public backlash against women’s rights that may be expressed through violence and articulated in the form of defending cultures and traditions.
To fully implement women’s ESC rights requires an understanding of equality and ESC rights that focuses upon the subordination, stereotyping and structural disadvantage that women experience. It requires more than just formal legal recognition of equality between the sexes, where women are treated the same as men. It requires an understanding of the substantive nature of equality which means recognizing, understanding and addressing the actual material and social disadvantage of women. It requires an exploration of what is needed in any ESC area in order for women to become full social citizens. In summary, substantive equality approaches to ESC rights claims:
affirm positive, programmatic obligations rather than negatively framed obligations to refrain from discriminatory behaviour;
address structural and systemic inequality and deprivation rather than individualized instances of differential treatment;
consider patterns of marginalization from society as a whole rather than comparing the treatment of individuals in similar situations;
require diverse measures to meet unique needs of different grops rather than same treatment;
focus on the effect of policies on disadvantaged groups rather than their intent;
adopt a broad remedial approach encompassing future implementation and engaging a range of actors rather than isolating fault in order to award individual compensation;
emphasize socially transformative adjudication rather than regulatory oversight.
4 | P a g e So, for example, in a situation of extreme deprivation where a whole class of people are suffering from starvation, with women being the worst off, a formal equality approach would only ensure that women reach the same starvation levels as men. While we would want to ensure that women are no more starved than men, this is clearly an impoverished understanding of equality. Substantive equality for women in this context would recognize the need for the government to take action to address starvation for all of those who are affected, and would include an analysis of the particular causes and consequences of women’s starvation, recognizing that women and particular groups of women may be disproportionately represented amongst those suffering starvation. A substantive equality/ESC rights claim might ask: What must policies or programs look like if they are to ensure the realization of the right to food, etc., for this group as a whole while addressing women’s particular needs and conditions. Only through the achievement of women’s substantive equality and women’s ESC rights can women participate as full citizens in their communities.
FOCUS WOMEN’S ESC RIGHTS: LATIN AMERICA For Latin American women, ESC rights are part of the set of human rights that have been and continue to be neglected by States. The symbolic value given to women, closely linked to biology, has a serious effect on their citizenship: women become mothers before they become citizens. The decision to have children is not always in the hands of women, it is a decision resulting from a number of external social conventions and structures, such as the notion that motherhood is an essential element of women’s identity. Nowadays women in Latin America are better educated, but also poorer4. The number of women who head their family, which in the region is higher than 20%, is made up of women with incomes lower than those of men, which has been an important contributor to the “feminization of poverty.” With respect to the right to health there is some danger that health reforms have strengthened the private health care sector, drawing capital off public health systems, although public health systems continue to be the main source of care for most of the population.
4 OCAMPO José Antonio, Executive Secretary, Comisión Económica para América Latina (CEPAL), summary and introduction to a study, “Panorama Social de América Latina 2002-2003”. CEPAL, Lc G 2209-P/E, August 2003. Quoted by ORE Aguilar Gaby. “Los derechos económicos, sociales y culturales de las mujeres en América Latina: Estado y estrategias”. In: ELY Yamin Alicia (coordinator). Los derechos económicos, sociales y culturales en América Latina. Del invento a la herramienta. Mexico: APRODEH and Centro Internacional de Investigaciones para el Desarrollo, 2006. p. 342.
5 | P a g e The impact of violence on women’s has been a major concern in the region. This situation is worsened in the context of sexual violence related to internal armed conflicts (Colombia and Peru) and of repressive practices introduced by dictatorships (Chile and Argentina). Women continue to be murdered by their partners. According to the national report on feminicide (partner murder) issued by CLADEM-Peru, between January 2004 and July 2007, 403 women were murdered in several regions of the country, an average of 9 women per month5. The women in the region continue to be segregated from the job market and discriminated against in terms of access to paid labor, job quality and respect for their labor rights. Barriers include: education level, socioeconomic status, place of residence, age, and number of children playing a major role. Regarding education, during the 1990’s the States in the region sought to improve education indicators, including increasing coverage of primary and secondary education, expanding years of schooling and reducing illiteracy. Within this framework, all six countries showed an increase in females engaging in all levels of education. However, inequalities related to belonging to specific population groups, socioeconomic status and place of residence remained unaltered. Nowadays the issue at stake is not so much the access to the right to education, but the quality of the right enjoyed.
III. ISSUES AND ACTIVITIES
NGOs at the international, national and local level are engaged in a host of initiatives aimed at protecting women’s rights in the areas of housing, land, property and inheritance, health, social security, food, employment, and education. It appears that multiple frameworks and approaches are being used between and even within organizations. These frameworks or approaches include:
. Non-discrimination and equality rights for women in ESC realms;
. Violations of particular ESC rights (housing, health, etc.) as experienced by women;
. New interpretations of ESC rights or the expansion of the rights included in the lexicon of “ESC rights” to better suit women’s lived experiences.
What follows is an overview of just a few activities, focused on those issues that seem to have generated the most activities and on emerging areas of practice.6 As noted in Section II of this 5 In the same period, based on news published by local and national media, 130 women were murdered in 2004, 92 in 2005 and 143 in 2006. There were 38 murders between January and July 2007.
6 The principle methodology for gathering information for this section was desk research, and as such, this section is by no means comprehensive or exhaustive. To make this section manageable, and to ensure the appropriate focus, a somewhat narrow definition of what constitutes work in the area of women’s ESC rights has been adopted: only those organizations that self-identify as using an ESC rights framework are referred to, though we know that a far broader range of organizations might be carrying out work related to the promotion and protection of women’s ESC rights or that reasonably could be considered work on women’s ESC rights. 6 | P a g e paper, the indivisibility and interdependence of human rights is particularly experienced by women and this is reflected in the work being undertaken on women’s ESC rights: while organizations may focus their work on a particular right, such as health or social security, the work undertaken invariably engages and addresses violations of other rights as well. i. Housing Rights and Rights to Land, Property and Inheritance
The right to adequate housing and to equal rights to land, property and inheritance in the context of women’s lives are some of the most well developed and active areas of work being done on women’s ESC rights. Many activities and strategies are being employed at all levels to address the central housing issues facing women: inadequate housing conditions, forced evictions, discriminatory laws and practices with respect to land, property and housing, the relationship between violence against women and housing and housing rights to water and sanitation.
What follows are just a few examples of some of the housing issues that are being addressed and different strategies being employed:
. In the Philippines, the Grassroots Women’s Empowerment Centre (GWEC) and the international NGO, the Centre on Housing Rights and Evictions (COHRE) collaborated to research and document housing rights violations experienced by women as a result of the large-scale railway evictions and resettlement scheme currently taking place in Manila. The research generated is being used to inform advocacy efforts with neighbourhood councils and local government, as well as reports and submissions to UN human rights bodies including the UN Human Rights Council and the UN Committee on Economic, Social and Cultural Rights.
. In Canada, the Centre for Equality Rights in Accommodation initiated a national project to address poor women’s housing conditions across the country. As a result, the Women’s Housing Equality Network (WHEN) was established, comprised of women representatives from across the country. WHEN’s central strategy is to promote women’s substantive equality in housing by: assisting individual women and groups of women to claim housing rights within their local communities, educating and advocating with local and national organizations and governments, challenging laws and policies through
7 | P a g e strategic litigation, and using the UN human rights system including the treaty monitoring bodies and the Human Rights Council.
. In South Africa, the Women’s Legal Centre (WLC) used strategic litigation in the Western Cape to challenge the implementation of primogeniture, the common law right of the firstborn son to inherit the entire estate. Two cases were brought to the Constitutional Court. One was brought on behalf of two young sisters who were unfairly discriminated against in inheriting their father’s estate. The WLC argued that all three minor children had a right to the inheritance. A second case was brought on behalf of a woman who was prevented from inheriting her late brother’s estate. The cases were consolidated and heard in 2005 by the court as Bhe and others v. Magistrate, Khayelitsha, and others. The Constitutional Court agreed with the WLC, ruling that the African customary law of male primogeniture, as it has been applied in relation to the inheritance of property, discriminated unfairly against women and illegitimate children. The court declared the law unconstitutional and invalid. The Law Reform Commission presented a draft bill in June 2008 to the parliamentary portfolio committee, which once passed will finally regulate the position regarding succession in African customary law.
At the regional level, the former UN Special Rapporteur on the Right to Adequate Housing, Miloon Kothari, devoted a substantial part of his mandate to exploring women’s housing issues. To this end, he worked with local women’s/housing organizations to host 7 regional consultations. These consultations generated reports each of which provides a regional overview of housing, land and property conditions for women and recommendations for all stakeholders. In many instances these regional consultations were the impetus for increased engagement and activities aimed at addressing women’s housing rights domestically. Habitat International Coalition, through its Housing and Land Rights Network, has undertaken a variety of activities in the Middle East and North Africa and in India on women’s equal rights to land, property and to housing. The Centre on Housing Rights and Evictions (COHRE) and the Huairou Commission recently launched the Women’s Land Link Africa (WLLA) project. WLLA, comprised of grassroots members from across Africa, aims to make women’s enjoyment of housing, land and property rights a reality. Activities are varied and
8 | P a g e include: advocacy for law and policy reform and implementation, information gathering and dissemination, facilitating exchange on good strategies and lessons learned, up-scaling workable practices and the development of tools. In February 2008 WLLA hosted the Grassroots Women’s Land Academy which provided women from 12 different countries with an opportunity to exchange information, experiences and strategies for claiming their rights. In November 2008, COHRE facilitated the participation of a number of women in the African Commission on Human and Peoples Rights. ii. Food
Around the world, women are prevented from enjoying the right to food because of a number of factors, including unequal and limited access to and control over resources, insecure and unstable labour conditions, trade agreements and the move from subsistence to cash crops, gender biased labour markets, discrimination in laws, regulations and programmes, inadequate public health care, and exclusion from decision making processes. In addition, intra household food discrimination prevails in many regions of the world.7
In 2001, the 10th of June Movement, comprised of hundreds of women from peasant associations and associative businesses from the north of Honduras, occupied uncultivated and neglected land belonging to the Autonomous National University of Honduras (UNAH) and demanded the land be awarded to them by the state. Most of the women are single mothers, living in poverty with limited educational opportunities and burdened with the enormous responsibility of bringing up and educating their children. They were almost immediately evicted, and then occupied the land again. They have lived on the land for 6 years without eviction and it now appears that they may be granted rights to the land. Their strategies have included: urgent action letter campaigns, visits of fact-finding missions, conversations with various members of the Honduran government as well as with magistrates of the Supreme Court of Justice, INA directors and even with the rector of the university.
Through FIAN’s Gender Program a number of activities on the right to food for women have been initiated. For example, FIAN recently hosted a workshop at CEDAW on the connections between the right to be free from all forms of discrimination against women and the right to
7 See: http://www.fian.org/programs-and-campaigns/gender. 9 | P a g e food, and they have published, in graphic format, a training manual on the Right to Food for Women in the Philippines. iii. Health
Much of the work on the right to health for women has focused on reproductive rights, for example, rights related to abortion, female genital mutilation and maternal mortality. Over the last 10 years or so, HIV/AIDS and women’s right to health has also emerged as a pressing health rights issue facing women, particularly in Africa, and numerous projects and initiatives have been developed, in this regard. It should be noted that some women’s groups have critiqued this new focus on HIV/AIDS and women’s health rights as being donor-driven and potentially overshadowing other health matters of grave concern to women such as: maternal mortality, chronic illnesses, and the privatization of health care which continues to be a significant barrier to the right to health for women. The need for ensuring that primary health care is available, affordable and accessible remains a crucial issue in order for women to fully exercise and enjoy their right to health.
The Center for Reproductive Rights based in New York has undertaken a variety of activities on the right to health for women in different country contexts. For example, they have worked closely with EnGendeRights in the Philippines. EnGendeRights has undertaken a variety of activities on women’s sexual and reproductive health rights. EnGendeRights’ work is particularly interesting for its multi-stakeholder approach which has engaged for example, affected women, local lawyers, national human rights institutions, NGOs, CBOs, judges, and politicians. They have also used a variety of strategies – using local political and legal mechanisms as well as international mechanisms.
In South Africa, a number of groups including the Treatment Action Campaign successfully used the courts to challenge the Government of South Africa’s failure to provide anti-retroviral drugs for HIV positive pregnant women to prevent the transmission of the virus to children during labour.8 The case was argued under health rights provisions in the South African Constitution, not under the equality rights provisions. Though the case is significant
8 Treatment Action Campaign v. Minister of Health
10 | P a g e in terms of women’s health rights, the judgment focuses on the rights of the unborn child, rather than on women’s rights.
By all accounts, TAC’s victory against the government of South Africa was the result of a number of strategies used simultaneously: they used a strategy of litigation, mass demonstrations, national and international lobbying and civil disobedience. They also garnered public support through informational campaigns and grassroots activism and worked within the legal system and created a support base within the A.N.C. so as to not challenge the legitimacy of a recently formed democratic government.9
In Zambia the Rainbow Coalition, comprised of diverse NGOs concerned with HIV and women’s rights issues, came together to bid for a grant from the Global Fund. The Global Fund to Fight AIDS, Tuberculosis and Malaria which was created to dramatically increase resources to fight these three diseases and to direct those resources to areas of greatest need. Prior to the Rainbow Coalition’s interventions, these funds were not being allocated to projects that address women’s needs. As a result of their combined efforts, the Coalition managed to convince the Global Fund to issue stringent guidelines to recipients of its grants to ensure that they take into account the needs of women and girls equally with men.
In Nigeria between October 2003 and March 2004, Development Support Initiative (DSI) with support from Partners for Development (PFD), undertook a research study on socio-cultural practices and religious beliefs that contribute to the spread of HIV/AIDS among the 4 major ethnic groups of Benue State. A particular focus of the study was on women and female headed households as well as other gender related issues. At the time, Benue State had one of the highest rates of HIV/AIDS prevalence in Nigeria and poor families were struggling to develop strategies to deal with families members affected by and infected with HIV/AIDS. DSI shared it research findings and recommendations with other human rights organizations in Lagos, at a workshop convened by the Social and Economic Rights Action Centre (SERAC) on the right to health. SERAC is currently conducting a pilot project in 13 communities in Nigeria to provide services as well as education and training to mobilize groups to take action.
9 http://www.law-lib.utoronto.ca/diana/TAC_case_study/selectedissues.html#_How_Exportable_is.
11 | P a g e iv. Poverty and Social Security
Women and particular groups of women – indigenous women, migrant women, single mothers, disabled and older women – are the poorest people in most communities around the world. While NGOs and grassroots groups have long been concerned with women’s poverty, this issue is increasingly being addressed using a human rights framework.
In India, the Programme on Women’s Economic, Social and Cultural Rights (PWESCR) played an influential role in national debates on social security. Through collective mobilization and collaboration, PWESCR managed to shift the discourse and work on social security from one focused on male workers and labour unions to a discussion which included the issues of women’s unpaid domestic work, sex work, and migrant workers. PWESCR used this national work to inform discussions at the international level, for example, by actively participating in the development of the CESCR’s General Comment on Social Security. v. Emerging Issues
The research for this paper exposed a number of issues of increasing importance in the everyday lives of women and which are effecting their ESC rights. Work on these “emerging” issues is at various stages and offers a number of new opportunities. For example:
o The privatization and decentralization of public services such as access to water and electricity and their impact on women’s economic and social rights and their citizenry participation.
o The right to livelihood, as distinct from or different than the right to an adequate standard of living, in the context of women’s lives.
o Terrorism and counter-terrorism measures and their impact on women’s ESC rights and rights claims.
o The right to dignity and its use in ensuring women’s ESC rights.
o The cultural dimension of women’s ESC rights.
12 | P a g e o The use of international and regional mechanisms in the realization of women’s ESC rights.
IV. DEVELOPMENTS IN INTERNATIONAL HUMAN RIGHTS LAW
A number of legal standards have been adopted at the international level on women’s ESC rights. What follows is an overview of some of the most recent standards that provide significant guidance on the meaning and application of economic, social and cultural rights for women. i. The Montréal Principles
In the late 1990s a number of women’s human rights advocates noticed a significant gap in international jurisprudence in the area of economic and social rights. In December 2002, under the leadership of the Women’s Working Group of ESCR-Net, a number of human rights experts convened a meeting to draft a set of principles to guide the interpretation and implementation of the guarantees of non-discrimination and equal exercise and enjoyment of economic, social and cultural rights, found in Articles 3 and 2(2) of the International Covenant on Economic, Social and Cultural Rights. As a result, the Montréal Principles were adopted and released at the first inaugural conference of ESCR-Net in Chiang Mai in June 2003. The Montréal Principles is one of the first international legal documents to assert that equality must be interpreted substantively in order to give meaning and effect to the equal rights of women to ESC rights. The Montréal Principles were published in Human Rights Quarterly and are used by practitioners, NGOs, and academics throughout the world. For example, they were used as a legal standard to inform the development of the CESCR’s General Comment No. 16 on Article 3 (see below), and have been used by NGOs like COHRE and Equitas to guide an interpretation of whether women’s ESC rights have been violated in a particular case study or situation (eg: Manila railway evictions) and the legal obligations required by the State to remedy the violation. ii. General Comments
o CESCR - General Comment 16 on Article 3 – Equality Between Women and Men
13 | P a g e In May 2005, the Committee on Economic, Social and Cultural Rights followed suite and adopted General Comment 16 on Article 3 of the ICESCR, equality between women and men. It is notable for its acceptance of a substantive interpretation of equality. It states that the rights in the Covenant are to be enjoyed by men and women on a basis of equality, “a concept that carries substantive meaning” (para. 6). It goes on to indicate that substantive equality is concerned, “with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience” (para.7), and that this will take more than just the enactment of laws or adoption of policies that are gender neutral (para. 8). The Comment asserts that States are required to refrain from enacting or implementing laws or policies that discriminate or have the effect of discriminating against women and they may also be required to take positive steps to address women’s inequality and disadvantage.
o CEDAW – General Recommendation No. 25 Comment on Article 4 – Temporary Special Measures
In January 2004 the CEDAW Committee adopted General Comment No. 25 on Article 4 of the CEDAW Convention. It too interprets equality substantively. The General Recommendation asserts that ‘a purely formal legal or programmatic approach is not sufficient to achieve women’s de facto equality with men, which the Committee interprets as substantive equality.’ (para.8) Temporary special measures require governments to assess the particular disadvantage experienced by women ‘in a contextual way’ (para. 10) and to take positive steps to achieve a ‘real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns’ (para. 10). This stands in stark contrast with a formal equality approach which requires gender neutral laws only and does not necessitate an examination of the historic and real conditions of women, nor the undertaking of positive obligations by the State. iii. Optional Protocols
o CEDAW
The OP to CEDAW came into force in December 2000. In order for rights to be meaningful, individuals must be able to claim and enforce them. The Optional Protocol to CEDAW is positioned to play an important role in the realization of women’s ESC rights, in light of the fact 14 | P a g e that in many jurisdictions these rights cannot always be claimed in domestic courts and tribunals. The Optional Protocol provides two special procedures: a communications procedure for individual complaints10 and an investigation procedure regarding grave or systemic violations of women’s rights. As it stands, the CEDAW Committee has received 10 communications, a number of which raise ESC rights issues of concern to women.
The potential for the CEDAW OP to be of significant benefit to women’s ESC rights claims is reflected in A.T. v. Hungary which demonstrates the Committee’s commitment to the realization of substantive equality for women in economic and social realms. The Committee’s analysis recognizes the particularity of the complainant’s case and situates it within the broader context of women’s position in Hungarian society. For example, in its decision the Committee considers the specific recourse taken by A.T. to try to escape the abuse and concludes that the legal and social protections available were grossly inadequate.11 At the same time, the Committee expresses concern regarding the entrenched stereotypes regarding the roles and responsibilities of men and women within families, drawing on its own concluding comments on Hungary from August 2002.
Complementarily, the Committee fashions a remedy that addresses the complainant’s particular situation. In keeping with the principle of substantive equality, the CEDAW Committee requires the State party to undertake positive obligations to remedy the complainant’s situation and to ensure better protections for women more generally. In this regard, the State is required to ensure that the complainant is given a safe home in which to live with her children, and that she receives child support, legal assistance and reparations for the violations of her rights. More generally, the State is required to introduce a “specific law which prohibits domestic violence against women, which would provide for protection and exclusion orders as well as support services, including shelters”. Under a formal equality approach, the Committee could have concluded that A.T. and other women in Hungary were no worse off than men because safe
10 In order to make a valid communication, the following conditions must be met: exhaustion of all domestic legal remedies; the country against which they are complaining is a party to CEDAW and the Optional Protocol; the violation occurred after the date that the Optional Protocol came into effect; the right they are claiming is found in the CEDAW Convention; another international procedure has not been engaged to address the same complaint; if the communication is being submitted on behalf of someone else, that person must provide consent (AWID, The Convention on the Elimination of All Forms of Discrimination Against Women and the Optional Protocol, August 2002.)
11 Ibid. par. 9.4.
15 | P a g e shelters were unavailable to the entire population, not just women. Clearly this formal analysis would be nothing more than “equality with a vengeance”12, and an unsatisfactory answer to the violation of A.T.’s rights.
o ICESCR
The Optional Protocol to the ICESCR is poised to be adopted by the UN General Assembly in December 2008. International Women’s Rights Action Watch – Asia Pacific (IWRAW-AP) – a member of the NGO Coalition on the Optional Protocol, worked to ensure that the text of the OP benefits women equally. Though the OP to the ICESCR is not a mechanism specific to women’s ESC rights claims, because women disproportionately experience violations of ESC rights, we can assume that it will be used by women. The next stages regarding the OP are the development of rules of procedure and ensuring wide ratification. (See paper prepared for ESCR- Net, “International Adjudication of ESC Rights”).
V. Strategies:
Section III of this paper demonstrates that groups working on women’s ESC rights undertake a variety of strategies to ensure women can exercise and enjoy these rights. In most cases these strategies are used in conjunction with each other and in complementary ways. Strategies used are often context specific. For example, in some countries the legal system is not available as a mechanism to challenge laws, or policies that impinge on women’s ESC rights, as the judiciary is viewed as an arm of the State as opposed to an independent, neutral third party. What follows is an overview of some of the strategies being employed by different groups in different contexts.
Research and Documentation Research and documentation demonstrating the causes and consequences for women of violations of their ESC rights is a central strategy being employed by groups in different regions around the world. It is not surprising that this is a core activity. Women’s ESC rights is still an emerging area of practice, and documenting the problems or issues is an important first step. The body of research on women’s ESC rights is ever-growing and a variety of mediums are
12 This term was coined by the Canadian based Women’s Legal Education and Action Fund (LEAF) and was referred to in a Supreme Court of Canada case: Schachter v. Canada [1992] 2 S.C.R. 679 at 701-702.
16 | P a g e being used to disseminate findings including: video, graphic publications, websites, fact sheets, hard copy reports, etc.
Political Advocacy Most groups include political advocacy in their work. This can take many forms: one-on-one meetings with politicians, senior bureaucrats, and members of opposing parties; participation in formal government meetings and committees; letter-writing, etc. Political advocacy takes place mostly at the local or national level, but can also occur through regional or international mechanisms like the Inter-American Commission on Human Rights or the United Nations Human Rights Council or the 3rd Committee of the UN General Assembly.
Media Most groups use the media to raise local or national attention on an issue. The media is most often used as a complementary strategy, rather than as a strategy unto itself. Media and alternative media opportunities are plenty including: publication of Op-Ed pieces, press releases, radio shows, meetings with producers/editorial boards, ‘courting’ of a particular journalist to do a feature on an issue or event or to cover an issue on an ongoing basis. In Nigeria, SERAC undertook a formal project aimed at educating local/national journalists on ESC rights issues, with a view to encouraging journalists to cover such issues in their everyday work. Some groups find that the influence of media exposure goes beyond the general public and can influence politicians and even judges.
Strategic Litigation Strategic litigation initiatives such as those brought by the Women’s Legal Centre and TAC have the power to make strong statements about the legally ingrained discrimination toward women worldwide. By publicizing legal developments and improving the ability of attorneys worldwide to effectively advocate for women’s rights, strategic litigation will ensure that greater attention will be paid to the culturally and legally embedded injustices that make women vulnerable. Though litigation can be alienating for the claimant/s, strategic litigation that properly supports the claimant/s and that is part of a broader initiative or strategy can prove very empowering.
International Mechanisms and Events in Conjunction with Domestic Activities
17 | P a g e Increasingly national, local and grassroots organizations are using international human rights mechanisms and events to assist in the work they are doing domestically toward the realization of women’s ESC rights. For example, groups are using the UN human rights treaty monitoring bodies – CEDAW and the CESCR in particular – by drafting shadow reports, making oral interventions, participating in days of general discussion, and filing communications under Optional Protocols. Charter based bodies at the UN are being used as well such as the UN Human Rights Council and the Universal Periodic Review. Groups are also attending international meetings such as the World Urban Forum and the World Social Forum where they participate in panel discussions, develop networking opportunities, and host independent or parallel events. In some instances organizations find they have better access to politicians and senior bureaucrats within international for a than they do domestically.
Gender Budgeting A number of organizations are beginning to use “gender budgeting” in conjunction with a human rights framework to expose the ways in which budgets are gendered, contribute to women’s disadvantage and the lack of enjoyment of ESC rights by women.
Web Based Activities Increasingly, the internet and applications such as skype, text and audio chats, video conferences and podcasts are being used to create virtual (and free!) spaces for collaborative advocacy, and action.
Training Manuals / Education As the meaning and application of ESC rights for women emerges, training manuals and educational training sessions are beginning to appear. For example, EQUITAS has developed a training manual on women’s ESC rights for national human rights institutions in Asia. It is broad in scope and aimed specifically at decision makers within national human rights institutions. A preliminary training session was held in Philippines with members of the National Human Rights
18 | P a g e Commission. As noted above FIAN developed a graphic manual for women in the Philippines on the right to food.
Mobilization and Networking It is not uncommon for groups and/or constituencies or constituents to work collaboratively to claim women’s ESC rights. This can occur around a particular issue and, particularly in the context of women’s ESC rights, often involves the coming together of a number of actors, such as: mainstream human rights organizations, feminist organizations, women’s human rights organizations, and grassroots or community based groups. What follows is an excellent example from Latin America.
FOCUS: LATIN AMERICA
National and Regional Tribunals on Women’s ESCR: Latin America
In Latin America, national tribunals on Women and ESC rights have been organized in several countries, and are part of a regional process of reflection and cooperation of feminist and human rights organizations related to the legal and political enforceability of women’s ESC rights. The process of cooperation started in 2001 on the basis of a joint analysis regarding the increasing exposure of women to neoliberal policies and social policy adjustments imposed by the States in the region, which affected their economic, social and cultural rights. Women non-governmental organizations and non-governmental organizations with women programs from five countries were involved in the process: Corporación Promoción de la Mujer (Ecuador), Coordinadora de la Mujer (Bolivia), Instituto Latinoamericano de Servicios Legales (ILSA), Casa de la Mujer (Colombia), Estudio para la Defensa de los Derechos de la Mujer (DEMUS) (Perú), and La Morada (Chile).
As a step towards the effectiveness of women’s ESC rights, the organizations sought to promote national and regional political and legal enforceability processes aimed at spreading ESC rights, reporting abuses of ESC rights, and designing strategies for their fulfillment. In a second phase, the organizations took on the challenge of organizing national ethical and political tribunals to denounce ESC rights discrimination affecting women.
19 | P a g e The national tribunals started in November 2004 in Bolivia and continued into 2005 in Chile, Ecuador, and Peru. Based on the cases reported in these forums, the Regional Tribunal on Women’s Economic, Social and Cultural Rights took place in Lima, Peru13.
National and regional tribunals on women’s ESC rights have shown what can be achieved through a joint effort at regional levels. One of the tribunal’s achievements in each country was publicly denouncing the State for serious violations of women’s ESC rights. Through paradigmatic cases, attention was drawn to State responsibility. In one case reported in Peru on forced sterilization, top State authorities got involved to request information about the status of court investigations. This shows that, due to the visibility achieved through the tribunals, an impact was made on the State so that it became aware of its responsibilities regarding women’s ESC rights. However, challenges arising after the tribunals include maintaining the State’s attention and due diligence in handling the reported cases.
VI. Challenges:
While the work on women’s ESC rights is clearly progressing, a number of challenges in this area of practice are emerging.
Marginalization of women’s ESC rights. An overriding and constant challenge in this area of work is the marginalization of women’s ESC rights both within ESC rights practice and within broader human rights practice. Despite the fact that women disproportionately experience violations of their ESC rights, ESC rights practice remains focused on either a gender neutral or male-based assertion of these rights. Though “women’s programs” are being established, generally speaking, organizations focused on ESC rights do not integrate a women’s or a gender perspective in their work, and women’s human rights organizations often fail to integrate ESC rights into their work. Only a few organizations worldwide focus on women’s ESC rights exclusively. Not only is this a challenge within organizations, it impacts on the content and development of ESC rights. Women’s ESC rights are often treated as an “add-on” rather than as integral to an understanding of the meaning and application of these rights for marginalized and disadvantaged groups. Moreover, it is still common for example, for questions to arise as to why “women” as a group should be accorded any particular attention, as compared to other groups
13 Asociación de Trabajo Interdisciplinario, Corporación Casa de la mujer and Instituto Latinoamericano de Servicios Legales Alternativos. Tribunal Nacional de Mujeres y DESC. Bogota: ILSA, 2006. p.13. 20 | P a g e such as Indigenous peoples, and disabled persons. The marginalization of women’s ESC rights may be a contributing factor to the relative lack of financial support for this area of practice.
Relationship between substantive equality and women’s ESC rights. As women’s ESC rights practice emerges, the relationship between substantive equality and women’s ESC rights is being examined. Is there a difference between these approaches? Are they complementary? What would an integrated approach to substantive equality and women’s ESC rights look like? Some would argue that equality rights and ESC rights rely on each other, both practically and conceptually. Each field of practice needs the other to guide it. On the one hand, an understanding of the equality dimensions of material deprivation and other violations of ESC rights exposes issues of injustice and oppression which may otherwise be obscured. On the other hand, substantive equality approaches, will find a more solid grounding in ESC jurisprudence with respect to positive obligations and allocation of resources.
Lack of a coherent methodology. As it stands there does not appear to be a coherent methodology for framing and claiming women’s ESC rights. This may be related to the lack of conceptual clarity around the relationship between substantive equality and women’s ESC rights. Regardless, the lack of a coherent methodology is played out in the application of international ESC rights principles and obligations, such as the obligation of immediacy and the obligation to use the maximum of available resources, in the context of women’s ESC rights claims. For example, what does it mean to say that women’s equal enjoyment of Covenant rights is an immediate obligation, but women’s right to adequate housing is not?
Integrating domestic and international activities. There is still some disconnect between women’s organizing and activities at the local or national level and developments on ESC rights internationally or regionally, though many groups like PWESCR (India), WHEN (Canada), GWEC (Philippines) are doing this. Ideally there should a circular flow between the local and the international, where local experiences and activities inform the development of international standards, and then those international standards are used by domestic groups and in this way, “brought back home”. While this circular flow does occur, for example, PWESCR’s work on social security, it does not happen with enough frequency. In particular, legal standard setting
21 | P a g e within the international system is often top-down, and when local groups do participate, women’s ESC rights groups are often excluded or marginalized.
VII. Opportunities:
There are a number of potential opportunities for collaborative activities for those interested in working on women’s ESC rights claims. For example:
Optional Protocols to CEDAW and ICESCR Groups could work collaboratively to ensure good claims raising ESC rights issues and which use and ESC rights framework are brought forward under the CEDAW OP. Collaborative activities could be undertaken with respect to the development of procedures under the OP to the ICESCR to ensure procedures adopted are gender sensitive.
General Recommendations of Treaty Monitoring Bodies (TMBs) Groups concerned with women’s ESC rights could work together to make sure that all future General Recommendations adopted by TMBs incorporate a women’s ESC rights perspective, where appropriate. Collaborative activities could be undertaken to encourage TMBs to adopt new General Recommendations on issues or rights of particular concern to women.
UN Human Rights Council There are a number of possible opportunities to advance women’s ESC rights within the procedures of the UN Human Rights Council.
o Special Procedures Mandate Holders Groups concerned with women’s ESC rights could work collaboratively and with Special Mandate Holders such as the Independent Experts on the right to water and extreme poverty and the Special Rapporteurs on violence against women, health, food, and adequate housing to ensure their research, reports and where applicable, missions include an integrated focus on women’s ESC rights. For example, the Rapporteurs on violence against women and on the right to adequate housing, worked collaboratively with an external researcher to develop model provisions on the relationship between housing and women’s experiences of violence. Collaborative work could also be used to lobby for the creation of new mandates. For example,
22 | P a g e Justice for Girls International is exploring the feasibility of creating a mandate for a Special Rapporteur on the rights of girls.
o Resolutions As under the UN Commission on Human Rights, there is still the possibility of having resolutions on thematic issues of relevance to women adopted at the Council. For example, NGOs could work with government representatives from Mexico to re-initiate the resolution on women’s equal right to land, property, inheritance and housing, or new resolutions could be proposed for adoption. New resolutions could also be promoted within this context.
o Women’s Rights Session Under the current Council structures, once a year 2 full sessions have been devoted to women’s rights. One session is devoted to a discussion of women’s human rights issues, and the second session is devoted to a review and assessment of gender integration within the Human Rights Council. As it stands, the focus of this review is the Universal Periodic Review, but according to the resolution which lays out the mandate of the review panel, the review can extend to any aspect of the HRC’s work.
o Universal Periodic Review Every State that is a member of the United Nations is reviewed under the UPR mechanisms, every four years. It is an inter-governmental process, where States review States in terms of their compliance with international human rights law, focused on their compliance with international human rights treaties. There are several opportunities for NGOs to input into this process, be it through the submission of short reports or collaborative longer reports prior to the review, participating in the States actual reporting domestically, or lobbying States at the time of the review.
World Social Forum The World Social Forum (WSF) is a venue for exploring strategies for social justice, international solidarity, women’s rights, peace and environment protection. It is a key opportunity to further the struggle for gender equality, to ensure that voices from the ground are 23 | P a g e heard at national and international levels. The 2009 WSF will be held in Belem do Para, Brazil. As at previous WSFs, the Human Dignity and Human Rights Caucus (HDHRC) will help to ensure greater visibility of human rights within the WSF. The HDHRC will organize activities on a number of human rights issues including: social and economic justice and gender equality. With respect to women’s equality rights, three braod sub-thematic areas will be focused on: Livelihood, Development and Displacement; Gender Based Violence; Culture, Religions and Fundamentalisms.
24 | P a g e National Initiatives There are likely many national initiatives on women’s ESC rights in which international collaboration could be useful. For example, test case or strategic litigation can often benefit from the intervention of other national or international organizations working on similar issues. Similarly, a national or even local campaign or initiative can benefit from the support of an international entity or international partners.
VIII. Discussion Questions
. What can be done to ensure women’s ESC rights claims, perspectives and initiatives are central in the emerging work on ESC rights, rather than peripheral or marginal at best?
. What is the relationship between ESC rights claims and substantive equality claims, particularly substantive sex equality and/or dignity claims? Where women have the choice of how to frame ESC rights claims, what are the factors which should be considered?
. Is a coherent methodology for framing and claiming women’s ESC rights possible? What would it look like? How are international legal standards being applied in the context of women’s ESC rights? Can we reach consensus?
. How can ESC rights claims address changing patterns of governance and the prevalence of public/private partnerships?
. How do women’s ESC rights claims address the role of non-state actors?
. Are there any differences between the impact of ESCR violations on women and on other vulnerable groups? If so, what is the background of such differences? In what way could we, based on the said differences, build alliances to ensure the ESCR-Net becomes a
25 | P a g e space that makes a contribution to exchanging experiences and to the effectiveness of women’s ESC rights worldwide?
. How can we develop strategies to move the conversation from a position of protecting religion, customs, beliefs and practices to a conversation co-opting the human rights framework to ensure women’s rights are non-negotiable?
. How do we share experiences and information regarding development-induced displacement and loss of livelihood to draw commonalities to have clear understanding of what women’s right to livelihood means?
. In what direction is the women’s ESC rights practice moving at the international level? At the National level? Where does it need to go? How can we influence this collaboratively, through ESCR-Net? What are the various entry points or opportunities for collaborative work on women’s ESC rights?
. How important is it to link women’s ESC rights claims with existing rights? When is it appropriate to introduce a new right or a right not codified in a treaty?
. What is the status of funding for work on women’s ESC rights? What is the potential for funding collaborations through ESCR-Net?
Overall, we need to explore whether the structures and mandate of ESCR-Net can facilitate the development of shared methodologies and collaborative approaches across regions, bridging local, national, regional and international ESC rights practice, and promoting the development of consistent approaches that support women’s ESC rights claims.
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