Developing the Right to Social Security from a Gender Perspective Beth Goldblatt A thesis in fulfillment of the requirements for the degree of Doctor of Philosophy School of Law, Faculty of Law, University of New South Wales February 2015 ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. Date …………………………………………….............. ii ABBREVIATIONS ACOSS Australian Council of Social Service BIG Basic Income Grant CCT Conditional Cash Transfer CEACR Committee of Experts on the Application of Conventions and Recommendations CEDAW Convention on the Elimination of All Forms of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights CSG Child Support Grant DG Disability Grant GDP Gross Domestic Product ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ILC International Labour Conference ILO International Labour Organisation JSY Janani Suraksha Yojana MDG Millennium Development Goals NMBS National Maternity Benefit Scheme NREGA National Rural Employment Guarantee Act NSAP National Social Assistance Programme NTER Northern Territory Emergency Response OAP Old Age Pension OECD Organisation for Economic Co-operation and Development OPG Older Persons SEAM School Enrolment and Attendance through Welfare Reform Measure SEWA Self Employed Women’s Association SPF Social Protection Floor UDHR Universal Declaration of Human Rights UN United Nations US United States UWSSA Unorganised Workers Social Security Act iii ACKNOWLEDGEMENTS I am enormously indebted to my two supervisors, Andrew Byrnes and Christine Forster. Both have displayed generosity and dedication in supporting me through the writing of this thesis. They have provided meticulous edits on many drafts and have made numerous incisive and thought-provoking comments that have undoubtedly strengthened my arguments. I owe special thanks to Andrew for his gracious and efficient additional support for other aspects of my PhD studies including my ethics application and my fieldwork, conference and scholarship funding applications. Thanks are also due to the members of my three Faculty panel reviews: Rosemary Rayfuse, Rosalind Dixon, Christopher Michaelsen and Julian Disney. Each panel member offered valuable suggestions that helped me to advance my ideas. Jenny Jarrett has provided ongoing friendly, helpful and efficient support as the Law Faculty’s higher degree research officer for which I thank her. Thanks also to Sarah Dobinson for excellent assistance with referencing and to my friend Heather Edelstein for her generous and skilful proof-reading of this thesis. During the course of the doctoral project I have published some of the results of the research which are presented in this thesis. These publications include: ‘Gendered Poverty: A Role for the Right to Social Security’, (2012) 21(2) Human Rights Defender, 10-12; and 'Social Security in South Africa - A Gender and Human Rights Analysis' (2014) 47(1) Verfassung und Recht in Übersee, 22-42. Forthcoming publications include ‘Testing Women’s Rights to Social Security in Australia – A Poor Score’ in Beth Goldblatt and Lucie Lamarche (eds), Women’s Rights to Social Security and Social Protection (Hart, 2014); and ‘Gender, Poverty and the Development of the Right to Social Security’ (2014) 10(3) International Journal of Law in Context. I have also presented conference papers related to the research of the thesis at the Second International Conference on Law, Governance and Development on ‘Right to Welfare: Education, Food and Work’ at Azim Premji University, Bangalore, India, on 2-3 August, 2013; at the workshop on ‘Interpreting and Advancing Women’s Rights to Social Security and Social protection’ at the International Institute for the Sociology of Law, Oñati, Spain, 6-7 June 2013; at the conference on ‘Social Security and Protection of Women in India’, Indian Social Institute, New Delhi, 6-7 May 2013; at the conferences of the Australian Council on Social Service, Adelaide, 25 March 2013 and Sydney, 29 March 2012; at the ANZSIL/ASIL conference on ‘International Law and Justice’, University of New South Wales, 26 October 2012; at the workshop on ‘Elusive Equalities: Sex, Gender and Women’, Pembroke College, University of iv Oxford, 11-12 September 2012; and at the Law and Society Conference, Honolulu, Hawaii, 5 June 2012. I gratefully acknowledge the support of the Law Society of NSW’s Legal Scholarship Support Scheme/Public Purpose Fund for funding my fieldwork research in India. I am grateful to Priti Darooka, the Executive Director of The Programme on Women's Economic, Social and Cultural Rights in New Delhi, India for supporting my fieldwork research and involving me in the planning of the conference ‘Women’s Social Security and Protection in India’ in New Delhi on 6-7 May 2013. I am grateful for the Australian Postgraduate Award and Law Faculty top-up scholarship that has provided me with three years of funding for my PhD. I wish to thank David Dixon, Dean of the Law Faculty, for providing partial funding for my trip to a workshop in Spain. The workshop, ‘Interpreting and Advancing Women’s Rights to Social Security and Social Protection’, which I co-convened with Lucie Lamarche of the University of Ottawa, was supported by the International Institute for the Sociology of Law in Oñati, Spain on 6-7 June 2013. I also appreciate the university’s Postgraduate Research Student Support funding which supported my conference attendance at the Law and Society conference in Hawaii in 2012 and part of my travel to Oñati in 2013. I thank the University of Oxford for supporting my travel to the ‘Elusive Equalities’ workshop in 2012 and the Azim Premji University for supporting my travel to their conference on the ‘Right to Welfare: Education, Food and Work’ in 2013. I wish to thank the various participants at the conferences and workshops that I attended during 2012 and 2013 for helpful comments on papers that I presented that informed my thinking for this thesis. Particular thanks are owed to Judy Fudge for her comments on a paper that informed Chapter Two of this thesis and to Lucie Lamarche for her comments on a paper that informed Chapter Five of this thesis. Further thanks are owed to the following people for their advice and willingness to discuss social security rights in India: Elizabeth Hill, Jayna Kothari, Priti Darooka, Colin Gonsalves and other staff at the Human Rights Law Network office in Delhi, and participants at the conferences I attended in Delhi and Bangalore. I am extremely grateful to the following people who have supported my research studies through their intellectual support and friendship: Shireen Hassim, Cathi Albertyn, Sandra Fredman, Sandra Liebenberg, Lucie Lamarche, Andrea Durbach, Reg Graycar, Gabrielle Sim and Bassina Farbenblum. Last but not least I thank my partner, Paul, and my children, Gabriel and Rachel, for their patience, kindness, humour and on-going support without which I could not have completed this thesis. v ABSTRACT This thesis develops the right to social security in international human rights law from a gender perspective. The right to social security is of increasing importance in framing efforts to address poverty. Since, throughout the world, poverty is deeply gendered, it is important to ensure that the right to social security is interpreted from a gender perspective with the achievement of gender equality as a central objective. The gender perspective developed in this thesis draws on feminist theory to reinterpret ideas of ‘work’ within the definition of the right to social security. It recognises the diversity of women and the need to address intersectional discrimination. It uses a substantive equality approach to propose a set of principles for a substantively equal, gendered right to social security. The thesis applies this conceptual framework and set of principles to an analysis of international law looking specifically at the work of four United Nations’ bodies: the Committee on the Elimination of Discrimination against Women; the Committee on Economic, Social and Cultural Rights, the International Labour Organisation and the Special Rapporteur on extreme poverty and human rights. The framework and principles are also applied to an analysis of three country studies (South Africa, Australia and India). Specific aspects of the social security systems of each country are selected for examination within the country studies to undertake a deeper evaluation in terms of the framework and principles. The thesis concludes that the framework and principles could be used effectively within international law to ensure that a gender perspective is built into the interpretation of the right to social security. The thesis finds that