"Paper
presented by IWRAW Asia Pacific at the
General Day of Discussion on Article 3 of the
International Covenant on Economic, Social and Cultural Rights"
Prepared
by María Herminia Graterol, IWRAW Asia Pacific
13 May 2002, Geneva, Switzerland
This presentation builds on points developed by IWRAW Asia Pacific
and the Human Rights Institute of Columbia University Law School
in a background paper presented to the CEDAW Committee earlier
this year.[1] The points I will be discussing relate to: (1) the
need to incorporate substantive equality and non-discrimination
as standards into the work of all human rights treaty bodies;
(2) the importance of considering the ways the effects of multiple
forms of discrimination place additional barriers to women's access
to the realisation of their economic, social and cultural rights;
(3) temporary special measures and other enabling conditions for
women to access these measures under the CESCR; and (4) the need
to include references to qualitative approaches for monitoring
the effective implementation of Article 3 of the Covenant.
Substantive
equality and non-discrimination as universal human rights standards
Groups affected
by structural discrimination continue to demand and claim their
right to equality. Demands for substantive equality have contributed
to the further understanding of the inter-related, and often invisible,
impact of discrimination. Considering Article 3 of the Covenant
in this light implies that an assessment of women's experiences
of discrimination needs to consider the impact of de facto discrimination
broadly. For example, considering the gender dimension of poverty
implies looking at the linkages between levels of subordination
and how these contribute to "vulnerability" to human
rights abuses: a homeless woman is more likely to be a victim
of sexual abuse than a homeless man; at the same time, she is
more likely to be target of other human rights abuses than a highly
educated woman with an adequate standard of living. The added
value a substantive approach to equality is that it addresses
human rights violations as a continuum, thus, making it possible
to contribute to the promotion of "parity" through social
transformation.
As stated
by the Committee numerous times, it is important to have a holistic
approach to the promotion of women's equal opportunities to realise
and enjoy economic, social and cultural rights. State party reports
tend to contain information on social and economic programmes
that incorporate a neutral/formal approach to "opportunity"
as the central element of equality. However, the challenge for
the Committee is to continue to determine results in order to
monitor the actual enjoyment and realisation of economic, social
and cultural rights by all men and women. In the context of opportunity,
a substantive approach would allow us to ask: are there equal
opportunities for men and women? (e.g. are girls and boys allowed
to attend public primary schools?); Are women able to access opportunities?
(e.g. are there more schools for boys than for girls in the rural
areas?); Are there disparities in results? (e.g. are there more
women than men working in the informal sector? Is there an equal
number of men and women graduating from university?).
The progressive
interpretation of international human rights standards has pointed
to the need to use the principle of discrimination against women
as a tool to promote substantive equality in all spheres. In this
regard, standards contained in CEDAW and other international human
rights treaties should be used and promoted when monitoring effective
implementation of Article 3 of the Covenant.[2] This would have
a meaningful impact at the national level where, groups of women
are demanding the effective implementation of international human
rights standards as inter-connected and indivisible.
2. Approaching
multiple forms of discrimination under the ICESCR
Gender identity
has overlapping dimensions. Women's experiences are shaped by
multiple identities that are drawn on the basis of gender, race,
ethnicity, nationality, religion, sexuality, economic position,
age, disability and other status. Since each level of a woman's
multiple identities is "valued" unequally, the interplay
of various levels of subordination and disadvantage (men vis-à-vis
women; majority groups versus minority groups, etc.) often amounts
to obstacles to the understanding, claiming and realisation of
their economic, social and cultural rights. The promotion of substantive
equality implies the empowerment of groups of disadvantaged women
through the protection, promotion and fulfilment of all their
fundamental rights
Incorporating
an analysis of the situation of multiply disadvantaged women at
all levels of work of the Committee would provide a better understanding
of the interplay of multiple forms of discrimination. Further
understanding of means to monitor steps aimed at the elimination
of intersectional discrimination would add to the progressive
interpretation of rights across all areas contained in Covenant.
The general comment on Article 3 provides an opportunity for the
Committee to recognise that the axis of discrimination is open-ended.
Discrimination
against women should be interpreted from a perspective that broadens
the understanding of the inter-connectedness between: women's
identities, the interplay of various forms of subordination and
the effects of multiple forms of discrimination. The Committee
could approach multiple forms of discrimination by building on
some of the accomplishments of the UN World Conference Against
Racism.[3]
3. Approaching
temporary special measures for women under the Covenant
Temporary
special measures aimed at accelerating substantive equality need
to be interpreted comprehensively, particularly in regard to needs
in the cultural, economic and social fields. Temporary special
measures are legitimate means for States Parties to implement
all the rights contained in the Covenant and to ensure that all
women are provided with the opportunities, conditions and resources
to realise and enjoy their human rights. In this regard, special
measures aimed at addressing intersectional discrimination under
the Covenant would imply: a) positive, proactive, multi-layered
steps; b) by, or promoted by, the State; b) aimed at accelerating
and attaining substantive equality between men and women; c) encompassing
the economic, cultural and social fields; d) guaranteeing all
human rights as inter-dependent; and e) and extending to the private
and public spheres.
Temporary
special measures could encompass programmes, policies and legislation
related, but not limited, accelerating de facto equality between
men and women in the context of: a) equal social development;
b) the realisation of economic, social and cultural rights; c)
substantive access to justice; and d) the transformation of systems
of inequality and subordination. At another level, temporary special
measures aimed at accelerating de facto equality of discriminated
groups of women in the economic and social fields would also need
to be recommended and monitored by the Committee. In all cases,
enabling conditions need to be ensured, designed and implemented
in order to allow women who experience multiple forms of discrimination
to access special measures and claim their rights.
4. Qualitative
approaches to monitoring the fulfilment of State obligation under
Article 3 of the Covenant.
It is essential
to acknowledge that women are affected differently by the compounded
effects of past and continuing inequalities based on gender, race,
ethnicity, economic situation and other status. The realisation
of the human rights of women through the progressive and full
implementation of the Covenant needs to be multi-dimensional.
In connection
to data gathering, it is necessary to recommend States parties
to the Covenant to analyse data gathered from a qualitative approach.
That is, even if a discriminated group amounts to a small number
individuals (quantitatively) say two per cent of the population
but disadvantages, gaps and disparities in the status of women
within that group show that they are the most discriminated, then,
methodologies for analysing data should highlight a qualitative
approach to addressing discrimination. In this regard, "Invisibility"
of human rights violations should amount to discrimination as
States have an obligation to promote and ensure substantive equality
to all.
ENDNOTES
[1] To view this paper, click here.
[2] For example, articles 1 and 5 of CEDAW; CEDAW General Recommendation
No. 19; HRC General Comment No. 28 and CERD General Comment No
25.
[3] Some of the gains of WCAR were: 1) the recognition of multiple
forms of discrimination, 2) the recognition of the impact of multiple
forms of discrimination on women's ability to claim and access
rights, 3) a strong commitment on the part of the States and international
institutions regarding the development of policies, legislation
and programmes aimed at the elimination of multiple forms of discrimination.
