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Economic and Social Council |
Distr. GENERAL E/C.12/2002/5 5 February 2002 Original: ENGLISH |
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Twenty-eighth session
Geneva, 29 April-17 May 2001
Item 3 of the provisional agenda
SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
Day of General Discussion on article 3 of the Covenant: equal right of men
and women to the enjoyment of economic, social and cultural rights
set forth in the ICESCR
Monday, 13 May 2002
EQUALITY AND RIGHTS:
ARTICLE 3 OF THE INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
Background Paper submitted by Marsha A. Freeman, Director,
International Women's Rights Action Watch (USA)* **
* The views expressed in the present document are those of the author and do not necessarily reflect those of the United Nations.
** Issued as submitted.
GE.02-40432 (E) 210202
INTRODUCTION: THE NEED FOR A GENERAL COMMENT ON EQUALITY*
The States parties to the present Covenant undertake to ensure the equal right
of men and women to the enjoyment of all economic, social and cultural rights
set forth in the present Covenant
Article 3 of the International Covenant on Economic, Social and Cultural Rights provides for equality in the enjoyment of all the rights stated in the Covenant. The Committee on Economic, Social and Cultural Rights has taken this article seriously but has yet to examine the obligation closely. Many of the Committee's reviews of country reports have included questions, and produced concluding observations, on issues pertaining to women's enjoyment of human rights. However, a clear framework for addressing these issues has yet to be developed.
As Philip Alston remarked in a forum at the World Conference on Human Rights in 1993, no government has ever granted human rights solely of its own volition. Almost invariably, rights are granted only when citizens claim them. As to women, this premise is incontrovertible. As has been documented by countless scholars and activists in the last two decades, women's human rights have been at best ignored, and more often overtly denied, since time immemorial. And given their historic invisibility in the "mainstream" of human rights activity for the last 50 years, general progress in human rights does not automatically benefit women. It cannot be assumed that changes in law and policy, made without attention to women's specific circumstances and the consequences in their lives, will have a positive impact on their situation.
A framework for addressing obligations under article 3 is necessary to provide for consistency and specificity in the Committee's treatment of equality issues under every substantive article of the Covenant. It would give to governments an unequivocal mandate to attend to equality issues as a matter of normative rights, indicating that every effort to implement the Covenant must include positive attention to the elimination of discrimination with respect to enjoyment of particular rights.
This paper is submitted in support of efforts to provide a framework for application of ICESCR article 3, in the form of a General Comment on Equality between Women and Men in the Enjoyment of Economic, Social and Cultural Rights.
THE TERMINOLOGY AND THE CONTENT OF EQUALITY
The language of ICESCR article 3 derives directly from article 2 of the Universal Declaration of Human Rights. Despite having been enshrined in this basic human rights instrument, equality between women and men is honoured more in the breach than in the observance.
The official account of the debate on adoption of this provision in the Third Committee indicates the scope of the problem and the necessity of a separate provision on equality between women and men:
84. Some representatives thought that article 3 duplicated article 2, paragraph 2, and that the adoption of a special article relating exclusively to the equality of men and women might cause doubt on the effect of the other anti-discrimination provisions contained in article 2. It was maintained that the application of absolute equality of the economic rights of men and women might jeopardize national productivity and encourage too many women to work outside their homes. It was usually less profitable for the employer to employ women, while in their capacity as wives and mothers women were needed in the home, especially by the children.
85. On the other hand, many representatives thought it was essential to retain article 3. The Committee must respect the wish of the General Assembly, expressed in resolution 421 (V), concerning the inclusion of such a provision. While article 2, paragraph 2, prohibited all discrimination based on sex, the same rights should be expressly recognized for men and women on an equal footing and suitable measures should be taken to ensure that women had the opportunity to exercise their rights; for example, it would be unrealistic to allow women to hold public office if they did not have the same opportunities as men to acquire the necessary training. Moreover, even if article 3 overlapped with article 2, paragraph 2, it was still necessary to reaffirm the equal rights of men and women. That fundamental principle, which was enshrined in the Charter of the United Nations, must be constantly emphasized, especially as there were still many prejudices preventing its full application [emphasis added].
These statements, dating from 1962, retain currency. While prohibition of discrimination as stated in article 2 (2) is critical, "equal enjoyment" of rights encompasses a larger vision of what it means to have rights. As discussed below, the terminology of "enjoyment" implies recognition of full human capacity - for work, leisure, reproduction, and above all for making and acting upon choices.
In the 26 years since the Covenant entered into force, many countries have adopted constitutional provisions and laws that purport to enshrine equality as a fundamental principle. Some laws provide for formal equality in a positive manner, such as requiring equal property division upon divorce, equal inheritance rights for sons and daughters or for surviving husbands and wives, or equal pay for work of equal value. Prohibition of discrimination in the workplace (promotion and training opportunities, wages, issues surrounding maternity leave), in education,
or in assignment of government benefits, reaches for equality through the operational principle of non‑discrimination. Neither the positive nor the prohibition approach can be successful without consideration of gender, the social construct of role expectations that pervades systems, institutions, and human attitude towards women and men.
Reliance on expressions of formal equality, or on legal prohibition of discrimination, obscures the real issues of inequality - institutional discrimination and unequal power relationships that result in oppression and exclusion. Implementation of ICESCR article 3 requires governments to identify the sites of discrimination in economic, social and cultural endeavours and to immediately address the legal, material and cultural obstacles to equality.
The substance of equality
The language of article 3 indicates that equality is a value that must be integrated into every aspect of Covenant implementation. Government obligations to respect, to protect, and to fulfil economic, social and cultural rights are grounded in a fundamental requirement to ensure that all persons within the ambit of its actions be treated in a manner that guarantees equality in enjoyment of rights. Enjoyment of rights refers immediately and unequivocally to the substance of the rights as well as to their formal expression, to outcomes and consequences as well as to access and opportunity.
The "enjoyment" of human rights may be measurable in some respects, and to the extent that it is measurable, "equal enjoyment" can be determined as a matter of numbers. But numbers never tell the entire story. For example, equal literacy rates for men and women say nothing about the content of their education and expectations for its use. Equal wages for men and women doing a particular type of work do not indicate their comparative working conditions or work history (how long did each work in this job before achieving this wage?). Formal equality provisions and statistical indicators provide only a verbal and numerical framework. States parties to the Covenant have an obligation to provide the legal and material means for women to enjoy rights on an equal basis with men, and to address the cultural and structural issues that create obstacles to exercising rights.
To "enjoy" a right means just what the English word implies: to live in it, to express it, to use it, and above all, to be able to claim it. Enjoyment of a right cannot be static. Nor can equality in enjoyment of rights be static. As to every aspect of a particular right, the questions must consistently be asked: Are women allowed to live this right? to express it freely? to use it? What are the specific obstacles - material conditions, laws, cultural expectations - to women's enjoyment of the rights, and how can they be removed? What practical effect will a particular law or policy change have on women? What must we do to eliminate the current disadvantage women face as a result of past discrimination? How do we maintain attention to equality as economies and cultures change? In other words, are women treated with full respect for themselves as human beings and for their rights as articulated in the Covenant?
Because women's enjoyment of every aspect of rights is affected by the cultural construct of gender, equality cannot be addressed adequately without attention to culture and to gender. Development expert Bina Agarwal suggests the comprehensive nature of gender as a construct that pervades public and private economic, social and political interactions. "Gender relations (like all social relations) embody both the material and the ideological. They are revealed not only in the division of labour and resources between women and men, but also in ideas and representations - the ascribing to women and men of different abilities, attitudes, desires, personality traits, behaviour patterns, and so on." Social and cultural expectations based on identification as male and female are at the heart of discriminatory laws, policies, actions, and failures to act. These gendered expectations place women at a fundamental disadvantage with respect to freedom to act as fully capable adults, to participate fully in economic and political development, and to make decisions concerning their welfare and that of their families. They perpetuate inequality.
Inequality between women and men is a result of the individual and systemic practice of sex discrimination. Sex discrimination is the differential treatment of women based on their biology, such as the failure to provide for maternity-related health care where men receive care for all medical conditions, including those that affect only men, or refusal to hire women because they could become pregnant. Sex discrimination is also based on stereotypical assumptions, such as the refusal to hire women or tracking them into permanently low-level jobs because they are seen as a group to be primarily wives and mothers and less likely than men to be dedicated to their work. And it is based on unacknowledged issues of power retention, exemplified by failure in many systems to provide property rights or equal legal capacity for women. Acknowledgment of all these assumptions and forms of oppression is essential to the elimination of discrimination.
The elimination of discrimination against women is a fundamental operational precondition of equality. In this context reference to the Convention on the Elimination of All Forms of Discrimination against Women is critical to effective implementation of the ICESCR. The CEDAW Convention identifies the obstacles to women's equal enjoyment of human rights, framed as sites of discrimination in policy and practice. Each article of the CEDAW Convention that pertains to economic, social or cultural rights includes language indicating significant factors in the gender aspects of those rights. The CEDAW Committee's General Recommendations - most recently, General Recommendation No. 24, on health ‑ elaborate on this language, providing more detailed guidance for addressing discrimination as to certain rights. The language of the Convention and of the General Recommendations suggests specific opportunities for changing law and policy and for considering practical matters such as the design of service delivery and administrative systems to avoid disadvantage, exclusion or mistreatment of women and girls.
Economic development and equality
Equality in enjoyment of economic, social and cultural rights is a core development issue. Seventy percent of the world's poorest people are women. Poverty is a consequence of failure to protect and promote human rights - not only economic and social rights, but political and civil rights as well.
Amartya Sen characterizes fundamental rights as "freedoms" that are instrumental to development as well as its desired result. Seeing individuals as agents of their lives rather than potential recipients of "the benefits of cunning development programmes", Sen notes that freedoms are inextricably linked with one another: "political freedoms … help to promote economic security. Social opportunities (in the form of education and health facilities) facilitate economic participation …". Sen identifies five instrumental freedoms as critical to individual agency and to sustainable development: (1) political freedoms, (2) economic facilities, (3) social opportunities, (4) transparency guarantees and (5) protective security. If development policy fails to extend all these freedoms equally to the entire population, development becomes (often systemically) distorted and unsustainable.
Policies that seek undifferentiated national income and consumption growth can place an extra burden on women, both by failing to provide for family needs such as child care and health facilities, and by focusing on increasing productivity in sectors in which women are exploited or are excluded from deploying their labour. Gendered traditions relating to production can mean that a shift to cash or export cropping from subsistence or local market farming, or from farming to manufacture, can shift resources from women to men. In communities where women are primarily responsible for feeding the family, this form of development reduces women's power in the household as well as having detrimental effects on food security and nutrition. Women's employment in free trade zones increases national productivity figures but is notoriously exploitive.
Gross Domestic Product as a primary indicator of growth, fails to differentiate as to the condition of individuals within households and communities. Economic growth in China, for example, has not noticeably diminished the level of neglect and discrimination against girls in Chinese households - resulting in what Sen refers to as millions of "missing" women. Even more refined research approaches evaluate economic well-being on a household basis, without addressing heterogeneous preferences or unequal distribution of resources within households. As Naila Kabeer notes, "a gender perspective on poverty reminds us that household income cannot be equated with individual well-being."
Poverty eradication requires that economic, social and cultural rights be respected, protected and fulfilled as between members of households and members of communities. Recognition of rights implies recognition of the capacity for choice, the ability to act in the best interest of self, family and community. Recognition of that capacity results in a rebalancing of interests within the family, allowing for greater respect for women and improved access to resources and opportunities. Sen notes that where women have increased choice in access to resources and to education, their own well-being improves, fertility drops and child survival increases.
Equal Access/ Equal Outcome
Conceptualization of equality as a matter of formally providing access or opportunity leads to policy that fails to address the entire problem. The equal access approach often does not result in equal outcomes. Securing for women and men equal access to, for example, health care (ICESCR article 12) or primary education (ICESCR articles 13 and 14), often does not result in equal outcomes. Attitudes and quality of staff, failure to tailor programmes to realities of women's working hours or family requirements, and content of educational programmes has a profound effect on outcomes. While the failure of equal access to produce equal outcomes is frequently attributed to a lack of "truly equal" access, there is nothing inherent in equal access that corrects for past inequalities or automatically ends discriminatory attitudes, treatment and delivery systems.
Policies and programmes that aim to secure equal outcomes for men and women also must include special measures to eliminate the effects of discrimination: intensive efforts to recruit women; long-term support for women's training, promotion and retention; monitoring retention and progress; and remedies for discriminatory treatment. The Covenant does not explicitly refer to this requirement of implementation, but it is implicit in every obligation. As CEDAW Committee expert Beate Schoepp-Schilling notes, the obligation to take "all appropriate measures" to eliminate discrimination against women, by definition includes a requirement to remedy the effects of past discrimination. Any other approach renders the language of treaty obligations meaningless. The ICESCR requires States parties to "take steps … with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures" (art. 2 (1)).
An effective approach to equality requires a reordering of traditional conceptual frameworks. Historically, governments and many advocates relied on the simplest concept, the "sameness" analysis, to analyse women's claims of discriminatory treatment. According to this approach, individuals are entitled to the same treatment only if their situation is the "same", and different treatment is warranted if they are differently situated. This approach is both blindly mechanistic and in itself discriminatory, in that it eliminates examination of the nuanced realities of people's lives. One of the most egregious examples of this analysis was the 1976 US Supreme Court decision in General Electric Co. vs. Gilbert, holding that failure to provide insurance coverage for pregnancy and childbirth, was not sex discrimination. The Court stated that since non-pregnant women were treated the same as men under the company's insurance policy, no discrimination existed; and that it was appropriate to treat pregnant women differently as they constituted a different class of employee. (The US Congress rectified this gross misreading of reality with passage of legislation mandating maternity coverage.)
In the 1970s and 1980s many Northern-based feminists, accepted the "sameness" analysis out of concern that emphasis on women's biological and circumstantial difference from men would work against them as they sought to establish new opportunities in opposition to traditional career and family expectations. But it became clear that denying difference did not necessarily improve women's opportunities - especially since that approach precluded examination of deep-seated, unspoken attitudes and customs that work against women. Theorists from the global South have been pointing out for over a generation the injustice that results from failing to acknowledge women's different circumstances and the traditional assumptions that cause and reinforce them.
Naila Kabeer, for example, holds that "the gender dimension of poverty occurs ... because women and men experience poverty differently and unequally". She also notes that a woman's socio-economic class significantly affects her level of empowerment in comparison to other women. In A Field of One's Own: Gender and Land Rights in South Asia, Bina Agarwal has addressed specific cultural and legal exclusionary practices in South Asia that differentiate South Asian women's experiences from those of women in other regions of the world. Everywhere in the world, indigenous and minority women live with the effect of race discrimination multiplying the effect of sex discrimination.
A comprehensive, ultimately just approach to equality must embrace an understanding of the areas in which women are or might be similarly situated with men; areas in which acknowledging their physical and situational differences are critical to their enjoyment of rights; the cultural constructs that impede enjoyment of rights; and the impact of class, race, and experience on women's enjoyment of rights.
"Equal enjoyment" of human rights implies quite clearly equality between women and men rather than a contest between them. It implies respect for equal capacities and a requirement of equality in allocation of resources. Redressing the imbalance of economic, social and cultural power between women and men would result in men no longer having access to a disproportionate share of resources and services at the expense of women. Equality in allocation cannot be seen as a violation of rights - it is only a loss of privilege. The essence of human rights is that no person holds a privilege of greater enjoyment of rights than another.
Institutionalizing equality
An institution is the physical and intellectual space in which policies are made and implemented. The cultural and socio-political conditions that affect policy must be acknowledged as integral to any institutional framework. Equality must be built into the intellectual and ethical framework of institutions, and policy must be based on the right to be treated without discrimination. Minor adjustments to achieve particular outcomes will not solve the problem.
The nature of institutional administration, structures and instruments is critical to the equal enjoyment of rights. Policy formulation and adjustment, while extremely important, are not the whole solution to discriminatory attitudes, practices and patterns. Administrative communication flow, education and training of personnel, and supervision of service delivery are critical elements of "lived" equality for which a State party is obligated.
Human rights frameworks are premised on the position of the state as the primary institutional actor responsible for implementation of human rights obligations. With the growth of international markets and trade organizations, international financial institutions, and transnational corporations as arbiters of development and centres of economic power, the role and capacity of the state to meet certain human rights obligations has been called into question.
The Committee on Economic, Social and Cultural Rights has noted the rising importance of these actors in the accumulation and distribution of resources. It cannot be assumed that people who have been historically disadvantaged with respect to resource allocation and access will benefit from economic growth without state interventions to ensure equality. Indeed, structural adjustment policies and unregulated business development frequently make their situation worse. State interventions must be designed to address equality and rights issues specifically, recognizing and building upon women's capacity as citizens - active agents of development, rather than passive recipients - in relation to state and other institutions.
Obligations to respect, to protect, and to fulfil human rights
Implementation of the ICESCR requires that States parties act to respect, protect, and fulfil the stated rights. South African attorney Sandra Liebenberg provides useful examples of the nature of these obligations, as they pertain to gender, from her country's experience.
In essence the obligation "to respect" … rights requires the state not to act in any way that is inconsistent with the enjoyment of the rights, such as failing to include women as potential beneficiaries of State programmes to redistribute wealth, including land. Liebenberg notes in this respect that "the State should not permit common law or customary law rules with a similar exclusionary effect to remain in place ... [such as] customary law provisions which restrict a woman's capacity to own, control and inherit rights in property in her own name."
The duty to protect rights requires adoption of laws and policies that prevent third parties from infringing on or denying women's human rights, such as legislation prohibiting discrimination in employment, protection of equality in the family, and comprehensive domestic violence laws. Such protections are incomplete without incorporation of adequate remedies for discriminatory practices.
The duty to fulfil requires States parties to take positive action to provide services and goods, with a view towards meeting certain minimum standards of subsistence, and with the understanding that the cost issues warrant a standard of effort concomitant with a country's resources. States have an obligation to maintain a certain level of human rights fulfilment even while devolving central government functions to localities, and in the face of demands by international financial institutions that they make greater efforts to balance their budgets. With respect to the demands for structural adjustment and poverty reduction strategies, States must analyse all program proposals in light of their specific impact on women's equal enjoyment of rights.
The principle of progressive implementation clearly does not apply to the premise of equal enjoyment of rights under ICESCR article 3. The language of article 3 is mandatory. Progressive implementation applies specifically to the articles in Part III of the Covenant and not to the cross-cutting issues articulated in Parts I and II.
The terms of the CEDAW Convention underscore the obligation to take measures to "eliminate discrimination" in all endeavours on which State policy can have an effect, immediately and unequivocally. While the CEDAW Committee has acknowledged the constraints imposed by lack of resources, governments are not permitted to use poverty as an excuse for failure to deal with discrimination.
EQUALITY ISSUES ON THE RECORD
The Committee's concluding observations, analysing the condition of economic, social and cultural rights in each country under review, identify the notable accomplishments and some of the remaining inadequacies in Covenant implementation. Many of the Committee's observations have touched upon issues of equality in the enjoyment of these rights.
The Committee has noted both the instances in which national laws and policies undercut or render ineffectual the promise of gender equality guaranteed by the Covenant, and instances of successful efforts to deal with discrimination. However, without a consistent flow of information on gender issues and a framework for using the information, the approach has been less than comprehensive. A General Comment on Equality would provide a framework for consistent and comprehensive attention to these issues.
Many of the Committee's questions and concluding observations have included insightful identification of discriminatory institutional structures and trends in the form of traditional attitudes, ineffective delivery systems and tolerance of discrimination. The Committee has almost from its inception welcomed input from NGOs concerning implementation of rights in countries under review. Information from international and national gender-focused NGOs has been used in more recent years to track positive and negative trends in the equal enjoyment of the rights articulated in the Covenant. The Committee also has cited information from State parties' reports to CEDAW in its Concluding Comments, most recently to Mauritius (07/10/96) and Saint Vincent and the Grenadines (02/12/97).
The Committee's concluding observations have noted positive efforts and results in a number of countries. For example, as to Tunisia, the Committee noted:
The Committee welcomes the achievements in the field of better promotion and protection of the economic, social and cultural rights of women, as a result of which women are able to participate in the economic and political life of the nation, including by owning property, engaging in economic transactions, voting and being elected to public office. In addition, these achievements have contributed positively to family life by making polygamy illegal and has further promoted equality between men and women by removing all legal recognition of so-called "crimes of honour".
Government efforts to promote equal enjoyment of human rights and specific legal and policy changes are regularly acknowledged in the concluding observations. The Netherlands was cited positively for its efforts to promote equality in education, but the Committee noted continuing inequality in the workplace. The Dominican Republic's "measures ... to improve the situation of women", were noted with appreciation, "in particular measures allowing them to own property and to benefit from the medical insurance of their partners in case of de facto marriages and from land distribution in the framework of the agrarian reform", although "the Committee remains concerned that women do not fully enjoy their economic, social and cultural rights under the Covenant".
Recommendations for improvement in implementation of women's economic, social and cultural rights are greater in number. A table indicating instances in which the Committee has found a State party's implementation efforts wanting is attached as Annex A. The discussion in paragraphs 44-48 refers to the contents of that table. Further discussion in the Annex examines trends in the Committee's findings, specific examples under the substantive articles, and sites of discrimination not yet examined by the Committee.
The Committee has identified a number of sex-based discriminatory practices and attitudes for which States parties have responsibility. The most common finding has been the centrality of cultural and traditional practices, attitudes and beliefs to the persistence of sex discrimination.
Tradition and cultural factors provide the underpinnings of discriminatory laws and official policies and undermine non-discriminatory legislation and constitutional guarantees of equality. The failure of a State party to implement existing legal provisions, the inadequate use of mechanisms that prohibit discrimination, or the hesitancy of officials to intervene in criminal behaviour against women (the Russian Federation 20/05/1997, Togo 09/05/2001), frequently are identified as based on cultural factors. More specific examples of both statutory and customary discrimination are included below in the analysis of the Committee's comments regarding the substantive articles of the ICESCR.
The Committee has identified several cases of discrimination that result from inadequate or incomprehensive strategies to end discrimination (Italy 23/05/2000, United Kingdom of Great Britain and Northern Ireland 04/12/97). Another reason discrimination persists is the failure to collect (Finland 5/12/96, Venezuela 11/05/2001, Tunisia 14/05/99, Sweden 07/06/95, Sudan 01/09/2000, Jordan 01/09/2000, Egypt 23/05/2000), analyse (Netherlands 16/06/1998), or disaggregate by sex (Azerbaijan 22/12/97) data that might identify discrimination. Even when data are available, the Committee frequently expressed concern that women lack access to them (Sri Lanka 16/06/98). The most frequent data requested by the Committee are statistics regarding employment and domestic violence. The failure to address de facto discrimination against women was also commonly cited, as in the Concluding Observations to Bolivia, Honduras, Argentina, Switzerland, Zimbabwe, the United Kingdom of Great Britain and Northern Ireland, and Portugal.
Industrialized nations: no release from responsibility
Though the noted incidence of sex-based discrimination has been greater and often more severe in developing countries, the Committee has identified patterns of discrimination in industrialized nations as well. The most common problem the Committee has identified is discrimination against women in the workplace. The Committee expressed concern with a number of industrialized nations (see Table, Annex A) for their failure to ensure women equal remuneration and benefits for equal work, as well as their failure to remove obstacles from the promotion of women to prominent managerial and administrative positions, in both the public and the private sectors.
The persistence of domestic violence against women also has been consistently identified by the CESCR as a major problem in industrialized nations. Domestic violence is listed as a separate column in the Table to indicate the number of industrialized nations that have been asked to review, amend, develop, or implement policies and remedies that protect women both from domestic violence and from its detrimental effects on their physical and mental health. The Committee has recognized that domestic violence affects a woman's right to an adequate standard of living as well. In the case of Canada, the Committee recommended in 1998 that the Government review its housing policy, which discriminates against women seeking to escape domestic violence (Canada 10/12/1998).
TOWARD A COMPREHENSIVE EQUALITY FRAMEWORK
A General Comment on Equality can readily be developed based on the information already processed by the Committee in its prior country reviews. Much of the evidence of discrimination noted by the Committee in its concluding observations is the product of government failure or incapacity to acknowledge the sources of discrimination and to deal with the necessities of institutional change. Governments fail to respect women's economic, social and cultural rights by, for example, establishing programmes that exclude women from exercising their rights, such as title to housing. They fail to protect women, by bowing to perceived cultural imperatives rather than attempting to encourage change in the culture, as in failing to establish legal protection and physical safety nets for women subject to violence in their homes. They fail to fulfil obligations of equality, by failing to allocate adequate resources to provide women with services and opportunities to which they have a right under the Covenant.
In developing a General Comment on Equality, the Committee could refer to the provisions of the CEDAW Convention to illuminate the obstacles to equality and particularly to support an approach that alludes to discriminatory effect.
SUGGESTIONS FOR CONTENT OF A GENERAL COMMENT,
PER ARTICLES OF THE COVENANT
This paper does not purport to provide an exhaustive outline of all the potential matters to be covered in a General Comment on Equality. The matters cited in this section are representative of suggested approaches to particular issues.
With respect to all the rights included in the Covenant, the Convention on the Elimination of All Forms of Discrimination against Women and the General Recommendations of the CEDAW Committee will provide indications of many of the specific components of equal enjoyment of rights.
Culture, tradition, religion, and women's human rights. The Committee has recognized in a number of its concluding observations that women face cultural obstacles to their enjoyment of human rights and that religious law cannot be invoked as an excuse for deprivation of rights, despite the lack of explicit language to that effect in the Covenant. A General Comment on Equality might refer specifically, in this context, to CEDAW article 5, pertaining to the obligation to address culture, tradition, and stereotyping that prevent women's full enjoyment of their human rights.
National machineries and other mechanisms for promoting and monitoring equality. Many governments have established a national machinery, bureau, or ombud office with a mandate to monitor sex discrimination and promote equality. While some of these efforts are credible and have been effective, others are merely rhetorical. The General Comment might refer to some issues that should be addressed as to efficacy of national machineries: level of funding; status of the machinery within the government (Ministerial level? Inter-ministerial
committee? Department - of what?) Reports to whom? Staffing? Breadth of mandate? Does the office produce research and policy recommendations of its own? Responsibility of other ministries to coordinate with it? Who monitors and how is its performance monitored?
Right to work, working conditions, and the right to organize. A General Comment might include, with respect to these rights articulated in articles 6, 7, and 8, statements concerning:
Right to education. With respect to education, the Committee may draw on its own considerable experience and General Comment No. 13, as well as on the mandates in a number of international instruments and the provisions of CEDAW Convention article 10 and the concluding comments of the CEDAW Committee. Key matters that could be addressed include:
Adequate standard of living. Reference could be made to:
Right to Health. General Comment 14, adopted in 2000, notes many of the issues relating to women's right to health that could be underscored in the current General Comment:
Protection of marriage and family. With respect to all issues concerning protection and promotion of the family as the basic unit of society, the General Comment might note that the protection of the family may not be promoted at the expense of the human rights of individual family members. The General Comment could allude to CEDAW Convention articles 5, 9, 15, and 16, and CEDAW General Recommendation No. 21 (nationality, legal capacity, and marriage and family law), as well as International Covenant on Civil and Political Rights article 23 and Human Rights Committee General Comment No. 28. In all discussions of the family and women's roles and rights, it is important to bear in mind that the human rights articulated in all the treaties must be seen as complementary, consistently derived from the language of the Universal Declaration of Human Rights.
CONCLUSION
Women's equal enjoyment of economic, social and cultural rights must be based on a comprehensive vision of human rights based on full recognition of human capacity for making and acting upon choices. This approach must attend to substantive as well as formal equality, with attention to eliminating the structural disadvantages that always have impeded women's enjoyment of their rights.
A comprehensive approach to equality in enjoyment of rights requires attention to the institutional sites of sex discrimination - economic, social, political and cultural structures that impose limitations on women's choices and opportunities. It also requires gender analysis, an examination of the extent to which socially attributed sex roles and expectations inform assumptions about women and men that result in denial of rights. The Convention on the Elimination of All Forms of Discrimination against Women and its jurisprudence can be taken as a detailed indication of sites of discrimination and an elaboration of the standard of equality stated in the Covenant.
The Committee on Economic, Social and Cultural Rights historically has paid particular attention to women's enjoyment of the rights articulated in the Covenant, in both country reviews and General Comments. Adoption of a General Comment on Covenant article 3, will provide the Committee and the States parties with a framework for consistent and regular examination of these issues. It will indicate clearly that attention to equality must be a fundamental element of every effort to promote, protect and fulfil human rights.
