EDUCATION WORK
ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

FACT SHEETS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

FACT SHEET No. 2

The Montréal Principles on women’s economic, social and cultural rights1


The Montréal Principles were adopted by a group of experts who met December 7 – 10, 2002, in Montréal. The outcome of an experts’ working group, their purpose is to influence the understanding of the equality standard in the work of the Committee of Experts for the Convention on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Discrimination against women in the realization and enjoyment of their economic, social and cultural rights is very often the result of prejudices and practices deeply rooted in the public and private spheres. “Gender” or “sex” relations have been constructed so as to privilege men and deprive women of their rights. “Gender inequality” and “sex inequality” refer to the disadvantaged position of women around the world.

Economic, social and cultural rights are of crucial importance for women because they are disproportionately affected by poverty and by social and cultural marginalization. The regional and global instruments which guarantee economic, social and cultural rights also contain guarantees of non-discrimination and gender equality. Articles 3 and 2(2) of the International Covenant on Economic, Social and Cultural Rights are expressions of such guarantees.

However, women suffer disproportionately from the lower priority that States give to achieving economic, social and cultural rights. The harm this does to women is aggravated in situations of conflict. Indeed, the Security Council of the United Nations has recognized that peace and women’s equality are inextricably linked.
To ensure women’s full enjoyment of economic, social and cultural rights, they must be implemented in a way that takes into account the context in which women live. The economic and social devaluation of the work - paid and unpaid – traditionally done by women reinforces the stagnation of women in a position of economic and social inequality. These factors diminish women’s earning capacity and autonomy, and contribute to high poverty rates for women worldwide. Women’s inequality in the enjoyment of economic, social and cultural rights contributes to their economic dependence and the denial of their personal autonomy. Women’s inequality limits their possibility of participating in public life, including economic and social decision-making.
Economic, social and cultural rights and civil and political rights are indivisible and an integral part of women’s lives. Inequality in the exercise and enjoyment of economic, social and cultural rights weakens women’s ability to enjoy their civil and political rights. Equality in the implementation of civil and political rights is undermined if women are not guaranteed equal exercise and enjoyment of economic, social and cultural rights. In the current climate of neo-liberalism and economic globalization, it is especially important to promote and guarantee women’s right to equal enjoyment of their economic, social and cultural rights.

The implementation of the rights set out in Articles 3 and 2(2) of the International Covenant on Economic Social and Cultural Rights, and similar guarantees in other human rights instruments, requires an interpretation that takes into account the subordination, stereotyping and structural disadvantages experienced by women.

Discrimination against women must be analysed in light of a systemic understanding of Articles 3 and 2(2) of the International Covenant on Economic, Social and Human Rights. In other words, these articles must be analysed as part of a set of national and international standards and protections in order to see whether there is genuine national protection against discrimination against women.

Structural obstacles to women’s exercise and enjoyment of their economic, social and cultural rights in conditions of equality include but are not limited to:
I) social standards, customs and traditions that legitimize women’s inequality;
II) failure to take account of women’s disadvantage or their distinct experiences when designing laws or measures to implement economic, social and cultural rights;
III) restrictions on access to legal or administrative bodies where remedies for rights violations may be sought;
IV) under-representation of women in decision-making processes;
V) women’s unequal status in family relations;
VI) failure to recognize the value and importance of women’s unpaid work and the lack of incentives aimed at promoting a fair distribution of family and community responsibilities between men and women;
VII) lack of attention to economic, social and cultural rights in situations of conflict;
VIII) the gender-differentiated effects of economic globalization.

These impediments must be addressed and eliminated to ensure that measures adopted to implement women’s economic, social and cultural rights will lead to the equal enjoyment of these rights by women, without discrimination.

The International Covenant on Economic, Social and Cultural Rights, more specifically Article 3, protects the right of all to dignity. A parallel can be drawn between Article 3 and the United Nations Charter 1(3), 13 (1)(b), 55 (c) and 76, as well as the Universal Declaration of Human Rights (Article 2). It is also reflected in the Convention on the Rights of the Child, 2 (1).

Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights addresses gender-based discrimination. Article 3 stipulates that the implementation of measures guaranteeing equal rights for all must be accompanied by tangible measures enabling such rights to be exercised. Although entrenched in the United Nations Charter, these rights must be reaffirmed, because there are still many impediments to their application.

The principle of gender equality underpinning the Covenant is also highlighted by the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The preamble to the Convention stipulates that any discrimination against women violates the equality of rights, injures women’s dignity and constitutes an obstacle to women’s participation in the political, social, economic and cultural life of their country. Article 3 of the Convention on the Elimination of All Forms of Discrimination Against Women obliges States to take all appropriate measures to guarantee these rights, which means adopting various national standards or regulations to ensure respect for and protection of these rights.

The heart of Article 3 in the ICESCR stipulates that the enjoyment of the rights set out in the Covenant must be based on the equality of men and women. The enjoyment of these rights implies the possibility of expressing, exercising, claiming and improving them.

Equal enjoyment of rights by men and women must be real. The enjoyment of rights and related non-discrimination measures must be real and not just formalities. They must be embedded in constitutional provisions, laws, regulations and all policies adopted by States. Although formal measures are absolutely necessary, alone they are not enough, and must be accompanied by tangible measures for removing all impediments to the enjoyment of equal rights.

Full enjoyment of economic, social and cultural rights cannot be achieved without the elimination of all discrimination affecting their recognition

The nature of States’ legal obligations under the ICESCR is stipulated in Article 3 of the Covenant and discussed in detail in the General Comment No. 3 of the Committee on Economic, Social and Cultural Rights. In this respect, the first and immediate obligation of States is to ensure the equality of men and women in the enjoyment of their economic, social and cultural rights. According to the Committee, the principle of equality, which has to be applied immediately, must be distinguished from the concept of the full enjoyment of economic, social and cultural rights by men and women, which can only be achieved progressively. It is important to emphasize that no measure that is retrogressive with respect to Article 3 is allowed, and the same applies for all the other rights set out in the Covenant.

In short, States have not only an obligation to ensure the full enjoyment of economic, social and cultural rights, but also the obligation to protect these rights and carry out their responsibilities under the Covenant.

States may violate Article 3 by direct action or failure to act, or by omission through their institutions or agencies.

States may violate the obligation to respect as a result of actions, laws, policies, administrative measures or programmes whose direct or indirect effect would be to deny the equality of men and women in the enjoyment of their rights.

States violate the obligation to protect when they omit or fail to adopt laws prohibiting all discrimination and preventing any third party from interfering directly or indirectly with the enjoyment of these rights, or omit or fail to adopt administrative measures and programmes designed especially to prevent all discrimination against women.

States violate their obligation to fulfil their duties when they do not provide mechanisms aimed at erasing the wrongs caused to people who experienced discrimination.

States violate their obligation to promote when they omit or fail to ensure equal representation of men and women in the public service and equal representation in the area of development.

States violate their obligation to facilitate when they omit or fail to speed up the realization in practice of equality between men and women by means of special temporary measures.

National implementation

Existing legislation, strategies and policies must be examined to ensure that they do not directly or indirectly include any discriminatory aspects and do not favour one sex at the expense of the other.

The best ways of implementing the article of the Covenant will vary from State to State. Each State has some leeway in choosing its approach to meeting its obligations. Among other things, States are required to incorporate appropriate strategies for ensuring equal rights for men and women in their national action plans.

These strategies must be based on a systematic identification of policies, programmes and activities relevant to the specific situation and context of each State. These strategies must also pay special attention to eliminating all discrimination in the enjoyment of economic, social and cultural rights.

The formulation and implementation of these strategies for ensuring the right protected under Article 3 of the Covenant must respect the principles of non-discrimination and equal representation of men and women.

The State is responsible for violations of women’s economic, social and cultural rights that result from its actions, omissions or failure to regulate the conduct of non-State players. States have the obligation to adopt concrete measures to remedy such violations appropriately and immediately. Retrogression in the implementation of women’s economic and social rights constitutes a violation. Concretely, a State commits such a violation when: (i) it interprets women’s economic, social and cultural rights restrictively; (ii) it does not recognize that these rights are justiciable; (iii) it does not facilitate access to courts of law for women and their organizations; (iv) it does not honour the immediate nature of its obligation to implement women’s economic, social and cultural rights in a way that is equal and non-discriminatory; (v) it fails to allocate appropriate resources to the institutions charged with promoting and enforcing these rights.

States must adopt laws providing for effective legal recourse and mechanisms aimed at enforcing women’s economic, social and cultural rights. They must see to the creation and maintenance of institutions and mechanisms that support the development of strategies, plans and policies specifically designed to promote and protect women’s economic, social and cultural rights, without discrimination. To do so, States must provide the institutions whose mandate it is to protect and monitor women’s economic, social and cultural rights with adequate financial, material and physical resources so as to make their work effective and accessible.

Furthermore, States must eliminate the obstacles that impede the access of women or specific groups of women to the institutions and mechanisms responsible for implementing their economic, social and cultural rights. They must also see to adopting procedures for the monitoring and review of the legislation and mechanisms responsible for promoting and protecting women’s economic, social and cultural rights.

No General Comment or General Observation on the right of women to the fully equal enjoyment of their rights under the ICESCR or the CEDAW has yet been adopted. The Montréal Principles are therefore part of the monitoring and awareness work aimed at averting the trivialization of women’s right to equality in international law.

1. English and French versions available at: www.cedim.uqam.ca. The Spanish version is available at: www.cladem.org.