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Article 2: Obligations to take appropriate measures, not to discriminate; and the economic rights of non-nationals.

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, 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.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.


Article 2(1)

Article 2(1) is the key provision outlining the nature of the obligations imposed by the Covenant on States. (10) It provides for progressive realization of the Covenant's terms depending on the availability of resources in a particular country. It also imposes obligations with the same content for all States regardless of their level of development. (11) Each State party to the Covenant must take steps without delay to implement each of the substantive rights enumerated in Part III (see Articles 6-15). The Committee in General Comment No. 3 defined "taking steps" as deliberate, concrete and targeted action. This implies that each State must create a plan to implement its obligations under the Covenant, as well as strategies for monitoring and measuring State progress. (12)

As Article 2(1) makes clear, legislative measures are a highly desirable, even indispensable, component of State action. (13) Reporting parties should report on legislation or lack thereof concerning women with respect to economic, social, and cultural rights. Legislative measures do not exhaust State obligations, however, and reporting parties should also consider to what extent economic, social and cultural rights are enforceable in court or other tribunals. (14) The Committee has identified Articles 3, 7(a)(i), 8, 10(3), 13(2)(a), (3) and (4), as well as 15(3), as particularly capable of immediate application by judicial or other national organs.

Other core obligations applicable to all States, regardless of resources, include ensuring the availability of essential foodstuffs, basic shelter, housing and education. (15) State parties' reports should include assessment of whether women and men have equal access to these basic life necessities.

The Committee uses various indicators to measure State compliance with the obligation to "devote maximum available resources" to the realization of Covenant rights. It may look at a comparative analysis of the financial resources spent by the State in Covenant-related versus non-related expenditures. Noncompliance might be demonstrated, for example, by significant expenditures for military defense as opposed to health or education. The expenditure analysis may also include comparison with other States in similar circumstances. In addition to allocated funds, the Committee will consider human and technological resources dedicated to achieving Covenant rights.

Gender-specific studies and sex-disaggregated data will help States Parties and the Committee determine whether States have taken appropriate steps to achieve economic, social and cultural rights for women as well as men. For example, statistics regarding funds spent on education in general may not give an accurate picture where the usual division of labor in the household requires girls and women to devote most of their time to household chores to the exclusion of their studies. The same would be true where girls are routinely taken out of school at an early age to work or to marry, or are not given the same opportunities as males to pursue higher education. Merely citing the resources allocated to areas such as education, health, employment support programs such as child care and housing allowances, disability support, or other social services, generally is not enough. State programs' accessibility to women and girls must also be considered.

Article 2(2)

The language of Article 2(2) derives from Article 2 of the Universal Declaration of Human Rights and parallels Article 2(2) of the International Covenant on Civil and Political Rights. The principle of nondiscrimination is fundamental in international human rights and arguably rises to customary international law. States are obligated to implement human rights on a nondiscriminatory basis and to make every effort to eliminate discrimination in all aspects of public and private life.

The relationship between Article 2(2) and Article 3 with respect to the principle of equality between men and women in enjoyment of rights can seem confusing. The drafting body indicated clearly that the two articles reinforce each other and are not to be seen as redundant or mutually exclusive. The record indicates that while Article 2(2) was understood as the essential statement of the nondiscrimination obligation, some States believed that "the application of absolute equality of the economic rights of men and women might.... encourage too many women to work outside their homes ... in their capacity as wives and mothers women were needed in the home." (16) The drafters, apparently concluding that this attitude was precisely the problem, added Article 3 to indicate clearly that understanding and pursuit of equality was an obligation under the Covenant.

Elimination of discrimination is the core operational content of the equal enjoyment of rights. Full enjoyment of economic, social and cultural rights, and the enjoyment of each right enumerated in the Covenant, can be achieved only when discrimination in their implementation is eliminated.

The prohibition of discrimination on the basis of sex must be understood as a mandate to eliminate de facto as well as de jure discrimination. The definition of sex discrimination in the Convention on the Elimination of All Forms of Discrimination against Women underscores this principle:
 any distinction, exclusion or restriction made on the basis of sex
 which has the effect or purpose of impairing or nullifying the
 recognition, enjoyment or exercise by women, irrespective of their
 marital status, on a basis of equality of men and women, of human
 rights and fundamental freedoms in the political, economic, social,
 cultural, civil or any other field. (17)

This definition reiterates the reference to equality between men and women in ICESCR Article 3, as do the substantive articles of the CEDAW Convention. The discrimination principle clearly must be read and implemented in tandem with the equality principle in Article 3. (18)

The prohibition of discrimination by means of formal or de jure measures such as constitutional provisions, laws, subsidiary regulations, and written policies issued by governments are absolutely required. In addition, the Committee has consistently indicated that formal measures relating to economic, social and cultural rights are insufficient to meet States parties' obligations. States are responsible to address the structural issues that affect implementation and outcomes--the issues that result in de facto or substantive discrimination with respect to enjoyment of economic, social, and cultural rights.

De facto discrimination on the basis of sex may result from the differential treatment of women because of their biology, such as refusal to hire women because they could become pregnant, or from gender-based stereotypical assumptions, such as tracking women into low-level jobs on the assumption that they are less likely than men to have appropriate qualifications, dedication and skills.

Gender refers to cultural expectations and assumptions about the behavior, attitudes, personality traits, and physical and intellectual capacities of men and women, based solely on their identity as men or women. Gender-based assumptions and expectations generally result in discrimination and frequently place women at a disadvantage with respect to substantive enjoyment of rights.

Sex discrimination may be compounded by discrimination on the basis of other characteristics, such as age, race or ethnicity, religion, refugee or migrant status, disability, socio-economic class, marital status, or health status. The Committee on the Elimination of Racial Discrimination has drawn attention to the compounded disadvantages that discrimination on the basis of race and sex may have on women and girls in its General Recommendation on this issue. (10)

Implementation measures that may be examined include allocation of resources, establishment of properly resourced and trained administrative and delivery systems such as schools, courts, clinics, and state offices,, monitoring content and quality of training and education, and provision of adequate transportation and physical access to institutions. In addition, discriminatory cultural practices must be identified and every effort made to abolish them. (19)

States parties may adopt temporary special measures to accelerate the elimination of de facto discrimination. (20) Such measures should not be considered discriminatory in themselves as they are grounded in the State's obligation to eliminate disadvantage caused by deeply seated past and current discriminatory attitudes and practices. States should consider that such measures should remain in place until the results of discrimination are eliminated, and that this period could be for a considerable length of time. While temporary special measures are not mandatory, they should be considered as a fundamental and powerful instrument to eliminate discrimination. General Recommendation No. 25 of the Committee on the Elimination of Discrimination against Women (21) may be consulted in considering the issues relating to temporary special measures.

The elimination of discrimination with respect to promotion and protection of economic, social and cultural rights is mandatory, immediately applicable, and not subject to the principle of progressive realization that applies to other articles in the Covenant. (13) The mandatory language expresses the fundamental recognition of the full human capacity to exercise and claim rights without limitations based on sex, gender roles, or other biological, belief, or identity factors.

Article 2(3)

In general, the economic, social and cultural rights embodied in the Covenant apply to both nationals and non-nationals, i.e., non-citizens, of States. Article 2(3) provides a very limited exception, applicable only to developing countries and only in relation to economic rights. (22)

Questions to ask:

1. Has the State publicized its plans for full implementation of economic, social and cultural rights? Are the enumerated steps deliberate, concrete and targeted?

2. Does legislation aimed at realization of the rights recognized in the Covenant create any right of action by or on behalf of individuals or groups who feel that their rights are not being fully realized? Does the State provide adequate, accessible venues for claiming rights? Are women able to access those venues?

3. Does the Constitution include a guarantee of non-discrimination? If not, has effort been taken to amend the Constitution to include such a guarantee?

4. Has the State enacted legislative measures aimed at eliminating discrimination in enjoyment of economic, social and cultural rights? Do any existing laws create obstacles to the realization of women's economic, social and cultural rights?

5. Are there laws or policy statements that define discrimination against women? Do they include in their definition any act that causes, or results in, a difference of the treatment of women in comparison to men?

6. Does the legal definition of discrimination encompass discrimination against women by private institutions and individuals?

7. Do any policies or practices of government and other public institutions discriminate against women? Do any laws explicitly or implicitly discriminate against women?

8. Have any laws, regulations, or policies been promulgated that regulate the conduct of official institutions, public authorities, and public officials towards women? Do such laws extend to private persons, organizations, or enterprises?

9. Do cultural, religious, or other social expectations and practices result in discrimination against women with respect to Covenant rights?

10. Do sex disaggregated data show that women are excluded or treated differently from men in relation to the rights recognized in the Covenant? This examination should include data on budget allocations and other prescriptive measures as well as indicators of results such as comparative figures on health, education, employment etc.

11. Has the State attempted to address through legislation or other programs the modification of customs or traditional practices that result in discrimination against women or perpetuate such discrimination, including violence against women? What measures have been taken to change social and cultural patterns that lead to stereotyping or reinforcing the idea of the inferiority of women? What are the impediments or obstacles to eliminating these customs, traditions, or beliefs?

12. Has the State adopted any temporary special measures aimed at accelerating the elimination of de facto discrimination? Is there any law or policy relating to the legality or appropriateness of the State or private enterprise adopting such measures?

13. Do programs exist to educate students and the general public about women's human rights? Do such programs exist to raise awareness about violence against women as a problem? If so, to what extent do the media contribute to such programs?

(10) General Comment No. 3 para. 9.

(11) General Comment No. 13 para. 43.

(12) General Comment No. 11.

(13) See also General Comment No. 3 para. 3.

(14) General Comment No. 3 para. 5.

(15) General Comment No. 3 para. 10.

(16) Draft International Covenants on Human Rights: Report of the Third Committee, A/5365,(17 December 1962).

(17) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess. Supp. No. 46, U.N. Doc. A/34/36 (1980) (entered into force 3 Sept. 1981), Article 1.

(18) See Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, 20 H.R.Q 691-705 (1998) (Maastricht Guidelines). Guideline 12 specifically states that discrimination against women with respect to the rights recognized in the Covenant is understood in light of the standard of equality for women under CEDAW. The standard requires the elimination of all forms of discrimination against women including sex discrimination arising out of social, cultural and other structural disadvantages. This expands upon Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. adopted 8 Jan 1987, U.N.ESCOR, Commission on Human Rigths, 43d Session, Agenda Item 8, U.N. Doc. E/CN.4/1987/17/Annex. Reprinted in 9 Human Rights Quarterly 122 (1987) (Limburg Principles) para. 45.

(10) Committee on the Elimination of Racial Discrimination, General Recommendation 25, Gender Related Dimensions of Racial Discrimination (2000).

(19) CEDAW Art 5.

(20) Limburg Principles, par. 39.

(21) CEDAW General Recommendation No. 25 (2004).

(13) CESCR, General Comment No. 3, The Nature of States Parties Obligations (art. 2(1) (1990)

(22) Limburg Principle para. 44.
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Title Annotation:EQUALITY AND WOMEN'S ECONOMIC SOCIAL AND CULTURAL RIGHTS: A Guide to Implementation and Monitoring Under the International Covenant on Economic, Social and Cultural Rights
Publication:Equality and Women's Economic, Social and Cultural Rights
Date:Jan 1, 2004
Previous Article:Article 1: Right to self-determination.
Next Article:Article 3: Equality between men and women.

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