again op-icescr

Linked to our presentation on Magdalena Sepúlveda – Chile & Colombia of February 3, 2006.

Also linked to our presentation on Association for Women’s Rights in Development of February 3, 2006.

This interview was already published in AWID by jduddy (at) awid org, July 11, 2003.

Interview of Magdalena Sepúlveda (2003) about ‘The Nature of Obligations under the International Covenant on Economic, Social and Cultural Rights’, by Renu Mandhane.

Question: What are the specific obligations of states to ensure non-discrimination under the Convention on Economic, Social and Cultural Rights?

We in the feminist movement often use the language of discrimination to fight for women’s equality and empowerment. We frame various issues, especially those that stem from different legal rules and standards for women as compared to men, in terms of discrimination against women. Part of the popularity of the discrimination-rubric stems from the existence of international human rights treaties that prohibit discrimination against women. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopts a discrimination framework in relation to women’s human rights. Similarly, the International Convention on Economic and Social Rights (ICESCR) prohibits discrimination on the basis of sex.

A recent book by Magdalena Sepúlveda, entitled The Nature of Obligations under the International Covenant on Economic, Social and Cultural Rights, provides a detailed discussion of the specific legal requirements under the Covenant. Of particular interest is her discussion of the state obligation to prevent discrimination. According to Article 2(2) of the ICESCR, signatories undertake to guarantee that the rights found in the Covenant will be exercised without discrimination as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3 states that parties to the Covenant must undertake to ensure the equal rights of men and women to the enjoyment of the rights found in the ICESCR. It should be noted that the international documents refer to sex, presumably meaning biological sex, rather than the more-inclusive term ‘gender’.

The discussion of discrimination in Sepúlveda’s book is useful if only to bring into focus the distinction between political definitions of discrimination as opposed to legal ones. The chapter on discrimination is a much-needed reminder that the legal definition of discrimination found in the ICESCR is very specific and, in many ways, narrower than the common understanding of discrimination in feminist circles. This does not mean that we must abandon our more political understanding of discrimination, but only that we must be aware of the potential disconnect between political and legal language.

Sepúlveda’s focus is on the various and specific obligations of states that sign the ICESCR, rather than on what would constitute a violation of the Covenant. This is a useful angle since it is arguable that the feminist movement should be more proactive in pressuring our governments to uphold their obligations under the ICESCR, rather than only focusing on violations of the Covenant after the fact. Since women would gain a lot from the vigilant protection of economic and social rights, thinking about the specific obligations under the ICESCR is a useful exercise. While Sepúlveda’s book is short on gender analysis, this might be a realm where feminists can contribute to the conversation.

In arriving at a list of specific obligations, Sepúlveda focuses on the work of the UN Committee on Economic and Social Rights and its interpretation of the ICESCR. The author notes that the fact that there is no individual complaint mechanism within the ICESCR and little domestic litigation relating to economic and social rights makes it difficult to determine specific obligations outside of reference to the Committee’s interpretations. Some of Sepúlveda’s conclusions are summarized here.

First, there is no independent right in the ICESCR to live free from discrimination. Rather, the CESCR prohibits discrimination in relation to the substantive rights protected within the Covenant. Examples of rights found in the ICESCR include the right to work, the right to health, the right to education, and the right to take part in cultural life. If the discrimination at issue does not broadly relate to a right protected in the ICESCR, it will not be prohibited under Article 2(2). Still, while there is no right to property in the ICESCR, the Committee has noted that property laws that discriminate against women violate the ICESCR because they relate to the right to food and the right to work. This suggests that the Committee has taken a broad understanding of the types of discrimination prohibited under the treaty.

Oftentimes, the ICESCR does not oblige the state to provide specific services. However, if it chooses to provide them, it is bound by law to cater to all without discrimination. For example, if the state decides to provide free primary education, it cannot limit such education to boys.

Interestingly, there is no definition of discrimination within the ICESCR. However, the Committee has followed the definition found in the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD). In particular, discrimination includes all distinctions, exclusions, restrictions or preferences that have the effect or purpose of nullifying the recognition, enjoyment or exercise by all persons, on an equal footing, of all the rights contained in the Covenant. Notably, it does not matter whether the discrimination is intended or not, so long as there is a discriminatory effect. Moreover, the Committee has suggested that the ICESCR obligates states to ensure that private persons or bodies not to practice discrimination.

However, under the ICESCR, not all distinctions based on sex are prohibited. For example, distinctions that are compatible with the principle of equality and which are proportional are justified. For example, maternity-leave benefits or affirmative action programs are unlikely to be considered discrimination under the ICESCR by the Committee.

The obligations related to non-discrimination under Articles 2(2) and 3 of the ICESCR are of immediate effect and do not depend of the availability of resources. This is important since it suggests that a government cannot justify only providing for the economic and social rights of men or boys on
the basis of financial constraints. Once a government has decided to provide a service, it must do so without discrimination.

Article 3 imposes additional obligations in relation to discrimination against women. In particular, the Committee has suggested the following:

- States must adopt legislation to prohibit all forms of sex-based discrimination, especially in employment and in relation to sex-based violence.

- Existing legislation must be reviewed to ensure that it does not discriminate against women. States must repeal legislative provisions with discriminatory effect on the equal rights of men and women.

- State must take steps towards the eradication of any custom or traditional practices that constitute de facto discrimination against women, including penalization of such behaviour.

Feminists must hold their governments accountable for upholding international obligations in relation to non-discrimination. The first step is to understand the nature and extent of such obligations. Sepúlveda’s book is a good introduction to such an exercise, albeit a highly technical and legalistic one. The feminist movement should also consider articulating the specific obligations of governments in relation not only to the ICESCR, but other international human rights treaties.

The Nature of Obligations under the International Covenant on Economic, Social and Cultural Rights, by Magdalena Sepúlveda is published by Intersentia (ISBN 90-5095-260-7) (2003).

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