Proceedings of the Consultation on Women’s Economic Equality
7-10 December 2000
The Women’s Economic Equality Project (WEEP) was founded in 1998 in recognition of the need to ensure that women’s experiences and needs are considered in a meaningful way when economic, social and cultural rights are interpreted and implemented at both the international and domestic levels.
Women, of all ages, experience gender inequality within and outside the home. Women are denied access to basic healthcare, housing, education, and work. Even when they are employed, women's wages in industrialized countries are only 60-75% of wages of men. Women in most countries are disproportionately employed in non-standard work in the informal sector, working in exploitative conditions and without adequate protections. Women’s inequality is increasing, as evidenced by the increasing poverty of women, and the re-emergence of sweatshops and other forms of economic exploitation, including trafficking in women.
To confront gender inequality women around the world have formed networks and coalitions to educate the public and give greater exposure to women's problems. The international women's movement has been successful in gaining recognition of women's human rights. However, this success has not been without some costs. Until recently violations of human rights have been male-defined, and precedence has been given to civil and political rights concerns, such as torture and infringements of free speech. Because of this, to break into the human rights framework, women have been forced to highlight the part of their life experience that best fits the male paradigm of a human rights violation -- namely, their experience of violence. As a result, mirroring the pattern within the human rights movement overall, women’s civil and political rights have eclipsed their economic and social rights. This has occurred even though abuses of economic and social rights underly women’s growing inequality and they are integrally connected to every other violation of human rights that women experience. The need to emphasize women’s civil and political rights in order to break into a male-defined paradigm has lead to an impoverished understanding of women’s right to equality, a version of equality stripped of its economic and social rights dimensions. Although the economic and social rights movement has been successful in putting specific rights such as the right to food, housing, and health on the human rights agenda, this movement has failed to consider the particularity of women’s experience and consequently failed to incorporate a gender perspective into the interpretation and treatment of these rights.
With this in mind, the central goal of the Project is to make visible the connection between economic policy and women’s human rights, and to enlarge the idea of women’s equality to ensure it encompasses women’s economic and social rights. These goals are particularly relevant in light of the severe and negative impacts on women of globalization and neo-liberal political, economic and social agendas which encourages diminishing the size of governments, cutting social programs, privatizing public services, and deregulating markets. The human rights framework needs to offer an effective counter-discourse to these dominant theories - a counter-discourse, which can address women’s poverty and economic inequality as violations of women’s human rights.
Beyond developing new and more inclusive discourses, the Women’s Economic Equality Project is designed to assist women to develop new strategies. By bringing together women who work at different levels – domestic, national, and international – a variety of approaches can emerge for contending with practices and policies that perpetuate women’s social and economic subordination.
A key initiative for the Project is the preparation of a Draft General Comment on Women for the Committee on Economic, Social and Cultural Rights (CESCR). The Chair of the Committee, Virginia Dandan, has invited the Women’s Economic Equality Project to develop a Draft Comment for consideration. The CESCR is responsible for monitoring States parties’ compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR). Adopting a General Comment on Women affords an opportunity for the Committee to provide States that have ratified the ICESCR with an authoritative interpretation of what they are legally obliged to do to implement women’s economic and social rights.
The Project held its first Consultation in Cape Town South Africa between 7 – 10 December 2000. The three founders of the Project - Shelagh Day, Leilani Farha and Sarah Zaidi - invited two organizations from South Africa, The Women’s Legal Centre and The Economic and Social Rights Project at the Community Law Centre, to co-host this first Consultation. It was attended by 30 women participants engaged in economic and social rights work including domestic litigation, advancement of the right to food, housing, and development and grassroots anti-poverty organizing. The participants included academics, lawyers, Parliamentarians, trade unionists, and human rights activists.
The organizers were delighted to be able to host the Consultation on Women’s Economic Equality in South Africa, where economic and social rights are justiciable constitutional rights and where there is ongoing activism to advance women’s economic and social equality. The South African hosts noted that in the South African context, women’s human rights have to be understood to relate to poverty and disempowerment, the legacies of colonialism and apartheid. Women’s issues have been marginalized in domestic human rights discourse, but there is the potential for this to change within the South African constitutional context as the Constitutional court recently ruled that the government has a responsibility to the most disempowered groups. To date, however, equality litigation has been initiated in South Africa by the more privileged members of society: men and white women. The courts have yet to grapple with the problems of disempowered women, particularly poor black women.
As participants introduced themselves at the opening of the Consultation, the diversity and depth of experience, knowledge and insight of Consultation participants was apparent and was reflected throughout every other session of the Consultation.
The Consultation opened with a presentation on women’s equality that provided a theoretical framework for the Consultation. This was followed by an analysis of equality in the South African context. On the following day, presenters focused on the negative impact of the global implementation of neo-liberal economic policy on the economic and social conditions of women. Presenters also considered how the specific rights to social security, food, and adequate housing can take women’s experiences into account. It was evident from the presentations and the ensuing discussion that gender-neutral treatment of economic, social and cultural rights does not advance women’s equality. The final day of the Consultation was spent on discussion of concepts to be included in a General Comment on Women’s Economic, Social and Cultural Rights for the United Nations Committee on Economic, Social and Cultural Rights. The group also discussed strategies that can be employed to protect and fulfill women’s rights, such as feminist budget analysis, using the World Bank Inspection Panel, and grass roots organizing and action.
The papers that were prepared for the Consultation will be published in 2002 in a law journal. In addition, the General Comment on Women and the ICESCR is currently being drafted and several regional consultations will be held in 2001 – 2002 to review the draft. We expect that the Committee on Economic, Social and Cultural Rights will adopt the General Comment in late 2002.
Warm thanks to all those who participated in the Consultation, and to those who helped in the many facets of organizing it. Special thanks are due to our South African hosts, the Women’s Legal Centre, and the Social and Economic Rights Project at the Community Law Centre. The Women’s Economic Equality Project is also grateful to the Centre on Housing Rights and Evictions, the Centre for Economic and Social Rights, and the National Association of Women and the Law of Canada for their support. We appreciate the generous financial support received from the John D. and Catherine T. MacArthur Foundation, the Canadian International Development Agency, and the Canadian Autoworkers for the Women’s Economic Equality Project.
The Capetown Consultation was an important event as it raised the profile of women’s social and economic rights and what women’s right to equality means in the context of these rights. We hope you enjoy reading these proceedings as much as we have enjoyed working with such a diverse and impressive group of women throughout this Project.
Leilani Farha Sarah Zaidi Shelagh Day
Catherine Albertyn*
CALS
Private Bag 3
Wits 2050, South Africa
tel. +27 (11) 717-8609
fax. +27 (11) 403 2341
cathi@wn.apc.org
Subhashini Ali
15/241 Civil Lines
Kanpur, U.P., India 208001
tel. +91 (512) 304393
fax.
subhashini_ali@yahoo.com
Laurel Baldwin-Ragaven*
Dept. of Primary Health Care and Family Medicine, J Floor
Old Main Building - GSH
Observatory 7295, South Africa
tel. +27 (21) 406-611
fax. +27 (21) 448-6815
lbalwin@intekom.co.za
Gwen Brodsky
307 West 18th Avenue
Vancouver, B.C., Canada V5Y 2A8
tel. +1 (604) 874 9211
fax. +1 (604) 874 6661
brodsky@unixg.ubc.ca
Joy Butts
Kensington Welfare Rights Union
5428 Irving Street
Philadelphia, PA, 19139
tel. +1 (215) 748 6255
fax.
jybutts@aol.com
Shelagh Day
307 West 18th Avenue
Vancouver, B.C., Canada V5Y 2A8
tel. +1 (604) 872 0750
fax.
sheday@unixg.ubc.ca
Elize Delport
Commission on Gender Equality
10th Floor, Braamfontein Centre 23 Jorissen Street
Braamfontein, 2001, South Africa
tel. +27 (11) 403 7182
fax. 27 (11) 403 7188
illis@mweb.co.za
Leilani Farha
CERA
517 College Street, Suite 222
Toronto, ON, Canada M6G 4A2
tel. +1 (416) 944-0087 ext. 26 fax. +1 (416) 944 1803
farwise@attglobal.net or leilani@web.net
Patricia Feeney
Oxfam GB
274 Banbury Road
Oxford, United Kingdom OX2 7DZ
tel. +44 (1865) 312292
fax. +44 (1865) 312417
tfeeney@oxfam.org.uk
Vineeta Gupta
Insaaf International
Kishori Ram Hospital Building
Basant Vihar, Bathinda (Pb), India
tel. +91 (164) 215400
fax. +91 (164) 214500
vineetag@ch1.dot.net.in
Helena Hofbauer FUNDAR, Centro de Analisis e Investigacion
Popotla 96-5
Tizapan-San Angel 01090, Mexico, D.F.
tel. +52 5595-5592
fax. +52 5681-0855
helena@fundar.org.mx
Saras Jagwanth
University of Cape Town Law Faculty
Law Race and Gender Project
Private Bag, Rondesbosch, South Africa
tel. +27 (21) 650 2493
fax. +27 (21) 650 5607
jagwanth@law.uct.ac.za
Lucie Lamarche
Universite du Quebec a Montreal
Montreal C.P. 8888, SUCC. A
Montreal, Quebec H3C 3P8
tel. +1 (514) 987 3000 ext. 8325
fax. +1 (514) 987 4784
lamarche.lucie@uqam.ca
Sandy Liebenberg
Community Law Centre
Private Bag X17
Belville, 7535 Western Cape, South Africa
tel. +27 (21) 959-2950
fax. +27 (21) 959 2411
slieb@iafrica.com
Sarah Manthata
Dept. of Land Affairs, Pretoria
Private Bag X833, Pretoria, 0001, South Africa
tel. +27 (12) 312 9270
fax. +27 (12) 323 1541
stmanthata@sghq.pwv.gov.za
Jessie Mbwambo
P.O. Box 65466
Dar Es Salaam, Tanzania
tel. +255 (22) 215 1537
fax. +255 (22) 215 1537
jmbwambo@yahoo.com or jmbwambo@muchs.ac.tz
Shereen W. Mills
Centre for Applied Legal Studies
University of the Witwaterand, Johannesburg
Private Bag 3, Witt 2050, South Africa
tel. +27 (11) 717 8607
fax. 27 (11) 403 2341
mills@law.wits.ac.za
Pumla Mncayi
Director, Black Sash Advice Office
4th Floor, Bureleigh House, 24 Barrack St.
Cape Town, South Africa
tel. 27 (21) 461 5607
fax. 27 (21) 461 5918
sashcw@iafrica.com
Joy Ngwakwe
SERAC
P.O. Box 13616
Ilupeju _Lagos, Nigeria
tel. +234-1-496 8605
fax. 234 (1) 496-8606
serac@linkserve.com.ng
Lulama Nongogo
Women's Legal Centre
P.O. Box 5356
Cape Town, South Africa
tel. +27 (21) 424 0870
fax. +27 (21) 424 0875
lulama@wlce.co.za
Michelle O'Sullivan
Women's Legal Centre
P.O. Box 5356
Cape Town, South Africa 8000
tel. + (21) 424 0870
fax. + (21) 424 0875
michelle@wlce.co.za
Di Otto
Faculty of Law
University of Melbourne
Victoria, Australia 3010
tel. +61 (3) 9344 4063
fax. +61 (3) 9347 2392
d.otto@law.unimelb.edu.au
Karrisha Pillay
P.O. Box 34119
Rhodes Giet 7700, South Africa
tel. +27 (21) 683 0331
fax. +27 (21) 683 0331
karrish@mweb.co.za
Simone Pingel
FIAN International
P.O. Box 102243
D- 69012 Heidelberg, Germany
tel. +49 (6221) 830620
fax. +49 (6221) 830545
simone@fian.org
Julieta Rossi
CELS Rodriguez Pena 286
Piso 1 (1020)
Capital Federal, Argentina
tel. +54 (11)-4371-9968
fax.
abogados@cels.org.ar or julietarossi@hotmail.com
Sharita Samuel
Legal Resource Centre
71 Diakonia Centre, 20 St. Andrews Street
Durban, 4001, South Africa
tel. +27 (31) 301 7572
fax. +27 (31) 304 2823
sharita@lrc.org.za
Connie September
P.O. Box 15
Cape Town, South Africa
tel. +27 (21) 403 2934
fax. +27 (21) 403 2074
carolseptember@worldonline.co.za
Maha Abu-Dayyeh Shamas*
Women's Centre for Legal Aid and Counselling
P.O. Box 54262
Jerusalem, Via Israel 91516
tel. +972 (2) 2347438
fax. +972 (2) 2342172
wclac@netvision.net.il
Sarah Zaidi
Center for Economic and Social Rights
162 Montague St., 2nd Floor
Brooklyn, NY 11201, USA
tel. +1 (718)-237-9145
fax. +1 (718)-237-9147
szaidi@cesr.org
* UNABLE TO ATTEND
Thursday, December 7 | ||
| 6:30 – 9:00 | Participant Dinner: Meet in hotel lobby at 6:30 pm | |
Friday, December 8 | ||
| Session One: | What Is This Meeting About? Goals, Agenda, and Logistics | |
| 9:00-10:00 | ||
| Session Two: | Who are We? A Feminist Round | |
| 10:00-1:00 | Participants will introduce themselves and their work on women’s economic inequality and/or women’s economic, social and cultural rights/issues and, where relevant, the major obstacles and barriers in their work. | |
| 1:00-2:00 | Lunch Break: Lunch is served at Stonebreakers restaurant in the hotel | |
| Session Three Part 1: | What Does Equality for Women Mean? | |
| 2:00-3:15 | This session will explore different ideas about the meaning of women’s equality in literature and practice in the field of human rights and women’s rights. There will be a 15-minute presentation and participants will be encouraged to discuss understandings of equality in different countries/regions, and how ideas of equality are related to economic, social and cultural rights. | |
| 3:15-3:30 | Break | |
| Session Three, Part 2: | Equality in South Africa | |
| 3:30-5:00 | This session will focus on South Africa’s new equality rights legislation. | |
| Session Three Part 3: | What Have We Learned? | |
| 5:00-5:30 | Participants will be asked to consolidate some of the key principles of women’s equality in theory and practice as discussed throughout the day. | |
| 7:00 pm | Dinner: Meet in Lobby of hotel at 7:00 pm | |
Saturday, December 9 | ||
| Session Four Part 1: | Women’s Conditions of Social and Economic Inequality | |
| 9:30-10:45 | This session will focus on women’s conditions of social and economic inequality and the impact of macro economic policies on women in different contexts. Participants will be encouraged to discuss conditions of women as they relate to social and economic rights. | |
| 10:45-11:00 | Break | |
| Session Four, Part 1: Continues | ||
| 11:00-12:00 | ||
| 12:00-1:00 | Lunch Break: Lunch is served at Stonebreakers restaurant in the hotel | |
| Session Four, Part 2: | Transforming Social and Economic Rights | |
| 1:00-2:45 | The central question for this session is: how do women’s conditions and knowledge inform and change how we interpret and practice economic, social, and cultural rights? This session will include presentations on specific rights such as housing and food, for which background papers will be provided. Participants will be encouraged to discuss how rights should be interpreted to take women’s conditions into account. | |
| 2:45-3:00 | Break | |
| Session Five: | Working on the General Comment | |
| 3:00-5:00 | This session focuses on the draft General Comment on Women and the International Covenant on Economic, Social and Cultural Rights. Participants will be asked to provide comments and suggestions for improvement on the content of the draft General Comment. | |
| 6:00 | Dinner: Meet in Lobby of hotel at 6:00 pm | |
Sunday, December 10 | ||
| 7:30 | Breakfast On Table Mountain for those who so wish. Meet in hotel Lobby at 7:30 | |
| Session Six: | What Are The Barriers In Our Work and What | |
| 10:30-1:00 | Strategies Are We Using to Promote Women’s Economic Equality? | |
| After identifying some of the key barriers in the promotion and protection of women’s economic, social and cultural rights, this session will focus on a discussion of the solutions/strategies that participants have used to address these barriers and to promote/enforce women’s economic, social and cultural rights. | ||
| 1:00-2:00 | Lunch: Lunch is served at Stonebreakers restaurant in the hotel | |
| Session Seven: | Planning Next Steps | |
| 2:00-4:00 | This session will provide participants with an opportunity to discuss future activities and potential collaborations with a view to developing an action plan for 2001. | |
| 4:00 | Possible afternoon trip. | |
| 7:30 | Dinner: Meet in hotel Lobby at 7:30 p.m. | |
The Women's Economic Equality Project
The Women’s Economic Equality Project was founded in 1998 in recognition of the need to ensure that women’s experiences and needs are considered in a meaningful way in the implementation and adjudication of economic, social and cultural rights treaties and related domestic laws. The Consultation on Women’s Economic Equality opened with a warm welcome to all of the participants. The organizers expressed their pleasure at being able to host the Consultation in South Africa, where economic and social rights are justiciable constitutional rights and where there is ongoing activism to advance women’s economic and social equality.
Consultation participants each provided an overview of their work and how they have come to focus on women’s economic, social and cultural human rights.
(Please see Appendix)
Part 1
The Equality Rights Framework
- Gwen Brodsky and Shelagh Day (Canada)
The presenters stressed that this is an important moment for women to push forward a big, substantive idea of women’s equality. Despite the many commitments to women’s equality that have been made by governments at the domestic and international levels over the last fifty years, women are being pushed backwards by the impacts of structural adjustment programs and by the global neo-liberal agenda. This agenda promotes small government, the privatization of public services and institutions, deregulation, and trade liberalization. In this political climate, it is too easy for governments, international financial institutions, and corporations to embrace a version of equality that treats economic policy as though it is completely unrelated to the advancement of women. At stake is the ability of women’s human rights to be a vital, responsive, alternative discourse in a time of national and global restructuring. There is a danger that the human rights of women may slide into irrelevance unless they are understood by women, and interpreted by governments, courts, and corporate actors to have content that can address the threats to women’s advancement that neo-liberal economic policies currently pose.
Offering an example from Canada, the presenters noted that Canada’s social programs were restructured in a profound way in 1995. Federal legislation that set standards for social assistance in all jurisdictions was repealed, cost-sharing arrangements between federal and provincial governments for social assistance and key social services were abandoned, and the federal government cut the amount of its financial transfers to the provinces for health, post-secondary education, and social assistance. The result has been cuts in welfare rates and tightened eligibility rules, cuts to social services - including shelters for battered women and home care for people with disabilities, increased tuition fees and high debt loads for students, and a beleaguered health care system.
This restructuring has harmed women, who are the majority of the poor in Canada, the majority of those reliant on social assistance, and major users of social services. For Aboriginal women, women of colour, immigrant women, women with disabilities, single mothers, and elderly women, groups who have the highest rates of poverty, the impact is most severe.
It is clear that this restructuring has increased the economic and social vulnerability of women. It has meant cuts to the “good jobs” that women had in the care-giving sector – full-time jobs with union security and benefits; cuts to social services, such as child care, home care services, and counseling that many women count on to fill in essential gaps, to keep themselves and their families afloat; and cuts to social assistance rates, ensuring that the poorest women will be even poorer. In addition, this restructuring pushes more unpaid care-giving work back onto women, constraining their participation in paid work and making them more economically dependent.
In Canada, social programs and social services are a central means of assisting women to contend with conditions of social and economic inequality. What is most disturbing of all, in light of the tight connection between social programs and social services and women’s equality, is that the most drastic changes to Canada’s social programs of the last 40 years were presented as a purely budgetary matter, unrelated to the rights of women.
How can this happen? The commitments to equality for women that have been made over the last fifty years by many nations in domestic law and through international treaties must be understood to encompass the goal of redressing the social and economic inequality of women. This seems an incredibly obvious claim. Why is it even necessary to argue that the commitment to women’s equality includes a commitment to address the social and economic dimensions of women’s inequality? The answer to this, the presenters contended, lies, in part at least, in the persistence of formal equality thinking.
Formal equality is an old idea. Formal equality theory assumes that equality is achieved if the law treats likes alike. An absence of different treatment of men and women in the form of the law (gender neutrality), together with neutral application of the law, is thought to make men and women equal. Certainly, there are times when like treatment is exactly what women want. Fights for the vote and for the right to inherit property are fights by women to be treated the same as men at law. In circumstances where women and men are identically situated with respect to the opportunity or right sought, the model of formal equality works. However, when women and men are not identically situated, which is most of the time, the formal equality model is no help; in fact, it perpetuates discrimination, because it cannot address actual inequality in conditions.
Closer examination of formal equality reveals that it is not just one concept but rather a package of interlocking puzzle pieces, which together, function to both conceal and legitimize the oppression of marginalized groups in the society. The formal equality framework is characterized by:
acceptance of the highly mechanical Aristotelian formulation that things that are alike should be treated alike, while things that are unalike should be treated as unalike in proportion to their unalikeness;
a refusal to see that equality is actually a question of inequality, that is, of dominance and subordination between groups in the society;
a refusal to see that relations of inequality between groups are sustained by government inaction as well as by government action;
a propensity to place many forms of inequality in a realm, such as the family or the market, that is categorized as “private,” beyond the reach and responsibility of government;
a central commitment to a policy of blindness towards personal characteristics thought to be out of the control of the individual, such as genitalia and skin colour;
resistance to dealing with discrimination relating to a category of stigmatization concerning which there may be a significant element of choice, such as being lesbian, or which, like poverty, is not readily reduced to personal characteristics that are analogous to genitalia and skin colour;
an incapacity to deal with the adverse effects of facially neutral laws or policies;
an understanding of discrimination, not as systemic, but rather as consisting of explicit, differential treatment;
a tendency to individualize everything so that patterns of group-based oppression and subordination are rendered invisible;
a conception of government as always a threat to individual liberty, and not as a significant actor in creating the conditions necessary for human flourishing.
The neo-liberal restructuring agenda tends to reinforce formal equality thinking, because formal equality tends to idealize market freedom and demonize State intervention to ameliorate extreme disparities in wealth and social power. It supports social Darwinism by asserting that as long as laws and policies are facially neutral, everyone has the same opportunities, and those who flourish do so because of their fitness.
Fortunately, however, equality thinking has moved well beyond this narrow interpretation over the last 50 years. The meaning of equality has changed and expanded dramatically. It is widely understood now that women as a group are disadvantaged, and that equality measures must address the economic, social, legal and political dimensions of that group disadvantage. This newer and broader understanding is referred to as substantive equality. By contrast with formal equality, a substantive version of equality reflects the following insights:
equality is not a matter of superficial sameness and difference, but rather a matter of inequality, that is, of dominance, subordination, and material disparities between groups;
it is the effects of laws, policies and practices, not the absence or presence of facial neutrality, which determines whether they are discriminatory;
addressing inequality between groups requires government action;
the so-called “private” realms of the family and the marketplace cannot be set outside the boundaries of equality inquiry or obligation, because they are key sites of inequality;
neither liberty nor equality for individuals can be achieved unless equality is achieved for the groups of whom disadvantaged individuals are members;
it is essential to be conscious of patterns of advantage and disadvantage associated with group membership;
the test for inequality is not whether a law or policy treats an individual unfavourably in comparison to members of a group whom he is like; rather the test for inequality is whether a law or policy causes, keeps in place, or exacerbates disadvantage in real conditions, including economic conditions, for the members of an historically oppressed group.1
If formal equality is the accepted version of equality, the violation of women’s rights that is inherent in the restructuring of social programs is made invisible. On its face, restructuring is gender neutral; as a policy, it applies to men and women in the same way. There appears to be no problem. On the other hand, substantive equality, which is focused on effects, can recognize that the pre-existing disadvantages of women are exacerbated by cuts to social programs, and that this violates women’s human rights.
However, whether our starting point is women’s equality or women’s economic and social rights, there is a fundamental problem rooted in dominant thinking about rights that confronts any claim for redistributive justice. The fundamental problem is that “real rights” are seen to be negative checks on government, intended to assure a large sphere of individual freedom. The individual is conceptualized as universal (that is, male), autonomous, and unconstrained by group circumstances. The greatest threat to individual freedom is understood to be the heavy hand of government, as expressed through policing and laws that diminish personal liberties, including freedom of contract. State inaction and omissions are not the subject matter of such rights.
The civil and political rights contained in the International Covenant on Civil and Political Rights (ICCPR) are generally understood to fall within the negative rights paradigm, and therefore to enjoy the status of real, enforceable rights. Formal equality, as we have defined it, exemplifies this version of rights. A necessary corollary to this negative rights paradigm is that redistributive social and economic measures undertaken by governments are not seen as falling within the scope of rights. Governments may choose to initiate redistributive measures if they wish, and may make commitments to social and economic “rights”, but redistributive measures are not subject to rigorous judicial review, and social and economic rights commitments are not actually enforceable. The positive rights in the ICESCR are considered by many to be of the “not real rights” variety.
This disconnection within dominant rights discourse between rights on the one hand and social and economic policy on the other, of which the separation of the civil and political rights covenant from the social and economic rights covenant is just a reflection, threatens to terribly diminish the effectiveness of women’s rights guarantees if it prevails, no matter what our starting point is.
In practice, we face this dilemma. If a woman’s equality rights claim is seen as falling in the civil and political/negative rights category, and the claim involves the State in a redistributive role, only facially discriminatory laws are likely to be seen as constituting rights violations. Conversely, if a woman’s claim is seen as falling in the social and economic rights category, it is unlikely to be enforced. Nothing short of breaking away from this categorical approach to women’s claims of economic inequality will suffice.
A current Canadian example illustrates the point. In the 1980’s the Government of Quebec instituted a welfare regime under which people younger than 30 had their social assistance benefits reduced to one-third of the amount that the government had determined was necessary to meet basic needs for food, clothing, and shelter (that is, to about CDN170 dollars, or about USD110).
The affected group was poor young people, including poor young women. The Quebec regulation, which on its face, discriminated against all people under 30, was challenged by a woman named Louise Gosselin in a class action under the Canadian Charter of Rights and Freedoms and s. 45 of the Quebec Charter of Rights. The claim was defeated at two levels of court in the province of Quebec. At the time of this writing an appeal is pending in Canada’s highest court, the Supreme Court of Canada.
The Quebec Court of Appeal judgement exemplifies both faces of the “real rights”/social policy distinction that plagues both domestic and international human rights law. Because the challenged regulation was facially discriminatory on the basis of age, it fit easily within the formal equality paradigm, and, the majority of the Court held that it violated the Charter’s equality guarantee, although ultimately, as explained below, the Court found that the discrimination was justified.
Formal equality is notoriously hostile to legislation that makes explicit distinctions based on presumptively irrelevant grounds, of which age is generally considered to be one. However, formal equality does not regard as problematic the adverse effects on women of laws that are gender neutral on their face.
In keeping with a formal equality paradigm, not one member of the three-judge Court in Gosselin placed any significance on the fact that the affected group included poor women, or to put it differently, that Louise Gosselin – the plaintiff – was not just under 30; she was also poor, and a woman. The Court of Appeal was pre-occupied with the facial distinction between those under 30 and those over 30. This pre-occupation with the form of the legislation, and the concomitant failure to consider the real composition of the affected group and the effects of the law on that group, resulted in an extremely thin characterization of the harm occasioned by the regulation.
Had the judges chosen to look beyond the facial age-based distinction to see Louise Gosselin in her totality as a poor young woman, then they might have been struck by the fact that poverty is central to the inequality that women experience as a group, and they might also have been concerned about the fact that there is a well-recognized link between poverty, violence against women, and loss of sexual autonomy, as exemplified in the facts of this case. Louise Gosselin was followed home by a man from whom she was receiving food who then attempted to rape her. She had no stable shelter or physical security. At different times, she lived in a boarding house, and in shelters for homeless people, where she was sexually harassed. She prostituted herself in order to buy clothes so that she could apply for jobs. She attempted to commit suicide.
So when the claim is seen as a civil and political/negative rights claim, we get a formal equality treatment of the case, which does not look beyond the facial distinction in the legislation.
Then there is the “social policy” problem. Even though a majority of the Court of Appeal in Gosselin found there to have been an equality rights violation, ultimately relief to Louise Gosselin and the members of the group she represented was denied, because the justices recognized this case as raising social policy concerns. Yes, there was an equality rights violation, but it was, according to the majority, a “justified” violation of rights. A significant factor in the reasons provided in support of this conclusion was the characterization of the case as being about “social policy” and the “distribution of scarce resources” (and hence a matter not for the courts but for the politicians).
What Gosselin shows is how deeply lodged in dominant rights thinking is the view that “real rights” are civil and political rights, whereas social and economic rights are not really rights at all. It is readily apparent that the task of making rights discourse responsive to women’s social and economic inequality entails more than adding women’s perspective to social and economic rights. Even if the image of the social and economic rights claimant can be complicated by bringing women to the fore, and the social and economic rights framework enriched by making it deal with women, the problem of the presumed non-enforceability of these rights remains.
It is important to be ready to deal with the difficulty of achieving the status of enforceability for social and economic rights. Underlying the idea that social and economic rights should not be imposed on governments as positive obligations is the entrenched view that rights are negative checks on incursions by governments into the private lives of citizens and the private spheres of the family and the market. Making women’s social and economic inequality a legally redressible matter requires challenging the legitimacy of the purported distinction between civil and political rights on the one hand and social and economic rights on the other.
Central to the substantive equality project is the need to break down this division. Realizing women’s right to equality is contingent on the social and economic dimensions of that right not being excised and relegated to the status of unenforceable statements of government aspiration, leaving only formal equality as the residue of what equality means. To say this differently, a persuasive way to construct the claim for the feminization of social and economic rights and for the enforceability of those rights is by means of an equality-based argument. Such an argument has these elements:
women have a right to equality;
equality as an encompassing right has economic, social and cultural, as well as civil and political dimensions;
women’s equality rights must be informed by the whole panoply of international human rights guarantees;
women have a right to the equal benefit of all international human rights treaty commitments, including those in the ICESCR;
although women are entitled to the equal benefit of social and economic rights guarantees, unenforceable statements of government aspirations are not a substitute for the fully enforceable right to substantive equality of which women’s social and economic rights are an integral part.
Discussion
More than 50% of the UN membership States recognise social and economic rights to varying degrees and in various forms (eg. labour; social security, environment and education etc.). The reality is that in most constitutions that recognise these rights, the equality provision is very weak because mostly it has been interpreted as formal equality. It is important to move away from the perception that social and economic rights are not enforceable. It is also important to distinguish between a lack of enforceability and inefficient implementation of these rights.
…
An approach is needed that allows us to use both equality and social and economic rights. This should, however, not be done at the expense of the autonomy of social and economic rights. The State's delivery of all rights, but especially of social and economic rights, is depreciating at a great pace. What are the best methods available to counteract this?
…
The move to a discourse of disadvantage does not solve all of the redistributive issues unless the comparator group and the disadvantaged group are disaggregated. Our theories and strategies need to reflect the reality that women are not only different from men, but are also different from each other.
…
It is important to work both for substantive equality and for a feminized version of social and economic rights. If these projects are disconnected the result may be a hollowing out of the meaning of both women’s right to equality, and women’s social and economic rights.
…
When we assess what the right to housing means to women, we find that its realization requires a substantive understanding of women’s right to equality. By using the language of social and economic rights we do not lose the essence of substantive equality. Social and economic rights and equality rights are not disconnected. What we need is a synthesis of both.
An Equality Rights Case Study
- Sandy Liebenberg and Michelle O'Sullivan (South Africa)
The presenters discussed South Africa’s new equality rights legislation, legislation that is second only to the Constitution as a tool for redressing the apartheid legacy. They described the context in which the legislation will come into force.
The Gini-coefficient function, which is a measure of inequality, indicates that South Africa is second to Brazil. Addressing this inequality is important to the stability of the South African Constitutional Order. Poverty and race overlap. Poverty also has racialised gender dimensions, particularly for African women. The changing nature of work in the labour market has largely been to the detriment of women in general, but particularly of socio-economically disadvantaged women, the majority of whom are African. Women’s disproportionate obligations for the care of both children and elderly people hamper their participation in commercial and political activities. Racialised social security has recently been de-racialised (old age, disability, child support grants). However, problems remain. The rate of these grants is not indexed to the inflation rate; the administration is inefficient; there is general ignorance of the existence of these grants. All of these problems are detrimental for women.
The pace of customary law reforms, particularly with respect to inheritance, is hampered by the court’s deference to cultural and political concerns. African women’s disadvantage as a result of discriminatory rules of customary law persists despite a changing social context of migrant labour, urbanisation and the new values introduced by the democratic constitutional order. Customary law regulating the status of women, and their marital and inheritance rights, has resulted in women having unequal access to community power, land, housing, and other property.
The State’s response to this is the Recognition of Customary Marriages Act 120 of 1998, which came into effect on 15 November 2000. This legislation eradicates the status of women as legal minors subject to their husband’s guardianship. It recognises women’s equal capacity and full status to acquire assets and dispose of them, to enter into contract and litigate. There is criticism of the legislation, however, because it does little to remedy the position of women in existing customary marriages.
In the case of Mthembu v Letsela2 the Supreme Court of Appeal cited with approval the customary law of inheritance, which is based on a system of male primogeniture, excluding women from inheriting any real rights in immovable property. Currently, the South African Law Commission is engaging in reform in this regard. Of further concern is the status of women married in Muslim rites and those in non-traditional domestic partnerships whose relationships are not afforded any legal recognition. Gender-based inequalities are also compounded by the extreme levels of violence against women (rape and domestic violence) in South Africa. The consequences include the abuse of children as a weapon against women, positive HIV-status, and diminished self-esteem and confidence. All these forms of violence against women continue to be major barriers to the achievement of women’s social and economic equality in South Africa.
The AIDS epidemic is another critical factor undermining women’s socio-economic equality in South Africa. Women are disproportionately affected by the AIDS-pandemic due to their increased biological and social susceptibility. The pervasive discrimination against people who are HIV positive or who have AIDS often manifests in eviction from their homes, loss of employment, violence and even death.
The causes and consequences of women’s social and economic inequalities in South Africa are complex and multifaceted, and have resulted in ‘deep patterns of disadvantage’. What is required now is active State regulation of the private sector to prevent all forms of direct and indirect discrimination against women.
The Constitutional Court’s equality jurisprudence has made the law more responsive to the needs of disadvantaged women in South Africa. This has largely been as a result of the Court’s adoption of the substantive equality approach, which is defined by a focus on outcomes, and a recognition of the need for positive measures. Of particular concern, however, is the fact that the current jurisprudence on equality has largely been developed in the context of claims brought by relatively advantaged groups.
The Constitutional Court is not concerned with form but with the impact of discrimination. The Court’s commitment to substantive equality is consistently demonstrated by its emphasis on the need for any equality assessment to take into account South Africa’s particular history of apartheid as well as other systematic patterns of disadvantage, including sex and gender discrimination.
The Constitutional Court has also recognised that the open-endedness of the equality clause acknowledges the reality that the grounds of discrimination may intersect and overlap. This is of particular importance for black women who suffer unfair discrimination on more than one prohibited ground.
The Court has also recognized that equality permits affirmative action, and that a failure to take positive measures can be a violation of constitutional rights. South Africa’s new equality jurisprudence has been criticized by some. Albertyn and Goldblatt3 have argued that disadvantage should be the centre of the equality right, and not simply a factor to be weighed against others, including the impairment of dignity. The concept of dignity, they argue, returns us to a liberal and individualised conception of the right to equality. Such a conceptualisation skews the enquiry towards a concern with individual personality issues rather than an understanding of more material systemic issues and social relationships, which are the essence of the right.
In the Constitutional Court’s decision in Grootboom,4 a recent case about the right to housing, Justice Yacoob emphasized that all rights in the Bill of Rights are inter-related and mutually supporting. Consequently, affording socio-economic rights to all people enables them to enjoy the other rights enshrined in the Bill. He also emphasized the government’s obligation to the most vulnerable in society.
Analysis of the Equality Act
The Act focuses on the systemic social and economic inequalities generated by South Africa’s history. It recognizes the Constitution as the basis for progressively redressing these conditions. The Act is also a measure taken to further implement South Africa’s international obligations, in particular, the Convention on the Elimination of All Forms of Discrimination Against Women (1979), and the Convention on the Elimination of All Forms of Racial Discrimination (1966). The Act’s focus on all present and emerging disadvantage allows a range of groups to benefit from the Act both in relation to unfair discrimination and positive measures, as opposed to singling out specific groups for protection.
The Act binds the State and all persons (private individuals and organizations), which means that it can be used to bring equality claims against the State separately or together with the Constitution. It is far-reaching in its scope as it is not sectorally-based and limited to spheres such as education, health and housing. Its application extends to every arena of life in South Africa, including the private domain. It therefore seeks to shatter the public/private divide, often assumed and re-entrenched by most legislation.
The Act’s primacy and importance in South Africa’s statutory scheme is indicated by its supremacy in cases of conflict with other statutes. The Act does not apply to employees with employment-related discrimination cases that are dealt with in existing legislation. However, employees who are not covered by the existing anti-discrimination statutes in the employment sector will be afforded protection by this Act. This is particularly relevant for women as they are over-represented in the informal sector.
Beneficiaries of Equality
The difficulty of proving cases of indirect discrimination experienced by disadvantaged groups is often a result of problems with identifying a required comparator and the necessity of providing detailed statistical evidence to prove indirect discrimination. The comparator for women, particularly socially and economically disadvantaged black women, is problematic as a court may often look at an able bodied, white, male, middle class person as a comparator. The Constitutional Court’s recognition that the underlying purpose of the equality clause is to improve the position of disadvantaged groups, not to perpetuate the privileged position of relatively advantaged groups, will assist to address this concern.
Definition of (In) Equality
The legislation incorporates an impact-based analysis, which makes no provision for separate justification for indirect and direct discrimination. The definition of ‘discrimination’ and ‘equality’ and its focus are very broad and includes policy, practice, law, rule, condition or situation, which directly or indirectly imposes burdens, obligations or disadvantage on, or which withholds benefits, opportunity or advantage from any person on one or more of the prohibited grounds.
Disadvantage
The enquiry’s focus on disadvantage strongly suggests that the government has some positive obligations to ensure that the Act’s objectives are realized. Section 25 of the Equality Act sets out in some detail the duty of the State to promote equality and it also delineates the steps that the State should take to do so. Section 25(4) places an obligation on Ministers to implement, within available resources, measures aimed at the achievement of equality by eliminating any form of unfair discrimination and preparing and implementing equality plans in the prescribed manner. This formulation is consistent with the Constitution, which provides that socio-economic rights are subject to available resources, but does not so limit the provision of the right to equality. The State cannot, and must not, be allowed to dilute its obligations through the use of such provisions.
Determination of unfairness
Section 14 sets a test for unfairness, which focuses on 3 relevant factors:
i. the complainant and his/her position in society;
ii. the impact of the discrimination on the complainant;
iii. the objective justification for the discrimination, which focuses on the constraints and imperatives of the perpetrator of the discrimination.
The last factor has no constitutional basis and was mainly included because of the insistent demand of business interests that the costs of providing equality be “evenly” distributed.
Enforcement of the Act
The enforcement of the anti-discrimination provisions of the Act is carried out by the Equality courts. For the purpose of the Act, Equality Courts include all magistrates courts and every High Court. The Act adds value to the Constitution by creating remedies for its violation and mechanisms for its enforcement. The legislation will only be effective if violations are readily identifiable, remedies are available to redress the violations and mechanisms exist for the ready enforcement of the remedies. Priority with regard to access to these remedies and mechanisms is given to socially and economically disadvantaged women to assist them with the enforcement of their rights.
Discussion
Protective/anti-discriminatory laws have not necessarily penetrated the South African society. The biggest threat to these laws is the current valourisation of market principles.
…
The following questions are crucial: who is benefiting from this legislation? How are they benefiting? Can equality discourse and legislation deal with and respond to diverse and often competing, community interests?
…
The concept ‘disadvantage’ needs to be disaggregated: who are the disadvantaged? Class or socio-economic status needs to be re-centered in the inquiry regarding who is disadvantaged. This can be done without de-centering the important variable of race. This will require a much more sophisticated equality rights jurisprudence. Notwithstanding the fact that class/socio-economic status is not listed as a prohibited ground of discrimination, this suggestion is not a departure from the Constitutional Courts’ interpretation of the equality clause, since the Court has, in its development of the equality jurisprudence
emphasized that the focus is outcomes, and that requires a careful analysis of context and the individual’s position in society. Therefore an individual’s socio-economic status will have to be taken into account in order to assess whether the impact was detrimental.
…
The fact that the legislation does not have a closed list of grounds means that there is ample room for the recognition of class as a prohibited ground of discrimination.
…
Such a disaggregation of class, race, sex is necessary if the affirmative action policy provided for in the South African Employment Equity Act is to be realized to the benefit of the most vulnerable in society.
…
Concern was expressed about the Courts being asked to make distribution assessments, which they are not suited to do.
…
Unfortunately, affirmative action if often implemented in a way that is uncritical of the values underlying the workings of the market. So, as a policy, it attempts to improve the access of disadvantaged groups to the labour market; but it does not seek to transform normative imperatives of the workings of the market.
…
With respect to the role of the courts, in the current context, where States are abrogating their social responsibility to the economic welfare of their peoples, the court, though not the most suited organ of State, may increasingly be required to tell governments to live up to their human rights commitments, including their social and economic rights commitments.
1 The analysis of the elements of formal and substantive equality set out here was developed by Gwen Brodsky in The Transformation of Canadian Equality Rights Law, Doctoral dissertation, York University, May 1999 (unpublished) at 107-108 and 129-130.
2 Mthembu v Letsela, Case No. 71/98, May 2000
3 C. Albertyn and B. Goldblatt, “Facing the challenge of transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality” (1998) 14 SAJHR 248.
4 Case CCT 11/00. 4 October 2000 (unreported at the date of writing)
Part 1
Women’s Conditions of Social and Economic Inequality
The purpose of this session was to ground discussion of women’s social and economic rights in the context of current societal issues and concerns.
- Subhashini Ali (India)
The distinguishing feature of our age is that for the first time in human history, enough wealth has been produced globally to fulfill the needs of people. There is enough food grown to ensure that none go hungry and there are adequate resources to meet the health, educational and cultural needs of humanity. The paradox is that in spite of this, inequalities are growing apace, between countries, between the rich and the poor, and between men and women. This central paradox has to be addressed by activists mobilising for women’s access to basic human, economic, and social rights.
Two contradictory processes seem to be at work in the fast globalizing world. On the one hand, concerned citizens and organizations all over the world are interacting with various international agencies, many of them affiliated with the United Nations, to advocate for the elimination of rights violations nationally and internationally and are calling upon these agencies and national governments to intervene strongly in order to make this elimination a reality. On the other, financial institutions like the World Bank and IMF and trade regulatory bodies like the WTO are advocating and insisting that national governments follow policies that institutionalize the violation of these rights by increasing exploitation and inequality.
Financial conditionalities imposed by international financial institutions and policies of the WTO are limiting not only governments’ role but also their sovereign status by pressuring them to adopt policies designed for the primary purpose of opening markets for penetration by Transnational Corporations (TNCs) and unpredictable movements of financial capital. In effect, States are becoming more and more the guarantors of TNCs’ penetration and exploitation of their markets and people. Yet, national governments are still being expected to assume the responsibility to ensure economic, social and cultural justice to women and girl children at a time when their policies are informed more and more by the buzzwords of “privatization” and “budgetary cutbacks”.
It is important to realize that when we speak of women’s economic, social and cultural rights we are doing so at a time when policies of structural adjustment are responsible, not only for the feminization of poverty but also for increasing violence against women and girl children and inequalities in general. To even think of gender justice without radically altering the existing parameters of globalization is misplaced. The expansion of human and gender rights concepts and treaties and resolutions dealing with them will prove not only futile but also dangerous if we fail, at the same time, to challenge the new world order that is attacking them.
The impact of globalization in India can be understood through examination of a few marked trends in the agricultural sector.
There are currently 27 million women who are agricultural workers. Their percentage of total workers has increased from 31.18% to 36.15%. The rapid feminization of this sector is mainly due to the very low wages and the insecure nature of the work. Legislation providing for the payment of minimum wages for agricultural workers and their rights to pensions, maternity benefits, and provident fund, was introduced in the Indian Parliament in 1989 but, due to lack of political will, has been allowed to lapse. As a result low wages of 15 to 20 rupees per day (less than 50 cents US) continue to be paid to many workers in the sector. Even this small amount is difficult to claim in many areas where feudal forces are still deeply entrenched.
Globalization has brought about radical changes in the agricultural sector. First, the introduction of cash crops, which, given the instability of international markets, has caused distress for many of the farmers who have switched over from their traditional farming practices. The majority of these farmers are caught in debt-traps, whilst the sudden drop in crop prices has devastated the lives of workers. Women workers in general have been badly impacted. For example, shrimp cultivation in traditional rice-growing areas has adversely affected the number of workdays available to women agricultural workers in areas where their organizing efforts over the years had ensured better wages than in many other parts of the country.
Second, replacement of traditional seeds by seeds supplied by transnationals has led not only to increased costs but has increased crop vulnerability to pests and diseases and the use of ever more expensive fertilizers. In addition, rising rates of electricity because of privatization, unchecked increase in storage rates charged by cold storages, increased water rates, repeated cuts in the fertilizer subsidies have all added to farmers’ costs. It is notable that there has been a steady increase in the number of farmers’ suicides (including women and children of such families) in the parts of the country affected by these trends.
Third, increased mechanization and changing cropping patterns have reduced the work available to agricultural workers and resulted in increased migration of male workers in search of work. This has contributed to the very large percentage - at least 35 percent - of rural households becoming female-headed. It is these women, who often belong to socially oppressed groups, like the scheduled castes and tribes, who make up the bulk of the cheap labour.
The desperation of these poorest women is exploited to maximize profit. For example, in Andra Pradesh a survey conducted in five districts found that farmers preferred to employ women because they were perceived to be more industrious. Women worked without breaks and could be hired at 30 percent less wages than men. For planting one acre of land in one day, eight men were paid 300 rupees but were replaced by 10 women who were paid 200 rupees. This is a saving of 100 Rupees for the farmer, and an increase in productivity.
The impact of a global consumerist culture has also been harmful for Indian society, and Indian women, in particular.
The attempt at universal cultural unification combined with the fact that economic globalisation and unfettered market functioning has resulted in deep and pervasive inequalities. For example, the majoritarian coalition in political power is using various institutions under its control to distort history and to demonize the religious minorities by portraying them as invaders, marauders, rapists, destroyers of temples of Hindi religion and culture and as having extra-territorial loyalties. Socially and economically disadvantaged minorities in India serve as easy scapegoats, as Indians try to deal with the growing discontent generated by the policies of globalization.
Political parties use patriarchal rationales to undermine women’s demand for economic and social equality, and to foster regressive attitudes. For example, Hindu women, organized by the BJ Party, are encouraged to enact their role of defender of the faith and to find their emancipation by instigating attacks against women members of minority communities. Unfortunately, increased mobilization has not resulted in women being able to challenge the patriarchal beliefs underlying the BJ Party. Research by women activists shows that the refusal by young, modern women to conform to these emerging traditional roles has been used to justify the rise in dowry-deaths. Also women’s revealing clothes, and their claim for equal rights, have been used to justify rape and domestic violence.
The growth of fundamentalism within the majority and minority religious communities, that is accompanying the processes of globalization in India, is fraught with danger since it poses a great threat for women and their quest for autonomy, liberation, and equality.
- Pumla Mncayi (South Africa)
“Put women in their place.” This statement begs the question: who determines someone’s rightful place? And what criteria are used to make this determination? In the context of South Africa, the debate over whether there is respect for women’s right to equality is complicated by the urban/rural dichotomy, which has qualitative and quantitative implications.
The rural environment is different from the urban environment. The lives of rural women are strongly defined by culture. A Xhosa woman, for example, is expected to conform to traditional cultural norms. Because rural women are amongst the poorest women in the country, poverty forces them to move to urban areas hoping to find work that will assist them in keeping their families alive. Often their lack of education and skills and the absence of supportive infrastructure makes adjustment to the new environment difficult and also renders them vulnerable to exploitation.
A rural woman settling in an urban area is a stranger to the social mores of her new urban home. For example, how one acquires a house, work or food is different in this context, and women’s rights are often violated. Yet, rural women in urban environments are expected to adhere to their rural cultural roots.
Enforcing the South African Domestic Violence Act is more difficult because rigid patriarchal beliefs prevalent in rural areas tolerate wife beating. Intra-regional and inter-regional inequalities in South Africa have also meant that women in these communities act as “shock absorbers” as governmental social assistance decreases.
The fact that worsening poverty levels are now transcending the rural/urban dichotomy raises challenges, which must be addressed if we are to ensure that all women have access to, and benefit of, their social and economic rights. These new challenges include:
The existing regional divide, and the misconception prevalent in rural communities that urban life is sophisticated, advanced, and superior, and which underlies rural-urban migration, must be challenged by ensuring that rural communities are given priority when resources are allocated for education, health, and other services;
Community partnership is necessary to ensure that there is a supportive infrastructure for rural women resettling in urban areas; and
Poverty, illiteracy, and the process of globalization are directly responsible for sustaining the pervasive levels of disadvantage. The cumulative effect of these factors means that black women in rural communities continue to be denied the benefits of the new democratic dispensation.
Documenting Violations of Human Rights: Violence Against Women
- Dr. Jessie Mbwambo(Tanzania)
Violence against women remains the most pervasive of crimes perpetrated against women and in the literature has been linked to gender-based discrimination including limited access to education, resources and decision-making power in both the public and private domain. Violence is considered a private matter and therefore remains enclosed in a “culture of silence,” which further perpetuates the epidemic of violence and carries with it a host of physical and mental health consequences.
In Tanzania, colonial rules and customs co-existed with indigenous customary laws. Since independence, Tanzania has ratified some UN treaties, which, unfortunately, are not being properly implemented. However, Tanzania’s policies of equity in access to basic needs (health, education and water) and emphasis on equity and respect, including the importance of gender, have resulted in the outlawing of violence in public spaces. Generally, there is a consensus that violence against women in public spaces cannot be justified. But the same consensus is lacking when similar violence takes place in the private sphere.
The issue of how cultural customs are used to control women’s sexuality is proving more difficult to regulate, especially given the fact that it takes place in private (unregulated) space. The failure (and reluctance) of the State to sanction this type of violence implicates the State in the increasing violence that is often justified by cultural imperatives. In addition to traditional patriarchal systems, the worsening economic situation has also contributed to an increase in violence against women. The shift of government policies to more free market orientation and the elimination of subsidies has resulted in rural women losing their access to land and in urban women losing jobs in the formal sector. Women now seek employment in the informal sector working for menial pay. Moreover, the worsening economic situation has led to an increase in depressed and frustrated households and an increase in crime and drug use among men. All of these factors contribute to domestic violence against women.
Most recently the linkages between violence and HIV calls for urgent attention and action. A study of voluntary counseling facilities in Tanzania showed that there is an increase in reported cases of violence against young women who are HIV positive. Indeed, the study demonstrates the lived connection between women’s social and economic subordination, drastic health consequences, and violence.
Violence against women is sanctioned, justified, and maintained by:
economic policies that fail to improve women’s poor and worsening educational and financial position in society. Such policies constrain women’s decision-making and often force them to stay in abusive relationships;
community criticism of women who do not follow their expected gender roles and responsibilities;
cultural practices that further subordinate women and often place them in partnerships that put women at risk of HIV infection; and
the State’s failure to enforce international conventions and legal mechanisms to protect women.
Discussion
In addition to the traditional, patriarchal view of women, the processes of economic globalization such as privatization, free trade, lack of protection, and depression of wages are adversely affecting women’s substantive equality and human rights. Globalization, while
allowing for better communication has also resulted in the rise of ultra-conservative cultural custom and revanchist policies by groups, which have further subjugated women.
…
Neo-liberal policies have rolled back women’s social gains by steadily taking away the social safety net, support services and increased opportunities for employment in the State system
which had, in certain jurisdictions, not only succeeded in making women’s lives more secure, but also managed to decrease their economic dependency on individual men. All these struggles are happening at a time when governments are forced to commercialize land and promote monetary policies that further disempower women.
…
The two questions before us are: first, how do we close the gender gap in the context of neo-
liberal policies, given that 25 percent of poorest households are women? Second, how do we
address women’s rights within a pluralistic system where women’s visibility, agency and subjectivity does not exist in customary law and is often not enforced in common law? Is it possible to focus on developing customary laws in a way that advantages women, in the
same manner that the common law is being developed within the constitutional imperatives of equality, freedom, and dignity in South Africa?
…
Values are socially constructed. Conformity has, in some instances, offered women protection, while non-conformity has resulted in individuals being excluded from the community. We must also acknowledge and recognise that women do take active roles in maintaining these oppressive cultural customs. Women accept their roles as the protectors of cultural purity. Finally, women do police other women. There needs to be a process of education that empowers women as women and not women as protectors of patriarchy or social, racial, economic or cultural groupings.
…
Several crucial points have to be acknowledged in addressing the issue of culture when it is implicated in the subjugation of black women: First, the legal subjectivity (personhood) of black women, especially in South Africa, is not at all well developed in ‘western law” or in African customary law. This has important implications for any strategy taken to raise the profile of black women. Secondly, the change to a constitutional democracy, founded on women’s right to the full benefit and enjoyment of equality, challenges and threatens certain powerful vested interests. The politics and reality of cultural imperialism in South Africa has seen the courts erring on the side of cautious cultural relativist positions rather than taking an active role in transforming all South African ‘cultures’. This equivocation has, and will continue to be, to the disproportionate disadvantage of black women.
…
The rapid growth of the informal sector means that a large part of protective labour legislation and labour standards (at both the national and international levels) is out of date; it was designed for a world that is vanishing. What are the State’s obligations in the face of the rapid growth of the informal sector?
Part 2
Transforming Social and Economic Rights
Specific rights in the International Covenant on Economic, Social and Cultural Rights were the focus of this session: the right to food, the right to social security and the right to adequate housing. Presenters were concerned with demonstrating the ways in which the rights pertain to women’s equality or how these rights can be re-conceived so that they reflect and resonate with women’s experiences. Two presentations touched on the impact of globalization and of the privatization of public services on women’s enjoyment of economic, social and cultural rights.
- Simone Pingel (FIAN International)
The right to food, a constituent element of the right to an adequate standard of living, is found in the Universal Declaration for Human Rights and the International Covenant on Economic, Social and Cultural Rights. The right to food must be understood as the “right to feed oneself” in order to reflect the understanding that the right to food concerns more than just caloric and protein intake and includes access issues, such as access to economic and productive resources including land, fishing rights, employment and social security. The Committee on Economic, Social and Cultural Rights has undertaken a detailed discussion of the right to adequate food in its General Comment 12.
To understand what the right to feed oneself means for women, women’s social and economic position must be considered. In other words, women’s disadvantaged economic status must be highlighted. For example, it must be recalled that women are occupied by child rearing and domestic work, which is unremunerated; when employed, women are not afforded equal pay for work of equal value; and women experience multiple barriers in acquiring land and property. Without economic and productive resources, women cannot access food and are excluded from food production. Given women’s disadvantaged social and economic position within and outside the household, it is not surprising that, in situations of famine, most victims are women and girl children and that women suffer more than men in terms of malnutrition.
What is surprising, however, is the lack of gender specific data and information pertaining to women’s relationship to food, especially in light of women’s primary role in food production. While the role of women in access to and production of food is recognized in international political declarations, it is not taken seriously.
Because the right to food (or to feed oneself) is an internationally recognized human right, States are legally obliged to respect, protect and fulfill the right to food for all people. What does this mean for women? To respect the right to food, States must not take any measures to destroy existing access to food. Thus, the State is obliged to refrain from doing anything that impedes women’s access to water, land, credit, agricultural advisory services and other resources related to the realization of the right to food. To protect the right to food, States are obliged to intervene to prevent a third party - for example, private individuals, trans-national corporations - from depriving individuals of their right to adequate food. The State must therefore ensure that women are protected against all forms of discrimination, regardless of who commits the discrimination (State or non-State actors), and must be ensured equal access and rights to the resources necessary for the realization of the right to adequate food. To fulfill the right to food, States have a positive obligation, to the maximum of available resources, to ensure the long-term ability of all persons to enjoy the right to adequate food. Depending on the country situation, this might oblige States to engage in land re-distribution policies and programmes, which guarantee women access to and control over land and resources.
While women are affected by all violations of the obligations to respect, protect and fulfill the right to adequate food, it is violations of the obligations to protect and fulfill that are most felt by women. This is because women’s right to food is often hampered as a result of the enforcement of custom and traditions by non-State actors and in many cases in order for women to have access to adequate food, States are required to take positive steps.
The right to adequate food for women, must, of course, be understood and viewed in light of globalization which reduces States’ ability to govern its national policies in a manner conducive to the implementation of economic, social and cultural rights. The process of globalization can contribute to a concentration of productive resources in the hands of a few powerful actors leading to economic growth at one end of the spectrum and the increasing impoverishment of women at the other. Land and water, formerly natural resources that make agriculture possible, increasingly become profitable commodities for large-scale export-oriented agribusiness, which severely affects the right of everyone, particularly women, to feed themselves.
States are increasingly declaring that “globalization” is impeding the implementation of national laws, policies and programmes necessary for the realization of economic, social and cultural rights. While in some cases this may be a legitimate explanation for the lack of implementation of these rights, women should be vigilant to ensure that “globalization” is not used to obscure an abdication of legal obligations and responsibilities not actually attributable to “globalization”.
- Lucie Lamarche (Canada)
It is important to focus on the definition of social security and to determine ways in which the right to social security can benefit women.
According to the International Labour Organization (ILO), social security, from a legal perspective, is almost always linked to formal sector, waged employment and as such, traditionally it has not engaged with issues of poverty. Historically, within the formal sector, women have been disadvantaged with respect to pensions, maternity and sickness benefits, and, more generally, with regard to the level of benefits. Working women often have interrupted or part-time patterns of employment, due in large part to their social and economic roles within families and households. As such, they experience lower wages and thus fewer and lower benefits. Social security has been critiqued for at least two reasons:
(1) it is said to be a male paradigm; and (2) it is commonly provided by States in an inefficient manner.
While these critiques can be said to be correct, we should be cautious not to “throw the baby out with the bath water”. In other words, although social security systems may not be working well for women, we should not ignore social security systems when promoting women’s economic, social, and cultural rights, for a number of reasons. First, according to the 1999 ILO World Labour Report, many women do work in the formal sector and are thus eligible and entitled to social security. Second, in some systems, industrial protection is separated from non-industrial protection in a two-tiered system. Third, while social security may not work particularly well in general, and thus may not work for women, if it were to become more efficient it would also become more efficient for women beneficiaries. Lastly, there are some interesting extensions of social security that can benefit women.
It is also important to note the impact of privatization on social security. Privatization in the field of social security means many things and includes a wide scope of possible models. In many countries, social security regimes, such as pensions and health benefits, are being privatized, turned over to the market. As a result, workers are forced to contribute to individualized accounts on which their benefits are eventually solely based. This type of privatization clearly disadvantages women who, as a result of gendered roles within and outside the household, cannot contribute equally to such accounts and are thus deprived of equal social security. Privatized social security that deprives women of their entitlements is untenable under human rights law, but there may be some ways in which privatized social security is acceptable.
In conclusion:
1. There still is a need to work inside social security schemes for those who are eligible Social security can be improved and it can benefit women in the formal sector if discrimination within these schemes is addressed. Recommendations for improvement should focus on both State delivery AND State regulation.
2. There is a growing informal market. The informal sector cannot be formalized. It either will not work or is too costly, especially for women. The question we need to answer is: What are State obligations in this process? Perhaps we should move away from social security and towards a social welfare system. One way to start re-engaging social security is by resisting the distinction between work-related and non-work related entitlements.
3. We can examine more carefully ideas about who should and can deliver social security. The State should always have to deliver basic in-kind health care, as well as in-cash basic income. The national context will determine what other issues should be delivered in this way.
4. We must deal with trade-related social security. Social security is being given into the market, where it can be delivered by for-profit or not-for-profit organizations. The positive aspect of this is that it can provide opportunities for community-based, not-for-profit organizations to control delivery.
- Leilani Farha (Canada)
The right to adequate housing, like the right to adequate food, is a constituent element of the right to an adequate standard of living as found in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration on Human Rights. The right to adequate housing is also understood as an independent, free-standing right in international law. Despite the relevance of the right to adequate housing to women, women’s housing needs and experiences have not been included or reflected in international articulations of the content of this right. Most United Nations documents profess “gender neutrality” but a closer examination reveals a decontextualized and male-specific conception of housing rights. This decontextualization obscures what women’s equality rights mean in the context of the right to housing.
The gender neutrality of the right to housing is readily apparent in General Comment 4 on the right to adequate housing adopted by the Committee on Economic, Social and Cultural Rights in 1994. General Comment 4 is the leading legal interpretation of the right to adequate housing and yet it fails to adequately consider and reflect women’s housing needs and experiences in anything more than a cursory and superficial manner. Though General Comment 4 suggests that the male-specific language used in the articulation of the right in the ICESCR must be understood in its historical context and cannot mean that the right to housing does not extend to women (or at least female-headed households), the Committee fails to reflect and incorporate this into its articulation of other aspects of the content of the right.
This is best reflected when examining the seven elements required in order for housing to be deemed “adequate” under international human rights law. Three examples were provided:
Security of tenure: The definition provided by the CESCR fails to acknowledge that security of tenure is of particular importance to women as a group and that women’s security of tenure is threatened in gendered ways. For example, domestic violence against women and women’s lack of inheritance rights in many countries are two phenomena - particular to women - that jeopardize women’s security of tenure.
Affordability: General Comment 4 recognizes that housing costs should be commensurate with income levels. It does not, however, recognize or indicate that women are the poorest group in society and that, therefore, States parties should develop strategies that take into account women's poverty when ensuring housing affordability. And while the CESCR recognizes that tenants should be protected from unreasonable rent levels or increases, they fail to consider the fact that male landlords can exploit women by demanding sexual favours if women want to avoid rent increases and evictions.
Accessibility: General Comment 4 highlights that particularly disadvantaged groups should be ensured some degree of priority in the housing sphere. The list of disadvantaged groups includes: elderly, children, physically disabled, and HIV positive individuals, among others. The list, however, does not include women. It also fails to acknowledge that access is a particularly important issue for women who suffer domestic violence and all women who are landless and/or unable to own land and property, for whatever reason.
The gender-neutrality of General Comment 4 obscures what it is States must address and undertake to ensure equality between women and men within the context of women’s rights to housing.
Too little attention has been paid to the issue of women and forced evictions. Forced eviction is the involuntary removal of a person from their homes or lands. There is a danger in particularizing women in a fashion that treats women as a subset and moves them away from the centre of our analysis and understanding. For example, when women are positioned as a subset of a larger group in the forced eviction context, we might ask: what is the particular impact on women of forced eviction? However, when women are at the centre of our analysis, it is apparent that forced evictions target women. In armed conflict, for example, the targeting of the home for forced evictions is not arbitrary. The home is recognized as a vulnerable site because that is where aggressors will find women.
Discussion
On the issue of the definition of social security, South African participants noted that in their country an extended definition of social security exists. In turn, they queried whether it is possible to use such extended definitions in the international context. For example, could social security include social insurance or social protection? It was noted that social security, social assistance and social insurance are different legal concepts, while social protection is not a legal concept, though perhaps it should be. As it stands, social protection has been used in World Bank literature pertaining to its anti-poverty programmes. Social protection has also been understood as one of a number of techniques that can be used to implement the right to social security but it is not currently understood as a component of the right to social security itself. Regardless, male standards or conceptions of basic income or basic security tend to be the starting point.
…
Participants were concerned by the notion that the privatization of social security is not necessarily detrimental to women. They suggested that privatization makes it easier for governments to abdicate their human rights obligations and responsibilities. A participant from Mexico explained that in her country there is a mixed private-public social security system. As it stands, a large portion of the federal budget is allocated to social security, but of these monies, most are spent to support private social security programmes. Another large portion of the social security budget item goes to State social security including pensions, and the smallest portion of the budget is allocated to provide social security to the portion of the population not covered by the first two schemes, approximately 50% of the population. And so, while the budget line for social security has increased, the State has not
increased its own delivery of social security, rather it has merely increased its support of private social security. It appears that as a result, women continue to be disadvantaged with respect to social security provisions in Mexico.
…
It was noted that while privatization absolves Governments of direct responsibility for delivering social security, Governments must continue to regulate and sustain the social security system. Also, privatization can come in many forms, such as community initiatives and micro networks, where people come together and take social security into their own hands, which is not necessarily as negative as private corporations taking over social security.
…
A participant from Argentina explained that in her country privatization of social security is a result of conditions imposed by the IMF. The result of this has not been positive. Private companies running the social security system speculate using these public funds, which leaves people at risk, with no State protection of social security.
...
Regarding the right to food, a participant reported the dismantling of an important food programme. India used to have a system of subsidizing food grains targeted to the poorest groups. The scheme was dismantled because of corruption, and as a result there is no public food distribution system currently in place.
…
Participants commented that the practice of forced evictions exposes the interrelationship between the right to housing and the right to food. For example, in Ghana, transnational mining companies are part of the economic landscape. The Government of Ghana provides enormous concessions to the companies, giving these companies lands that were used formerly by Ghanaians for subsistence farming and living. As a result, tens of thousands of people have been forcibly evicted from their homes and lands. If communities are resettled at all they are put in barren settlements that do not offer culturally specific, or indeed any basic, living standards. Most often, no land for agriculture or subsistence gardening is available. Money is given to the men, who then leave, while women remain in these resettled areas with no way of growing food and no access to services. This phenomenon takes place in other countries as well and is usually the result of legislation adopted to offer incentives to companies to bring their business in to the country.
…
A number of participants commented on the relevance of housing and forced evictions in women’s lives. In Nigeria and elsewhere in Africa, a participant noted that women are
evicted from their homes upon the death of a spouse if they do not have children, particularly male children, who can inherit the home? It is also very difficult for single women to access rental housing as landlords discriminate against single women or women not “attached” to men.
…
Several participants agreed that women must be kept at the centre of an analysis or understanding of the right to housing and that this is necessary if we are going to understand the right in a way that is useful for women.
…
In order for women to have the equal benefit of economic, social and cultural rights, a deeper analysis of each right is required from women’s perspective. To establish such a meaning will entail an ownership of and a claiming of these rights as women’s rights. Ultimately, each of these rights must be made capable of responding to women’s experiences of inequality.
Participants formed five groups to discuss the following articles and issues with the General Comment (GC) on Women in mind. The groups were as follows:
Equality
Social Security
Adequate Standards of Living
Health
Macro-economics and Economic and Social Rights
The groups were asked to consider the following two questions:
How would you express this right/issue in a way that includes women’s experiences/ perspectives?
What issues/linkages/problems have come up in the course of thinking about this right?
The group worked with articles 2 and 3 of the Covenant, which State:
Article 2
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.
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.
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 3
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.
The GC should be focused on substantive equality. The GC needs to reflect a substantive equality approach throughout, providing examples of a substantive equality approach to different rights, and to the obligations of States parties.
The group agreed that a substantive equality approach will tend to erase the distinction between non-discrimination, equality and affirmative action, since a substantive equality approach is not focused on forms of treatment, but on results. It mandates whatever measures are necessary to produce equality in actual conditions.
The GC could adopt the definition of discrimination that is in CEDAW. However, the CEDAW definition of discrimination could be updated and improved upon: for example, instead of saying “any ground,” it should read “one or more ground” including listed grounds such as sex, race, etc., in order to deal with the particular and intersecting forms of discrimination experienced by black women, or women with disabilities.
The group discussed the meaning of “progressive realisation” and agreed that this concept could not be interpreted to mean that men can enjoy their social and economic rights sooner or more fully than women. The concept of progressive realization cannot be used to entrench or perpetuate discrimination against women.
Article 9
The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labor should be prohibited and punishable by law.
The group decided that articles 9 and 10 should be read together. The group also noted that the definition of social security varies from country to country depending on the level of development. Further, the implementation of social security also differs from a technical perspective because of the range of methods and schemes, which have been employed.
In the General Comment, there needs to be an umbrella paragraph outlining the multi-faceted experiences of a woman’s life, that is, how a woman can move between roles and sectors. The GC should address the potential for real discrimination that groups of women in income-generating activities are facing, including discrimination in traditional social security schemes. Also the GC needs to make reference to the “typical” woman worker - even though this is a complicated notion since it also includes informal women workers and self-employed women. Finally, the GC should include a statement that in all circumstances, women without any income need to be provided with a decent income. “Basic income” was considered not an appropriate phrase for political and linguistic reasons (“basic” may not mean the same in all languages).
In terms of State duties, there has to be recognition that there are many different ways to secure the right to a decent income. But there is a duty to ensure that cash benefits circulate in the national context - not in kind, or as ad hoc measures. The State has a duty to ensure this is done, and is done efficiently, and women must equally benefit from what is available. Women’s income security should not depend on men, and women should not be required to mimic male patterns of work in order to receive the same income security as men.
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programs, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
The group noted that the components of an adequate standard of living should be understood to include clean water and fuel, and all basic necessities that women spend many hours searching for and transporting. They stressed that women are not a homogenous group and that needs and interventions for securing these rights differ for rural and urban and northern and southern women. While a regional perspective is crucial, even within the same region experiences are different and diverse. This amplifies the definition of “standard of living.” Issues of land resettlement and agrarian reform are important.
A GC on Women needs to stress that income security is an entitlement - for two reasons. First, income, in the current economic structure, determines an adequate standard of living. Secondly, the rapidly decreasing rates in welfare benefits, and the general attack on social welfare, undermine economic security for disadvantaged populations (largely women with children) even further. Thus, protection mechanisms for women are essential.
The GC must address situations such as disasters and conflicts in which social and economic rights become even more difficult for women to secure. In such situations, women are affected by allocation of food and other resources, and these allocations are often used to further disadvantage women.
There is a general problem for women when it comes to securing these rights. If a woman finds herself in debt or disaster, patriarchal practices obstruct access to these rights. The GC should state that these rights should not be obstructed in any circumstances – by economic, cultural, or legal barriers.
Article 12
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
The improvement of all aspects of environmental and industrial hygiene;
The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
The creation of conditions, which would assure to all medical service and medical attention in the event of sickness.
Article 12 in the Covenant on Economic Social and Cultural Rights broadly encompasses physical and mental health. The Article is gender-neutral, and refers to women’s health only indirectly, that is, as it is related to the health of infants, and not to women’s own well-being. It also fails to examine the right to health in the context of life cycle changes. For the GC, the group focused on access to health care for women and the following question: what are the options for women in the health care system? Women are seen to interact with the health care system for reproductive reasons and largely for obstetrical reasons. In many instances, disadvantaged women do not have even that option.
The health needs of women vary based on age, race, marital status, socio-economic status and exposure to risk in the environment, to mention a few. Thus health interventions have to be designed to respond to these differences. Yet, this is not always acknowledged by health care providers, except in the case of reproductive health, where negative distinctions tend to be made based on marital status.
The group chose to examine mental health as an example, since it is often neglected when access to health is discussed. In terms of mental health, there are women’s disorders that need immediate medical intervention that may have cultural gendered implications, for example, schizophrenia being understood as witchcraft. There are others, such as depression experienced by women that need to be treated differently and understood within the context of social and economic conditions. However, women’s basic access to mental health services is scarce in most societies because their complaints are not always acknowledged or taken seriously. In most instances, women’s access to health services is limited since they do not control finances. In addition, because of current cost recovery systems that have been set up in many developing countries, women’s access to health care has been limited further.
The GC should contextualize the general conditions of women’s health and when discussing health should emphasize that varying needs require different forms of intervention. Health care systems, and the women and men working in them, need to be sensitive to women.
Macro-economic policies affect all rights. The group asked the question: what aspects of international macro-economic systems impact upon the realization of women’s social or economic rights?
The “macro-economic framework” needs to be unpacked. International financial institutions have not been adequately held accountable for the impact on women of their directives. Yet, it is not only international financial institutions, which are responsible for affecting women’s social and economic rights. The powerlessness of States to deliver social and economic rights to people, and to women in particular is unacceptable. The group raised the question: to what extent is there some margin for re-prioritization in States, and which States have no margins left due to poverty and harsh imposition of international guidelines?
The GC should refer to the private sector and the obligations of multinational corporations regarding social and economic rights. The obligation of State parties to protect the rights can be interpreted to require them to protect women from the negative impact of private sector activities on social and economic conditions. Trade and investment agreements have to be transparent in order to be monitored.
The international macro-economic framework impacts negatively on rights in these ways:
Through the rapid growth of the informal work sector, and the increase of non-standard work in the formal labor market; both phenomenon impact directly on women, by diminishing access to the protection of labour standards and to social security benefits;
Through international trade mechanisms which protect the interests of transnational corporations at the expense of workers and citizens;
Through pro-business laws which are part of international packages promoted by international financial institutions as part of structural adjustment programmes; these affect subsidies and encourage extraction industries, such as mining, to exploit resources.
Strategies used by the Legal Resources Centre
- Sharita Samuel (South Africa)
The Legal Resources Centre (LRC) is a non-governmental organization that uses law as an instrument of justice; more particularly LRC uses the South African constitutional framework. The LRC’s work is premised on the belief that the constitution should do what it promises: it should contribute to social and economic equality in South Africa, and as such address the biggest problem in South Africa today which is poverty. The LRC’s work can be classified according to the following categories:
Increasing the allocation of resources. The LRC undertakes research and litigation that will actually reduce poverty rather than allowing one poor community to benefit at the expense of another poor community. This is complicated in practice, but what is needed is a net increase of resources, not a shifting of resources from one community to another.
Changing Power Relations: The LRC undertakes work aimed at changing power relations. This will only come about if effective legal representation is available to poor communities and if their participation in decision-making processes is ensured.
Increasing the Skills of Poor People: The LRC also focuses its efforts on work, which will increase or improve the skills of poor people. This has medium to long-term benefits. Lack of education is a real problem in South Africa, especially for poor girls. Legal work that effects positive change to the education system will have a real impact on poverty.
Courts need to be encouraged to engage the question of poverty and the myth of non-justiciability of economic and social rights claims must be dispelled. However, even if courts are open to social and economic rights claims, they are uncomfortable making decisions that have major implications for budget allocation. Which cases are most strategic to encourage the re-allocation of resources to the benefit of poor communities? The South African courts are unlikely to flinch at the consequences of enforcing equality. Because poverty is disproportionately a condition of black people and women, poverty issues are also equality issues. At the same time, it is important to continue pressing for the enactment of legislation that gives specific form and content to social and economic rights, as this makes it easier to enforce them. This also raises the question of developing effective remedies.
Under apartheid, most litigation was targeted at stopping the government from doing something, such as forced removals. This depended on particular interpretations of the law to ensure relief. This is still an important aspect of LRC’s work, but public interest lawyers are seeking something more ambitious than interdicts - we are trying to compel the government to do something. There is a gap between policy and implementation in South Africa. The Constitution’s good intentions are mirrored in many laws and policies, but these have not been effectively implemented yet.
In particular, the government is either inattentive, incompetent, or intransigent. An inattentive government is the easiest to address. A court order can point out the government’s oversight and compel the government to act. Incompetence and intransigence, however, usually require ongoing legal action against the agency concerned. This normally requires obtaining a contempt of court order against an individual or department where the legislation is not being upheld. This is resource-intensive, but can be effective.
- Julieta Rossi (Argentina)
CELS (Centro de Estudios Legales y Sociales) in Argentina undertook a case to address the suspension of a food relief programme, “Pro-Huerto”, designed to provide nutritional support to communities living in poverty. The programme was eliminated as a result of a structural adjustment policy implemented by the World Bank through a loan agreement entered into with Argentina. CELS was approached for assistance by a group of women who suffered because of the suspension of the programme. Because of the disparate impact of structural adjustment policies on women, CELS believes it is important to address the discriminatory effects arising out of such policies and to file appropriate claims to protect and promote women’s rights. After much discussion as to the most effective avenue to pursue to address the women’s situation (court or the inspection panel), CELS decided to respond by taking the case to the World Bank Inspection Panel.
The World Bank Inspection Panel, established in 1993, is an independent mechanism created by the World Bank to hear complaints by those who believe they have been adversely affected by World Bank projects in a manner not in keeping with World Bank guidelines and policies. The Panel is comprised of three members. Two or more people can request that the Panel investigates a claim if they can show that they believe the Bank has violated its own guidelines, that they have been affected by those violations and their efforts to have their concerns addressed have not been satisfied.
Once those affected present the claim, the Panel analyzes whether it satisfies the admissibility requirements. If it does, the Panel registers the claim and transmits it to the Bank’s President who then refers it to the Administrative Management. The Administrative Management recommends whether an investigation should go forward. If an investigation is ordered it is undertaken by one or more members of the Panel. They can review the Bank’s files, visit the site and speak with affected parties.
CELS, representing the community affected by the suspension of the Pro-Huerto programme, passed through all of the stages of the Inspection Panel process. An investigation was undertaken and a final report and recommendations were released. It was concluded that both the Bank and the Argentine government had violated loan conditions. As a result of the Inspection Panel’s investigation, the government of Argentina re-instated the funding required to sustain the Pro-Huerto programme.
Despite this success, CELS faced a dilemma in this case. CELS was concerned that while a victory would result in the enforcement of economic and social rights, on the other hand it would be done in the context of a structural adjustment programme and World Bank mechanisms, and would legitimate both the economic policy and the institution.
- Helena Hofbauer (Mexico)
Budgets are one of the main policy instruments of any government. Despite this, budgets are often inaccessible to the public. They are very technical, but they encompass the government’s priorities very clearly. It is important to give the budget back to the people. It is equally important to relate the budget back to specific government policies, demographics, and statistical information and international commitments in order to give meaning to the series of numbers that appear in a budget. Budget analysis is a thorough and detailed review of the budget. It involves the collection, study and interpretation of budget data, as well as the correlation of budget data with other relevant information. Budget analysis seeks to give ordinary people the means to engage with the government in a crucial decision-making process that affects their lives directly.
Macro-economic policies are not gender-neutral. Budget as a macro-economic instrument within each country reproduces the discrimination women experience in every area of life. Budgets are formulated in a way that blatantly ignores the different roles undertaken by different members of society, especially gendered roles. Sex disaggregated information is essential if we are to see and understand the inequalities women experience in social and economic realms. However, most countries do not have disaggregated information.
A large campaign has been launched in Mexico to address the absence of detailed information regarding budgetary resources allocated to women. This project is a conscious effort to draw the government into practicing gender mainstreaming within budgets. It is not just the allocation of more money to women that is being encouraged it is also more transparency on behalf of government as to precisely where and how much money is being allocated to women. For example, in 1999 the project managed to secure a commitment from government that 50% of poverty relief funds would go to women. While this appeared to be a victory, the lack of disaggregated information meant it was impossible to monitor whether in fact this 50% target was being met. In response, FUNDAR, Centro de Analisis e Investigacion, has used different methodological frameworks to try to measure whether there was any change.
There are 4 main features, which underlie the Mexican government’s poverty relief programme (a programme which is derived from international financial organizations). These features are major structural impediments to women receiving 50% of the poverty reduction funds. The features are:
Focalization: This means that anti-poverty programmes should focus on the poorest in society. This would imply a focus on women living in poverty, as women constitute the p