7 The UDHR, ICESCR & ICCPR – the beginning of human rights

Severyna Magill

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Learning aims

The aim of this chapter is to place the position of women’s rights in the larger corpus of the UN Bill of Rights. The protection and promotion of women’s interests, as we understand today, was absent in the early development of International Human Rights Law. Human Rights law has evolved over the years with the help of treaty bodies and judicial decisions to increasingly adopt adequate measures for addressing women specific issues. By the end of this module, you will be able to correctly identify which documents form the United Nations’ Bill of Rights and how they have evolved to be more representative and accommodative of women’s rights today. You would also understand the difference in the way women’s rights were articulated in the early stages of human rights development and when the modern movement started.

Introduction

The UN Charter (1945) established the United Nations as an international organization. The UN which was formed as a response to the horrors of World War II intended to create global peace and security and cooperation and to “promote the encouragement of human rights and fundamental freedoms.” Prior to the UN Charter in 1945 women as a category under international law were not viewed as independent actors but as extensions/dependents and sometimes even as the property of men. The law at the time adopted a very protectionist or paternalistic stance in terms of women, making ‘protection of women’ and ‘familial honour’ the basis of women’s rights. Laws that treated women differently to men and more akin to children were not new; the 1844 Factories Act in the UK introduced for the first time a national limit on the number of hours women could work. Men did not have any limits on the number of hours they worked. Whilst it was argued that the intention of the law was to ensure women were able to spend time with their children, in reality, it prevented women from being able to work the same hours as men and therefore to receive the same economic rewards. It also reinforced child rearing responsibilities as only the work of women. These articulations denied women the status of equals and prevented their agency from being legally recognized.

 

To formally pronounce the UN’s commitment to human rights in 1948 the Universal Declaration of Human Rights (UDHR) was pronounced. The UDHR was the first international document to recognize the principle that all individuals are entitled to human rights and fundamental freedoms, without any distinction, including “sex.” As this document was a declaration, it could not establish any legal obligations upon states. The UN Commission for Human Rights, therefore, set about developing a treaty version of the Declaration, and in 1966 the International Covenant on Civil & Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) were both opened for signature. The ICCPR and the ICESCR continued to uphold the principle that men and women should both equally enjoy the rights enshrined in the Covenants. The UDHR, ICCPR and the ICESCR are collectively referred to as the UN Bill of Rights.

Key ICCPR Articles for women:

  • Art. 2(1):freedom from discrimination on the basis of sex.
  • Art. 3:equal rights of men and women regarding access to and enjoyment of civil and political rights.
  • Art. 6(5):prohibition of the death penalty for pregnant women.
  • Art. 23:equality between men and women during marriage including rights to enter into marriage freely and equal rights at its dissolution.
  • Art. 25: participate equally in public affairs, voting etc.
  • Art. 26:equality between men and women before the law.

Key ICECSCR Articles for women:

  • Art. 2(2):freedom from discrimination on the basis of sex.
  • Art. 3:equal enjoyment for men and women of economic, social and cultural rights.
  • Art. 6:the right to work and access to the full realisation of this right including access to training opportunities.
  • Art. 7:equal remuneration for work of equal value.
  • Art. 10:protection and assistance for the family, especially mentions women during pregnancy and childbirth and access to social security during this time.

How Did the Bill of Human Rights Affect Women’s Rights?

The UDHR, the ICCPR, and the ICESCR shifted the focus on women from being objects of international law to subjects of international law. Women were now recognized as rights holders and therefore individuals who could engage with the law as beneficiaries of rights and not merely as objects which were seen as property. The inclusion of Article 3 in the twin conventions was instrumental in shifting the focus from formal equality to substantive equality. It was now the state’s prerogative to ensure that women’s equality is paid special attention. Another significant development was the inclusion of equality of men and women within marriage and in the event of its dissolution, under the ICESCR. This contributed to the breakdown of the traditional approach of separation between the public sphere (cognisable by law), and the private sphere (outside the reach of law). It also helped to bring the domestic violence under the purview of human rights violations although it was the Women’s Convention, CEDAW, that made this connection in 1989 with the publication of General Recommendation .

A criticism of the protection of women’s rights under the twin covenants is that they are based on the male model of protection of rights. This is especially evident in the ICESCR where it protects the right to work, but bases it on the male model of employment. This renders invisible the unremunerated work provided by women within the household, and structural barriers that result in women’s inequality within the workforce. Similarly, Article 12 of the ICESCR recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. However, while adopting a neutral position towards the right to health, the Convention fails to acknowledge a women’s right to reproductive healthcare and reproductive self-determination and excludes reproductive rights from the human rights framework. It is notable that Article 25 of the UDHR had recognized the different experience of women and recognized their right to assistance during motherhood, but this was not included whilst protections for infants were included in the treaty.

The Evolution of Women’s Rights in the UN Bill of Rights

Almost all UN Conventions have a treaty body normally referred to as the Committee. Committees monitor the implementation of treaties in states that have ratified/acceded to the treaty. Committees receive periodic country reports and engage in a dialogue with states about the extent of their implementation of the treaty’s provisions and how fuller implementation could be guaranteed. General Comments are the comments adopted by the treaty body established under the respective UN treaties for the promotion and protection of human rights. General Comments are not legally binding and as such only apply as soft law. This is because states ratify or accede (in other words legally consent) to the treaty and not the general comments. In the case of the ICCPR and the ICESCR the treaty bodies are called the Human Rights Committee (HRC), and the Committee on Economic, Social and Cultural Rights (CESCR) respectively.

The Role of General Comments & The Development of State Obligations:

The purpose of these General Comments is to comment on issues in a general nature and not in terms of a particular state party. They are addressed to all state parties. They highlight areas of concern regarding the treaty’s full implementation and add clarity to definitions and meanings contained within the treaty to give the provisions a higher degree of substance. The benefit of this process is that particular attention may be made to areas of the treaty that are not being implemented as fully as the Committee desires by multiple states and that they are able to evolve with time and represent contemporary notions of equality and morally acceptable behaviour and thus ensure that the standard of implementation they are promoting is relevant to the present day and not static like the treaty itself.

General Comment 3 issued by the CESCR in 1990 introduced minimum core obligations of a state party to a covenant. It provided that once a state is a state party to the treaty, it is under a legal duty to take steps to progressively realize the covenant rights and that there are minimum core obligations to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights. The Comment stated that if a state was failing to discharge the minimum core obligations, it was failing to meet its obligations under the covenant.

Both the HRC and CESCR have issued Comments addressing the nature of state obligations and asserted that a state has tripartite obligations under the covenant. The tripartite obligations are to:

  • Respect, where state parties cannot violate the rights under the covenant;
  • Protect, where it is obligated to prevent non-state actors from committing violations; and the obligation to
  • Fulfil, which would require the state to “take steps to ensure that in practice, men and women enjoy their economic, social and cultural rights on the basis of equality.”

In 2000, General Comment 28 was issued by the HRC. This addressed issues of equality and stated that states should “take all steps necessary, including the prohibition of discrimination on the ground of sex, to put an end to discriminatory actions, both in public and the private sector.” The CESCR provided that the state has an obligation to eliminate discrimination both formally and substantively by issuing General Comment 20 in 2009. The move towards ensuring substantive equality required taking special measures for women recognizing it as a group that has suffered historical or persistent prejudice rather than comparing the formal treatment of men and women in similar situations.

 

The HRC and CESCR have attempted to address issues of “reproductive facilities, services and policies” through raising concerns of maternal mortality. The HRC has linked the issue of maternal mortality to the right to life, incorporating the issue of pregnancy under its mandate. Likewise, the CESCR has linked maternal mortality to the right to health. However, the absence of an explicit abortion provision in CESCR General Comment 14 led to the continuation of women accessing illegal, unsafe and unaffordable abortions without explicit legal recourse. It was observed by the HRC in the case of Amanda Mellet v. Ireland that the absence of access to legal, safe and affordable abortions is a denial of the right to privacy as it interferes with a woman’s decision making about her pregnancy. It also violates her right to not be discriminated against as criminalisation of abortion it affects a health service that only women need, and places no equivalent burden on men. The women have to bear the socio-economic burden of such differential treatment that is the payment of the costs of travel and seeking treatment abroad where abortion is legal. The CESCR in its General Comment 22 specifically addressed issues of reproductive health and asserted that the state has a positive obligation to take steps to provide access to safe abortion services. Safe abortion requires access to legal and affordable abortion services as criminalisation of abortion or unaffordable abortion service increase the incidence of unsafe abortions.

It has been argued that inter-sectional discrimination against women has remained hitherto unaddressed. An intersectional discrimination analysis helps in looking at “patterns of disadvantage created by the interwoven grounds of gender/sex, marital status, and poverty/class/socioeconomic status/reliance on social status.” General Comment 23 issued by CESCR is notable because its emphasis is on ensuring women’s substantive equality, wherein it has urged the state parties to address occupational segregation on the basis of sex and under valuation of work traditionally done by women. It has asserted that states are required to take “special measures” for eliminating “structural obstacles that perpetuate gender inequality.”

In addition to issuing general comments, the committees which oversee implementation of the treaties are also responsible for monitoring implementation of the treaty provisions in states. As part of this process, the committees receive and reply to, via state interaction, reports filed by the state on the status if their implementation. As part of this process both the HRC and the CESCR have recognised the “discriminatory impact” of not, for example, providing abortion services and the impact this has on “women who cannot afford to obtain an abortion abroad.” Such statements have contributed towards the development of thought regarding intersectional discrimination.

Autonomous Norms and State Obligations

While women’s interests were marginalised through the creation of separate institutions like the CEDAW committee, the HRC has continued to be instrumental in incorporating women’s rights in the implementation of the UN Bill of Rights. The important tool utilised by the HRC in this regard has been Article 26 of the ICCPR. It is vital to understand the difference between the two non-discrimination provisions in the ICCPR namely, Article 2(1) and Article 26. Article 2(1) and Article 26 of the ICCPR differ with regard to its application, scope and the nature of state of obligation it imposes. The difference has been highlighted and used by the HRC in judicial decisions to impose an onerous obligation on state parties to promote women’s interests.

The HRC has relied on the nature of the non-discrimination norms to accommodate various women’s rights in the UN Bill of Rights. Non-discrimination provisions in human rights treaties can generally be categorised as either subordinate norms or autonomous norms. Provisions that prohibit discrimination in the exercise of rights enumerated within the same treaty are considered subordinate norms. Article 2(1) of the ICCPR would be considered a subordinate norm, and it states:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or another status.”

Other examples of subordinate norms in the UN Bill of Rights include Article 2 of the UDHR and Article 2(2) of the ICESCR.

Autonomous norms refer to provisions that prohibit discrimination in general and do not refer to exclusively to the rights enshrined in the concerned treaty. Article 26 of the ICCPR is an autonomous norm:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or other status.”

Article 7 of the UDHR is also an example of an autonomous norm. The HRC has relied on this general characteristic of the Article 26 to help enforce women’s rights.

 

Broeks v The Netherlands.

The autonomous nature of Article 26 was identified in the Broeks case, and it has been identified as one of the few cases illustrating, “excellent and ground-breaking reasoning.” In the case before the HRC, the author Mrs Broeks, a married woman was dismissed from her employment due to a disability and received certain unemployment benefits thereof. In June 1980, the Netherlands stopped providing the said unemployment benefits. The author was told that she, being a woman, was not considered the “breadwinner” of the family and hence did not qualify for unemployment benefits under the Unemployment Benefits Act.

The author contended that this was discrimination on the basis of sex as, had she been a married man, she would have received the benefits without having to prove her primary income earner status. The government contended that the author could not invoke Article 26 of ICCPR as the claim is in relation to Article 9 of the ICESCR. The CESCR could not entertain individual complaints, and the state contended that the ICCPR provisions could not be invoked to apply to a socio-economic issue like welfare provisions. The HRC upheld the author’s contention stating that Article 26 of the ICCPR has a general application. The court stated:

“For the purpose of determining the scope of article 26, the Committee has taken into account the “ordinary meaning” of each element of the article in its context and in the light of its object and purpose (art. 31 of the Vienna Convention on the Law of Treaties). The Committee begins by noting that article 26 does not merely duplicate the guarantees already provided for in article 2. It derives from the principle of equal protection of the law without discrimination, as contained in article 7 of the UDHR, which prohibits discrimination in law or in practice in any field regulated and protected by public authorities.”

Subsequent to the Broeks case, the HRC has in certain instances upheld that Article 26 of the ICCPR has general application.  The autonomous existence of Article 26 was also acknowledged in General Comment No. 18 adopted by HRC. General Comment No. 18 states:

“In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.”

The autonomous nature of a provision is rarely used in human rights jurisprudence to impose an onerous state obligation. The broad interpretation of autonomous norms often conflicts with principles of state sovereignty and state consent.

The argument of Government of Netherlands in the Broeks case illustrates not only the then lack of an effective complaint hearing mechanism for the ICESCR but also a common belief that economic, social and cultural rights are non-justiciable. In an effort to justify the application of ICCPR’s article 26, the Committee in its decision stated that the ICCPR could not the used to mandate that laws were created by a state, for example, the creation of welfare support systems, but that Article 26 did impose an obligation that such laws, if they already existed, could not be discriminatory.

Claiming that heterosexual marriage laws discriminate against persons in a same-sex relationship on the basis of their sex would use the same reasoning and yet has not been utilised, perhaps largely because of the lack of widespread political support. Treaty bodies, therefore, remain reluctant to interfere in such sensitive issues and uncertainty and unpredictability regarding the reach of autonomous norms persists.

Mellet v Ireland

More recently in 2016, a woman named Amanda Mellet took Ireland to the HRC alleging that Ireland had violated her rights to equality and non-discrimination as found under articles 2(1) and 26 of the ICCPR. She also alleged violations of her right to equality, freedom from torture, right to privacy, and right to hold opinions without interference from the state. Mellet and her husband were expecting a baby when, in the 21st week of her pregnancy, Mellet was told that her foetus had congenital heart defects and “even if the impairment proved fatal she could not have a termination of her pregnancy in Ireland. The doctor at the hospital stated: “terminations are not available in this jurisdiction. Some people in your situation may choose to travel”. The doctor did not explain what “travel” involved, but only that it had to be overseas. She did not recommend a suitable abortion provider in the UK.” A few day later Mellet “was informed that the foetus had trisomy 18 and would die in utero or shortly after birth. As abortion in Ireland is illegal travelling to Great Britain either by sea or air is often the only way Irish women are able to access legal termination of pregnancy services.

Having learnt that her child would either die in utero or shortly after birth for the next three weeks, Mellet was tormented and flew to Liverpool with her husband where she received medication that started the termination process. Three days later the hospital induced labour and after 36 hours of labour, when she was 24 weeks pregnant, she gave birth to a still-born baby girl. Due to the financial pressures of having to stay in a foreign country and pay for medical treatment, she had to travel back just 12 hours after the termination while she was still was “bleeding, weak and light-headed.”

In order to access the abortion, Mellet was forced to entirely fund her travel, treatment and accommodation from her and her husband’s personal finances. This not only puts significant financial pressure on the Mellets but was also an economic barrier to receiving health care that not all women would have been able to afford. The consequence of this barrier is that women with a lower economic status would have been prevented from being able to access medical treatment and would, therefore, be unfairly discriminated against on the ground of their poverty.

Once back in Ireland Mellet wanted to access bereavement counselling to address the trauma of losing a child. “While the hospital offers such counselling to couples who have suffered a spontaneous stillbirth, this service does not extend to those who choose to terminate the pregnancy as a result of fatal foetal impairments.” It was argued that Mellet was denied medical treatment that other women were provided simply because she had chosen to terminate her unviable pregnancy to reduce her own mental suffering and anguish and to prevent seeing her baby die after birth with a lot of suffering.

 

The HRC, under article 26 of the ICCPR decided that Ireland had violated her rights to non-discrimination. Further, it relied on General Comment 28’s articulation of differential treatment and decided that Ireland’s treatment “did not meet the requirements of reasonableness, objectivity and legitimacy of purpose”, and it did constitute discrimination. The Committee also decided that Ireland had violated Mellet’s rights to not be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and her right to be free from arbitrary or unlawful interference with her privacy, family and home. It noted that if she had been able to access safe and legal abortion services in a timely manner without having to travel abroad, this would have spared the added anxiety she had to endure.

The Mellet decision demonstrates how article 26 and general comments may be used within judicial decisions to address issues of discrimination and are able to provide a comprehensive understanding of equal rights and between groups of women and protection from cruel and unnecessary treatment by the state. The decision also included recognition of the impact such laws have on women from weaker socio-economic backgrounds and thus also marks a step forward in recognising intersecting forms of disadvantage and how these may multiply the lived disadvantage many people experience.

Conclusion

Women’s Rights within the human rights framework are considered and used synonymously with the CEDAW. However, it is important to note the position of women’s rights within the corpus of the UN Bill of Rights to effectuate these rights in a comprehensive manner. The attempt to comprehensively address women’s interests has been an initiative of the HRC and CESCR using of General Comments and judicial decisions. It remains important to understand the nature and effect of intersectionality and to encourage state parties to address its magnificent impact. The use of the autonomous existence of Article 26 in judicial decisions has been inconsistent. The HRC must use this tool more effectively in order to impose a more onerous obligation on states to address women’s issues in all areas of life. While the process of evolution on women’s rights has been positive, the same has failed to be adequate to accommodate a comprehensive protection and promotion of human rights for women.

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Reference

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  14. Mellet v Ireland, Communication NO. 2324/2013, heard by the Human Rights Committee, decided on 31st March 2016, UN Doc. No: CCPR/C/116/D/2324/2013
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  16. Reproductive Health as Human Right, L. Cabal. P. 959
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  21. The Optional Protocol attached to the ICESCR only came into force on 5th May 2013 See: ‘Monitoring the economic, social and cultural rights’ Available at: http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIntro.aspx