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MONTRéAL PRINCIPLES ON WOMEN'S
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The Montréal Principles were adopted at a meeting of
experts held December 7 – 10, 2002 in Montréal, Canada. These principles are
offered to guide the interpretation and implementation of the guarantees of
non-discrimination and equal exercise and enjoyment of economic, social and
cultural rights, found, inter alia, in Articles 3 and 2(2) of the International Covenant on Economic, Social
and Cultural Rights, so that
women can enjoy these rights fully and equally.
The participants at the Montreal meeting were: Sneh
Aurora, Fareda Banda, Reem Bahdi, Stephanie Bernstein, Gwen Brodsky, Ariane
Brunet, Christine Chinkin, Mary Shanthi Dairiam, Shelagh Day, Leilani Farha,
Ruth Goba, Soledad Garcia Muñoz, Sara Hossain, Lucie Lamarche, Marianne
Møllmann, Dianne Otto, Karrisha Pillay, Inés Romero, and Alison Symington. They
unanimously agreed on the following principles.
Sex or gender inequality is a problem
experienced primarily by women. The systems and assumptions which cause women’s inequality in the
enjoyment of economic social and cultural
rights are often invisible because they are deeply embedded in social
relations, both public and private, within all States. Acknowledging this
systemic and entrenched discrimination is an essential step in implementing
guarantees of non-discrimination and equality.
The terms “gender” and “sex” should both
be understood as referring to the range of economic, social, cultural,
historical, political and biological constructions of norms of behaviour that
are considered appropriate for women and men. Implicit in such an understanding
of “gender” or “sex” relations is that male and female norms have been
constructed so as to privilege men and disadvantage women. “Gender” and “sex”
discrimination can be used interchangeably, and both “gender inequality” and
“sex inequality” are used to refer to the disadvantaged position of women. In
order to reflect this understanding of women’s disadvantage, the Montréal
Principles use the terms “discrimination against women” and “women’s equality”
wherever possible.
Economic, social and cultural rights have a particular
significance for women because as a group, women are disproportionately
affected by poverty, and by social and cultural marginalization. Women’s poverty is a central manifestation, and a direct
result of women’s lesser social, economic and political power. In turn, women’s poverty reinforces their subordination,
and constrains their enjoyment of every other right.
The UN Charter mandates universal respect for, and
observance of all human rights, including the right of women to equal exercise
and enjoyment of their economic social and cultural rights.[i][i]
All regional and global instruments which set out economic social and cultural
rights contain guarantees of non-discrimination and of equal enjoyment for
women of these rights.[ii][ii]
An expression of this global consensus is found in Articles 3 and 2(2) of the International Covenant on Economic, Social
and Cultural Rights.
In the political context of the early 21st
century, it is particularly important to underline this long-standing international
consensus regarding human rights primacy. The lack of priority accorded to
securing universal enjoyment of economic, social and cultural rights hurts
women disproportionately.
Women’s particular vulnerability to social and
economic deprivation is deepened further in conflict and post-conflict
situations and when economic sanctions are imposed. The Committee on Economic,
Social and Cultural Rights has stated that economic, social and cultural rights
must be taken into account when imposing sanctions, and State Parties to the
Covenant should take account of the suffering that such sanctions are likely to
inflict on certain sectors, such as women. As the UN Security Council has
recognized, peace and women’s equality are inextricably linked.[iii][iii]
The inequality in the lives of women that is deeply
embedded in history, tradition and culture[iv][iv]
affects women’s access to and enjoyment of economic, social and cultural
rights. To ensure women’s enjoyment of these rights, they must be implemented
in a way that takes into account the context in which women live. For example,
the traditional assignment to women and girls of the role of primary care-giver
for children, older persons and the sick restricts women’s freedom of movement
and consequently their access to paid employment and education. The economic
and social devaluation of the work, paid and unpaid, that women traditionally
do from a very young age, contributes further to fixing women in a position of
economic and social inequality. These factors diminish women’s earning capacity
and their economic autonomy, and contribute to the high rates of poverty among
women worldwide. Traditional, historical, religious or cultural attitudes are
also used to justify and perpetuate discrimination against women in the
delivery of economic, social and cultural rights, including health services and
education, by public and private agencies.
Inequality in women’s enjoyment of economic, social
and cultural rights contributes to their economic dependence, denial of personal
autonomy and lack of empowerment. These in turn limit still further women’s
ability to participate in public life, including fora for economic, social,
political and legal policy and decision-making. As the Committee on the
Elimination of Discrimination against Women has noted: “‘Policies developed and
decisions made by men alone reflect only part of human experience and
potential.’” [v][v] Such policies and decisions are less likely
to take account of gendered consequences, and the economic and social factors
that affect women’s lives.
Economic, social and cultural rights and civil and
political rights are particularly indivisible and interconnected in the lives
of women: inequality in economic, social and cultural rights undermines women’s
ability to enjoy their civil and political rights, which then limits their
capacity to influence decision and policy-making in public life. Since “‘[a]ll
human rights are universal, indivisible and interdependent and interrelated’” [vi][vi]
equality in civil and political rights[vii][vii]
is undermined unless equality in the exercise and enjoyment of economic, social
and cultural rights is secured.
It is especially important that women’s entitlement to
equal enjoyment of economic, social and cultural rights is acknowledged and
re-emphasized in the current climate of neo-liberalism and economic
globalization. Policies of privatization, economic austerity and structural
adjustment have negative impacts for women.[viii][viii]
For example, women are often the hardest hit by economic transition, financial
crises and rising unemployment. In part,
this is because women are relied upon to provide services that are cut such as
caring for children, older persons and the sick, because women are often in
insecure, part-time employment, they are commonly the first to lose their jobs.
Furthermore, poverty can lead to a decrease in food intake among women and
girls; girls are the first to drop out of schools; greater numbers of women are
forced to migrate; and women are vulnerable to trafficking, violence and ill
health. Economic and political insecurity provoke private and public backlash
against women’s rights that may be expressed through violence and articulated
in the form of defending cultures and traditions.
To fully implement the rights set out in Articles 3
and 2(2) of the International Covenant on Economic Social and Cultural Rights,
and similar guarantees in other human rights instruments, requires an
understanding that focuses upon the subordination, stereotyping and structural
disadvantage that women experience. It requires more than just formal legal
recognition of equality between the sexes. It requires commitment by all
responsible parties to take all necessary steps to address the actual material
and social disadvantage of women.
B. Definition
of Women’s Economic Social and Cultural Rights
1.
Women’s economic, social and cultural rights include,
but are not limited to, the right to:
ª An adequate standard of living including:
§
food and freedom from hunger;
§
water;
§
clothing;
§
housing and freedom from forced eviction;
§
continuous improvement of living
conditions;
See for
example:
International Covenant on Economic, Social and Cultural Rights (ICESCR) article
11(1) and (2); Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) article 14(2)(h); Universal Declaration of Human Rights
(UDHR) article 25; Universal Declaration on Eradication of Hunger and
Malnutrition (UDEHM) article 1; Declaration on the Right to Development (DRD)
article 8(1); Committee on Economic, Social and Cultural Rights, General
Comment 15 ("The right to water"); Additional Protocol to the
American Convention on Economic, Social and Cultural Rights (San Salvador
Protocol) article 12; Rome Declaration on Food Security; Istanbul Declaration
and Program of Action on Human Settlements.[ix][ix]
v The highest
attainable standard of mental and physical health throughout a woman’s life
cycle, including reproductive and sexual health and freedom;
See for
example:
ICESCR article 10(2) and 12; International Covenant on Civil and Political
Rights (ICCPR) article 6(4) and 18(4); Declaration on the Elimination of
Discrimination Against Women (DEDAW) article 9(e); CEDAW articles 10(h),
11(2)(a) and 12; UDHR article 25; Declaration on Population and Development
para. 7; Beiing Declaration and Program of Action paras. 89, 94 and 96;
Convention on the Rights of the Child (CRC) articles 24, 3(2); American
Convention on Human Rights (ACHR) article 4(5); San Salvador Protocol article
10; Inter-American Convention on the Protection, Punishment and Eradication of
Violence Against Women (ICPPEVAW) article 4(b); American Declaration on the
Rights and Duties of Man (ADRDM) article xi; Declaration on Social Progress and
Development (DSPD) article 11(b); DRD article 8(1); Maternity Protection
Convention (MPC) article 3; African Charter on Human and Peoples’ Rights
(African Charter) article 16; Committee on the Elimination of Discrimination
Against Women, General Comment 24.[x][x]
v Equal inheritance
and ownership of land and property;
See for
example:
ICESCR article 11(1); CEDAW articles 13(b), 14(20(e) and (g), 15(2) and 16(h);
DEDAW article 6(1)(a); DRD article 8(1); International Convention on the
Elimination of All Forms of Racial Discrimination (CERD) articles 5(d)(v) and
5(d)(vi); UDHR article 17; ACHR article 21; African Charter, article 14;
Beijing Declaration and Program of Action, para. 61(b), 62, and 63.[xi][xi]
v Social security,
social protection, social insurance and social services, including special
assistance before, during and after childbirth;
See for example: ICESCR
articles 9 and 10(2); CERD article 5(e)(iv); DEDAW article 10(1)(c); CEDAW
articles 11(1)(e), 11(2)(a), and 14(2)(c); MPC articles 4 and 6; UDHR article
22, 23(1) and 25(1); San Salvador Protocol articles 9(2) and 15 (3)(a); ADRDM
article xvi; ICCPEVAW, article 8; CRC article 28.[xii][xii]
v Training and
education;
See for
example:
ICESCR articles 6 and 13; CEDAW articles 10 and 14(2)(d); DEDAW article 9;
UDEHM article 4; CERD article 5(e)(v); UDHR article 26; ACHR article 17(1);
ICPPEVAW article 6(b); San Salvador Protocol article 13(1)(2) and (3); CRC
article 28; Convention Against Discrimination in Education article 1; ADRDM
article xii; Bejing Declaration and Program of Action para. 69.[xiii][xiii]
v Freely chosen work
as well as just and favourable conditions of work including fair wages, equal
remuneration and protection from sexual harassment and sex discrimination at
work;
See
for example: ICESCR articles 6 (1), 6(2) and 7; CEDAW articles 11(1)c), (f);
CERD article 5(e); ICCPR article 8(3)(a); DEDAW article 10(1)(a); Abolition of
Forced Labour Convention (AFLC) article 1; DSPD article 6; UDHR articles 4 and 23;
Declaration on the Elimination of Violence against Women (DEVAW) article 3;
ACHR article 6(2); African Charter articles 5 and 15; ADRDM, article xiv; San
Salvador Protocol articles 6 and 7; Convention for the Protection of Human
Rights and Fundamental Freedoms (CPHRFF) article 4(2); MPC article 8; Equal
Remuneration Convention (ERC) article 1; Convention on Employment Policy articles
1 (1) and (2); ILO Declaration on Fundamental Principles and Rights at Work;
ICPPEVAW, article 2(b).[xiv][xiv]
v Form and join trade
unions;
See
for example: ICESCR article 8; ICCPR article 22; CERD article 5(e)(ii); DSPD
article 10; San Salvador Protocol article 8; ILO Convention on Freedom of
Association and Protection of the Right to Organize.[xv][xv]
v Protection from
economic exploitation;
See for
example:
ICESCR articles 8 and 10 (3); ICCPR article 8; Supplementary Convention on the Abolition
of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery
article 1(b); CRC article 32; ILO Convention on Worst Forms of Child Labour;
UDHR article 4; ACHR article 6.[xvi][xvi]
v Protection from
coerced and uninformed marriage;
See
for example: ICESCR article 10(1); CEDAW article 16(1)(b); DEDAW article
6(2)(a); ICCPR article 23(3); Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriage (Marriage Convention) article 1; CERD
article 5(d)(iv); UDHR article 16(2); ACHR article 17(3).[xvii][xvii]
v A clean and healthy
environment;
See for example: ICESCR
article 12(2)(b); African Charter article 24.[xviii][xviii]
v Participate in
cultural life;
See for
example:
ICESCR article 15(1)(a); CRC article 29(1)(c); CEDAW article 13(c); ICCPR
article 27; DEVAW article 3; CERD article 5(e)(vi); UDHR article 27; ACHR
article 26; African Charter articles 17(2) and 22(1); ICPPEVAW article 5; San
Salvador Protocol articles 14(1)(a) and (b).[xix][xix]
v Claim and enjoy the
benefits of patents and intellectual property;
See for
example:
ICESCR article 15(1)(c); San Salvador Protocol article 14(c).[xx][xx]
v Nationality; and to
bestow nationality on children;
See
for example: CEDAW article 9; DEDAW Article 5; Convention on the Nationality
of Married Women (CNMW) article 1; Convention Relating to the Status of
Refugees (CSR) article 2; UDHR article 15; ACHR article 20; CERD article
5(d)(iii).[xxi][xxi]
v Freedom from
trafficking and exploitation; recognition of the human rights of trafficked
persons;
See
for example: CEDAW article 6; DEDAW article 8; DEVAW article 2(b); CRC
articles 34 and 35; ICPPEVAW article 2(b); Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention Against Transnational Organized Crime.[xxii][xxii]
2.
Indivisibility and Interdependence of Rights
Economic, social and cultural rights and
civil and political rights are indivisible, interdependent and interconnected.
In the real lives of women, it is difficult to separate these rights. For
example, a woman’s right to life is threatened as much by the deprivation of
economic, social and cultural rights as by the deprivation of civil and
political rights.
3.
No Justification for Restriction
Nothing in the wording or substance of any
international or regional human rights document, policy, practice or custom can
be used to justify restricting women’s equal enjoyment and exercise of
economic, social and cultural rights.
4.
Non-Retrogression
International law entitles women to claim
the highest level of available protection for their rights that is afforded by
international human rights instruments or national law, policy or custom.[xxiii][xxiii]
C. Principles of
Equality and Non-discrimination
5.
Women’s Sex and Gender Inequality
Unequal power relations between women and men must be
acknowledged and changed, and the entrenched disadvantage caused by this power
imbalance must be addressed, if women are to achieve the equal exercise and
equal enjoyment of their economic, social and cultural rights.
Legal guarantees of non-discrimination
based on sex and legal guarantees of equality for women, though expressed
differently, are articulations of the
same obligation. This obligation is not
confined to negative restraints on States and third parties because negative
restraints, alone, do not successfully eliminate discrimination against women.
Both the right to non-discrimination and the right to equality mandate measures
that prevent harmful conduct and positive steps to address the long-standing
disadvantage of women.
Sex or gender discrimination occurs when
intentionally or unintentionally, a law, program or policy, or an act or a
failure to act, has the effect or purpose of impairing or nullifying the
recognition, exercise or enjoyment by women of their economic, social and
cultural rights.[xxiv][xxiv]
Sex or gender discrimination is
experienced as discrimination because of being a woman. It can also be experienced as discrimination
on the basis of marital status, for example, as discrimination against wives,
co-habitees, unmarried women, divorced women or widows, or on the basis of
family status, family responsibility, pregnancy, reproductive capacity, or
sexuality. Sexual harassment of women and violence against women must also be
understood as forms of sex discrimination.
Many
women encounter distinct forms of discrimination due to the intersection of sex
with such factors as: race, language, ethnicity, culture, religion, disability,
or socio-economic class. Indigenous women, migrant women, displaced women, and
non-national or refugee women experience distinct forms of discrimination
because of the intersection of their sex and race, or their sex and citizenship
status. Women may also confront particular forms of discrimination due to their
age or occupation; family status, as single mothers or widows; health status,
such as living with HIV/AIDS; sexuality, such as being lesbian; or because they
are engaged in prostitution. Intersecting discrimination can determine the form
or nature that discrimination takes, the circumstances in which it occurs, the
consequences of the discrimination, and the availability of appropriate
remedies. To ensure that all women enjoy the benefits of their economic, social
and cultural rights, specific measures are needed to address the ways in which
women are differently affected in their enjoyment of a right as a result of the
intersection of discrimination based on sex with discrimination based on other
characteristics.
Women are entitled to exercise and enjoy
their economic social and cultural rights as autonomous persons. They cannot
enjoy their economic, social and cultural rights equally if they are treated as
inferior to men or as adjuncts of, or dependents of men, whether those men are family members or
others. In turn, economic, social and cultural rights
must be interpreted and applied in ways that recognize women’s right to full
legal personhood and autonomy.
D. Impediments
To Women’s Equal Enjoyment of Economic, Social and Cultural Rights
12.
Impediments
Structural impediments to women’s equal
exercise and enjoyment of economic social and cultural rights include, but are not limited to: (i) social norms, customs
and traditions that legitimize women’s inequality; (ii) failure to take account
of women’s disadvantage or their distinct experiences when designing laws or
measures to implement economic, social and cultural rights; (iii) restrictions
on access to legal or administrative bodies where remedies for rights
violations may be sought; (iv) women’s under-representation in decision-making
processes; (v) women’s unequal status in their families; (vi) the failure to
recognize women’s unremunerated work, and to encourage the fairer distribution
between women and men of family and community-supporting labour; (vii) the neglect
of women’s economic, social and cultural rights in conflict and post-conflict
situations; and (viii) the gender-differentiated effects of economic
globalization. These impediments must be addressed and eliminated to ensure
that measures adopted to implement economic, social and cultural rights will
benefit women equally.
E. Legal Obligations
13.
Justiciability
and Allocation of Resources
Women’s rights to non-discrimination and equality are enforceable by judicial bodies and administrative tribunals in all circumstances, including when they raise issues of government allocation of resources for the realization of economic, social and cultural rights.
14.
Immediate Obligation
The right to non-discrimination and to the equal
exercise and enjoyment of economic, social and cultural rights imposes an
immediate obligation on States. This obligation is not subject to progressive
realization. The obligation is also an immediate one for inter-governmental
bodies and quasi-State actors or other groups exercising control over territory
or resources.[xxv][xxv]
15.
Respect,
Protect, Fulfill and Promote
Women’s right to non-discrimination and equality imposes four specific obligations on States: the obligations to respect, protect, fulfill and promote women’s exercise and enjoyment of economic, social and cultural rights. These four obligations are indivisible and interdependent and must be implemented by States simultaneously and immediately.
16.
Range of
Conduct
The obligations to respect, protect, fulfill and promote women’s economic, social and cultural rights require a range of conduct from States. States are obliged to both refrain from acting harmfully and to take positive steps to advance women’s equality. States are required to repeal laws and policies that discriminate either directly or indirectly. They are also required to guarantee women’s rights to non-discrimination and to the equal exercise and enjoyment of economic, social and cultural rights in appropriate domestic laws, such as national constitutions and human rights legislation, and in the interpretation of customary and personal laws. States are obliged to regulate the conduct of third parties, such as employers, landlords, and service providers. States are also obliged to design and implement policies and programmes to give long-term and full effect to women’s economic, social and cultural rights. These may include the adoption of temporary special measures to accelerate women’s equal enjoyment of their rights, gender audits, and gender-specific allocation of resources.[xxvi][xxvi]
17.
Rights-claiming
mechanisms
States must ensure that women’s rights to non-discrimination and to the equal exercise and enjoyment of economic, social and cultural rights can be effectively interpreted and applied by judicial and quasi-judicial bodies that are independent from government. Further, States must ensure that the right to be free from discrimination and the right to equality are interpreted substantively, rather than formally, by judicial and quasi-judicial bodies, so as to foster the equal enjoyment by women of economic, social and cultural rights. States, when appearing as parties or intervenors before judicial or quasi-judicial bodies must advocate for the interpretation and application of rights that will ensure women’s substantive enjoyment of them.
18.
Maximum
Available Resources
States must use the maximum available resources to respect, protect, fulfill and promote economic, social and cultural rights. The maximum available resources must be distributed in a manner that provides substantively equal exercise and enjoyment of economic, social and cultural rights by women.
19.
Trade, Trade Agreements and
International Financial Institutions
States have a non-derogable obligation to guarantee women’s equal enjoyment of their economic, social and cultural rights in their actions and decision-making in the context of trade, trade agreements, and agreements with, or participation in, international and regional financial institutions.
20.
Due Diligence
All States when participating in international financial institutions, trade agreements, or aid and development programs shall apply a due diligence test to assess, foresee and prevent any adverse consequences of trade agreements, structural adjustment programs, development and humanitarian assistance, and other economic and social policies on women’s economic, social and cultural rights. Where harm is caused by such agreements or programs, the responsible States and institutions shall implement compensatory measures. This applies at national, regional and international levels, in public and private spheres of life.
21.
Provision
for Basic Needs
In the context of scarcity, States shall make sure that the basic needs of women are satisfied, especially in regard to health care, access to potable water, sanitation services, housing, education, energy and social protection. This obligation prevails as well in times of conflict and post-conflict. States and other inter-governmental bodies must ensure that services are provided in a manner that does not discriminate against women, and that ensures women’s equality.
22.
Privatization and Regulation of Third Parties
Where services are partially or wholly privatized, at
a minimum States are required to adopt an effective regulatory system to
monitor the distribution of such services and service providers must work in
cooperation with the State to ensure the substantively equal enjoyment of
services by women in fulfilment of the State’s international legal obligations.
23.
Regulation
of Transnational Corporations and Third Parties
States have an obligation to require transnational corporations and other commercial entities, when they are providing services or programs related to the enjoyment of economic, social and cultural rights, to ensure that women benefit equally. States also have an obligation to prevent transnational corporations and other commercial entities from violating women’s economic, social and cultural rights on their territory. When such rights are violated, States have a duty to provide women with effective remedies.
24.
Recognition
of Unremunerated Work
States
must adopt specific measures to recognize the economic and social contribution of
the women who carry out unremunerated activities. States must also ensure that
women or particular groups of women do not carry out a disproportionately large
part of the unremunerated and devalued workload of families and communities,
including domestic labour and the care of children, sick, and older persons.
States and inter-governmental bodies must ensure that women can and do participate fully in the formulation, development, implementation and monitoring of economic, social and cultural programs and policies.