• UDHR - Universal Declaration of Human Rights
• ICESCR - International Covenant on Economic, Social and Cultural Rights
• ICCPR - International Covenant on Civil and Political Rights
• CESCR - Committee on Economic, Social and Cultural Rights
• CEDAW - Convention on the Elimination of All Forms of Discrimination against
Women
• 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. Paternalism and protectionist notions were characteristic of women’s
rights prior to 1945. Their identity primarily was as mothers, wives or daughters who
lacked full autonomy and agency. The value that was associated to women pre- 1945 was
based on their pre-marital chastity, motherhood, domesticity and their acceptance of the
patriarchal hegemony that existed at the time.
• 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.”
• 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 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
(recognizable 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
• 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.
• 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.
• 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.
• 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.
Positive effects
• 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.
• 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.
• 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.
• 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.”
• 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 norm and obligation
• While women’s interests were marginalised through the creation of separate institutions
like the CEDAW committee,32 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.
• 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 238 of the
UDHR and Article 2(2)39 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 toall
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.
• 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.
• 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.
Notes on Women's Rights and the UN Human Rights Framework:
Pre-UN Charter (Before 1945):
Women viewed as dependents, extensions, or property of men.
Identity limited to roles as mothers, wives, or daughters.
Paternalism and protectionist notions dominated women's rights.
Post-UN Charter (After 1945):
UN established to promote global peace, security, cooperation, and human rights.
UDHR (1948) recognized principle of universal human rights, including equality
regardless of sex.
UN Bill of Rights:
ICCPR and ICESCR (1966) emphasized equality for men and women.
Key articles ensure non-discrimination, equal rights in marriage, work, participation in
public affairs.
Impact on Women's Rights:
Shifted focus from women as objects to subjects of international law.
Recognized women as rights holders entitled to equal treatment and protection.
Moved from formal equality to substantive equality, addressing specific needs of women.
Challenges and Progress:
Gaps in recognizing reproductive rights and healthcare in human rights frameworks.
Committees like HRC and CESCR monitor implementation and issue guidelines for
states.
Emphasis on eliminating discrimination, ensuring substantive equality, and addressing
intersectionality.
Use of autonomous norms like Article 26 of ICCPR to address women's issues
inconsistently.
Case Study: Mellet v Ireland (2016):
Highlighted violation of women's rights by restrictive abortion laws.
HRC invoked Article 26 of ICCPR to address discrimination and violation of rights.
Decision underscored the need for comprehensive protection and recognition of
intersecting forms of disadvantage.
Conclusion:
Women's rights synonymous with CEDAW but positioned within UN Bill of Rights.
Initiatives by HRC and CESCR using General Comments and judicial decisions.
Importance of understanding intersectionality and addressing it in state policies.
Inconsistent use of autonomous norms like Article 26.
Positive evolution but inadequate for comprehensive protection and promotion of
women's rights.
