Report from the Working Sessions

International Strategy Meeting on Economic, Social and Cultural Rights and ESCR-NET General Assembly

Nairobi, Kenya
December 1 - 4, 2008

To download a copy of the report, click here.

Session 1: NATIONAL LEVEL LITIGATION AND ACTION ON WOMEN AND ESCR

Session 2: DEVELOPMENT OF WOMEN'S ESCR IN REGIONAL HUMAN RIGHTS SYSTEMS

Session 3: USING INTERNATIONAL HUMAN RIGHTS LAW TO PROTECT WOMEN'S ESC RIGHTS

Session 4:  JOINT SESSION WITH ADJUDICATION WORKING GROUP
SEE ADJUDICATION SESSIONS SUMMARY here.

Session 5: ADDRESSING OBSTACLES, BARRIERS AND CHALLENGES IN THE WOMEN AND ESCR

Session 6: SETTING A FUTURE AGENDA FOR COLLABORATIVE WORK (Part 1)

Session 7: SETTING A FUTURE AGENDA FOR COLLABORATIVE WORK (Part 2) 

SUMMARY OF WORKING SESSIONS ON WOMEN AND ESCR

The sessions on women and ESC rights in Nairobi showed that there is increasing awareness and focus on the importance of economic, social and cultural rights within the larger international women's human rights movement. Groups from around the world discussed both the important gains and disappointing set-backs on women and ESCR within the current global context of climate change, religious fundamentalism, the "war on terror" and the global financial crisis.

The presentations during the working sessions began with a basic background on the past work of the Network and some of its long-time members on women and ESCR, to providing short case study-type overviews of the situation of women and ESCR in various countries. This led into presentations on the developments on women and ESCR within regional and international human rights systems. Finally, a session devoted to major obstacles facing work on women and ESCR was held. These presentation sessions then culminated in a two-part open discussion session on priorities of members and developing a future work plan for the Network. 

Session 1: NATIONAL LEVEL LITIGATION AND ACTION ON WOMEN AND ESCR

1.    Welcome and goals of the meeting, Rebecca Brown, ESCR-Net Secretariat 

Rebecca welcomed and thanked the delegates for attending; especially those who helped develop the working session agenda and the presenters.  She encouraged the participants to use this conference to come with ideas on how the ESCR-Net Secretariat and ESCR-Net members can work together to advance women's economic, social and cultural rights.

2.    History of the Women's Working Group on ESCR-Net, Leilani Farha, Centre for Equality Rights in Accommodation, Canada

Leilani has been involved with ESCR-Net since 1999. She identifies struggles to increase inclusivity of women and ESCR issues, including: fighting for equal constitution of the board of ESCR-Net. They had to show the need for women's working group in the ESCR. It was difficult to come up with a legal framework to develop a women's working group within ESCR-Net. The group lead by Leilani and Marianne Mollman (currently working at Human Rights Watch) used the Chiang Mai meeting in 2003 to release the Montreal Principles on Women's ESC Rights.

3.    Moving Work Forward on Women and ESCR, Priti Darooka, Programme on Women's Economic Social and Cultural Rights (PWESCR), India

Formation of the Programme on Women's Economic Social and Cultural Rights was influenced by the Chang Mai conference and it is based in South Asia.  It was formed to bring gender analysis to the core of where economic, social and cultural rights discussions take place.

Things as women rights group we need to be mindful of are: 

Priti expressed concern with what she characterized as an obsession with violence against women. She stated that the issue is important but piling all complaints                                                  under violence against women is not good. We have learnt to use CEDAW but the human rights framework has other treaties that also have women's rights in them so there is need to involve women's rights in other treaties relating to economic, social and cultural rights. For example, no women participated in the creation of the General Comment on the Right to Participate in Cultural Life, yet culture is one of the tools used to oppress women.

Challenges

Women are marginalized in the ESCR field and we need to examine what we are doing to influence the emerging economic, social and cultural rights framework. There is a need to examine what we say and what we do in terms of this marginalization.

Recommendations

There is a need to have a focused program to bring increased gender analysis on women's economic, social and cultural rights.

Strategies

PWESCR mapped the region and spent 18 months discussing what women meant when they talked of their economic, social and cultural rights. Poverty was identified as a key issue and livelihood was identified as an important strategy to address it, which includes income generation and micro-credit to assist women.

Obstacles

• Different definitions of livelihood by different organizations.
• Little advocacy and legal framework discussions on livelihood and as a result it is women who are suffering.
• There is no common language on women's rights to livelihood.
• PWESCR has petitioned human rights organization to address livelihood issues by appointing a rapporteur, but they have not had any backing.

4.    Women and ESCR in Nigeria, Chibogu Obinwa, Baobab for Women's Human Rights Nigeria.

Women's economic empowerment plays a key role in women's equality. Chibogu highlighted emerging trends of ESCR violations in Nigeria and further highlighted that gender based violence is strongly related to the violation of these rights.

She highlighted

• Wife battering,
• Early and/or forced marriages (which invariably affects education of the girl child),
• Maintenance requirements under Muslim law
• Denial of inheritance to women.

Challenges

• Conservative interpretation of religious texts by the clerics.
• Academic institutions also exhibit trend of religious fundamentalism - E.G. Compulsory HIV testing and pregnancy tests for women who are about to graduate from Covenant University in Nigeria.
• Discriminatory labor laws: Labor Act says a female police officer cannot get married within three years of joining the police force, or if she does get married in contravention to these requirements, then she should not get pregnant within those three years. Secondly, some corporations will not employ newly married women or women planning to get pregnant.
• Non-domestication of CEDAW and other relevant treaties. CEDAW bill was rejected on the basis that Article 12 promoted abortion, and arguments against Article 16 that emphasizes on equality of men and women in marriage and family.
• Policymakers rely on religious fundamentalist arguments which deny women's ESCR.

Strategies

• Baobab has supported a women's movement called the Nigerian Feminist Forum which was formed after the regional convening of the African Feminist Forum (AFF). It is committed to proactive responses to women's needs in Nigeria and addresses violations of women's rights for example, -the movement responded to the compulsory HIV and pregnancy testing at Covenant University, as well as the infamous "Act to Prohibit and Punish Public Nudity, Sexual Intimidation and Other related Offences."
• Protest letters to relevant government agencies.
• Media awareness campaigns.
• Legislative advocacy.

Recommendations

• Baobab for women's human rights recommends a global initiative towards addressing the rising fundamentalism, both cultural and religious, which undermines women's ESC rights.
• There is a need for continuous information for women on their economic, social and cultural rights, how to pursue them and what to do when their rights are violated.

5.    Women as Domestic Employees in Trinidad and Tobago, Ida Le Blanc, National Union of Domestic Employees, Trinidad and Tobago

National Union of Domestic Employees is a registered trade union representing domestic workers and was set up in 1982. Among domestic workers, common complaints include long hours of work and that they are always on call.  Ida pointed to the lack of a clear legal framework on the working hours as an important issue. In 1992 they amended their constitution to include general workers. They focus on low income workers in the informal sector.

Successes

• The government of Trinidad and Tobago has issued a House Workers Order which includes the requirement of a 2 week vacation for the domestic workers annually, that female workers must be covered under the Maternity Protection Act, they must receive 2 weeks for sick leave, wages regulated, employers should pay insurance for their workers, and there are regulated working hours.
• The government has requested that the National Union of Domestic Employees be included on the minimum wages board.
• The National Union of Domestic Employees has sent domestic workers for courses in Italy to educate them on their rights.

Obstacles

• Domestic workers are not recognized as workers under the Industrial Workers Act and hence they cannot go to the court for wrongful dismissal, nor can they claim severance benefits.
• In the Occupation Safety and Health Act there is no compensation provision for informal workers injured in the course of work.
• The labor department does not deal with domestic workers; the department is needed to ensure that regulations protecting workers are followed.

Strategies

• The National Union for Domestic Employees has aligned forces with the international organization for domestic workers and the International Labor Organization and they will hold a convention for domestic workers.
• The National Union for Domestic Employees will focus on social dialogue to assist in enabling an International Labor Organization convention for domestic workers.

6.    Peru's Experience of Tribunals on Women's ESC rights organized by Civil Society, Diana Portal, Estudio para la Defensa de los Derechos de la Mujer (DEMUS), Peru

Latin American Women's ESC rights are part of the human rights that have been and continue to be violated by States.  The conceptualization of women solely within their biological role severely affects women's status as citizens: women are basically seen as mothers rather than citizens. This has a serious effect on their rights and on public policy, which is based on a vision of a "model woman" whose purpose is to serve her family. To combat this, national and regional ethical/political tribunals were established to promote a process of political and legal enforceability of women's rights, specifically economic, social and cultural rights, by making discrimination visible and creating public awareness. 

The Tribunals were based on submissions of landmark or symbolic cases showing women ESCR violations and illustrating a systematic pattern of discrimination or failure to protect the said rights. The cases are documented by the submitting institution considering the context of the ESCR violation; testimony of the victim; legal grounds of the claim and demands to the State.  The jury, made up of renowned human rights experts familiar with the situation of women and ESCR, after having heard the party submitting the symbolic case and the State representatives present, issues a decision including recommendations for the State and civil society aimed at enforcing the rights.

Strategies

• DEMUS organized a National Tribunal for Rural Women's Economic, Social and Cultural Rights on October 29, 2007.
• Four cases were submitted. I was involved in one of them: "Forced Sterilization between 1996 and 2000 in Anta Cusco." We presented the testimony of Ms. Venancio Tito, who was sterilized against her will in 1997. This took place within the context of the National Reproductive Health and Family Planning Plan (1996-2000), which was implemented during the government of Alberto Fujimori. This Plan was implemented on an irregular and obligatory basis, violating a series of women human rights, particularly of peasant, indigenous and poor women.
• The submission of this and other cases contributed to give visibility to serious women ESCR violations, to request information from the State and state civil society's specific demands.

Obstacles

• The State provided updated information on public policy requirements related to two of the cases, but its representatives were present at the Tribunal only in one case.

Successes

• This Tribunal was useful to promote public demands on specific cases, to create a network of ESCR monitoring institutions, to provide women with information on the situation of their rights, and to generate social and political pressure on the State.

Session Two: DEVELOPMENT OF WOMEN'S ESCR IN REGIONAL HUMAN RIGHTS SYSTEMS

1.    Strengthening the African Commission on Human and People's Rights and the Protocol to the African Charter on Human Rights on the Rights of Women, Faiza Mohammed, Equality Now, Kenya

In Africa, women's rights are violated especially through claims of culture e.g. FGM and early marriages, and the African Charter did not address these issues. The Protocol on women's rights was advanced to address protection of women's ESCR and encompasses numerous provisions like the right to health and sustainable environment, right to education, right of a widow to inherit, right to land, and the right to be free from violence. The protocol was thus drafted to address these issues. In addition the MDG's have strengthened efforts of women's organizations fighting for women's ESCR because the goals go hand in hand with what they are pursuing.

Challenges

• Slow pace of political commitments to promote Women's ESCR.
• Multiplicity of laws hindering Women's rights as much as they promote equality on one hand they work against women by discriminating against them on the other.

Strategies

• Asking government to ratify the protocol, naming shaming countries that don't.
• Media campaigns to hold states accountable.

Obstacles

• All African countries that have ratified the protocol have not domesticated it.

Recommendations

The protocol can be used to break barriers and construct channels for women to enjoy their ESCR.  Women should embrace it and call for its implementation at the national level for them to access and enjoy their ESCR.

2.    Strengthening the African Court of Human Rights to Support Women's Economic, Social and Cultural Rights, Judith Akot Oder, Interights, United Kingdom

The African Court is established based in Arusha but has not heard any cases. The African Commission is still being used to address complaints on violations of women's rights and the mechanisms they use are working groups such as the Working group on ESCR. Women's groups must work with and challenge the African Commission and the Court to support women and ESC rights by highlighting the normative frameworks and key human rights mechanisms on the opportunities they provide to support women's ESC rights.

Successes

• The African Court will render binding decisions: States to update Court on implementation within 90 days.
• Free Provision of legal aid for the applicant is required in cases brought before the African Court.

Obstacles: African Commission

• Decisions are not binding
• Until recently, the Commission and Court had very limited resources
• Limited knowledge of the Commission's and Court's procedures by stakeholders
• Lack of human rights awareness on continent
• Costly to bring a case
• Fragmented human rights movement

Obstacles: African Court

• Article 34(6) Court Protocol limits individual petitions

Strategies

• Working Group on ESCRs
• Elaborate guidelines to assist states implement ESCRs: Non- discrimination, equality, presumption against retrogressive measures, effective domestic remedies and the role of civil society in the protection of ESCRs.
• Encourage input by various stakeholders
• Engage with the Special Rapporteur on Women's Rights

  • She is at the forefront of Commission's efforts to protect women's rights
  • Undertakes country and investigative visits, prepares reports, collaborates with civil society on issues related to her mandate.
• Engage with the Working Group on Minorities' and Indigenous Peoples' Rights
• Utilize Procedures:

  • The Communications /Complaints Procedure
  • The State Reporting procedure
• Utilize Promotional and Investigative visits
• Submit shadow reports to the Commission
• Work with the African Court Coalition & local NGOs to lobby your government on article 34(6)

Recommendations

• Engage with Court to support WESCRs
• Build capacity of the Court's judges to handle WESCRs
• Take cases on WESCRs to the Court
• Building a body of jurisprudence to broaden scope of protection of WESCRs

3.    Jurisprudence on Women and ESCR in the Inter-American System, Esperanza Giraldo, Comité de America Latina y el Caribe Pare la Defensa de los Derechos de la Mujer, (CLADEM), Guatemala

Esperanza began her presentation by summarizing the applicable treaties within the Inter-American system which have been ratified and which women can use to protect their economic, social and cultural rights. She then highlighted two emblematic cases on women's ESC rights in the Inter-American System.

The first is the case of Jean and Bosico Children v. The Dominican Republic (2005).

The Inter-American Commission (IACHR) received a petition in favor of Dilcia Yean and Violeta Bosica against the Dominican Republic for denying them Dominican nationality although they were born there. The petitioners claimed that, since their nationality was not acknowledged, the girls were exposed to the imminent threat of being expelled from the country and lacking an identity document, they could not attend school. The IACHR adopted precautionary measures to prevent the girls' deportation and to guarantee that Bosica could continue going to school, and referred the case to the Inter-American Court. The Court found that, by refusing to issue birth certificates and preventing the applicants from enjoying their citizenship rights due to their ancestors' origin, the Dominican State had violated their rights to protection measures, to equality and non discrimination, to nationality, and to having a legal status and a name. The Court concluded that the right to nationality opened the way to enjoying the other rights, and that denying children their birth certificate amounted to denying them their right to be part of a political community. The Court ordered the State to adopt measures to revert the historical discrimination caused by its birth record system and education system, and to guarantee access to free elementary education for all children regardless of their background or origin.

The second case discussed was María Mamérita Mestanza Chávez was a 33 year-old rural woman who lived with her husband and seven children. After approximately ten intimidating visits to her home, carried out as part of the National Program for Reproductive Health and Family Planning 1996-2000- put into place by the Fujimori regime-, Mamérita agreed to have her tubes tied, without having been informed of the risks and consequences of the operation. The operation took place on March 27, 1998 and on April 4 she died due to lack of medical attention, even though she had requested it more than five times. The formal complaint against the State, for the violation of the victim's rights to equality and non-discrimination, was presented before the Inter-American System on June 15, 1999. In March of 2001, with the mediation of the Inter-American Commission on Human Rights, the parties signed an agreement that contains the basic premises for a friendly resolution of the case (the investigation of, and punishment for, the violations, material and moral reparations for the husband and children of Mamérita Mestanza, and the prevention of similar events). Currently being negotiated are the terms of an eventual friendly settlement agreement that will adequately and integrally provide reparations for the denounced violations. 

4.    Women and ESCR in the European Human Rights System, Brenda Campbell, International Human Rights Action Watch-Asia Pacific (IWRAW-AP), UK

The European Social Charter (ESC) provides for the effective realization of rights, including rights to housing, health, education, employment, free movement, and legal and social protection. The ESC (Revised) also adds several new rights - right to protection against poverty and social exclusion, right to protection against sexual harassment in the workplace, rights of workers with family responsibilities to equal opportunities and equal treatment. It reinforces the principle of non-discrimination, improvement of gender equality, better treatment for maternity and social protection of mothers, better social, legal and economic protection of employed children and better protection of handicapped people.

Obstacles

The European Social Charter is largely unused due to lack of knowledge of both advocates and judges of the mechanism as well as limited established jurisprudence.

Strategies

• Collective Complaints Procedure
  
  • Organisations entitled to lodge complaints include: Trade Unions, Non-governmental organisations (NGOs) with participative status with the Council of Europe, Employers' organisations and trade unions in the country concerned, National NGOs (where States agree to this).
  • Once admissible, parties are requested to make submissions in writing on the subject matter of the complaint. If necessary, a public hearing will be convened by the Committee.
  • On consideration of the information provided, the Committee makes a decision on the merits. A report is forwarded to the parties concerned and is made public.
  • Finally a resolution is adopted and, if a breach of an obligation under the ESC is found, the Committee will recommend specific measures to rectify the situation.

On-going Complaints involving Women's ESC Rights in Europe

• No. 45/2007, International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Croatia
• No. 52/2008 Centre on Housing Rights and Evictions (COHRE) v. Croatia
• No. 53/2008 European Federation of National Organisations working with the Homeless (FEANTSA) v. Slovenia
• No. 51/2008 European Roma Rights Centre (ERRC) v. France
• No. 47/2008, Defence for Children International v. The Netherlands
• No. 13/2002 International Association Autism-Europe (IAAE) v. France

Session3: USING INTERNATIONAL HUMAN RIGHTS LAW TO PROTECT WOMEN'S ESC RIGHTS

1.    Leilani Farha, Centre for Equality Rights in Accommodation, Canada

Leilani noted that in the previous sessions, it was good to hear that there was some skepticism on the usefulness and application of international law. Leilani pointed out, however, that some participants may live in countries where domestic law is not as good as international law so it may be more useful to use international law instruments and argumentation.  But in some instances, there may be cases where international law does not reach those who it was meant for.

Leilani then moved on to give examples of possible useful areas of international law; for example the forum for indigenous people. This forum was established as an attempt to support the most marginalized communities having their needs and rights addressed. Leilani then asked if anyone had used the Human Rights Council to address women's rights i.e., the Universal Periodic Review where NGO's can make petitions for states to be reviewed by other countries on application of international human rights treaties every four years. Then she discussed the use of reports to Special Rapporteurs and Independent Experts as other mechanisms to implement international law.  Lastly, she gave an example of how activists in Canada, during elections, had lobbied candidates to make a pledge to support CEDAW, which led to majority support.

2.    Juana Sotomayor, Office of the United Nations High Commissioner for Human Rights, Geneva

There are new Special Rapporteurs who have been appointed on various ESC rights issues and these individuals are free to choose what they want to address specifically within each area. Women's groups should consider approaching them to address more specifically the impact of the violation of a specific ESC right on women. It is also important to use international human rights law since once ratified it becomes a legal obligation of the state. In terms of the UPR, other factors to keep in mind include: states will attempt to observe international law since they are not keen to be reviewed. The UPR is a short session only three hours so if you decide to pursue this process, focus on how to be strategic on specific issues.

CEDAW is a great convention but it's not the only critical tool to use to pursue women's rights, another critical tool is the Convention on Children's Rights which has been ratified by all states except two.  Although choosing one of these strategies may fail, it may help you advance women's ESC rights in another way, for example litigation may be a long process, and one may lose, but having filed a complaint might be a way of notifying policy makers that groups are taking action on an issue and it may increase public awareness and political pressure for change. 

3.    Litigation under the Optional Protocol to CEDAW, Shanthi Dairiam, IWRAW- AP, Malaysia

During her presentation, Shanthi lead the group in a discussion around what the groups impressions were of the usefulness of CEDAW and how the normative standards of the treaty itself should be understood. 

Obstacles highlighted to using CEDAW effectively:

• The CEDAW convention may not be applicable to some groups or communities such as the pastoral communities since they cannot access health facilities, there is no registration for their children, and also the issues of indigenous communities. E.g. Kenya has ratified the right to education but the right cannot reach vulnerable indigenous children.
• Another issue highlighted was the difficulty of ensuring that governments follow recommendations made by the CEDAW committee. One participant noted that judicial officers should look at the instruments available to them whether or not they are domesticated to hold the government accountable.
• Mali ratified CEDAW but it cannot be enforced due to religious fundamentalism.

Successful national strategies using CEDAW:

• Canada has taken the principles of CEDAW and during elections asked candidates to make a pledge to the interests of CEDAW which led to majority support.
• Some groups have presented shadow reports to parliament and used media to influence the government to implement CEDAW.

Conclusions

• CEDAW is a convention that has given us a framework of equality and non discrimination for pursuing women's rights.
• As an international instrument it does not automatically translate into a national instrument but even without this many women groups have used shadow reports to litigate and judges are responsive to international standards, examples given from Japan and Nepal.
• When CEDAW was drafted there was representation from every religious group and country, primarily from the Global South so it is not a "western" tool.
• All women are included under Article 14, it is therefore how you frame your issues in relation to enforcement and requires that your government has domesticated the treaty.

Session 4:  JOINT SESSION WITH ADJUDICATION WORKING GROUP
SEE ADJUDICATION SESSIONS SUMMARY here. 

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Session 5: ADDRESSING OBSTACLES, BARRIERS AND CHALLENGES IN THE WOMEN AND ESCR

1.    The Economic, Social and Cultural Rights of Women and Girls in Societies in Conflict and Post Conflict Situations: Reflecting on the Colombian Experience, Patricia Ramirez Parra, Instituto de Estudio Regionales (INER), Colombia

Colombia is a country with a long-standing internal armed conflict that has changed over time in terms of means, ends, and forms of struggle, with drug trafficking as a major player.  Within this framework, Colombia is currently undergoing a process of disarmament, demobilization and reinsertion (DDR).  Women and girls in Colombia have been historically discriminated against, which has prevented them from fully exercising their human rights. Both reparation and integration measures moving forward must be implemented with an emphasis on gender justice, acknowledging that structural differences have a negative effect on women and girls, and also considering diversity in race, ethnic background and sexual preferences. 

Strategies for Effective Reintegration

Obstacles

2.    The discussion was then opened and other obstacles facing work on Women and ESCR was discussed among the group.  Below is a summary of some of the other issues currently facing women and ESCR work:

• Religion and religious traditions create great obstacles to women and ESCR because interpretation affects women through taboos and practices within cultures.

Session 6: SETTING A FUTURE AGENDA FOR COLLABORATIVE WORK (Part 1)

This was the first of two sessions focusing on how the group can move forward with collective actions on women and ESCR.  The aim of the session was to allow a space for open brainstorming with the group, to begin to understand each other interests and priorities.  The general ideas framing the discussion were: (1) How can we harmonize the work we have been doing in our individual countries?; and (2) How can ESCR-Net assist?  The following are the ideas elicited from the group:

• ESCR-Net should facilitate the exchange of information between groups on a blog site, maybe also contributing to our work on shadow reports and helping groups link up to share expertise.

Session7: SETTING A FUTURE AGENDA FOR COLLABORATIVE WORK (Part 2)

The goal for this second part of the two sessions on future collaborative work was to come out of the discussion with a tangible, unifying action that the group could develop in greater detail moving forward.  The structure of the remarks made during this session was for each participant to highlight a main strategy for their organization, how ESCR-Net might contribute in that effort, and what expectations they had for ESCR-Net.  Finally there was a discussion on forming a collective action. 

Strategies Highlighted by Participants

ESCR-Net's Contribution / Expectations of the Secretariat

Suggestion for Future Collective Action

The group then decided that this would not be the end of these discussions on the themes for the campaign. Members of the women and ESCR working group exchanged contact info to share more ideas on follow up on the project.  The Secretariat agreed to send out a summary of the discussions and a contact list of participants in the meeting and to facilitate the further development of this international campaign idea. 

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