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FOCUS March 2007 Volume 47

Promoting and Protecting the Economic, Social and Cultural Rights of Women: The NHRI Mandate

Sneh Aurora*

* Sneh Aurora is National Institutions Program Officer at Equitas - International Centre for Human Rights Education based in Montreal, Canada.

As independent institutions with a mandate to combat discrimination and promote and protect universal human rights, national human rights institutions (NHRIs) have great potential to address challenges to the full realization of economic, social and cultural rights by women.

The Beijing Platform for Action (1995), referring to the World Conference on Human Rights, called for the creation or strengthening of national institutions, the strengthening of human rights of women, as well as for the development of programs to protect the human rights of women by such institutions.[1]

The United Nations' Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No. 10 (December 1998) which noted that "national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights" and that "it is therefore essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions."

A number of other international documents and statements address specifically the role of NHRIs as it relates both to economic, social and cultural rights and to the rights of women.

The Regional Workshop on the Role of NHRIs in Advancing the International Human Rights of Women held from 5-7 May 2000 in the Fiji Islands, urged NHRIs to pay greater attention to the economic, social and cultural rights of women, including shelter, food, water, primary education and primary health care as fundamental rights, as well as sexual and reproductive rights. This should include the active monitoring of government reporting obligations under CEDAW and other international human rights instruments, the collation and consideration of gender-disaggregated statistics, and the recommendation to governments of suitable programs that are achievable, cost-effective and within a set time frame.

In 2001, the Commonwealth Secretariat issued National Human Rights Institutions: Best Practice, which stresses that "regardless of a country's formal recognition of economic, social and cultural rights, NHRIs should be well versed with those rights. NHRIs should develop and conduct educational programmes to promote rights awareness in this category of rights."[2] The Best Practice Guidelines also suggest that NHRIs should:

  • employ all available means to respond to inquiries related to the advancement of economic, social and cultural rights, whether or not its enabling statue or national constitution recognize economic, social and cultural rights as justiciable.
  • advise the government on the development and implementation of economic policies to ensure that the economic, social and cultural rights of people are not adversely affected by economic policies, e.g. structural adjustment programmes and other aspects of economic management.
  • work towards facilitating public awareness of government policies relating to economic, social and cultural rights and encourage the involvement of various sectors of society in the formulation, implementation and review of relevant policies.

The Best Practice Guidelines also stress that NHRIs must be prepared to address human rights violations committed because of a victim's gender or sex. The Guidelines state that NHRIs should assume responsibility in responding to human rights violations suffered on account of sex or gender, and that NHRI staff should be properly trained so as to respond sensitively to human rights issues or violations related to sex or gender.

From 11-13 July 2001, the Asia-Pacific Forum for NHRIs together with the Hong Kong Equal Opportunities Commission, hosted a regional workshop on the Role of National Human Rights Institutions and Other Mechanisms in Promoting and Protecting Economic, Social and Cultural Rights. The workshop highlighted the importance of addressing discrimination in the implementation of economic, social and cultural rights and of developing national institution expertise with regard to such rights. Affirming the importance of international standards in the area of economic, social and cultural rights (and in particular the ICESCR), the workshop stated that "Governments and NHRIs have a responsibility to ensure that no peoples are discriminated against in their enjoyment of economic, social and cultural rights."

From 15-19 November 2004, the UN Office of the High Commissioner for Human Rights and the Division for the Advancement of Women/Department of Economic and Social Affairs held a Round Table of NHRIs and National Machineries for the Advancement of Women in Ouarzazate, Morocco. The meeting recommended that NHRIs should consistently ensure that the protection and promotion of women's rights are an integral part of the work of NHRIs and that they should use CEDAW as a framework for their work.

In 2005, the UN Office of the High Commissioner for Human Rights in its Human Rights Resolution 2005/74, affirmed the important role of NHRIs, in cooperation with other human rights mechanisms, in the protection and promotion of the human rights of women.

The Montreal Principles on Women's Economic, Social and Cultural Rights were adopted at a meeting of experts held 7-10 December 2002 in Montreal, Canada. These principles are a guide to the interpretation and implementation of the guarantees of non-discrimination and equal exercise and enjoyment of economic, social and cultural rights. The Montreal Principles require States to ensure that there is a national system of institutions and mechanisms, including NHRIs, which will support the development of strategies, plans and policies specifically designed to guarantee women's equal exercise and enjoyment of their economic, social and cultural rights.

The development of a normative framework in regard to economic, social and cultural rights through international conventions, as well as decisions, declarations and statements from global, regional and national bodies, contributes to the general recognition of the role that NHRIs must play in the protection and promotion of economic, social and cultural rights as well as the rights of women. This means that NHRIs should have as part of their mandate, explicitly or implicitly, the protection and promotion of these rights.

Interpreting and Implementing the Mandate of NHRIs

Although the Paris Principles,[3] which provide international minimum standards on the status and role of NHRIs, have no specific reference to economic, social and cultural rights, the Principles do state that an "NHRI shall be vested with competence to promote and protect human rights".[4] It goes on to say that the NHRI shall be given "as broad a mandate possible" and this should be "clearly set forth in a constitutional or legislative text", which shall specify "its sphere of competence".

The mandate of a national human rights institution is typically expressed in very general terms. The constitution, legislation, or other source of an NHRI's mandate may, however, refer specifically to certain rights or certain groups of rights that fall within the institution's jurisdiction.

For example, the functions of the Fiji Human Rights Commission are outlined in the country's Constitution and the Human Rights Act 1999 and include:

  • educating the public about the nature and content of the Bill of Rights, including its origins in international conventions and other international instruments, and
  • making recommendations to the Government about matters affecting compliance with human rights.

Fiji's constitutional Bill of Rights contains provisions that address economic, social and cultural rights, among them labor rights, the right to be free from discrimination on several enumerated grounds, including gender and economic status, and the right to education. Under the Human Rights Commission Act 1999, the Fiji Commission also has the mandate to addresEs issues involving unfair discrimination based on the ground of gender as it relates to employment, housing, education, and access to goods, services and facilities.

The Human Rights Commission of Mongolia is a statutory body established to increase public awareness about laws and/or international human rights treaties, and to promote human rights education activities. The functions of the Commission are outlined in the country's Constitution and the The National Human Rights Commission of Mongolia Act of 2000, which includes issues relating to discrimination based on grounds of sex. The Constitution of Mongolia includes as guaranteed rights and freedoms, economic, social and cultural rights, including those relating to property, employment, social security (including for childbirth), health and medical care, education, engagement in creative and artistic fields, and participation in Government.

However its mandate is expressed, an NHRI must interpret its mandate as it undertakes its work. Interpreting its mandate gives the national institution the opportunity to elaborate its jurisdiction and responsibilities and its understanding of its role and functions.[5]

The National Human Rights Commission of India was created under The Protection of Human Rights Act 1993. Its mandate is to protect and promote rights guaranteed by the Indian Constitution or embodied in the International Covenant on Civil and Political Rights and the ICESCR and enforceable in Indian courts. The Indian Constitution includes as fundamental rights, the prohibition of discrimination on the ground of sex, as well as prohibitions against trafficking in human beings and forced labor. The enumerated fundamental rights also go beyond conventional civil liberties in protecting cultural and educational rights of minorities by ensuring that minorities may preserve their distinctive languages and establish and administer their own education institutions. The Indian Commission has undertaken many inquiries into issues of economic, social and cultural rights, including those relating to degrading labour, education and mental health facilities. In April 2000, the Commission held a Regional Consultation on Public Health and Human Rights in New Delhi.

An NHRI should interpret its mandate as widely and comprehensively as possible, subject to its governing legal framework, as well as to domestic and international law. In some instances, an NHRI must creatively interpret its mandate in order to ensure the inclusion of economic, social and cultural rights of women. To the extent that the words of the establishing law permit, references to 'human rights' should be interpreted as including all human rights-civil, cultural, economic, political and social.

Economic, social and cultural rights may also fall within the mandate of an NHRI through the principle of indivisibility and interdependence of all rights. Human rights law is integrated and holistic. Rights relate to each other. The right to life, for example, has implications for the right to health and the right to education, and the right to freedom of movement has implications for the right to livelihood. Even though the mandate of an NHRI may refer only to civil and political rights, it will have jurisdiction to deal with many issues of economic, social and cultural rights through the rights to life, equality and non-discrimination.[6]

The Philippine Commission on Human Rights has been able to broadly (and creatively) interpret its mandate in order to ensure that investigations of violations of economic, social and cultural rights are within its jurisdiction. The Philippines Constitution of 1987 stipulates that the Philippine Commission shall function "to investigate ... all forms of human rights violations involving civil and political rights" and shall "monitor the Philippine Government's compliance with international treaty obligations on human rights". In a 1994 ruling, the Supreme Court confirmed that the Philippine Commission could only investigate violations of civil and political rights. This decision led the Commission to look for other ways to include economic, social and cultural rights within the framework and limits of its jurisdiction. To address the large number of complaints received by the Commission concerning alleged violations of economic, social and cultural rights, the Commission developed a system of "investigative monitoring" of economic, social and cultural rights based on the constitutional requirement that it monitor government compliance with international treaty obligations. The Philippines had ratified the ICESCR in 1974 and therefore obligations under that treaty were included in the Commission's constitutional mandate. The Commission has implemented its investigative monitoring function in the area of forced evictions and the violations of human rights resulting from that practice.

The explicit mandate of NHRIs can vary. Some NHRIs are limited to dealing with only specific human rights issues; while others have mandates that are wide in scope to address all issues covered in international human rights instruments. The ideal is for each NHRI to have the mandate and the capacity to deal with the protection and promotion of all rights recognized by international law as human rights. NHRIs should interpret their mandates broadly to ensure that they are able to effectively address the major issues and challenges to the realization of economic, social and cultural rights by women.

This article is the first of a two-part series on the role of national human rights institutions in protecting and promoting the economic, social and cultural rights of women. This part examines the mandate of NHRIs vis-a-vis the protection and promotion of such rights. The second part (published in the June 2007 issue of this newsletter) examines specific strategies and actions undertaken by Asia-Pacific NHRIs to protect and promote the economic, social and cultural rights of women

For further information, please contact: Equitas - International Centre for Human Rights Education, 666 Sherbrooke West, Suite 1100 Montreal, Quebec, Canada H3A 1E7; ph (1) (514) 954-0382 ext. 32; fax (1) (514) 954-0659; e-mail: saurora@equitas.org; www.equitas.org

____________________

1. Beijing Declaration and Platform for Action adopted by the Fourth World Conference on Women: Action for Equality, Development and Peace, Beijing, 15 September 1995, paras. 230 (e) and 232 (e).

2. Commonwealth Secretariat, (2001), pages 33-34, 36.

3. Principles relating to the Status of National Institutions, Adopted by United Nations General Assembly Resolution 48/134 of 20 December 1993.

4. Paris Principles, Principle No. 1.

5. United Nations, Economic, Social and Cultural Rights: Handbook for National Human Rights Institutions, Professional Training Series No. 12 (2005), page 34.

6. Ibid, pages 34-36.


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