Introduction

 

20 years ago, a historical milestone for women of the world took place in Beijing. The 1995 Fourth World Conference on Women catapulted the global community’s efforts to promote gender equality and empowerment of women around the world. It was also 20 years ago that UN Human Development report acknowledged that ‘for too long, it was assumed that development was a process that lifts all boats ... and that it was gender neutral in its impact’.¹ In reality, some boats have been lifted but not others. The UN Millennium Development Goals Report of 2015 highlighted that ‘Progress tends to bypass women and those who are lowest on the economic ladder or are disadvantaged because of their age, disability or ethnicity’.² The particular disadvantages faced by women in their experiences of poverty point to the fact that socio-economic rights, as key facets of the right to development, have not been realized and enjoyed by men and women equally. 

 

The UN Human Development report in 1995 articulated a central message: ‘human development must be engendered’.³ Human rights law has traditionally emphasized the concept of formal equality before the law, generally embodied in the Aristotelian notion of ‘treating likes alike’. Yet, engendering the right to development requires a more nuanced concept of equality that recognizes the differences between men and women and that equal treatment may simply perpetuate preexisting structural inequalities. There is a need for development policies to take into account the way women’s access to and enjoyment of human rights is affected by their distinct social, cultural, economic, and political contexts. It is argued in this paper that the concept of substantive equality, which encompasses goals of dignity, recognition, redistribution, and participation in the advancement of gender equality, can give impetus for structural change in societal norms, relations, and institutions that enable the realization and safeguard of women’s right to development.

 

Major international human rights instruments have not been able to articulate this notion of substantive equality for women. For example, the International Covenant on Economic, Social and Cultural Rights primarily adopts a formal equality approach that entails responsibility of governments to realize socio-economic rights and the ‘equal’ enjoyment of these rights by men and women. The notable exception is the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).⁴ CEDAW is the most comprehensive international convention concerning the advancement of women and provides rights for women in various domains that other international human rights instruments have not covered. As this paper will show, CEDAW shows significant potential for engendering the right to development through infusing substantive equality with socioeconomic rights. In 2015, CEDAW has been ratified by 189 states.⁵

 

The first part of this paper discusses the link between the right to development and socio-economic rights. Second, I discuss how gender inequality shapes particular experiences of socio-economic disadvantage for women, which impede the exercise of their right to development. Third, I examine a potential approach for engendering the right to development which synthesises socio-economic rights and substantive equality to capabilities. Finally, I evaluate the extent to which CEDAW represents this optimal synthesis, albeit with some important limitations.

 

 

The right to development was proclaimed in the Declaration on the Right to Development, adopted in 1986 by the United Nations General Assembly.⁶ The preamble of the Declaration describes development as: 

 

 

The right to development encompasses all human rights: civil, political, economic, social and cultural.⁷ It is notable that the right to development was first recognized not by the UN Declaration in 1986, but in Article 22 of the 1981 African Charter on Human and Peoples’ Rights which provides that: 

 

 

Socio-economic rights are recognized here as a crucial foundation of the right to development. Despite the commonly touted indivisibility, interdependence and equal status of all human rights, socio-economic rights have generally been relegated to a less privileged political and legal status than civil and political rights. Both categories of rights have continued their demarcation in law and in practice, based on separate international conventions with different formulation and enforcement mechanisms. This ‘hierarchy’ of rights is not only reflected by the common reference to civil and political rights as the so-called ‘first-generation’ rights and socio-economic rights as ‘second-generation’ rights, but also claims that socio-economic rights are ‘not rights at all’ but merely ‘ideals or aspirations’. 

 

The right to development has been conceived as a so-called ‘third-generation’ rights, which explicitly emphasize the rights of groups and communities.⁸ There has been considerable jurisprudential and legal controversy around the status of ‘third-generation’ rights,⁹ which is beyond the scope of this paper. It is suffice to say that the right to development is still largely conveyed in the international human rights arena as ‘aspirational’ and ‘soft law’ without imposing legally binding obligations on duty holders. 

 

Rather than falling into the largely ideological debate regarding the different ‘generations’ of rights and their status within a supposed ‘hierarchy’ of rights, this paper starts from the premise that the right to development encompasses the realization and protection of socio-economic rights. These rights include rights to education, food, and housing, to an adequate standard of living, to the highest attainable standard of physical and mental health, to participation in cultural life. At national and international levels, courts and tribunals have been increasingly willing to adjudicate cases on economic, social, and cultural rights. Justice Mokgoro in the South Africa Constitutional Court decision of Khosa v Minister for Social Development,10 ‘A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational’. 

 

 

Article 8 (1) of the Declaration on the Right to Development makes specific reference that ‘effective measures should be undertaken to ensure that women have an active role in the development process’. Education for girls and employment for women are commonly seen as powerful ‘enablers’ of promoting gender equality in the development process. 

 

While the promotion of socio-economic rights like the right to education and right to work has the potential to ‘lift all boats’ in the development process, gender inequality embedded in social norms and institutions often prevent women from the free and meaningful enjoyment of these rights. There are several ways in which gender inequality specifically shapes women’s experience of socio-economic disadvantage.

 

First and foremost is that primary responsibility for care of children, elderly and home remains with women, yet they are increasingly required to contribute to household income through paid work. Women’s access to opportunities in the labour market is limited by time and mobility constraints, underpinned by work organisation and employment law protection that are still based on the traditional full-time male ‘breadwinner’ worker paradigm. As such, women find themselves disproportionately concentrated in part-time, precarious, and informal sector work, which has grown in the backdrop of labour market ‘flexibilisation’. Furthermore, the traditional non-market value attached to women’s unpaid domestic caring roles has led to the undervaluation of women’s paid work of a similar type. Additionally, women’s interrupted working lives due to caring responsibilities impede their access to social security which is often based on one’s participation in formal employment. 

 

Second, the gendered nature of social institutions and structures, including cultural, legal, social and economic factors, shapes women’s ability to access socio-economic rights. For example, the right to housing is meaningless for women who cannot inherit land by customary practices, or who is subject to domestic violence. Even supposedly ‘gender-neutral’ housing policies may in fact perpetrate gendered power relations within and beyond the household.¹¹ 

 

Similarly, barriers to girls’ right to education can be specifically gendered, such as the practice of schools expelling pregnant teenage girls or parents in poor families taking their girl children out of school to attract larger dowries. Furthermore the right to an education as a means of empowerment and as a facilitative ‘multiplier right’ is lost if women are prevented from accessing other social and economic rights and civil and political rights, such as political representation, labour market participation, or freedom to marry/not marry.

 

These gendered specificities need to be incorporated into socio-economic rights if they are to address women’s particular disadvantages. For example, the right to work would be meaningless for women if they are prevented from accessing decent work in the labour market due to cultural, stereotypical assumptions of women’s capabilities to the absence of support in the workplace for women’s caring responsibilities. 

 

 

Having examined the way gender shapes women’s disadvantage, this part explores a potential approach to engendering the right to development that imbues socio-economic rights with substantive equality. Substantive equality is commonly equated with ‘equality of outcomes’. However, this ‘thin’ account does not capture the richer and fuller goals of substantive equality. Sandra Fredman outlines four specific and distinct aims of substantive equality: (i) Promoting respect for the equal dignity and worth of all, ‘thereby redressing stigma, stereotype, humiliation, and violence because of membership of an outgroup’; (ii) Positive affirmation of identity and accommodation of differences within community; (iii) Breaking the cycle of social and economic disadvantage of certain groups; and (iv) Facilitating full participation in society.¹²

 

Sen and Nussbaum’s capabilities theories add a further layer of insight into how socio-economic rights can aim to achieve a wider set of feasible options for women, as a way of facilitating individual choice and enhancing their capabilities to do what they value.¹³ Viewed through the capabilities lens, for socio-economic rights to be meaningful to women, the state must take positive steps to remove barriers to and facilitate the exercise of these rights. The theory’s sensitivity to the fact that the same input may lead to different results depending on the individual’s circumstances and environment also incorporates insights of substantive equality.

 

However, capabilities theory is not sufficient on its own to fully ‘engender’ socio-economic rights. Its focus on individual autonomy risks the impression that the only function of positive duties is to facilitate individuals’ capabilities to achieve their goals. Here, capabilities theory needs to be supplemented by a substantive concept of equality which does not only consider individual choice, but other values of interdependence, solidarity and care.¹⁴

 

Engendered socio-economic rights take into account power relations and women’s roles within a complex network of interdependence in which these rights are exercised. Thus a synthesis of socio-economic rights and substantive equality does not merely require women with caring responsibilities to be provided with more childcare options so they can undertake paid work, but that caring activities in themselves are valued and protected.  

 

A concern with respect to the engendering of socio-economic rights is the risk of ‘fragmenting’ the right if one contextualises such rights to the different situation of every group. However, instead of viewing it as ‘fragmentation’, ‘engendering’ socio-economic rights should be understood as expanding the understanding of the right itself. It underscores the need to consciously modify ideologies and structures that shape and perpetuate the subordination of these groups that prevent them from exercising their rights. 

 

 

The interdependence of socio-economic rights and substantive equality is broadly recognised in CEDAW. However, there are also parts of CEDAW which simply seeks to extend given socio-economic rights to women on the same basis as men. If socio-economic rights are to be engendered, it is important to develop CEDAW in the former direction.

 

As an important starting point, CEDAW is explicitly asymmetric, aiming at eliminating discrimination specifically against women. The Convention condemns discrimination against women in all its forms and obligates State Parties to pursue by all appropriate means and without delay a policy of eliminating discrimination against women through a host of enlisted measures.¹⁵ Article 3 envisages all appropriate measures in fields of political, social, economic and cultural fields etc. to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 4 of CEDAW specifically allows adoption of temporary special measures aimed at accelerating de facto equality between men and women such that these measures are not themselves considered discriminatory. Furthermore, it provides that ‘these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved’.¹⁶ CEDAW General Recommendation No. 25 affirms that the application of temporary special measures is one of the means to realize substantive equality for women, rather than an exception to the norms of non-discrimination and equality.¹⁷

 

As such, the CEDAW Committee has adopted the view that a formal equality approach based on identical treatment of men and women will not satisfy the realisation of the Convention’s obligations. Instead, biological, social and cultural constructions of gender difference must be addressed together with their contextual consideration in order to ensure that measures go ‘towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns’.¹⁸ Thus the focus on discrimination against women ‘emphasises that women have suffered, and continue to suffer from various forms of discrimination because they are women’.¹⁹  Furthermore, the emphasis is on measures that ensure that women can actually make use of their rights. For example, Article 4(2) provides that ‘adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory’.

 

CEDAW also demonstrates a clear expectation that for substantive equality to be achieved, laws, policies and programs will need to transform social relations. Article 5 obliges States to undertake measures for structural change in reconfiguring gender relations, particularly in changing the social and cultural assumptions and prejudices that are based on gender superiority/inferiority and stereotype roles. Article 16 further requires States to eliminate all discrimination against women in matters relating to marriage and family relations, an area where cultural and customary prejudices and practices still exist in many parts of the world.

 

A key contribution of CEDAW in enhancing women’s feasible options while valuing their caring roles is its approach to addressing the issue of reproductive labour and its associated rights. Cutting across the public/private sphere, CEDAW’s General Recommendation No. 21 acknowledges the lesser value attached to women’s reproductive labour and challenges its discriminatory nature, emphasising the necessity of such labour to ‘survival of society’.²⁰ Here, valuing women’s role in reproduction and childcare underlies the range of rights enshrined in the Convention. Provisions for maternity protection and childcare are incorporated into all areas of the Convention, from society’s obligation to offer childcare facilities to family planning measures. Article 5(b) also explicitly tries to achieve substantive equality by providing that family education should focus on valuing maternity care and contribute to the understanding of men and women having a common responsibility in child care.

 

CEDAW also emphasises the importance of participation and representation of women in decision-making in political and public life, which is an essential dimension of substantive equality. Article 7 provides not only the right to vote, but also the right to participate in the formulation and implementation of government policy, to hold public office, and to participate in non-governmental organisations. Furthermore CEDAW’s obligations on the state extend beyond negative duties to include positive duties of protecting, promoting and fulfilling the right to non-discrimination for women, and improving their position to both de jure and de facto equality with men.²¹

 

References in CEDAW, its General Recommendations and Concluding Comments to specific groups of women e.g. rural women, HIV+ women, women in situations of conflict, trafficked women, women in prostitution etc. show some recognition that gender intersects with other identities and contexts of women to compound or distinguish one experience of discrimination from another. Drawing attention to intersectional discrimination is an extension of infusing socio-economic rights with substantive equality, to guide measures that respond to distinct and complex disadvantages of multiple and aggravated discrimination faced by some groups of women rather than assume one solution for all women.

 

However, CEDAW stops short of fully synthesising socio-economic rights with substantive equality for women. One of the reasons is its focus on maternity rights, without corresponding rights for fathers, can risk reinforcing the assumption of women being primarily responsible for childcare. There are other provisions of the Convention that articulate a strong notion of formal equality which simply extends socio-economic rights to women on the same basis as men, as reflected in the wording of the rights to education (Art 10), work (Art 11), health (Art 12), family benefits, loans and recreation (Art 13).  However, Art 10(c) hints at a more substantive notion of equality by requiring the elimination of stereotypes of the role of men and women in teaching methods and curricula. 

 

The CEDAW Committee has clarified a ‘sticky’ issue with regards to the absence of an explicit prohibition against violence targeted at women in the Convention. This issue has subsequently been addressed by the CEDAW Committee’s report that make it clear that gender-based violence falls clearly within the definition of discrimination against women in Article 1.²²

 

 

Societal institutions and structures shape particular experiences of socio-economic disadvantage for women that prevent the ‘active, free and meaningful participation in development as well as the fair distribution of the benefits resulting therefrom’.²³ In this context, it is not enough to simply extend a fixed bundle of socio-economic rights to women and men alike, but to infuse such rights with substantive equality — as the general approach of CEDAW has demonstrated. The synthesis of socio-economic rights and substantive equality requires the reformulation of these rights with the aim of expanding the range of feasible options for women while valuing their caring roles. Engendering the right to development, based on this synthesis, would take into account the gender relations and roles of women within a network of interdependence in which these rights are exercised in their communities. 

 

 

* Mimi ZOU, Associate Director of the Centre for Rights and Justice, Chinese University of Hong Kong.
 

1. United Nations, Human Development Report ,Oxford University Press,1995, at 1.
 

2. United Nations, The Millennium Development Goals Report (UN 2015) , at 3.
 

3. United Nations, Human Development Report (Oxford University Press 1995) , at iii.
 

4. CEDAW (18 December 1979) 1249 UNTS 13.
 

5. UN Treaty Collection, Ch 4, n. 8 Convention on the Elimination of All Forms of Discrimination against Women.
 

6. General Assembly, Declaration on the Right to Development (4 December 1986) A/RES/41/128 41/128.
 

7. General Assembly, Declaration on the Right to Development (4 December 1986) A/RES/41/128 41/128, article 6 (2).
 

8. Karel Vasak, “Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights,”30 UNESCO Courier (1979) ,at 11; Philip Alston, “A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?,” 29 Netherlands International Law Review (1982), at 307.
 

9. Jack Donnelly, “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development,”15 Californian Western International Law Journal (1985), at 473; Frances Stewart, “Basic needs strategies, human rights, and the right to development,”Human Rights Quarterly (1989) ,at 347.
 

10. Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004) paragraph 55 (Mokgoro J).
 

11. Lilian Chenwi and Kirsty McLean, “A woman’s home is her castle. Poor women and housing inadequacy in South Africa,” 25 South African Journal of Human Rights(2009), at 517.
 

12. Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties , Oxford University Press, 2008.
 

13. A Sen, Development as Freedom (1999); M Nussbaum, Women and Human Development (2000).
 

14. Sandra Fredman, “Engendering socio-economic rights,” in Anne Hellum and  Henriette Sinding Aasen eds., Women’s Human Rights: CEDAW in International, Regional and National Law (Cambridge University Press, 2013.
 

15. CEDAW, Article 2 enlists these measures as: ‘(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women’).
 

16. CEDAW, article 4 (1).
 

17. CEDAW, Committee General Recommendation No. 25 on Temporary Special Measures (2004), para 14.
 

18. Ibid., paras 8, 10.
 

19. Ibid., para 5.
 

20. CEDAW Committee General Recommendation No. 21, on Equality in Marriage and Family Relations (1994), paras 11-12.
 

21. CEDAW Committee General Recommendation No. 25, para 4.
 

22. CEDAW Committee General Recommendation No. 19 on Violence against Women (1992), paras 6-7.
 

23. Declaration on the Right to Development, Article 2 (3).