international covenant of civil and political rights and universal diclaration of human rights

Introduction

International human rights law and gender equality: elements of a rights-based approach

A.The context of international human rights law

(a) The development of international human rights standards

(b) Regional human rights instruments

(c) Domestic implementation of international human rights norms

(d) Gender-specific norms and standards

B. Some critical issues relating to the scope and application of human rights

(a) Rights-holders and duty-holders

(b) The nature of obligations of States

C. The role of civil society

D. Challenges to a rights-based approach to gender equality

(a) The public/private divide

(b) Competing rights

(c) Human rights of women vs. other claims

(d) Allocation of resources and human rights education

E. The role of multilateral and bilateral entities in realizing human rights at the national level

(a) The role of multilateral entities

(b) The role of bilateral entities

(c) Common efforts of multilateral and bilateral entities in realizing a rights-based approach

F. Elements of a rights-based approach

* This paper was prepared by Professor Goonesekere, in co-operation with the UN Division for the Advancement of Women.

INTRODUCTION

1. During this decade there has been a significant shift in approach to women's advancement and empowerment. While previously the advancement of women was regarded as important for outcomes such as economic development or population policies, more than ever the international community has come to consider the empowerment and autonomy of women and the improvement of their political, social, economic and health status as important ends in themselves. This shift in approach reflects a human rights approach to issues of concern to women.

2. Parallel to this shift in approach to women's advancement has been an increased emphasis on the importance of a rights-based approach to planning and programming generally. In his reform proposals, the Secretary-General has made clear that human rights are a cross-cutting element that should be reflected in all United Nations policies and programmes. The High Commissioner for Human Rights is also stressing that human rights are integral to all activities, including peace-making, peace-keeping, peace-building, humanitarian assistance and development. Several United Nations entities, including UNICEF, UNFPA and UNDP have identified the securing of individuals' human rights as a critical first step in addressing global problems, and are now incorporating human rights into their policy making processes and operational activities.

3. Several factors explain these developments. First, the framework of international human rights law provides a forum for asserting individual claims of human rights violation. Some victims of human rights violation, including women who have suffered discrimination on the basis of sex, for example, those denied citizenship on the same basis as men, have successfully sought relief in international tribunals. The approach and decisions at international level have shaped decisions of regional and domestic tribunals, which have also provided remedies for individuals, including women, who have encountered denial of their human rights.

4. Perhaps more importantly, the language of human rights allows legitimate claims to be articulated with a moral authority which other approaches lack. It is a language which is recognized by the powerful, and which stimulates deep chords of response in many. It is a language which has the potential to empower individuals and communities at the grass-roots level to believe that they have a right to education, to health care or any other right. Human rights speak in broad terms about the fundamental entitlement of all human beings to live in dignity, and in conditions of social justice and thereby provide a foundation from which to establish a set of demands premised on the intrinsic worth of the individual. The human rights approach justifies legitimate claims, not because the realization of rights such as that to health or life is a means to another end, such as quality child care, environment, development or population policies, but because the realization of their rights is an important goal in itself.

5. Human rights also promise the engagement of the responsibility of the State in a way that other approaches to claims cannot. The conceptualization of a claim as a human right immediately involves the recognition of State and international responsibility if that claim is denied or violated. Concerns, when conceived of as rights, are elevated from the realm of State and international promises premised on good faith, to a level of legal entitlement requiring national and international response. Concerns, when conceived of as claims of human rights, become fundamental, immutable and priority claims.

6. Human rights not only create entitlements for rights-holders, but they also create duties for States. States are required to ensure the fulfilment of human rights by acting in a way that enables rights-holders to enjoy the rights to which they are entitled. Human rights require that actions - of a legislative, administrative, policy or programme nature - are considered in light of the obligations inherent in human rights. Actions which violate or fail to support the realization of human rights contravene human rights obligations. A rights-based approach thus assumes the creation of an enabling environment in which human rights can be enjoyed. A rights-based approach also promises an environment which can prevent the many conflicts based on poverty, discrimination and exclusion.

7. Despite the recent focus on the rights-based approach, the meaning and practical implications of such an approach for policy making processes and operational activities, particularly in the context of development and humanitarian assistance, require greater clarity. This paper seeks to provide an understanding of the international human rights framework, and the challenges that must be addressed in integrating it into these processes in order to realize gender equality. A number of premises underlie the paper. First, human rights bring to the development discussion a unifying set of standards, or a common reference, for setting objectives and assessing the value of action. Second, that if sustainable economic development and the eradication of poverty are to be achieved, economic growth has to be combined with the concept of human development and respect for human rights. As such, the `rights-based' approach is an inherent dimension of the concept of `people-centered sustainable development', with development constituting a comprehensive process directed towards the full realization of all human rights and fundamental freedoms. Third, central to the rights-based approach is the norm of gender equality, which resists, rather than accommodates, relativist approaches to the interpretation of human rights.

8. The paper begins with a survey of international human rights law, considering first, the development of international human rights standards and their reflection in regional human rights systems and at the domestic level. It moves on to consider gender-specific norms and standards, concentrating on the Convention on the Elimination of All Forms of Discrimination against Women. Critical issues relating to the scope and application of human rights are considered, including the identification of rights-holders and duty-holders and the nature of obligations of States as a result of human rights provisions. The role of civil society is discussed, as are challenges to a rights-based approach to gender-equality, including the impact of the public/private divide and competing rights. The paper then examines the role of multilateral and bilateral entities in realizing human rights at the national level and concludes by proposing elements, which are inherent in a rights-based approach.



INTERNATIONAL HUMAN RIGHTS LAW AND GENDER EQUALITY: ELEMENTS OF A RIGHTS-BASED APPROACH

A. The context of international human rights law

(a) The development of international human rights standards

9. Historically, international law was the law that regulated relations between kings and sovereigns, and developed into the legal regime governing relations between sovereign States that emerged from feudal kingdoms. States were the actors in international law, and the treatment of the individual human person was not part of this body of law. Exceptionally, international law addressed the State's responsibility to alien (foreign) subjects of another State living within its borders. In addition, several international treaties regulated the treatment of victims of war, and sought to combat slavery.

10. Early major advances in the protection of the human rights are to be found in the mandates and minorities protection treaties of the League of Nations and the attempts to codify labour standards by the International Labour Organization, established in 1919. However, the conceptualization and development of human rights law originated in the middle of the twentieth century with the foundation of the United Nations. The 1945 Charter of the United Nations includes `promoting and encouraging respect for human rights and fundamental freedoms' as one of the four purposes of the Organization. The Charter's provisions on human rights and international co-operation form the basis of the view that membership in the United Nations carries with it a Member State's responsibility to promote and protect the human rights of individual human beings, and that national sovereignty cannot prevent scrutiny of conduct within national boundaries that infringes human rights.

11. The principle of equality forms the core of the human rights vision of the Charter, which states that human rights and fundamental freedoms should be available to all human beings `without discrimination on the basis of race, sex, language or religion'. The principle of the equal rights of women and men is thus one of the pillars upon which the United Nations was founded.

12. The Universal Declaration of Human Rights (UDHR), adopted in 1948, proclaims numerous rights to which people everywhere are entitled. A "common standard of achievement for all peoples and of all nations", the Declaration delineates civil and political rights such as the right to freedom from torture, illegal arrest, free speech and freedom of conscience. It also establishes "freedom from want" as an essential dimension of human rights and dignity. Consequently, it encompasses economic, social and cultural rights, including work-related rights, the right to social security, the right to education, and the right to an adequate standard of living.

13. Although technically a non-binding instrument, several commentators argue that the whole of the Declaration(1) has acquired the status of universally recognized norms of customary international law that bind all Member States of the United Nations. There is consensus that some of the human rights in the UDHR, including the right to freedom from torture, slavery, and prohibition of racial discrimination form part of customary international law and thus bind all Member States.

14. The UDHR was followed by other instruments, including the Convention against Genocide (1948) and the Convention on the Elimination of Racial Discrimination (1965). In 1966, two overarching human rights treaties - the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) - were adopted, which together with the UDHR form the International Bill of Human Rights providing the source of the core standards of international human rights law. The Covenants elaborate many of the rights in the UDHR, albeit with greater detail, and also address the protection of particular categories of people, including refugees and children. In contrast to the UDHR, however, they are multilateral treaties which, upon ratification or accession, create binding international legal obligations for the State concerned.

15. Since the adoption of the Covenants, the United Nations has continued to elaborate international human rights standards. Other major treaties concern non-discrimination on the basis of sex, freedom from torture, the rights of children, and the rights of migrant workers and their families. The ILO has also continued its effort to define particular human rights standards relating to the rights of workers. Important amongst these efforts have been the ILO Conventions Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (100) (1951), on Discrimination in Respect of Employment and Occupation (111) (1958), and on Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (156) (1981). In addition, human rights standards concerning education, including the 1960 Convention on Non-Discrimination in Education, have been concluded under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO).

16. Standards are also delineated in international humanitarian law - the body of international law governing the conduct of armed conflict between sovereign States, and internal conflicts within a State. The purpose of this branch of international law is to protect individuals who are affected by such conflicts and as such it is founded on core values familiar to international human rights law. Norms governing armed conflict that were meant to foster humanism and protect the rights of persons affected by such conflicts were developed in the nineteenth century, and thus pre-dated human rights law. These standards were codified in 1949 in the four Geneva Conventions, and developed further in their Additional Protocols of 1977. Specific provisions on the treatment of women are contained in the Geneva Convention relative to the protection of civilian persons in time of war(2) while all four Geneva Conventions contain a `Common Article 3' concerning internal conflicts, which endorses some of the core standards of international human rights law. It establishes, inter alia, the right of non-combatants and civilians to be treated humanely, without distinction on grounds of race, sex, religion or faith.

17. Relevant standards are also to be found in international refugee law, which although predominantly concerned with protection, incorporate minimum human rights principles for those meeting the definition of refugee in international law. These principles are codified in the 1951 Convention relating to the status of refugees, and its Protocol adopted in 1966.

(b) Regional human rights instruments

18. International human rights law has been reinforced by regional human rights regimes in Europe(3), Latin America and Africa. While two separate instruments covering civil and political rights, and economic, social and cultural rights are in place in Europe, both the American Convention on Human Rights (1969) and the African Charter on Human and Peoples' Rights (1981) include civil and political rights, and social, economic and cultural rights. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) expands on the coverage of these rights in the Convention. Several regional treaties also address particular problems. Thus, regional treaties concerning torture exist in the European and Inter-American human rights systems, while other regional Conventions may seek to set standards which go beyond those in international human rights instruments. Examples of these include, the Inter-American Convention on the Eradication of Violence against Women (the Convention of Belem do Para) and the proposed Convention of the South Asian regional body SAARC on cross-border trafficking and the sexual exploitation of women and children.(4)

(c) Domestic implementation of international human rights norms

19. By their very nature, international and regional human rights standards require implementation at the national level. They require States parties to take necessary measures of a legislative, administrative or policy nature, and to provide appropriate remedies in case of violations, so as to ensure enjoyment of the established rights and freedoms.

20. Many of the norms of the UDHR and of other instruments, especially civil and political rights, are incorporated in national Constitutions, or in domestic legislation. Constitutional jurisprudence is thus a vital source for clarifying the scope of international human rights standards.

21. Social and economic rights are less commonly reflected in national Constitutions, or recognized by Courts, as fundamental human rights. Social and economic rights are often considered to be `basic needs' which a Government is required to satisfy through appropriate socio-economic policies. They are sometimes incorporated in separate chapters dealing with a Constitution's `directive principles (guidelines) of State Policy.(5) However, several Constitutions including the new South African Constitution, those of several East Asian countries, the Finnish Constitution of 1995 as well as the draft Constitution of Sri Lanka influenced by South Africa, incorporate rights in regard to access to basic education and health services as enforceable fundamental rights.(6)

22. National courts may sometimes link the interpretation of civil and political rights with directive principles of state policy. For example, the Supreme Court of India has interpreted the fundamental right to life as linked to the Directive Principles of State policy elaborated in the Indian Constitution requiring the State to provide access to education and health.(7) Consequently, the Courts have developed concepts of legally enforceable fundamental rights to education and health. The South African Supreme Court is also developing a jurisprudence on socio-economic rights, and has interpreted the Constitutional guarantee of the right to health to include a right of access to health care services which will include reproductive health care. Access to health care services is considered dependent on resources, but the right of access to emergency treatment is unqualified.(

(d) Gender-specific norms and standards

23. The principle of the equal rights of women and men is contained in the Charter of the United Nations, the Universal Declaration of Human Rights and all subsequent major international human rights instruments. It is most comprehensively elaborated in the Convention on the Elimination of All Forms of Discrimination against Women, which codifies women's rights to non-discrimination on the basis of sex, and equality as self-standing norms in international law. It also establishes that women and men are entitled, on a basis of equality, to the enjoyment and exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and thus moves beyond the two Covenants by incorporating both families of rights in one instrument, establishing them as mutually reinforcing.

24. Critical areas, such as political participation and access to equal opportunity in public life, and in the professions are covered comprehensively in CEDAW, as are standards on nationality. The Convention also addresses women's equal right to education and training, health and employment. The Convention underlines the equal responsibility of women and men in family life and stresses the social services needed for combining family responsibilities and participation in public life. The Convention calls for the introduction of temporary special measures to redress inequalities between women and men, and special attention is given to rural women and their equal involvement in development processes. Importantly, the Convention obliges States parties to take all appropriate measures to ensure that women do not experience discrimination in certain areas of private life. Thus States parties are required to ensure that all contracts and other private instruments which restrict the legal capacity of women "shall be deemed null and void", while they are also obliged to take steps to eliminate discriminatory practices in the family.

25. Certain areas are not addressed by the Convention. It does not include specific provisions on the group right to self-determination, freedom of association or information, and participation in trade unions(9) nor does it contain standards relating to refugee women or women in armed conflict. However, standards in other instruments, including the Refugee Convention and its Protocol and the Geneva Conventions and Protocols, are applicable in these contexts.

26. Except for article 6, which requires States parties to take all appropriate measures to eliminate the exploitation of prostitution and trafficking in women, the Convention does not address violence against women. General recommendation 19 of 1992 of the Committee on the Elimination of Discrimination against Women indicated that the full implementation of the Convention requires States parties to take positive measures to eliminate all forms of violence against women. It also established the links between violence against women and enjoyment of other rights protected by the Convention, and put forward a series of specific steps States parties must introduce in implementation of their treaty obligations . (10)The provisions of other conventions on the right to life, freedom from slavery, protection against torture, inhuman and degrading treatment and illegal arrest are particularly relevant for the human rights of women in custodial situations, and protection against State violence including illegal detention . (11)General recommendation no. 19, and the UN Declaration on the Elimination of Violence Against Women (1993)(12), which provides a comprehensive definition and set of measures for the prevention and eradication of violence against women, are useful in closing the gap with regard to international standards on violence.

27. In instances where the CEDAW Convention is less specific than other instruments, or does not address certain rights explicitly, such gaps can be filled by reference to the general non-discrimination clause of other instruments, and/or their provisions of particular relevance to women, such as articles 3 of the ICESCR and ICCPR. The general recommendations/comments and concluding observations of human rights treaty bodies considerably strengthen a comprehensive human rights framework. Efforts at ensuring that general human rights instruments and mechanisms more fully integrate gender considerations are therefore essential in achieving implementation of human rights standards and norms that is sensitive to the needs and experiences of women . (13)

28. ILO Conventions on the protection of women workers are also important for realizing gender equality, non-discrimination and protection from gender based exploitation, harassment and violence in the world of work. In addition to creating legal obligations for States parties, they provide essential guidance in programming for particular situations of working women.

29. As in the case of other international human rights instruments, courts in several jurisdictions, including Tanzania, Australia, New Zealand, Botswana, Nepal and India(14) have drawn on CEDAW to assist in the interpretation of domestic legal provisions.

30. The consensus documents emanating from global United Nations conferences, including the Vienna Declaration and Programme of Action of the World Conference on Human Rights (1993) and the Beijing Platform for Action of the Fourth World Conference on Women (1995), are couched in terms of the UDHR and other international human rights instruments. These conference documents are directed to the realization of human rights and fundamental freedoms, civil, cultural, economic, political and social, including the right to development, for all. As they reflect present political, economic and social realities, they can provide useful guidance in clarifying the scope of international human rights standards, and related obligations of Governments.

31. The Vienna Declaration and Programme of Action restated that women's rights are an intrinsic dimension of human rights. It also identified gender-based violence as a subject of international human rights law. The Beijing Platform for Action builds on the Vienna results concerning the human rights of women. Among the critical areas of concern covered in the Platform are >human rights of women=, >violence against women=, and >women and armed conflict= The full range of rights is addressed in other sections of the document, in particular in areas such as >women and the economy=, >women and poverty=, >women and health=, and >the girl child=. The International Conference on Population and Development (1994, Cairo) and the World Summit for Social Development (1995, Copenhagen) also integrate human rights in general, and gender equality as a human right.

B. Some critical issues relating to the scope and application of human rights

32. International human rights law has introduced a >people centred= dimension to international law. Concerned with the relations between Governments and their own subjects, it represents a body of rights and obligations, guaranteed to those subjects. Guaranteed rights are reinforced by international mechanisms of monitoring and supervision, including human rights treaty bodies, which seek to ensure governmental accountability for implementation at the national level.

33. Human rights are often described as non-communitarian and individualistic, but the UDHR and the two Covenants place the rights of the individual within the context of family and community, rather than as an entity that is isolated or antagonistic to the community. (15)The realization of human rights is perceived as both an individual right, and a community interest and commitment. The need to balance individual rights and the role of the State is recognized, and none of these entities are considered to have an exclusive role in realizing the human rights agenda. Indeed the concept of limitation and derogation of rights to preserve >public order= or >public welfare= introduces this communitarian dimension. However the balance suggests that neither governmental power or communitarian interest can justify the denial of the core importance of the dignity and rights of the individual human being. The balance between conflicting interests of State and community must be retained within the objective of realizing the core rights recognized in international human rights law.

34. >Human rights= are frequently misconceived as constituting only civil and political rights, with infringement of rights perceived as a matter of law and adversarial legal procedures. Often, rights are associated with the notion of negative action by the State and >protection=. >Human rights= and >protection= are distinguished from the social-welfare centred delivery of services which seek to satisfy >basic needs= such as food, health and education. Inevitably international development agencies have debated whether to adopt a service delivery `welfare' approach, or a `human rights' based approach which focuses on infringement of rights. Since they have been traditionally working in the area of service delivery, they sometimes see a shift to a human rights approach as ignoring basic needs and therefore counterproductive. The development debate has often juxtaposed the `basic needs' or `basic rights' discourse, or the `humanitarian assistance' or `human rights' approach in relation to work in conflict zones.

35. However, the notion of sustainable development does not polarize human rights, basic needs, and humanitarian assistance. Eradication of illiteracy and achievement of high standards of health, participation of women and their empowerment so that they can fulfil their roles in the community, environmental protection, and respect for human rights are all aspects of sustainable development. While `human rights' are sometimes referred to, mistakenly, as one dimension of sustainable development, respect for social and economic rights, such as to education and health, as well as rights of gender equality, non-discrimination and environmental protection are now recognized as dimensions of human rights.

36. Nevertheless, critics of current developments in international law, and the new holistic vision of human rights, continue to argue that economic development requires the satisfaction of `needs' in an environment where individual human rights must give way to community welfare. They argue that an aggressive and adversarial agenda of individual claims and rights undermines economic growth, destabilizes harmonious social relations and the capacity of individuals to interact on the basis of their responsibilities and duties in the community. `Rights-based societies' are sharply contrasted with `duty-based societies.' Asian and African societies are then said to have their own concept of human equality and fundamental duties which challenge the basic assumptions that individuals have rights and claims on Governments and the community. Human rights are criticized as Eurocentric Western values, particularly because human rights are often associated exclusively with civil and political rights.

37. These criticisms impact on approaches to gender equality. There is invariably a consensus that women and men should be provided with equal life chances through policy programmes that focus on poverty alleviation, equal access to health and education, and opportunities for self-employment, access to credit and economic empowerment. However, there is an unwillingness to adopt a holistic approach to infringement of bodily security and gender based discrimination in a society, or address complex problems in regard to gender roles and relationships and their impact in imposing disadvantages upon women because of their sex.

38. Bilateral and multilateral agencies working at the national level sometimes find it difficult to integrate a rights-based approach into their work. There is sometimes a perception that the cause of human rights in general, and gender equality in particular, can be advanced as well, or even better by a social welfare-oriented `basic needs' approach that also impacts on the quality of life of people in general, and women in particular. Programmes by a consortium of international agencies may be developed to ensure that women receive humanitarian assistance in conflict areas or obtain access to services. Such programmes may hesitate to integrate aspects that are likely to be controversial or perceived as `politically sensitive,' because they raise `human rights' issues, such as discrimination or gender-based violence. For instance, an agency may have a programme on providing girls and women access to education, or adequate pre-natal and post-natal care, without addressing the issues of forced and early marriage, gang rape by law enforcement authorities or custodial violence.

39. However, the advantage of a human rights-based approach to development and governance including the realisation of gender equality, is that it encourages an inherently holistic vision of outcomes. It encourages people-centred and sustainable development approaches to planning and decision making, on the assumption that respect for individual human rights, dignity and gender equality must be the foundation of any civil, political, social and economic agenda. It thus provides a framework that encourages programming which takes account of the dynamics of civil and political, and socio-economic rights, and the need to find solutions that strike a balance so as to achieve the overall objectives of realising human rights. A rights-based approach adds a different dimension to service delivery for satisfaction of basic needs and humanitarian assistance. Since achievement of gender equality is a critical aspect of any human rights agenda, opportunities for mutual reinforcement need to be clearly understood so that the two agendas can be pursued in tandem.

40. The challenge remains to achieve international consensus in regard to the precise content of human rights, the duties of Governments vis-a-vis its people, and the means required for their implementation. The next section of this paper considers these issues.

(a) Rights-holders and duty-holders

41. Human rights create entitlements for rights-holders. Unlike other societal aspirations or claims, human rights carry not only moral force, but also legal validity. They create obligations for duty-holders to act to enable rights-holders to exercise the rights to which they are entitled. They also require duty-holders to ensure the fulfilment of these rights. Human rights obligations require that actions - of a legislative, administrative, or policy/programme nature - be assessed in light of the obligation to protect and promote human rights. Actions that fail to support the realization of human rights are not in accordance with obligations resulting from a human rights perspective. While the State has a margin of discretion in choosing types of actions and measures, the implementation of obligations is not a matter of the good faith of the State, but constitutes a legal obligation for which the State is accountable to the international community.

42. The Charter places human rights within a system of international co-operation. This implies that national borders put no limits to human rights but that by their very nature, human rights represent transboundary values. It also entails that human rights are a legitimate concern of the international community, entitling it to raise such issues when human rights are in jeopardy.

43. Treaties usually create monitoring Committees or treaty bodies, to which States parties must regularly report on their progress in implementing their treaty obligations. The growing participation of NGOs in these monitoring processes is creating greater ownership of civil society in monitoring human rights implementation.

(b) The nature of obligations of States

44. The United Nations Charter refers in declaratory language to the obligation of States `to promote and respect' human rights. These are general terms which do not indicate the content of the rights, or mandate effective enforcement. The terms `protect' and 'ensure' are also used in subsequent instruments.

45. A distinction is often drawn between State obligations imposed by civil and political rights, which must be `ensured', and socio-economic rights which must be `recognized', and realized `progressively' or `to the maximum extent of available resources.' It is sometimes argued that there is a hierarchy of rights according to which some rights (civil and political) are more important than others, guaranteed and immediately realizable. According to the same argument, other rights (socio-economic and cultural rights) are not immediately realizable, but may be postponed until adequate resources are available for their realization. Civil and political rights are characterized as `hard' rights, justiciable in courts, imposing negative duties on States of recognition, protection and non-interference. Socio-economic rights are then considered `soft' rights, imposing positive duties on States which can best be realized progressively through allocation of resources and administrative policy planning, rather than enforcement through the Courts. (16)

46. Asbjoern Eide, in his study on the right to adequate food as a human right,(17) developed a three level typology of State obligations, which has become a widely accepted framework for analyzing States' obligations with regard to human rights generally. These are:

- The obligation to respect requires the State and thereby all its organs and agents, to abstain from doing anything that violates the integrity of the individual, or infringes on her or his freedom, including the freedom to use the material resources available to that individual in the way she or he finds best to satisfy basic needs.

- The obligation to protect requires from the State and its agents the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action, or other human rights of the individual, including the prevention of infringements of his or her material resources.

- The obligation to fulfil requires the State to take the measures necessary to ensure for each person within its jurisdiction opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts. (18)

47. This framework of analysis of State obligations clarifies the indivisibility and interdependence of civil and political rights, and economic and social rights and supports the growing recognition of the similarity of the two families of rights in terms of the obligations of States for their implementation. Civil and political rights are no longer seen exclusively as `hard rights,' immediately claimable and requiring nothing but the State's non-interference in the individual's enjoyment of the right. `Socio-economic rights' are no longer seen as `needs' to be progressively satisfied at the will and pleasure of Governments through welfare benevolence, resource allocation, and administrative and policy planning.

48. In both families of rights, the State's obligations consist of a combination of all three levels to achieve the respect for, protection of, and promotion and fulfilment of human rights. The indivisibility and interdependence of rights in terms of the obligations they create for States, have been particularly understood in developing countries of Africa and Asia, as well as in the newly developed countries of East Asia. Structural and institutionalised discrimination, which results in inequalities of class, race and gender have been recognized in development studies as stemming from the absence of access to socio-economic and cultural rights such as basic health, nutrition, basic education and language. Torture, detention and violence have been discerned as fostered by lack of allocation of adequate resources for training of personnel and law enforcement. Lack of sufficient allocations in national development planning and budgets in the socio-economic areas of health, education and food security are often the result of denial of civil and political rights, such as the right of democratic elections, free speech and information dissemination. Authoritarian governments that deny freedom of speech and the right to vote do not provide adequate information on the causes of famine and lack of food security, or low levels of literacy and health. Due process rights cannot be satisfied without a Government's active establishment and maintenance of the physical infrastructure, and the training, appointment and remuneration of competent judges.

49. The links between families of rights have been clarified in recent years by several human rights treaty bodies, with, for example, the Committee on Economic, Social and Cultural Rights, in its general comment no. 3, discussing the nature of States parties obligations under the Covenant(19) The right to non-discrimination was among the provisions considered by the Committee to be capable of immediate realization, and enforceable by judicial and other bodies in a national legal system.

50. The general comment also notes that the duty `to take steps' indicates that steps towards the goal of the realization of a right must be taken within a reasonably short time after the Covenant's entry into force. Such steps should be deliberate, concrete, and targeted as clearly as possible towards meeting the obligations in the Covenant. Legislation might be an indispensable element. But the general comment also noted that `the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of meaningful content'. The Committee noted that the Covenant imposes `an obligation to move as expeditiously and effectively as possible towards that goal.' On this analysis, the Committee determined that each State party has a minimum core obligation to satisfy `minimum essential levels' of each right covered by the Covenant. This is a clear statement that the availability-of-resources argument does not reduce States parties' obligations to satisfy socio-economic rights by postponing them to a future time.

C. The role of civil society

51. The recognition of the status of civil society in monitoring the implementation of human rights reinforces the understanding of individuals as rights-holders. This includes their right to participate actively, freely and meaningfully in the formulation of national human rights and development policies. The right to participation takes on particular force for those who remain, or have historically been marginalized. Indeed the general human rights norms relating to freedom of association and freedom of speech are critical for the women's human rights agenda so as to strengthen their ability to participate freely and meaningfully in the decisions that affect their enjoyment of all their human rights. Women's groups need to link with human rights groups in order to bridge both the human rights and the development agenda. Such links have intrinsic impact on the capacity of women's groups to engage in activism to realize gender equality as a rights issue in development. The activism of international NGOs networking with local NGOs has helped to promote incorporation of international human rights norms into national law, policy and into public debate.

D. Challenges to a rights-based approach to gender equality

52. Challenges to the rights-based approach are inherent in the structure of international human rights law as it addresses mainly relations between the individual and the State and its agents, rather than relations among individuals. A second challenge lies in the fact that realization of various equally valid rights inevitably creates situations of conflicts between them. These two issues will be addressed in turn.

(a) The public/private divide

53. Through the State's obligation to protect individuals against infringement of their rights by other individuals or non-State actors, the State is responsible for putting in place effective forms of prevention of violations and/or for holding non-State actors accountable for violations of other individuals' rights. Consequently, the State must bring the acts of private individuals within the `norms and regulatory framework of rights by legislation and effective law enforcement.

54. Many violations of the rights of women occur in situations that remain outside the regulatory framework of the State. Examples include the family, or the existence of religious law, as well as traditional and customary law. Likewise, many economic activities performed predominantly by women are not regulated by the State, such as work in family farms or businesses, caring work and work in the informal sector, and are thus not subject to regulations concerning social security, health and safety standards, minimum pay or protection against exploitation.

55. As human rights continue to be perceived in international law as rights enforceable only against the State or its agents, a large area of gender discrimination and gender-based violence will continue to fall outside the area of effective enforcement. Increasingly, infringements of human rights take place because of the actions of non-State actors. Gender-based violence occurs in the family and in the community, and the perpetrators are often non-State actors or private individuals. Economic policies have resulted in increased privatization in both developed and developing countries, especially also in the social sector (health care), and in cuts in Government programmes and spending.

56. Gender equality and human rights, if they are to be realized, must be respected, protected and fulfilled in both the public and the private realm. The distinction between the `public' and `private' divide in international human rights law has been criticized, and there have been efforts to shift towards a recognition of responsibility and accountability for private action. The challenge to this divide is sharpest in the discourse on gender-based violence(20) but the field of work also provides opportunities for softening the divide. The UN Declaration on the Elimination of Violence against Women (1993), although not binding in international law, encompasses standards that apply to both State and non-State (private) actors. A jurisprudence has developed in both regional and national human rights law which recognizes that a State can be liable for an infringement of human rights by a private actor when the State fails to act with due diligence in implementing its legislative or regulatory obligations to protect individuals from the actions of third parties. The State is also being held liable, quite distinctly, for inaction in law enforcement.(21)

(b) Competing rights

57. Competition between rights is inevitable in the very process of recognition of individual human rights. If one right or set of rights is interpreted absolutely, it will `trump' other rights. However the experience of legal systems throughout the world indicates that regulation, law and policy-making continuously involves `social engineering' or a balancing of conflicting interests. A legal norm or policy is rarely absolute. Consequently the existence of the prospect of conflicting human rights should not be a reason for rejecting the rights-based approach. Rather, efforts are needed to understand the potential for conflict, and a commitment to developing strategies for resolving them so as not to undermine the core agenda of gender equality and non-discrimination.

58. Gender-equality rights compete for recognition with a number of other, equally valid, human rights. For instance, the human right of freedom of speech may compete with controls on pornography that may encourage gender-based violence(22). Freedom of conscience, religion and the right to manifest religious belief in practice and observance, and cultural rights may foster particularities that challenge the universality of human rights, and purport to limit equality rights. Conflicts between women's human rights and religious rights illustrate the philosophical, legal, and political difficulties of reconciling competing human rights values. The right to religious freedom, custom or religion may therefore have to be interpreted not absolutely, but so as to strike a balance, and achieve the norms of gender justice.

59. It may be argued that the concept of violence differs according to religion or custom, clothing an infringement of the human right to bodily integrity with the legitimacy of custom and religion. Practices such as Sathi or wife immolation, or female genital mutilation, or early marriage under parental authority infringing reproductive health rights and denying education, may be legitimized on the argument that these practices are deeply rooted in religious belief, custom or culture.

60. A `particularistic', or culturally relativist justification is frequently given by States which, at the time of ratification, enter general reservations, or reservations on particular articles of treaties which result in a particular treaty provision being inapplicable in a national context, or being interpreted in a local context. The number of reservations entered to CEDAW has been of great concern to the Committee and to other States parties, as these are perceived as undermining the legal standard of gender equality.(23)

61. National courts have pioneered approaches that seek to balance competing human rights so that they are not interpreted absolutely and undermine one another. Canadian jurisprudence recognizes that limits must be placed on free speech where it runs counter to the right to equality(24) South Africa's Constitution recognizes the right to limit rights, but requires courts to consider the purpose of the limitations, its nature and extent, and the overarching goal of ensuring that it is `reasonable and justifiable in a society..... based on human dignity, equality and freedom.=(25) This has encouraged the Constitutional Court to adopt what is called `a purposive interpretation' of competing rights, so as not to construe different rights out of context and in isolation, but with recognition of the need for a balance, bearing in mind the core human rights values the Constitution seeks to achieve.

62. Jurisprudence on the interpretation of limitations to the right of freedom of religion indicates that litigation has focussed in the main on aspects which have not presented the courts with hard choices. The Indian courts, as well as the European Court of Human Rights have often been faced with recognizing the right of freedom of conscience and religion, and manifestation of religion, in situations where the practices and activities in question had no impact on the right to gender equality or freedom from gender discrimination. However in those instances where the Supreme Court of India has been faced with recognizing personal laws based on religion resulting in gender-based discrimination, it has been unwilling to recognise that a personal law undermines a conflicting statutory provision. The Shah Bano Case(26) considered a Muslim wife's right to maintenance under a generally applicable family support statute, and was an effort to prevent the application of a religious law that denied maintenance.

63. In the Mudgal Case (1995), an Indian court decided that a man's unilateral conversion to Islam did not give him the right to contract polygamous marriages, and to reject his statutory obligations as a result of an earlier monogamous marriage. Similarly, a Sri Lankan Court arrived at the same conclusion, overturning a Privy Council decision which had been followed as a precedent for thirty years.(27) However, Indian Courts have decided that personal laws based on religion cannot be challenged, in the absence of a conflicting statutory principle, via the Constitution. They have shown a reluctance to adopt an activist approach to changing personal law, perceiving this as the responsibility of Parliament. (28)

64. South Asian and African countries have already a body of common jurisprudence, sometimes derived from colonial statute law, which applies to all communities. Retaining and developing this common body of law to conform with human rights standards, and recognizing the right of individuals to govern their personal and family relations according to their general norms by choice, even where plural legal traditions based on religion and ethnicity also exist, provides one strategy for working towards universal human rights standards. In this regard, however, particular care needs to be applied to ensure that international norms of gender equality are incorporated into, and reflected in this body of law and jurisprudence.

65. In countries where a religious or customary tradition is recognized as an absolute one, there is a clear problem of conflict of norms. It is in these countries that Constitutional guarantees on freedom of religion can be used to reject secularism and move towards a religion based system of rights and responsibilities.

(c ) Human rights of women vs. other claims

66. Once the primacy of rights has been established, the question of a potential conflict between development or humanitarian assistance, and a human rights approach no longer arises. Once socio-economic rights are recognized as human rights, service delivery is only one dimension of human rights.

67. In situations of armed conflict, agencies providing humanitarian assistance naturally prioritize the delivery of basic services to victims, and are neutral and discreet in their dealings with the parties to the conflict. However since humanitarian law is closely anchored to human rights standards, the challenge is to recognize that human rights today encompass both humanitarian assistance and protection from infringement of human rights. The international standards in the area of humanitarian law and the Refugee Convention and Protocol are themselves based on the recognition of the human right to equality and non-discrimination, and other rights relating to personal security. It is therefore important to ensure that a humanitarian assistance agenda does not displace the priority given to a human rights agenda.

68. A humanitarian assistance agenda can no longer be seen in isolation as an effort to provide `assistance' rather than realize human rights for access to these services as part of the protection afforded for civil and political rights. Humanitarian agencies working in conflict areas, including UNHCR, are recognizing this dimension of rights. A view that humanitarian assistance should be primarily oriented towards service delivery can no longer be sustained.

(d) Allocation of resources and human rights education

69. Rights are often perceived as only requiring lawyers, laws and legal procedures. Strengthening the process of implementation of gender equality rights through international complaints procedures, and national laws and a Court system is clearly relevant for a rights-based approach. Monitoring violations through national and international processes is equally critical.

70. However, a rights-based approach also requires the development of human rights action plans and strategies covering all areas of national development, and the allocation of human and financial resources. The rights contained in the CEDAW Convention require policy measures and resources beyond laws and legal procedures for full implementation.

71. Human rights education and gender-sensitization at all levels are also a critical dimension of a rights-based approach. This is perhaps the easiest aspect of a rights-based approach, since there are many partners in the human rights arena, and programmes can be strengthened by linking and networking. It is important that gender-sensitization programmes are linked to human rights education. An environment that is not open in regard to education, diversification of information, participation of civil society including in the political process cannot be receptive to efforts at gender sensitization. Women's groups therefore need to network and make these connections so as to strengthen their own capacity and also impact on the wide range of State and private actors who can be catalysts for creating an environment conducive to realizing gender equality.

E. The role of multilateral and bilateral entities in realizing human rights at the national level

(a) The role of multilateral entities

72. To varying degrees, international human rights treaties establish a role for international organizations in support of implementation of the treaty at the national level. They also foresee a role for such entities in providing treaty bodies with information essential to the monitoring process.

73. The Committee on Economic, Social and Cultural Rights, in its general comment no. 2 (1990), has given detailed guidance to entities of the United Nations system, and in particular those involved in development activities, on the integration of human rights concerns into development activities. In order to assist such entities in the operationalization of article 22 of the Covenant,(29) the Committee provided a list of specific measures for consideration by the relevant bodies. The Committee noted, inter alia, that:

- As a matter of principle, the appropriate United Nations organs and agencies should specifically recognize the intimate relationship which should be established between development activities and efforts to promote respect for human rights in general, and economic, social and cultural rights in particular;

- Consideration should be given to require the preparation of a `human rights impact statement' in connection with all major development cooperation activities;

- Training for United Nations project personnel in human rights standards and norms;

- Ensure at each phase of a development project that human rights are duly taken into account. This would apply in the initial assessment of priority needs of a particular country, in the identification of particular projects, in project design, in the implementation of projects, and in its final evaluation. (30)

74. International agencies can use their specific role to adopt a pro-active role in the realization of gender-equality rights. They have both a mandate and a duty to adopt a stand on gender-equality issues in the regular country programmes that they enter into with Government. As human rights are ends in themselves, all programming efforts should be critically analyzed to assess their impact with regard to realization of gender equality.

75. Agencies' mission statements and guidelines for programming can incorporate a rights approach by referring to international instruments, and the agency's status and responsibilities under human rights treaties. Indeed, UNICEF's mission statement has clarified that the Convention on the Rights of the Child will be the foundation of programming. UNHCR has also made similar statements on the importance of a rights approach, and adopted guidelines on the place of human rights in general, and women's human rights in particular in their work on refugee issues. Discussions are ongoing on how to strengthen capacity to programme from a rights-based approach in situation of internally displaced persons who do not come directly within UNHCR's mandate. (31)

(b) The role of bilateral entities

76. Bilateral entities focussing on gender-equality have opportunities to create an understanding of the rights-based approach within their organizations, and strengthen their mandate by reference to the international standards that Governments have committed themselves to realize. They must understand the scope of the various international standards that countries have ratified in regard to gender equality, whether generally or specifically in relation to their areas of expertise. They can also study and use the conference documents such as the Vienna Declaration, the Beijing Platform for Action, the Cairo Population Conference and the Stockholm Conference Reports which recognise the importance of international co-operation in realizing human rights. Most of these conference reports envisage action by multilaterals and bilaterals.(32) Creating an awareness of the legitimacy of a human rights agenda and gender equality as a human right is critical to impacting through programming at the national level.

(c ) Common efforts of multilaterals and bilaterals in the realization of a

rights-based approach

77. A rights-based approach requires a shift from an approach focussed on basic needs to a recognition of the importance of claims to equality and non-discrimination. Strengthening women's position by providing life chances, access to health and education, and opportunities for career development or income generation and employment, are only one part of a rights agenda. Bilaterals and multilaterals need to be concerned with the design and implementation of a women's rights agenda that encompasses civil, political, economic, social and cultural rights as ends in themselves.

78. Developments in the area of women's human rights are reinforcing the need to move beyond the basic/needs basic/rights debate. As the links between law, policy planning and allocation of national and international resources for realizing human rights are becoming clearer, the requirements for implementation of human rights in general, as well as the right of gender equality are also becoming more obvious. All of them create, to varying degrees, obligations for States to respect, protect, promote and fulfil human rights. Therefore, a human rights agenda requires not only responding to infringements, but an agenda that establishes connections between law, policy planning, resource allocations, advocacy and community mobilization to support rights.

79. The significance of international human rights law, and the manner in which it has legitimized the scope for State accountability and scrutiny must be understood so as to confront arguments of State sovereignty. Bilaterals and multilaterals must understand the legitimacy of that scrutiny, and the fact that they are partners in enabling the State to perform its own obligations under international law.

80. It is no longer appropriate for multilateral and bilateral agencies to distinguish between provision of assistance and protection of rights, as if only the latter aspect concerns human rights. Consequently, specific elements of international co-operation such as humanitarian or emergency assistance, or the delivery of basic services can no longer occur outside, or above, a human rights framework.