This panel was convened at 9:00 am, Friday, April 11, by its moderator, Patricia O'Brien of the Permanent Representation of Ireland to the United Nations Office and Other International Organizations, who introduced the panelists: Sujata Manohar, former member of the Supreme Court of India; Eric Schwartz of the Hubert H. Humphrey School of Public Affairs, University of Minnesota; and Anne Trebilcock of the Centre de Droit International, University of Paris Nanterre-La Defense.
REMARKS BY SUJATA MANOHAR *
Women's economic rights are by now fairly well-articulated in international conventions and regional human rights instruments in Europe, Africa, and the Americas. CEDAW, the UN International Covenant on Economic, Social and Cultural Rights, and ILO conventions have laid down and expanded concepts of gender equality and non-discrimination in the economic sphere along with other spheres of human endeavor. It is being increasingly realized that economic, social, cultural, civil, and political spheres of activity overlap and interact. Absence of rights in one sphere affects rights in another sphere. It is apposite that this panel should be held during the week when the Payment Fairness Act is being debated here in the United States. It was interesting to learn that cutting hours of work hurt 34% of women as compared to 18% of men.
From the days of Magna Carta, the rights of an individual against the state have been articulated and accepted. But it has taken much longer for the state to accept some responsibility for economic, social, and cultural rights. Economic rights play a key role in the empowerment of women. A strong reiteration of women's human rights was made at the 1993 World Conference on Human Rights, which declared:
The human rights of women and of the girl child are an inalienable, integral and indivisible part of the Universal Declaration of Human Rights. The full and equal participation of women in political, civil, economic and cultural life at the national, regional and international level and eradication of all forms of discrimination on the ground of sex are the priority objectives of the international community. How does one eradicate such discrimination in the economic sphere--so vital for the empowerment of women? The economic rights of women broadly include the right to own and inherit property (especially land); the right to work; the right to just and favorable conditions of work; the right to equal pay for equal work; the right to rest and leisure; the right to be protected against sexual harassment and violence at the workplace or outside; the right not to be discriminated against in professions and selections for jobs, in promotions, and in education and training opportunities; the right to safe conditions for stay and work at places away from home and for travel; and the right to help in bringing up young children without being denied economic opportunities.
It is obvious, if one looks around, that these economic rights of women are more honored in their breach in most, if not all, parts of the world. To take an extreme case, a girl child in some parts of Asia can face a bullet if she goes to school! More girls leave school by the age of 12-13 than boys. Girls in villages cannot safely travel long-distance to access a high school. They are denied higher education or training necessary for good jobs or professional work. These impediments are backed by traditions, cultures, and beliefs based on unjust and inequitable distinctions between men and women, and often insensitive systems of governance.
How can one enforce international human rights obligations qua women's economic rights? If one examines the existing framework, some of the treaty bodies, including CEDAW, monitor a state's performance to check whether the national laws and policies comply with the state's treaty obligations. At the national level, India has tried to overcome discrimination and prejudice by permitting in its constitution special provisions for women and children. It has even introduced quotas for women in local self-governments--village "panchayats"--and in corporate boards of directors. Norway has also introduced quotas for women in the boards of directors of companies. But quotas have some big minus points because women are often labeled as inferior beings who can only reach important positions by means of quotas. What women require is recognition based on merit, free from bias, and opportunities to participate in the economic sphere.
The most effective method, so far, is for domestic courts to enforce international treaty obligations. In the countries that are governed by the principles of common-law jurisprudence, the provisions of an international treaty signed by a country do not automatically from a part of the domestic law of a country. The domestic law must incorporate them. Other constitutions increasingly provide that international law and domestic law form one body of law that can be enforced by domestic courts. But often even the courts of dualist countries with a written constitution containing a bill of rights have used international treaties and declarations for the interpretation of various rights which are embodied in the constitution. This is, at times referred to as a "generous approach" to the interpretation of "constitution," a phrase which was used by the Privy Council in the case of Ministry of Home Affairs v. Fisher, (1) while dealing with the constitution of Bermuda. It would be legitimate, therefore, to look to the current international understanding of these rights while interpreting a constitution that is meant to serve the country through different stages of progress and development. The same principle of interpretation can be extended to the interpretation of specific domestic laws that seek to prevent violations of human rights, particularly social, economic, and cultural rights.
Common and general recommendations of the various committees constituted under international treaties have been used by domestic courts for expanding or increasing the content of the rights provided in the Constitution, including the right to equality and the right to nondiscrimination on various grounds such as race, religion, caste, sex, or descent.
At times when the constitution does not contain a bill of rights, the courts have interpreted the basic constitutional structure as entailing human rights that are not expressly spelt out in the constitution. In India, a common-law country, the Supreme Court has held in the case of Vishakha v. State of Rajasthan (2) that international human rights law can be applied in domestic jurisdiction in the absence of any national law or if there is no conflicting national law. (I was a party to that decision.)
In People's Union for Civil Liberties v. Union of India, (3) the Supreme Court held that the provisions of international conventions, treaties, or covenants that enunciate and effectuate fundamental human rights, which are also guaranteed by the constitution of India, can be relied upon by Indian courts as a basis for interpretation of fundamental rights under the constitution. Law must be interpreted as far as its language permits, in a manner that brings it in conformity and not into conflict with established rules of international law. The Australian court in Mabo v. Queensland (4) held that an international covenant can also play a part in the development by the courts of common law. It can be a legitimate guide for such development. The same view was stated in England in the case of Regina vs. Secretary of State for Home Department, Ex-parte McQuillan (5) when the court said that international human rights law marches with the common law.
In the judicial community, it is a widely held view that constitutional values laid down in the constitution as a bill of rights must be interpreted not just consistently with international treaties on the subject, but must also be interpreted and enlarged where necessary to harmonize with international treaty laws. At the Commonwealth Judicial Colloquium at Bangalore in 1998, the principles formulated included the following:
It is the vital duty of an independent, impartial and well qualified judiciary, assisted by an independent, well...