New General Comment of the Human Rights Committee Concerning Gender Equality1

¹ The text is available on the website of the Office of the High Commissioner for Human Rights (www.unhchr.ch) or may be obtained from any United Nations office or UNDP under the symbol: CCPR/C/21/Rev.1/Add.10.

In March 2000, the Human Rights Committee adopted a comprehensive new General Comment on gender equality, which thoroughly updated its earlier General Comment on article 3 (adopted in 1981). The new General Comment takes into account the Committee's experience - both in the context of its evolving case-law under the Optional Protocol and of the examination of initial and periodic reports submitted by States parties pursuant to article 40 of the Covenant. The Committee also considered normative developments in other expert UN Committees as well as the jurisprudence of regional Commissions and Courts of Human Rights. General Comment No. 28 spells out what this core provision of the Covenant entails and what information States parties are expected to provide in their reports.

Gender equality is an overarching principle that applies to the enjoyment of all rights: civil, cultural, economic, political and social. The Human Rights Committee is very clear that the right to gender equality is not merely a right to non-discrimination. Affirmative action is required. States parties are under an obligation to take all necessary steps to enable every person to enjoy the rights provided for in the Covenant “on an equal basis and in their totality” (para. 2). Such steps include “the removal of obstacles to the equal enjoyment of such rights, the education of the population and of state officials in human rights and the adjustment of domestic legislation so as to give effect to the undertaking set forth in the Covenant. The State party must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women. States parties “must provide information regarding the actual role of women in society so that the Committee may ascertain what measures, in addition to legislative provisions, have been or should be taken to give effect to these obligations.” (para. 3)

The far-reaching implications of the General Comment are evident in the light of the explicit reference that States parties must prohibit discrimination on the ground of sex and “put an end to discriminatory actions both in the public and the private sector” (para. 4). In its concluding observations following the examination of the reports from States parties, the Committee has put increasing emphasis on the need to adopt appropriate measures to combat discrimination by non-State actors.

The Committee is keenly aware that “inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes” (para. 5). Indeed, the subordinate role of women in some countries is illustrated by the tragic incidence of pre-natal sex selection and the abortion of female foetuses.

Bearing in mind that women are particularly vulnerable in times of internal or international armed conflicts, States parties must take special measures to protect women from rape, abduction and other forms of gender-based violence (para. 8). The Committee's draft general comment No. 29 on states of emergency (currently under discussion) specifically focuses on this matter.

When reporting on the right to life, States parties should provide data on birth rates and on pregnancy and childbirth-related deaths of women. Gender-disaggregated date should be provided on infant mortality rates. Moreover, “States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undertake life-threatening clandestine abortions” (para. 10).

To assess compliance with article 7 (prohibition of torture and ill-treatment) of the Covenant, as well as with article 24 (special protection of children), the Committee must receive information on national laws and practice with regard to domestic and other types of violence against women, including rape, on access to safe abortion for women who have become pregnant as a result of rape, and on measures to prevent forced abortion or forced sterilization. “In States where the practice of genital mutilation exists, information on its extent and on measures to eliminate it should be provided” (para. 11).

In the recent past the Committee has devoted increasing attention to the problem of trafficking of women and children and forced prostitution. In its lists of issues sent to States parties in preparation for the discussion of their reports, the Committee frequently formulates a question concerning this issue and requests information “on measures taken to protect women and children, including foreign women and children, from slavery, disguised inter alia as domestic or other kinds of personal service” (para. 12).

With regard to freedom of movement, States parties are expected to provide information on any legal provision or any practice restricting women's equal rights, including legal or de facto requirements, such as consent of a third party to the issuance of a passport or other type of travel documents to an adult woman (para. 16). This issue was also addressed in paragraphs 6 and 18 of the Committee's General Comment No. 27 on freedom of movement.

Access to justice as spelled out in article 14 of the Covenant is not always enjoyed by women on equal terms with men. “In particular States parties should inform the Committee whether there are legal provisions preventing women from direct and autonomous access to the courts (Case No. 202/1986, Ato del Avellanal v. Peru, Views adopted on 28 October 1988); whether women may give evidence as witnesses on the same terms as men; and whether measures are taken to ensure women equal access to legal aid, in particular in family matters” (para. 18).

The right of everyone under article 16 of the Covenant to be recognized everywhere as a person before the law is particularly pertinent for women, who often see it curtailed by reason of sex or marital status, “This right implies that the capacity of women to own property, to enter into a contract or to exercise other civil rights may not be restricted on the basis of marital status or any other discriminatory ground. It also implies that women may not be treated as objects to be given together with the property of the deceased husband to his family” (para. 19).

Interference with women's right to enjoy privacy and other rights protected by article 17 is a growing concern, as, for example, “where there is a requirement for the husband's authorization to make a decision in regard to sterilization or where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. Women's privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman” (para. 20).

As the publication and dissemination of obscene and pornographic material portraying women as objects of violence is likely to promote such treatment, States parties are called upon to provide information about legal measures to restrict the publication or dissemination of such material (para. 22).

The right to marriage, which is the subject of General Comment No. 19 (1990), entails equality of men and women to enter marriage only with their free and full consent. “Many factors may prevent women from being able to make the decision to marry freely. One factor relates to the minimum age for marriage. That age should be set by the State on the basis of equal criteria for men and women. These criteria should ensure women's capacity to make an informed and uncoerced decision. A second factor in some States may be that either by statutory or customary law a guardian, who is generally male, consents to the marriage instead of the woman herself” (para. 23). The existence of social attitudes which tend to marginalize women victims of rape and which put pressure on them to agree to marriage are incompatible with a woman's right under article 23 of the Covenant. “A woman's free and full consent to marriage may also be undermined by laws which allow the rapist to have his criminal responsibility extinguished or mitigated if he marries the victim” (para. 24). The Committee notes further that polygamy violates the dignity of women and should be abolished wherever it continues to exist.

Equality during marriage implies that husband and wife should participate equally in responsibility and authority within the family (para. 25). States must also ensure equality in regard to the dissolution of marriage, which excludes the possibility of repudiation (para. 26).

The obligation to protect children applies equally to boys and to girls. States parties are called upon to eradicate all cultural or religious practices which jeopardize the freedom and well-being of female children, and submit disaggregated data in this respect (para. 28).

Affirmative action is particularly necessary in connection with the right to participate in the conduct of public affairs. The Committee requires States parties to provide statistical information on the percentage of women in publicly elected offices including the legislature as well as in high-ranking civil service positions and the judiciary (para. 29).

Article 26 sets forth the right to equality before the law and freedom from discrimination and “requires States parties to act against discrimination by public and private agencies in all fields” (para. 31). Pursuant to the Committee's case law under the Optional Protocol, non-discrimination is an autonomous right that extends well beyond the prohibition of discrimination in respect of the other articles of the Covenant, and beyond the categories of civil and political rights. Indeed, discrimination in the enjoyment of economic, social and cultural rights is also prohibited, as illustrated by the Committee's Views with respect to social security legislation - Case No. 172/1984, Broeks v. The Netherlands (Views adopted on 9 April 1987), Case No. 182/1984, Zwaan de Vries v. The Netherlands (Views adopted 9 April 1987), as well as in the area of citizenship or rights of non-citizens in a country - Case No. 35/1978, Aumeeruddy-Cziffra et al. v. Mauritius (Views adopted on 9 April 1981).

Moreover, the commission of so-called “honour crimes”, which remain unpunished, constitutes a serious violation of the Covenant and in particular of articles 6,14 and 26. Laws which impose more severe penalties on women than on men for adultery or other offences also violate the requirement of equal treatment (para. 31).

Alfred de Zayas