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rights between men and women. That fundamental principle, which was enshrined in the
Charter of the United Nations, must be constantly emphasized, especially as there were still
many prejudices preventing its full application”.1 Unlike article 26 of ICCPR, articles 3 and 2,
paragraph 2, of ICESCR are not stand-alone provisions, but should be read in conjunction with
each specific right guaranteed under part III of the Covenant.
3.
Article 2, paragraph 2, of ICESCR provides for a guarantee of non-discrimination on the
basis of sex among other grounds. This provision, and the guarantee of equal enjoyment of
rights by men and women in article 3, are integrally related and mutually reinforcing. Moreover,
the elimination of discrimination is fundamental to the enjoyment of economic, social and
cultural rights on a basis of equality.
4.
The Committee on Economic, Social and Cultural Rights (CESCR) has taken particular
note of factors negatively affecting the equal right of men and women to the enjoyment of
economic, social and cultural rights in many of its general comments, including those on the
right to adequate housing,2 the right to adequate food,3 the right to education,4 the right to the
highest attainable standard of health,5 and the right to water.6 The Committee also routinely
requests information on the equal enjoyment by men and women of the rights guaranteed under
the Covenant in its list of issues in relation to States parties’ reports and during its dialogue with
States parties.
5.
Women are often denied equal enjoyment of their human rights, in particular by virtue of
the lesser status ascribed to them by tradition and custom, or as a result of overt or covert
discrimination. Many women experience distinct forms of discrimination due to the intersection
of sex with such factors as race, colour, language, religion, political and other opinion, national
or social origin, property, birth, or other status, such as age, ethnicity, disability, marital, refugee
or migrant status, resulting in compounded disadvantage.7
I. CONCEPTUAL FRAMEWORK
A. Equality
6.
The essence of article 3 of ICESCR is that the rights set forth in the Covenant are to be
enjoyed by men and women on a basis of equality, a concept that carries substantive meaning.
While expressions of formal equality may be found in constitutional provisions, legislation and
policies of Governments, article 3 also mandates the equal enjoyment of the rights in the
Covenant for men and women in practice.
7.
The enjoyment of human rights on the basis of equality between men and women must be
understood comprehensively. Guarantees of non-discrimination and equality in international
human rights treaties mandate both de facto and de jure equality. De jure (or formal) equality
and de facto (or substantive) equality are different but interconnected concepts. Formal equality
assumes that equality is achieved if a law or policy treats men and women in a neutral manner.
Substantive equality is concerned, in addition, with the effects of laws, policies and practices and
with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that
particular groups experience.