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Engender’s shadow report to CESCR: a key tool for promoting a gender-sensitive incorporation of ICESCR and improving women’s lives in Scotland

For many years women's equality advocates have been campaigning for the incorporation of CEDAW into Scots Law, but that isn't the only UN Convention which is key for the protection of women's equality and rights. This final blog from student Beatriz Morganti Brandão‎ sums up her work to explore how the International Covenant on Economic, Social and Cultural Rights can be used to protect women in Scotland.

For my final post, I want to share the main findings from the research report I prepared as part of my placement with Engender. Broadly speaking, the report aims to support Engender’s mission of enabling women’s rights in Scotland. Specifically, given the Scottish Government’s recent commitment to incorporate the International Covenant on Economic, Social and Cultural Rights (ICESCR or the Covenant) into Scots Law, the report focused on preparing a draft of Engender’s shadow report for the upcoming review by the UN Committee on Economic, Social and Cultural Rights (CESCR) of the UK Government’s seventh periodic report on measures taken to implement ICESCR, which includes Scotland-specific information. The idea is that, through this shadow report, Engender attracts international scrutiny over the economic, social and cultural rights-situation for women in Scotland, and influences a gender-sensitive incorporation of ICESCR that actually improves women’s lives in the country.

The first part of my report focused on contextualising Engender’s shadow report to CESCR. To do so, it looked at the two pillars sustaining the shadow report: ICESCR’s connection with women’s rights, and incorporation.

Women's Rights

Regarding the first pillar, as briefly mentioned in my previous blog post, ICESCR’s provisions have direct implications on women’s rights. The Covenant includes

• (i) substantive equality provisions, which must be read and applied with all other rights in order to advance ICESCR’s gender equality goals (articles 2(2) and 3);
• (ii) provisions that explicitly account for structural inequalities subjugating women (like article 7, which establishes ‘equal pay for equal work’); and
• (iii) other provisions that do not expressly mention women or systemic inequalities but have particular effects on women’s rights, such as article 9, which establishes the right of ‘everyone’ to social security, but must be realised with special attention to groups that traditionally face difficulties in accessing such right, ‘in particular women’, as clarified by the Committee.

To assess whether ICESCR is being applied according to such connections, I analysed a few decisions issued by the Committee and by the European Court of Human Rights (ECtHR). Unfortunately, the number of relevant cases I found was considerably low. Some of these cases showed attempts to apply ICESCR in ways that were sensitive to gender and intersectionality. However, in practice, these cases did not lead to concrete improvements to women’s rights. Overall, my feeling is that both CESCR and the ECtHR did not use these opportunities to interpret ICESCR gender-sensitively, develop the content of women’s economic, social and cultural rights (ESCR), and apply the Covenant accordingly.

Incorporation

I then moved to the second pillar sustaining Engender’s shadow report: incorporation. Based on academic material and real-life examples of how courts have approached economic, social and cultural rights, I was able to elaborate on the proposition made in my first post. Previously, I held that ICESCR’s incorporation is only one (arguably the first) step towards progressing these rights for women. Now, my view is that incorporation alone cannot guarantee that economic, social and cultural rights are enforced by courts and fully enjoyed by all women. For this to take place, incorporation must be accompanied by and coordinated with other, equally important measures. These include: guaranteed access to courts; gender-competent courts that understand the interconnection between economic, social and cultural rights and women’s rights and issue decisions accordingly; and policies relating to economic, social and cultural rights that mainstream gender and provide for women’s particular needs. In addition to these formal measures, ICESCR’s gender-sensitive incorporation into Scots Law will require crucial monitoring and advocacy by civil society organisations, activists and grassroots movements working to advance women’s rights in Scotland. This is where Engender’s work and shadow report come in.

Shadow Report

The second part of my placement report presents the draft of Engender’s shadow report to CESCR. This draft focuses on issues falling within Scotland’s devolved powers, such as justice, health, and parts of social security. Overall, the main gaps I identified in these areas are that women still face significant barriers to accessing courts and justice in Scotland (such as the lack of specialised Legal Aid solicitors to take up domestic abuse cases), and that Scottish policies targeting economic, social and cultural rights have been weak in progressing gender equality. These loopholes are generally explained by the lack of funding, gender mainstreaming, and intersectional, gender-sensitive data. Based on these findings, the shadow report provides recommendations for the Scottish Government to bridge these gaps, including ICESCR’s gender-sensitive incorporation.

Building this shadow report has been a unique experience. Besides researching and better understanding the most pressing challenges for women and girls in Scotland, I had the opportunity to engage with Engender’s team and some of its key partner-organisations working with intersectional feminist issues in Scotland. This allowed me to gain critical insights for the shadow report, and learn more about feminist work which I am absolutely passionate about.

Next Steps

I hope the shadow report and my placement report overall can help Engender promote a gender-sensitive incorporation of ICESCR and concrete improvements to women’s economic, social and cultural rights in Scotland. I recognise this is a complex, long-term mission that, unfortunately, these products cannot exhaust. Therefore, as next steps, Engender and other feminist organisations will have to deploy key monitoring and advocacy efforts to ensure that the Scottish Government and Parliament incorporate and apply ICESCR considering and responding to its particular impacts on women’s rights.

With this post, I conclude my placement with Engender. The placement has allowed me to develop critical knowledge on a range of gender-related issues, and learn from incredible professionals working on the ground to advance gender equality. I could not be more grateful to Engender for this amazing opportunity: thank you!

Engender occasionally works with students as part of their placement requirements for university or college courses - this allows students to work with Engender on specific areas of our work for women's equality. Student blogs form part of their course assessment, and they do not receive payment from Engender.

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