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ICESCR’s incorporation into Scots Law: challenges and opportunities from a women’s rights perspective

The graphic shows a light green background with dark green left-aligned text quote that reads "Naturally, incorporation is only one (arguably the first) legal step towards progressing rights. After it, strong efforts will be needed to ensure it delivers the promised benefits and, in particular, that it secures greater enjoyment and realisation of ICESCR’s rights by all women.". The quote is attributed to Beatriz Morganti Brandão, Student Placement, Engender. In the top right-hand corner of the graphic there is Engender's logo, which is an equals sign in a bright green circle.

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. Engender is excited to be working with student Beatriz Morganti Brandão‎ to explore how the International Covenant on Economic, Social and Cultural Rights can be used to protect women in Scotland. Here she explains more about what she'll be working on.

In March 2021, the Scottish Government announced its plans to adopt, by 2025, a landmark human rights bill that will incorporate four United Nations human rights treaties into Scots Law. Among these treaties is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which establishes the rights to work, housing, health, education, social security, and many others covering basic needs.

‘Incorporation’, in this context, essentially means absorbing an international legal instrument (like ICESCR) into a country’s domestic law, so that internationally-established rights become directly applicable and enforceable on national grounds. In practical terms, this compels the government to apply such rights in policies and programmes, and enables holding it accountable when it fails to do so. In addition, having such rights formalised in domestic law increases citizens’ awareness on what they are entitled to and, importantly, allows them to claim these entitlements – if necessary, at court – when they are violated and access appropriate remedy. In the long term, this has a great potential of enhancing a country’s human rights culture.

Naturally, these benefits are all sought by Scotland’s project. However, like any law and legislative process, ICESCR’s incorporation has gendered implications which the Scottish Government must consider to ensure that all women can fully enjoy these benefits.

ICESCR grants particular attention to women’s rights in several ways. For example, it sets forth the rights to non-discrimination (article 2.2), to equal enjoyment of economic, social and cultural rights between men and women (article 3), to equal pay for equal work (article 7.a.i), and to special protection and benefits for childbirth (article 10.2). Similarly, by combining working, health, equality and non-discriminatory rights, ICESCR protects women’s sexual and reproductive health rights. These are just a few examples, as gender cuts across all ICESCR rights, which is why they must all be read and applied jointly with the treaty’s non-discrimination and equality provisions, in order to achieve both the formal (what law says) and substantive (what law does) gender equality goals behind ICESCR.

My mission at Engender involves shedding light onto this umbilical relationship between ICESCR and women’s rights, and using it to promote a gender-sensitive incorporation process in Scotland. To do this, I will prepare Engender’s shadow report to the United Nations Committee on Economic, Social and Cultural Rights (CESCR), identifying key gaps in UK and Scottish policies concerning women’s economic, social and cultural rights, and providing recommendations to bridge these gaps, especially through the incorporation project in line.

As a human rights researcher who has been delving into socioeconomic inequalities and the role of civil society organisations in addressing these, and a women’s rights activist tackling violence against women in Brazil, I could not imagine a better fit for myself than this project, which combines these two challenges that have driven my journey to date and can improve access to housing, health and other basic needs of women across the country that has been a great host to me in the past year.

What intrigues me the most about this project is the opportunity to discuss policy gaps and recommendations to the UK and Scottish Government with Engender’s expert team and key partners, who have been working closely on some of the most pressing gender-related challenges here and can provide me with invaluable insights on what really needs to improve.

All-in-all, my hopes are to help Engender push for what can be a game changing process for women’s rights. Naturally, incorporation is only one (arguably the first) legal step towards progressing rights. After it, strong efforts will be needed to ensure it delivers the promised benefits and, in particular, that it secures greater enjoyment and realisation of ICESCR’s rights by all women.

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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