“If we desire respect for the law, we must first make the law respectable”
By: Alexander Aizenstatd
It is an unacceptable contravention of the right to equality to deny a person access to an entire category of jobs only because she is a woman. Any rule that prevents a woman from accessing the employment of her choice, based only on her sex and not on her abilities, is discriminatory.
One would think that such rules are no longer in force, but that is not the case.
Article 2 of the International Labour Organization Convention 45 states that “No female, whatever her age, shall be employed on underground work in any mine…”. This rule prohibits women from accessing a whole category of jobs. A female geologist could not work in a mine. A female heavy machinery operator could not enter a tunnel and would have to be replaced by a man.
Convention 45 represents a continuation of entrenched practices of discrimination which held women to be less capable than men, who cannot engage in activities which, because of their danger, require special training and which have traditionally been performed by men. They are represented in such a way that, because of a supposedly fragile condition, they should be prohibited from engaging in activities that are lawful for men. These notions are now incompatible with full equality under the law.
Convention 45, which dates from 1935 but was ratified by Guatemala until 1960, is a law in force and, as a human rights treaty, part of the constitutional block (see Constitutional Court case 1822-2011). Like other norms in this sense, it disguises as a supposed protection for women a norm that in essence is discrimination. By supposing that men are more capable for a job, it unjustifiably prevents women from the job of their choice.
Convention 45 contravenes the rights to equality, the right of women not to be discriminated against and the right to work, all guaranteed by articles 4, 24, 43, 101 and 102(a) of the Constitution, 6(a) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, and 3 of the Protocol of San Salvador.
Convention 45 is a law in force and is applied in Guatemala. I understand that in mines, female heavy machinery operators cannot enter tunnels. Therefore, they drive at the entrance where they must be replaced by men. For this reason, they also are paid less than men. If a subway were built in Guatemala, in application of that rule, women would be prevented from working there as well.
Due to the above, with the help of two lawyers, Sofia Escriba and Marjorie Bosque, I brought an action challenging the constitutionality of Article 2 of Convention 45. This action was identified as case 1985-2019 at the Constitutional Court. It is important to clarify that the action did not seek to have the treaty declared unconstitutional, which would contravene obligations under international law, but to have it denounced in accordance with its own provisions.
The denunciation became more and more important because according to the text of the same convention it can only be denounced every 10 years. This means that, if it is not denounced in time, it remains in force for another mandatory decade before it can be denounced again. The next period begins in 2020, if it is not filed in that year it will remain in force until 2030.
The case offered particular difficulties and is perhaps the only case where an international human rights treaty is clearly contrary to the Constitution and the right to equality contained in other treaties. My expectation was for the Court to resolve an incompatibility between two norms of constitutional hierarchy. It was also a clearly a unique opportunity for the Court to rule on the prohibition of discrimination against women.
From the outset, the case presented difficulties for the Constitutional Court. Generally, it takes 15 days to admit an unconstitutionality, in this case the Court took about 5 months for this process.
The other difficulty is that the Court has traditionally indicated that it will not hear an unconstitutionality presented against a treaty. But this case, because of the notoriety of the violation, had to test the limits of that jurisprudence.
Procedurally, the Court decided to suspend the proceeding. But the interesting thing about the case is not the suspension, but the its decision in that 13-page resolution, in which it declares that despite not resolving the unconstitutionality, it issues a directive for all public officials not to apply Convention 45.
The position is interesting, because it does not declare the treaty unconstitutional, but rather inapplicable for contravening constitutional rights. This has different jurisprudential effects, but in practice implies that this prohibition should not apply in Guatemala and women can be employed in these jobs. Indeed, on the basis of this ruling, an employer applying such prohibition would be considered discrimination.
There are other interesting issues of the ruling. The Court decides to suspend the procedure arguing that it cannot declare a treaty unconstitutional, since that would generate international responsibility. However, the Court declares it inapplicable. The action never requested a declaration of unconstitutionality, but rather a denunciation. The denunciation does not entail international responsibility, while on the other hand the non-application is a contravention that generates international responsibility. Although in this case the risks are minimal since the content of the treaty is widely recognized as discriminatory.
Another argument of the Court, quoting Victor Bazán, is in favor of an a priori preventive control of treaties, by means of an advisory opinion before entering into a treaty. This situation is useful and recommended for new treaties. But in the case under examination, it is a treaty prior to the Court itself and to a priori control in Guatemala. Therefore, this argument does not have much logic.
One issue of continuing concern is that the Court seems to recognize that international treaties exist in a sphere beyond constitutional control. Modern treaties generally reflect a congruence with human rights obligations, but this is not always the case, as the example demonstrates. There is also concern that the jurisprudence may generate international responsibility. In practice there is not much difference between declaring the unconstitutionality and inapplicability. Although the ruling fulfils the purpose of the action and is indeed a success, between to options the Court choose the option that violates international law. To not apply is to contravene, in order to avoid what the Court defines as a possible international responsibility with a declaration of unconstitutionality, it commits another with the same effect but one that is also a violation of international law. What would have been prudent and consistent with both national and international law would have been to order the denunciation of the treaty in accordance with its terms.
In this regard, it is a matter of concern that the area of jurisprudence outside constitutional control may be exploited by the legislative and executive branches in the future. They could sign a treaty with another country that allows indefinite re-election, under the shade of a political right. It would therefore be advisable for the Court to be more prudent in the face of other possible cases of treaties with human rights violations.
Interestingly, the Court, in spite of suspending the case, does recognize the unconstitutionality of the rule. To that effect, it indicates:
“It does not overlook the argument made by the plaintiff that the validity of the international agreement means that a conventional provision that discriminates against women continues to have effect, by regulating ´No female, whatever her age, shall be employed on underground work in any mine, which contradicts what is regulated in the Constitution and other conventional human rights statements.”
And the solution is given with the non-application of the norm when indicating:
“If any controversy arises over the application of Article 2 of Convention 45…, the respective public authorities must opt for the provision of law, whether constitutional or international, that is more favourable to women workers…”.
To get to that point and defend inapplicability, it tries to do so by means of a pro homine argument, which, while it may be a path, the example it gives is not the most fortunate. It tries to compare the case with the prohibition of applying the death penalty to pregnant women in the American Convention and the more favorable prohibition of applying it to all women in Article 18 of the Constitution. An example that instead of clarifying the issue, complicates it and has little practical application when the death penalty has been de facto abolished in Guatemala. Moreover, the laws of the Court’s example do not contradict each other; applying the prohibition to all women includes pregnant women. The case under study presented a contradiction, the prohibition of underground work for women and the prohibition of discrimination are incompatible. Perhaps the Court did not find a better example, but the one it uses does not seem to contribute much.
The Court concludes by deciding to transfer to Congress and to the Ministry of Foreign Affairs the concern about the timely denunciation of the Convention, which implies its recommendation for denunciation. This is indispensable to avoid international responsibility but also to adjust the legal system to human rights protection standards. I hope that the authorities, under the possible leadership of the Minister of Labour, will take the opportunity to denounce this agreement as a manifestation of the prohibition of discrimination against women as a State policy.
In the meantime, based on this resolution, the Court has already issued a normative selection guideline to all public authorities, ordering them not to apply the Convention. This criterion must also be respected by private entities in the hiring of their personnel, both in this and in other jobs.