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2019 | OriginalPaper | Buchkapitel

7. International Framework on Positive Action

verfasst von : Jozefien Van Caeneghem

Erschienen in: Legal Aspects of Ethnic Data Collection and Positive Action

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Abstract

This chapter focuses on the international framework on positive action. It zooms in on the applicable instruments at the level of the United Nations and on the work of the treaty-monitoring bodies to uncover (1) whether the adoption of positive action is optional or mandatory, (2) which conditions must be fulfilled, and (3) which type(s) of measures can be adopted for equality and anti-discrimination purposes. The chapter first explores the context-dependency of the permissive or mandatory nature of positive action by analysing the practices of the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It also expands on their demand for a reasonable, objective, and proportional justification for special measures. Next, it covers their focus on remedial and cultural aims, their case-by-case consideration of the scrutiny test to be applied in relation to the proportionality requirement and their ban on the maintenance of permanent, separate standards and rights for different groups. Furthermore, this chapter reflects on the wide diversity of measures that are permitted according to the treaty-monitoring bodies. Lastly, it is considered whether the United Nations pursues equality of opportunities or equality of results, before explaining that the intensity of permitted measures depends on the goals pursued and the needs of the individuals or groups concerned in a specific context.

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Vorheriges Kapitel Positive Action and the Link with Ethnic Data

Nächstes Kapitel European Framework on Positive Action

The limits of the formal approach to equality were explored in Chap. 6 (Sect. 6.1.4).

This was discussed in Chap. 6 (Sect. 6.1.5).

See also Chap. 8 (Sect. 8.2) for the analysis of the European framework on positive action.

This will be further discussed in Sect. 7.2 on the context dependency of the nature of positive action and in Sect. 7.4 on the adoption of soft and strong measures, including quota.

Proportionality was identified as a normative element of positive action in Chap. 6 (Sect. 6.1.2.2). It will be explained in Chap. 8 that proportionality puts limits to positive action in Europe (Sect. 8.1.3) and that the proportionality principle relied upon by the CJEU lacks certain clarity (Sect. 8.2.2.5). It will be discussed in Sect. 7.3 how the UN treaty-monitoring bodies interpret the proportionality requirement. See also Chap. 2 (Sect. 2.1) on the notions of equality and anti-discrimination.

Broadly speaking, it concerns soft measures that do not provide preferential treatment (1st type) and strong measures that involve preferential treatment (2nd type). See Chap. 6 (Sects. 6.2.2–6.2.4).

See Sect. 7.1.

For instance, the Spanish Constitution permits and promotes the adoption positive action measures for disadvantaged individuals and groups in Spain. See: Spain, Constitution (1978). European Commission against Racism and Intolerance (ECRI), Second Report on Spain (13 December 2002), para. 5. Cardinale (2007), p. 36. The Bulgarian Act on the Protection against Discrimination makes the adoption of such measures mandatory to promote equal opportunities for disadvantaged individuals and groups and measures to protect het identity and culture of people belonging to ethnic, religious or linguistic minorities. See: Bulgaria, Act on the Protection against Discrimination (11 April 2006), arts. 7.1 (point 13), 11 and 15.

Chapters 9–11 focus on positive action for Roma. The two main topics of the book were introduced in Chap. 1 (Sect. 1.3).

International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965) (ICERD), arts. 1.4 and 2.2. Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) (CEDAW), art. 4. Framework Convention for the Protection of National Minorities (1 February 1995), arts. 4.2 and 4.3. Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (29 June 2000), art. 5. Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (27 November 2000), art. 7.1. This was addressed in Chap. 2 (Sect. 2.1.3) on the difference between formal and substantive equality.

International Covenant on Civil and Political Rights (16 December 1966) (ICCPR). International Covenant on Economic, Social and Cultural Rights (16 December 1966) (ICESCR). European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950). Revised European Social Charter (3 May 1996).

UN instruments will be considered in this chapter and Council of Europe instruments in Chap. 8 (Sect. 8.1).

Positive action at the level of the Council of Europe and the European Union will be analysed in Chap. 8.

Durban Declaration and Plan of Action (8 September 2001), as endorsed by Resolution 56/266 of the General Assembly on Comprehensive implementation and follow-up to the World Conference against Racism, Racial discrimination, Xenophobia and Related Intolerance (15 May 2002).

Terminological diversity was addressed in Chap. 6 (Sect. 6.1.1).

This will be addressed in Sects. 7.3 and 7.4. The discussion on whether positive action constitutes a derogation or an aspect of equality can be found in Chap. 6 (Sect. 6.1.5). ICERD, art. 1.4. CEDAW, art. 4.1. Convention on the Rights of Persons with Disabilities (31 December 2006), art. 5.4. Human Rights Committee (HR Committee), Guido Jacobs v. Belgium, Views (17 August 2004), para. 9.3. HR Committee, General Comment No. 18: Non-Discrimination (10 November 1989), paras. 10 and 13. Committee on Economic, Social and Cultural Rights (CESCR Committee), General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art. 3) (13 May 2005), para. 15. CESCR Committee, General Comment No. 5: Persons with disabilities (9 December 1994), para. 18. Committee on the Elimination of Discrimination against Women (CEDAW Committee), General Recommendation No. 25: Article 4, paragraph 1, of the CEDAW, on Temporary Special Measures (2004), paras. 14 and 18. Committee on Economic, Social and Cultural Rights (CESCR Committee), General Comment No. 13: The Right to Education (Art. 13) (8 December 1999), para. 32. De Schutter (2007), pp. 785–787. De Vos (2007), pp. 58 and 69.

See Committee on the Elimination of Racial Discrimination (CERD Committee), General Recommendation No. 32: The meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination (24 September 2009), para. 6. The difference between formal and substantive equality was explained in Chap. 2 (Sect. 2.1.3). See also Chap. 6 (Sect. 6.1.4) on the limits of the traditional approach to equality.

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 8. The group-focus was identified as a descriptive element of positive action in Chap. 6 (Sect. 6.1.2.1).

See, for instance: De Vos (2007), p. 57. Cahn (2005). Vogel-Polsky (1990), p. 79.

Van Gerven (2005), p. 176.

Positive action is merely one of the options States have. De Schutter (2007), p. 792. Moreover, as will be explained in Sect. 7.4, when adopting positive action, States have a broad spectrum of measures at their disposal, the intensity and goals of which may vary considerably. See Chap. 6 on the different types of positive action (Sects. 6.2.2–6.2.4) and on the four main justifications and aims of positive action (Sect. 6.4).

Opinions and recommendations formulated by the UN treaty-monitoring bodies in reports, opinions and concluding observations can be used as an advocacy tool and to exercise political pressure on national governments, but they are not legally binding. Within the framework of their respective complaint procedures, the UN treaty-monitoring bodies can request the government against which the complaint was lodged takes measures to protect the victim of a specific human rights violation and to provide redress, but such decisions (referred to as communications) do not bind other national governments. In this regard, the enforcement mechanism of the European human rights system is stronger. Suggested further reading on domestic effectiveness and legal status of monitoring and decisions by human rights treaty bodies, see: Krommendijk (2015), pp. 489–512. Keller and Ulfstein (2012), pp. 356–413.

Domestic remedies must be exhausted before a direct complaint can be lodged. Furthermore, when admissible, the complaint procedures are often very slow and lengthy. De Schutter (2007), p. 792.

The CERD Committee specifically refers to positive action as one of the special measures States can adopt. CERD Committee, General Recommendation No. 32 (24 September 2009), para. 12.

Cahn (2005).

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 30.

Id. at para. 31.

As explained in Chap. 4 (Sect. 4.5) on ethnical identification approaches, the CERD Committee prefers self-identification “unless a justification exists to the contrary”. CERD Committee, General Recommendation No. 32 (24 September 2009), para. 34. CERD Committee, General Recommendation No. 8: Identification with a particular racial or ethnic group (Art. 1, paras. 1 & 4) (22 August 1990).

CERD Committee, General Recommendation No. 27: Discrimination against Roma (16 August 2000), para. 41. This recommendation will be analysed in Chap. 9 on positive action for Roma.

Persistent disparities could warrant mandatory positive action. See, for example: CERD Committee, General Recommendation No. 29: Article 1, paragraph 1 of the Convention (Descent) (1 November 2002), paras. 6 and 28. De Vos (2007), p. 57. Vandenhole (2005), pp. 207 and 210. Effective participation in public life was highlighted as an important element of minority rights protection in Chap. 2 (Sect. 2.4.4).

Art. 3 ICERD stipulates that “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”. CERD Committee, General Recommendation No. 19: Article 3 of the Convention (17 August 1995), para. 3. Farkas (2007).

De Vos (2007), p. 57. Vandenhole (2005), pp. 207–210.

De Vos (2007), p. 57.

See art. 4.1 CEDAW in conjunction with arts. 1, 2(e), 3, 5.1, 7 and 24 CEDAW. CEDAW Committee, General Recommendation No. 25 (2004), para. 24. European Network of Equality Bodies (Equinet) (2014), p. 24. O’Cinneide (2012), pp. 24 and 25. De Schutter (2007), p. 784. Henrard (2007), p. 47.

This includes the political, social, economic and cultural fields. CEDAW Committee, General Recommendation No. 25 (2004), paras. 7 and 18.

De Vos (2007), p. 56. The ICERD was analysed in Sect. 7.2.1.

This was highlighted in Sect. 7.1. This was previously addressed in Chap. 2 (Sect. 2.1.3) on formal and substantive equality.

The HR Committee considers that art. 26 includes an autonomous right to non-discrimination in itself that “prohibits discrimination in law or in fact in any field regulated and protected by public authorities”. Its application is not limited to those rights provided for in the ICCPR. HR Committee, General Comment No. 18 (10 November 1989), para. 12.

Art. 2.2 ICCPR stipulates that States commit “to take the necessary steps (…) to adopt such laws or other measures as may be necessary to give effects to the rights recognized in the present Covenant”. Art. 3 ICCPR states that States “undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights” in the ICCPR. De Vos (2007), p. 54.

HR Committee, General Comment No. 18 (10 November 1989), para. 10.

Id.

HR Committee, General Comment No. 28: Article 3 (The equality of rights between men and women) (29 March 2000), paras. 3, 4 and 29. HR Committee, General Comment No. 4: Article 4 (30 July 1981), para. 2.

This was briefly discussed in Chap. 2 (Sect. 2.4) on minority rights protection. The HR Committee notes that the rights protected under art. 27 ICCPR are individual rights but acknowledges their importance for the maintenance of minority group culture, language or religion. See: HR Committee, General Comment No. 23: Article 27 (Rights of Minorities) (26 April 1994), para. 6.2.

See Chaps. 9 and 10 on positive action for Roma.

Art. 2.2. ICESCR prohibits discrimination “of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Art. 3 reads that States “undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the” ICESCR. See, for instance: CESCR Committee, General Comment No. 16 (13 May 2005), para. 36 (“States parties are encouraged to adopt temporary special measures to accelerate the achievement of equality between men and women in the enjoyment of the rights under the Covenant”). Vandenhole (2005), p. 239.

CESCR Committee, General Comment No. 16 (13 May 2005), paras. 15, 35 and 36. See also, specifically with regard to the right to education: CESCR Committee, General Comment No. 13 (8 December 1999), para. 32.

The CESCR Committee explains that “(…) discrimination against some groups is pervasive and persistent and deeply entrenched in social behaviour and organisation, often involving unchallenged or indirect discrimination. Such systematic discrimination can be understood as legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups”. CESCR Committee, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2) (2 July 2009), para. 12. According to De Schutter (2007, p. 793), the defining characteristic of structural discrimination is that “it cuts across different spheres (education, employment, housing and access to health care in particular), resulting in a situation where the prohibition of discrimination in any one of these spheres or, indeed, in all of them, will not suffice to ensure effective equality. (…) Structural discrimination should be understood as a situation where, due to the extent of the discrimination faced by a particular segment of society, more is required in order to achieve effective equality than to outlaw direct and indirect discrimination”.

CESCR Committee, General Comment No. 5 (9 December 1994), paras. 9 and 18. The progressive realisation of socio-economic rights was mentioned in Chap. 2 (Sect. 2.7.1).

De Vos (2007), p. 55.

CESCR Committee, General Comment No. 20 (2 July 2009), para. 9. Such a duty to adopt positive action measures applies to the public as well as the private sector. See: CESCR Committee, Concluding Observations on Costa Rica (4 January 2008), para. 39. Henrard (2013), p. 55.

See Chap. 1 (Sect. 1.2.1) on the particular vulnerability of Roma in Europe.

See Chap. 6 (Sect. 6.1.5) on positive action measures as a derogation or an aspect of equality.

See, for example: CEDAW Committee, General Recommendation No. 25 (2004), paras. 21 and 24. HR Committee, General Comment No. 18 (10 November 1989), paras. 10 and 13.

For an overview of the five main justifications and aims of positive action, see Chap. 6 (Sect. 6.4).

CEDAW, art. 4.1. CESCR Committee, General Comment No. 16 (13 May 2005), para. 15. CEDAW Committee, General Recommendation No. 25 (2004), paras. 11, 15 and 18.

See, for example: CERD Committee, Concluding Observations on Namibia (27 September 1996), para. 19. Durban Declaration and Plan of Action (8 September 2001), para. 108. CESCR Committee, General Comment No. 20 (2 July 2009), para. 9.

CESCR Committee, General Comment No. 5 (9 December 1994), para. 18.

Id.

See, for example: CEDAW Committee, General Recommendation No. 23: Political and Public Life (1997), para. 29.

See, for example: Durban Declaration and Plan of Action (8 September 2001), para. 108. HR Committee, Concluding Observations on India (4 August 1997), para. 10.

See, for example: HR Committee, General Comment No. 18 (10 November 1989), para. 13. De Schutter (2007), p. 851. The proportionality requirement was cited as a normative element of positive action in Chap. 6 (Sect. 6.1.2.2).

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 16.

CESCR Committee, General Comment No. 5 (9 December 1994), para. 18.

CESCR Committee, General Comment No. 20 (2 July 2009), para. 9.

See, for example: HR Committee, Guido Jacobs v. Belgium, Views (17 August 2004), paras. 9.4 and 9.5. De Vos (2007), p. 58. Henrard (2007), p. 46.

De Vos (2007), p. 55. See Sect. 7.4 on the types of measures the treaty-monitoring bodies allow.

De Vos (2007), p. 58.

Henrard (2007), p. 46.

See, for example: CERD Committee, General Recommendation No. 32 (24 September 2009), para. 16. De Schutter (2007), p. 851. The temporary nature of positive action was identified as a normative element of this human rights instrument in Chap. 6 (Sect. 6.1.2.3).

Arts. 1.4 and 2.2 ICERD. Art. 4.1 CEDAW. CERD Committee, General Recommendation No. 32 (24 September 2009), para. 27. CESCR Committee, General Comment No. 20 (2 July 2009), para. 9. CESCR Committee, General Comment No. 13 (8 December 1999), para. 32.

For instance, the rights of persons belonging to minorities to enjoy their own culture and to use their own language are permanent rights. CERD Committee, General Recommendation No. 32 (24 September 2009), paras. 15 and 16. Minority rights protection was discussed in Chap. 2 (Sect. 2.4).

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 27.

Holtmaat (2003, pp. 225 and 226) explains that the duration of positive action could be set by setting a date or by meeting specific goals or criteria. CESCR Committee, General Comment No. 16 (13 May 2005), para. 36. De Vos (2007), p. 56.

HR Committee, General Comment No. 18 (10 November 1989), para. 10.

CEDAW Committee, General Recommendation No. 25 (2004), para. 20.

The CESCR Committee cites “interpretation services for linguistic minorities and persons with sensory impairments in health care facilities” as an example of positive action that may need to be of a permanent nature. CESCR Committee, General Comment No. 20 (2 July 2009), para. 9. Interights (2011, p. 93) mentions a travel subsidy for persons with disability to facilitate the use taxis.

This could be the legislator or the government. De Schutter (2007), p. 852.

Report of the Special Rapporteur on racism, racial discrimination, xenophobia and related forms of intolerance: Follow-up to and implementation of the Durban Declaration and Programme of Action (19 May 2009), para. 37.

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 35.

The active participation of all relevant stakeholders was cited as a premise of positive action in Chap. 6 (Sect. 6.3.2). It is also considered a key element of this book, as will be explained in Chap. 12 (Sect. 12.2.2). CERD Committee, General Recommendation No. 32 (24 September 2009), para. 18.

See Chap. 6 (Sect. 6.1.5) for more on the discussion as to whether positive action is to be considered as a derogation or an aspect of equality.

The different types of positive action were analysed in Chap. 6 (Sects. 6.2.2–6.2.4).

According to Craven (1995, p. 158), the reason for this is that the ICESCR aims at redistributing social resources in order to secure every member of society the full realisation of their rights. Craven supports his argument by referring to several articles of the ICESCR, such as art. 7(c), which states that “(e)qual opportunity for everyone to be promoted in his employment to an appropriate higher level” shall be based solely on “seniority and competence”, and art. 13.2(c), which states that “(h)igher education shall be made equally accessible to all, on the basis of capacity (…)”. Henrard (2007), p. 47. See Chap. 6 for an overview of the distinction between equality of opportunities and equality of results (Sect. 6.1.4) and how this affects the distinction between the two types of positive action (Sects. 6.2.2–6.2.4).

CESCR Committee, General Comment No. 5 (9 December 1994), para. 9.

CESCR Committee, General Comment No. 20 (2 July 2009), para. 13. Proportionality at UN level was explained in Sect. 7.3.2.

CESCR Committee, General Comment No. 20 (2 July 2009), paras. 12, 38 and 39.

For instance, the CESCR Committee regrets that no quotas for employment have been set for persons with disabilities in Israel, despite the fact that more than 72 per cent of this group is unemployed. CESCR Committee, General Comment No. 16 (13 May 2005), para. 36. CESCR Committee, General Comment No. 5: Persons with disabilities (9 December 1994), paras. 9 and 18. Report on the eighteenth and nineteenth sessions of the CESCR Committee (1999), paras. 240 and 241.

ICERD, arts. 1.4 and 2.2. CEDAW, art. 4.1. See CERD Committee, General Recommendation No. 32 (24 September 2009), para. 26. This was mentioned in Sect. 7.3.3.

Art. 1.4 ICERD reads that “special measures (…) shall not be deemed racial discrimination, provided (…) that such measures do not, as a consequence, lead to the maintanenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved”. Art. 2.2 ICERD stipulates that “(t)hese measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved”. De Vos (2007), p. 57.

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 13.

UNDP uses the notions affirmative action and positive discrimination. UNDP (2010), p. 22.

Henrard (2007), p. 47. Boyle and Baldaccini (2001), p. 157.

CEDAW, art. 4.1.

De Vos (2007), p. 56.

Cook (2003), p. 125. Strict quotas were discussed in Chap. 6 (Sect. 6.2.4.2) on strong positive action measures that involve preferential treatment.

Cook (2003, p. 25) states that States may implement a temporary 50 per cent quota for women to supplementary training programmes in order to ensure that they meet entry standards, thereby achieving equality of opportunity in vocational work. CEDAW Committee, General Recommendation No. 23 (1997), para. 29. De Vos (2007), p. 56. Preference as a tiebreak was analysed in Chap. 6 (Sect. 6.2.4.2) as one of the strong kinds of positive action measures that provide preferential treatment to members of the target group.

In addition to public and political bodies, it can also concern education, employment and the economy. See: CEDAW Committee, General Recommendation No. 23 (1997), para. 29. CEDAW Committee, General Recommendation No. 5: Temporary special measures (1988).

Henrard (2007), p. 47. See Chap. 6 on the need to complement the traditional approach to equality (Sect. 6.1.4) and on soft and strong types of positive action measures (Sects. 2.2–2.4).

CEDAW, art. 4.1. CESCR Committee, General Comment No. 20 (2 July 2009), para. 38.

100

See Sect. 7.4, where it was explained that the UN bodies allow the adoption of soft and strong measures, including quotas, depending on the goals pursued and the needs in the specific context.

101

CEDAW Committee, General Recommendation No. 25 (2004), para. 22. CEDAW Committee, General Recommendation No. 23 (1997), para. 15. The broad spectrum of positive action and the six factors that create diversity among such measures were discussed in Chap. 6 (Sect. 6.2).

102

CERD Committee, General Recommendation No. 32 (24 September 2009), para. 16. CESCR Committee, General Comment No. 16 (13 May 2005), para. 36.

103

See also: HR Committee, General Comment No. 18 (10 November 1989), para. 10.

104

At least four out of eleven members of the non-justices and at least four out of eleven members of the justices must be of each sex. HR Committee, Guido Jacobs v. Belgium, Views (17 August 2004). See, similarly, on the approval of preferential treatment of certain public officials to access the public service to remedy past discrimination against this group: HR Committee, R.D. Stalla Costa v. Uruguay, Views (9 July1987), paras. 10 and 11.

105

Not only was at least ten years of experience, but there would not be discrimination between different groups of non-justices because “either the female applicants were better qualified than the male, in which case they could justifiably be appointed; or the female and male applicants were equally well qualified, in which case the priority given to women would not be discriminatory in view of the aims of the law on the promotion of equality between men and women, as yet still lacking; or the female candidates were less well qualified than the male, in which case the Senate would be obliged to issue a second call for candidates in order to reconcile the two aims of the law, namely, qualifications and gender balance, neither of which may preclude the other”. HR Committee, Guido Jacobs v. Belgium, Views (17 August 2004), paras. 9.4. and 9.5.

106

HR Committee, Guido Jacobs v. Belgium, Views (17 August 2004), paras. 9.3 to 9.6.

107

For example, the HR Committee approves of the reservation of a number of seats in elected bodies for women as well as for members of scheduled tribes and castes to improve their representation. See: HR Committee, Concluding Observations on India (4 August 1997), para. 10. Henrard (2007), p. 46.

108

See Chap. 8 on the European framework on positive action.

109

The limits of the formal approach to equality were explored in Chap. 6 (Sect. 6.1.4).

110

Chapter 6 (Sect. 6.1.5) considered whether positive action constitutes a derogation or an aspect of equality.

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Titel: International Framework on Positive Action
verfasst von: Jozefien Van Caeneghem
Verlag: Springer International Publishing
Buch: Legal Aspects of Ethnic Data Collection and Positive Action
Print ISBN: 978-3-030-23667-0

Electronic ISBN: 978-3-030-23668-7

Copyright-Jahr: 2019
DOI: https://doi.org/10.1007/978-3-030-23668-7_7

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