December 2000
WCAR Think Papers
A joint
project of Human Rights Documentation Center (HRDC),
International Service for Human Rights (ISHR) and South Asia Human Rights
Documentation Centre (SAHRDC)
WCAR Think Paper V
Affirmative Action:
Guarding against an international rollback
I. What is at stake
The issue of affirmative action involves nothing less than the decision of Governments either to ignore and exacerbate or to face and remedy historic discrimination against marginalized groups. In many contexts, affirmative action is still so vital that prematurely abolishing such programmes risks structural re-segregation and a significant move along the continuum towards de facto apartheid. At present, the international legal standards supporting affirmative action are relatively robust. The question is whether the World Conference Against Racism (WCAR) will move from principles to action and whether States in which affirmative action has recently been retrenched will influence a regression of current international standards.
Two situations – racial minorities in the United States and the Roma in Europe – demonstrate the stakes of the debate. Of course these two issues do not exhaust the cases in which affirmative action is required. For example, at the UN-sponsored February 2000 Expert Seminar on Remedies Available to Victims of Racial Discrimination, leading experts raised the need for affirmative action programmes for indigenous peoples and others who have been victimized over a period of years.[1] Thus, the following discussion of the United States and European situations is meant only to identify a part of the wider range of cases in which a commitment to affirmative action is necessary.[2]
1. Racial minorities in the United States of America
One of the principal concerns in the affirmative action debate is the condition of racial minorities in the United States of America. Over the last decade, several jurisdictions within the United States have rolled back state and federal affirmative action programmes. The U.S. Supreme Court has struck down a number of such programmes on the ground that they constitute racial discrimination against whites in violation of the U.S. Constitution.[3] Within the last half decade, three of the country’s most populous states – California, Florida and Texas – have each almost entirely, if not entirely, eliminated affirmative action through legislation, judicial action or executive decree. Within one year of Texas’s elimination of affirmative action, Hispanic and African American admissions to the University of Texas Law School fell 64% and 88% respectively. Following California’s elimination of affirmative action, Hispanic and African American public law school admissions dropped 35% and 72%. Domestic civil rights organisations such as the National Association for the Advancement of Colored People, the Mexican American Legal Defense and Education Fund and the American Civil Liberties Union report that if trends continue we are witnessing the re-segregation of America.
Full-scale studies support these findings. The thirty-year anniversary update of the famous Kerner Commission Report states:
America's neighborhoods and schools are resegregating. According to Professor Gary Orfield and his colleagues at Harvard, two-thirds of African-American students and three-fourths of Hispanic students now attend predominantly minority schools, one-third of each group in intensely segregated schools. In urban public schools in poor neighborhoods, more than two-thirds of children fail to reach even the ‘basic’ level on national tests, according to Education Week. In many ways, America's housing policy for the poor and minorities has become prison building. During the 1980s and early 1990s, we tripled the number of prison cells at the same time that we reduced housing appropriations for the poor by more than 80 percent.[4]
In light of these trends, the Special Rapporteur on Contemporary Forms of Racism, after conducting a special visit to the United States, stated as one of his principal recommendations: “Affirmative action programmes should be revitalized in order to offset the negative consequences of the policy pursued during the 1980s in the fields of health, housing, education and employment.”[5]
2. Roma in Europe
Another area of concern for the
affirmative action debate is the condition of the Roma population in Europe.
The systematic mistreatment of Roma ranks as one of the greatest problems of
racial discrimination in the region. In his 1999 Report, the Special
Rapporteur on Racism, after reviewing the “region-wide trend towards
discrimination against this ethnic group,” concluded: “Roma suffer systematic
racial discrimination in virtually all spheres of public life, education,
employment, housing, access to public space and access to citizenship.”[6]
The Special Rapporteur has, over the past few years, identified significant
discrimination against the Roma in Bulgaria,[7]
the Czech Republic,[8]
the Federal Republic of
Yugoslavia,[9]
Finland,[10] Greece,
Hungary,[11] Macedonia,[12]
Poland,[13] Romania,[14]
Slovakia,[15]
Spain,[16] Sweden[17]
and the Ukraine.[18]
In reviewing the periodic reports of a number of these States, the Committee on the Elimination of Racial Discrimination (CERD) has called on governments either to implement (e.g., Bulgaria,[19] Hungary[20]) or to continue (e.g., the Czech Republic,[21] Macedonia[22]) affirmative action programmes. The mechanism of periodic reports has, however, proven inadequate to address the region-wide problem of discrimination against the Roma. Accordingly, in August 2000, CERD took up the issue of the Roma by holding an unprecedented special session. The discussion was devoted to the conditions of the Roma and it succeeded in the passage of General Comment XXVII which exclusively deals with racial discrimination against the group.[23] Significant to the affirmative action debate, General Comment XXVII calls on States to adopt affirmative action on behalf of the Roma in a number of fields, including: education,[24] public and private employment,[25] public contracting[26] and the media.[27] The General Comment ends with the following statement:
The Committee further recommends that: The World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance give due consideration to the above recommendations, taking into account the place of the Roma communities among those most disadvantaged and most subject to discrimination in the contemporary world.[28]
* * *
Of the above cases, the United States Government’s political position is expected to be the most significant concern for proponents of affirmative action at the WCAR. The Supreme Court’s definition of affirmative action as presumptive racial discrimination is endorsed by the Republican Party’s political leadership. Accordingly, the new Bush Administration can be expected to harden the U.S. foreign policy position on affirmative action in international standard-setting procedures. The United States’ States party report to CERD – submitted by the Clinton Administration in September 2000 – notably supports narrowly-tailored affirmative action programmes in federal administrative agencies, the educational arena and government contracting.[29] The report, however, also alludes to critics of affirmative action who would eliminate such programs:
Indeed, it is the government's position that the educational benefits that flow from a diverse student body can be achieved through the narrowly tailored consideration of race in admissions. Some critics argue that such practices violate the Fourteenth amendment's guarantee of equal protection and have called for an end to the consideration of race in university admissions.[30]
President-elect George W. Bush and the Republican Party leadership are among those critics. Affirmative action is one specific issue at the WCAR in which a shift in the United States position will likely occur due to the recent change in U.S. Presidential Administrations.
Under existing international standards,
affirmative action is recognized as an important remedy for achieving racial
equality. The international standard qualifies this principles only insofar as
holding that affirmative programmes should not lead to the maintenance of
separate rights for different racial groups and must be discontinued once the
programmes’ objectives have been achieved.[31] With these qualifications in mind, Article
1(4) and Article 2(2) of the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) were specifically designed to exempt
affirmative action programmes from the definition of racial discrimination and
to insist States implement such programmes when the circumstances warrant (See
Table).
Affirmative Action under International Instruments
“Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance 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.”
-- International Convention on the Elimination of All Forms of Racial Discrimination Article 1(4) (emphasis added).
“States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These 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.”
-- International Convention on the Elimination of All Forms of Racial Discrimination Article 2(2) (emphasis added).
“Special concrete measures shall be taken in appropriate circumstances in order to secure adequate development or protection of individuals belonging to certain racial groups with the object of ensuring the full enjoyment by such individuals of human rights and fundamental freedoms. These measures shall in no circumstances have as a consequence the maintenance of unequal or separate rights for different racial groups.”
-- United Nations Declaration on the Elimination of All Forms of Racial Discrimination, Article 2(3) (emphasis added).
“Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary, while ensuring that they are not such as to appear racially discriminatory. In this respect, particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged, so as to afford them, on a completely equal footing and without discrimination or restriction, the protection of the laws and regulations and the advantages of the social measures in force, in particular in regard to housing, employment and health; to respect the authenticity of their culture and values; and to facilitate their social and occupational advancement, especially through education.”
-- UNESCO Declaration on Race and Racial Prejudice, Article 9(2) (emphasis added).
“1. Special measures of protection or assistance provided for in other conventions or recommendations adopted by the International Labour Conference shall not be deemed to be discrimination.
“2. Any member may, after consultation with representative employers' and workers' organizations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognized to require special protection or assistance, shall not be deemed to be discrimination.”
-- ILO Convention No. 111, Article 5.
Importantly, the Human Rights Committee,
in interpreting the place of affirmative action under the International
Covenant on Civil and Political Rights, issued General Comment XVIII
which also clarifies certain circumstances necessitate affirmative action programmes,
though with a similar understanding of the qualifications that exist under
ICERD (See Table).
General Comment XVII
“The Committee
also wishes to point out that the principle of equality sometimes requires
States parties to take affirmative action in order to diminish or eliminate
conditions which cause or help to perpetuate discrimination prohibited by the
Covenant. For example, in a State where the general conditions of a certain
part of the population prevent or impair their enjoyment of human rights, the
State should take specific action to correct those conditions. Such action may
involve granting for a time to the part of the population concerned certain
preferential treatment in specific matters as compared with the rest of the
population. However, as long as such action is needed to correct discrimination
in fact, it is a case of legitimate differentiation under the Covenant.”
- Human Rights Committee, General Comment XVIII, para.
10, Thirty-seventh session, 10/11/1989 (emphasis added).
The previous World Conferences Against Racism already adopted language strongly supporting the need for affirmative action. Most significant in this regard is the Declaration and Programme of Action for the Second World Conference to Combat Racism and Racial Discrimination (1983). Paragraph 15 of the Declaration of the Second World Conference states:
The proscription of racism and racial discrimination by law should be accompanied by vigorous efforts to ensure equality in the economic, social, and cultural fields; and in particular special programmes, such as affirmative action programmes, should be developed to address the problem of racism and racial discrimination inherent in the system and institutionalised.
Paragraph 16 of the Programme of Action of the Second World Conference states:
The Conference invites States . . . [t]o ensure that the teaching staff of institutions reflect, as far as possible, the racial and ethnic composition of the community. Affirmative action programmes should be instituted to facilitate the hiring of teachers who represent the racial, ethnic and linguistic composition of the community.
…
The Conference invites States . . . [t]o take remedial measures in instances where particular racial, ethnic, linguistic or other groups have had a history of being placed at a disadvantage . . . . This is the responsibility of society. This might necessitate special educational programmes at all levels of the society.
Due to inadequate dissemination of the text, many people are not aware of these aspects of the Declaration and Programme of Action of the Second World Conference. Those provisions, however, should be the starting point for the Third World Conference’s consideration of affirmative action.
III. Guarding against a rollback and moving towards elaboration
Participants of the WCAR should take into account the text of the previous World Conferences in order to hedge against regression of established standards and to move towards those standards’ elaboration and implementation. The above provisions from the Second World Conference’s Declaration and Programme of Action should be taken as the baseline below which the Third World Conference must not fall.
In describing the need and scope of affirmative action, the text of the previous World Conferences have been deficient in a number of areas that the 2001 WCAR can address. First, an explicit reference to the need for affirmative action programmes for indigenous peoples is important as suggested above. Second, the WCAR should not, as the World Conferences have done in the past, address affirmative action only in the field of education while disregarding the need for affirmative action in employment, public contracting and the civil service especially including programmes to ensure adequate representation of members of marginalized racial groups in the police force. Third, the WCAR should also take up the issue of affirmative action within the international arena. In his 1996 report to the General Assembly, the Special Rapporteur on Racism recommended the General Assembly “explore the possibility of establishing a fund to assist ethnic or racial communities that are victims of racial discrimination and condemned to live in conditions of injustice and inequality . . . Can we not envisage an appropriate affirmative action mechanism at the international level?”[32] The WCAR should take up that challenge and begin detailing specific measures to meet it. Fourth, the WCAR should move from the earlier conferences’ statements of “inviting” States to adopt affirmative action measures and towards statements that accurately reflect the obligation of States to do so when the circumstances require it. As made clear in Part II above, the prevailing international legal standards already include such an obligation. The WCAR must appropriately reflect that obligation in its own text.
Finally, the WCAR also presents an opportunity to support and encourage affirmative action in the United States simply through the wording of the Declaration and Programme of Action. In the United States, the success of civil rights litigation on the issue of affirmative action will pivot on the question of whether racial diversity constitutes a sufficiently compelling reason for public institutions to adopt affirmative action measures.[33] The U.S. Supreme Court is expected to decide that legal issue in the coming years, and a statement by the world community affirming the paramount importance of racial diversity in education and other public arenas could be helpful in the effort to uphold affirmative action in the United States. The Association of American Universities specifically issued such a statement in an effort to influence the outcome of that prospective litigation. The Third World Conference Against Racism need only exert minimal political effort to potentially yield a notable influence in that debate.
[1] A/CONF.189/PC.1/8 (Annex, para. 29 (Mr. Asbjørn Eide) & para. 57 (Mr. Theodor van Boven).
[2] See also Committee on the Elimination of Racial Discrimination, State party periodic report – Namibia, A/51/18 (30 September 1996), at 503 (Concluding Observations) (recommending Government of Namibia adopt affirmative action measures “to overcome vestiges of the past that still hamper the possibilities for black people, including vulnerable groups among them” in areas of education and employment); Committee on the Elimination of Racial Discrimination, State party periodic report – Nepal, A/53/18 (10 September 1998), at 434 (Concluding Observations) (welcoming Government of Nepal’s affirmative action programmes for “less developed groups,” but requesting information on results of those programmes).
[3] Mr. Marc Bossuyt, Working Paper on the Concept of Affirmative Action, E/CN.4/Sub.2/1998/5, paras. 18-29 (discussing U.S. affirmative action jurisprudence).
[4] Milton S. Eisenhower Foundation, The Millennium Breach: The American Dilemma, Richer and Poorer, (2d. ed. 1998).
[5] E/CN.4/1995/78/Add.1, para 112.
[6] E/CN.4/1999/15, paras. 87 & 83. See also E/CN.4/2000/16 (Special Rapporteur on Racism) (“discrimination against the Roma persists in a number of European countries, where they are subjected to exclusion and marginalization”); id. paras 35, 37, 172.
[7] E/CN.4/1999/15, para. 81 (police violence); id. at 82 (violence by skinheads and others); E/CN.4/1997/71, para. 28 (skinhead attacks against Romany street children).
[8] E/CN.4/2000/16/Add.1 (country visit concerning systematic discrimination against Roma); E/CN.4/1999/15, para. 82 (violence by skinheads and others); id. at 82 (de facto racial segregation in education); id. at 85 (instances of racial exclusion in public places); id. at 86 (denial of citizenship rights); E/CN.4/1997/71, para. 30 (discrimination in housing, education, employment and citizenship).
[9] E/CN.4/2000/16, para. 35; E/CN.4/1999/15, para. 81 (police violence); id. at 82 (violence by skinheads and others).
[10] E/CN.4/1999/15, para. 85 (instances of racial exclusion in public places).
[11] E/CN.4/2000/16/Add.1 (country visit concerning systematic discrimination against Roma); E/CN.4/1999/15, para. 81 (police violence); id. at 82 (de facto racial segregation in education); id. at 85 (instances of racial exclusion in public places).
[12] E/CN.4/1999/15, para. 81 (police violence); id. at 85 (instances of racial exclusion in public places).
[13] E/CN.4/1999/15, para. at 82 (violence by skinheads and others); id. at 85 (instances of racial exclusion in public places); id. at 86 (denial of citizenship rights).
[14] E/CN.4/2000/16/Add.1 (country visit concerning systematic discrimination against Roma); E/CN.4/1999/15, para. 81 (police violence); id. at 85 (instances of racial exclusion in public places); E/CN.4/1997/71, para.29 (police-sponsored violence).
[15] E/CN.4/2000/16, para. 35; E/CN.4/1999/15, para. 81 (police violence); id. at 82 (violence by skinheads and others); id. at 82 (de facto racial segregation in education); id. at 85 (instances of racial exclusion in public places).
[16] E/CN.4/1999/15, para. 85 (instances of racial exclusion in public places).
[17] E/CN.4/1999/15, para. 85 (instances of racial exclusion in public places).
[18] E/CN.4/1999/15, para. 81 (police violence). The Special Rapporteur has also criticised West European States for gross mistreatment of Roma asylum-seekers, such as the practice of mass deportations back to countries of origin. E/CN.4/2000/16, para. 35.
[19] A/52/18 (26 September 1997), at 288 (Concluding Observations – Bulgaria).
[20] A/51/18 (30 September 1996), at 126 (Concluding Observations – Hungary).
[21] A/53/18 (10 September 1998), at 117 (Concluding Observations – Czech Republic).
[22] A/52/18 (26
September 1997), at 524 (Concluding Observations – Macedonia).
[23] CERD General Recommendation XXVII (“Discrimination Against Roma”) (Fifty-seventh session, August 16, 2000).
[24] Id. paras. 18, 19 & 23.
[25] Id. para. 28.
[26] Id. para. 29.
[27] Id. para. 39.
[28] Id. para. 49.
[29] See, e.g., Initial State Party Report of the United States of America to CERD, <www.state.gov/www/global/human_rights/cerd_report/cerd_index.html> (“Affirmative action measures recognize that existing patterns of discrimination, disadvantage and exclusion that are the remains of a race-conscious system of exclusion may require race-conscious measures to achieve real equality of opportunity.”).
[30] Id.
[31] For a discussion of the definition of affirmative action under international law, see Mr. Asbjørn Eide, Working Paper on the Protection of Minorities: Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities, E/CN.4/Sub.2/1993/34, paras. 168-184.
[32] A/51/301, para. 58.
[33] See, e.g., Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 Harvard Civil Rights-Civil Liberties Law Review 381 (1998).