U.N. convention ties U.S. to affirmative action
The Supreme Court this term is considering a case from Piscataway, N.J., involving a school district that -- needing to lay off someone -- chose a white teacher rather than a black teacher in order to maintain racial diversity. Both teachers were equally qualified. Some, though by no means all, observers expect the court to issue a sweeping ruling against affirmative action policies.
The Piscataway case is the most current example of the deep national cleft over whether to continue racial and gender preferences in areas such as schools, housing and employment. As political efforts to undo affirmative action escalate, the tendency of American jurisprudence is to uphold such policies only when targeted to rectify specific instances of discrimination.
Given Americas notorious cultural insularity, it is perhaps not surprising that few legal commentators have considered the international dimensions of this debate. But the United States is part of the world community, and our commitments under international treaties and conventions cannot simply be ignored. Put plainly, should the United States abandon its commitment to affirmative action, it would do so in defiance of international law.
The United States is infamous for disregarding international law when doing so suits its purposes. President Reagan, for example, mined the harbors of Nicaragua despite sanctions from the World Court. Especially in light of this sullied history, America cannot insist that other countries follow the law when it is unwilling to do so itself. As far as affirmative action is concerned, both statute and case law from other nations are clear that preferences based on race and gender are an appropriate remedy to the legacy of discrimination.
The United Nations in many of its major human rights covenants has urged affirmative action to undo the effects of the segregation and discrimination practiced by colonial powers for some 300 years.
In 1966 many nations newly liberated from colonial dominion persuaded the United Nations to adopt the International Convention on the Elimination of all forms of Racial Discrimination. That treaty, now ratified by 137 nations -- including the United States -- makes it clear that affirmative action is not only allowed but indeed mandated. Its language states that:
Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups ... as may be necessary ... shall not be deemed racial discrimination.
The only caveat was that such an arrangement must not lead to the maintenance of separate rights for different racial groups.
A subsequent section of the convention clarifies and makes concrete the treatys authorization of affirmative action. The paragraph allows nations to take special and concrete measures to insure the adequate development of certain groups.
It is significant that in the process of ratifying the convention none of the 137 nations (out of the 184 U.N. member nations) have proposed reservations that would substantially qualify or modify the commitments they made by agreeing to implement the covenants commitment to affirmative action.
At the United Nations, the committee that monitors compliance with the convention to eliminate racial discrimination has not had occasion to criticize any nations for creating quotas or for continuing affirmative action after it is no longer needed. The U.N. committee has regularly told the nations of Asia and Africa that they have been too negligent in the fulfillment of their commitments to use affirmative action to assist all those who have suffered for generations from policies or patterns of discrimination based on race or gender.
In the adoption of the Convention for the Elimination of Discrimination Against Women in 1979 the U.N. General Assembly reiterated the mandate and even the language requiring affirmative action. This convention, now ratified by 130 nations (but not the United States), authorizes temporal special measures aimed at accelerating equality between men and women.
A wide variety of nations have used affirmative action to compensate for the injustice done to their citizens by colonial powers or by obvious prejudice against people of color and women.
India was the first nation to adopt affirmative action. In its 1949 constitution, India abolished the untouchable caste and provided for relief for those who suffered the stigma of being born into certain castes. The Indian Supreme Court, following English law and frequently citing decisions of the U.S. Supreme Court, has sustained Indias attempts to phase out patterns of institutionalized prejudice.
Affirmative action has been used in diverse ways in Malaysia, Indonesia and Australia. It is a cornerstone of attempts to rebuild South African society in the aftermath of apartheid.
Canada and several European nations have legislative measures that provide for affirmative action to correct past discrimination against women. In Canadas 1982 constitution and its implementing legislation, women are afforded the same status as citizens with disabilities, racial and ethnic minorities and aboriginal people. Canada along with other nations is seeking to rectify massive, endemic discrimination against women.
In 1991 Italy passed a law that grants preferential treatment for women; this regulation requires positive action and not just equal treatment. In 1993 France initiated a program through which companies that recruit and train more women receive a measure of state aid. Portugal waived certain taxes for employers who hire women; in addition, female entrepreneurs are given priority in projects that invade traditionally male-dominated areas.
The spirit of these laws is, in the words of the Canadian legislation, to compensate persons who have been denied employment opportunities or benefits unrelated to ability.
Moreover, the laws emphasize that persons to be hired must in every way be qualified. The Australian law insists that there is no requirement that an employer take any action incompatible with the principle that employment matters should be dealt with on the basis of merit. No law permits so-called discrimination in reverse.
Even this quick survey demonstrates that international law and the law of a growing number of nations agree that the injustice inflicted by racism and sexism cannot be rectified or corrected unless the human family agrees to give some appropriate remedy to those who have been victimized. Should the United States reverse field and close doors of opportunity only recently opened, it will do so illegally and alone.
National Catholic Reporter, October 17, 1997