EDITORIAL 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
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