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07 August 2000
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Sub-Commission on the Promotion
and Protection of Human Rights
52nd session
7 August 2000
Morning
The Subcommission on the Promotion and Protection of Human Rights this morning continued its debate on how affirmative action can be used to help groups which are discriminated against.
Subcommission Experts commented on a report on affirmative action by Expert Marc Bossuyt who is Special Rapporteur on this issue. Special attention was paid to the limits and scope of affirmative action as a concept. A number of Experts suggested that more work was required to see what role affirmative action could play internationally, particularly in addressing the unequal international economic order and trade relations.
Mr. Bossuyt responded to the remarks made by saying that he would do his best to incorporate the observations in his next report. He said that it would be difficult to incorporate affirmative action in commercial and trade relations as affirmative action dealt with the treatment of individuals and not the treatment of assets.
The following Experts spoke: Halima Embarek Warzazi, Joseph Oloka-Onyango, Christy Ezim Mbonu, Stanislav Ogurtsov, Jose Bengoa, Vladimir Kartashkin, El-Hadji Guisse, Manuel Rodriguez Cuadros, Yozo Yokota, Asbjorn Eide, Soon Gil Park, Leila Zerrougui, Francoise Jane Hampson, Paulo Sergio Pinheirot, and Erica-Irene Daes.
The following non-governmental organizations took the floor on issues relating to the elimination of racial discrimination, the situation of migrant workers and members of their families, xenophobia and the World Conference against Racism: the World Federation of United Nations Associations in a joint statement with the World Federation of Democratic Youth and the All Indian Women's Conference, the Movement against Racism and for Friendship among Peoples, the International Institute for Non-Aligned Studies, and the Indian Law Resource Centre.
The Subcommission will reconvene at 3 p.m. to continue its debate on racial discrimination.
Statements
HALIMA EMBAREK WARZAZI, Subcommission Expert, said that the goal of affirmative action was to promote disadvantaged groups and help them have the same rights in society. These groups should not be approached with suspicion. She was concerned as to the 'limits' to affirmative action set out in the report. This showed that it was necessary to have dynamic special measures to ensure the success of affirmative action and to end negative discrimination. Standards of equality could not be successful unless they were implemented in a realistic manner. More focus was required in the results one aimed to achieve, so that people could emerge from their disadvantageous situation. One should not only consider physical disabilities, but also other factors. There was an additional need to mobilize funds to create free-standing actions to support other disadvantaged groups. There was a need to examine why the Committee on Human Rights was more interested in equality than the Committee on Economic, Social and Cultural Rights. Conventionally, all forms of discrimination should be eliminated.
The concept of affirmative action was important and special measures were needed. How did one determine that disadvantaged groups no longer suffered from previous discrimination? The topic of affirmative action was close to her heart. To allow women to hold political positions was not to distinguish them, but to establish a right for women to hold these positions. This was equally important in the fields of knowledge, economy and society. Affirmative action should not go on for ever, it was there to disappear so that there would be a more equal and just society.
JOSEPH OLOKA-ONYANGO, Subcommission Expert, said the concept of affirmative action should be viewed as only one of several different measures used to combat the scourge of discrimination; it was necessary first of all to take into account the changing, evolving character of discrimination. Slavery, colonialism and apartheid might have come to an end, but their pernicious effects continued to exert influence around the world, and affirmative action amounted only to a minimalist response. Affirmative action was important and should continue to be used, but while still appropriate and necessary, it should not be considered enough -- everyone had to go beyond that, and it should not be used as a way of preserving the status quo.
Institutional and structural mechanisms of racism and sexual discrimination were still the main problem, and these had to be attacked. These institutional mechanisms operated in such a way that it was unlikely that affirmative action would ever redress their imbalances. Who made up the Fortune 500? Who were the leaders of the multilateral financial institutions? Why was it so difficult for people of colour and women to penetrate these institutions? The upcoming World Conference was obviously a welcome idea, but it ran the risk of being completely marginalized, as had other efforts to combat racism; it risked being sidelined by the use of euphemistic code words for inaction, and through lack of political will.
CHRISTY EZIM MBONU, Alternate Subcommission Expert, said that the report had established one vital point: that affirmative action was a concept that existed in international law. The concept should be seen as an essential instrument to be used by governments. One had to address what caused the underprivileged situation for whom the affirmative action was designed. Was it self-inflicted in terms of religion or culture? Was it due to colonialism, the result of years of slavery or institutional discrimination? Was it based on gender or on account of disability? These issues needed to be addressed. The granting of affirmative action should end when the objective had been achieved and emphasis should be faced on remedying the wrong. There would be no need for affirmative action if there had been a remedy of wrongs. What time frame was put on remedying apartheid? There were many complexities in this concept and what was the yardstick to measure when the objectives had been met. The purpose of affirmative action was to right the wrongs done to women and other disadvantaged groups in the past. More information was required on this issue with a stress on the benefits, if there were any. The questionnaire was vital, and she hoped specific examples would be given of what States had actually achieved.
STANISLAV ORGURTSOV, Subcommission Expert, said the affirmative-action report was somewhat academic in character. The document would truly be influential when it was translated into practical action by the Subcommission and others. Affirmative action was described by several other "labels", such as special measures, or reverse discrimination -- and the multitude of terms to cover one phenomenon was no accident. For minorities, affirmative action could be helpful. For majorities, such steps could be seen as discriminatory in nature -- a subject that was treated briefly in the report. Many people in the majority were irritated by them. Real success would be found in a situation where particular characteristics of any group no longer mattered in society; where everyone was treated the same regardless of origin and distinguishing characteristics. The real challenge was to ensure more unity in society.
One gap in the report -- and something not addressed in the attached questionnaire -- involved study of how public opinion was formed, and of how support was created for affirmative-action programmes. How did States educate and enlighten majorities so that such programmes were accepted and supported, and how were societal attitudes changed? And how did affirmative-action programmes affect public perception of the minorities they applied to?
JOSE BENGOA, Subcommission Expert, agreed with the study which was interesting and well-written. However, some focus should be put on affirmative action in international relations such as in trade relations. Reference was made to the banana quotas without which agriculture would not survive and the production of drugs would take over. These decisions were based on a more abstract notion of equality and affirmative action. The concept of discrimination was important internationally, in development and with regard to indigenous peoples. These situations called for policy of an international character.
VLADIMIR KARTASHKIN, Alternate Subcommission Expert, said the report was preliminary; one could not expect it to be exhaustive in nature. The review of international law in the field was useful; quite correctly, reference also was made to measures taken at the national level. It was clear that affirmative action steps had to achieve equality and reduce discrimination in many areas of life, including education. Equal treatment was not the goal; rather preferential treatment was the idea for such groups as indigenous peoples to ensure that minorities ultimately achieved equality with majorities. The temporary quality of such measures should perhaps be called temporary on a "conditional" basis -- it could take many, many years for them to accomplish their goal.
The upcoming World Conference against Racism, meanwhile, should not only be an occasion for discussion of the same old issues but should discuss evolving forms of discrimination, such as the emergence of neo-Nazi movements in countries like France. The Subcommission should pay attention to these problems as well.
EL-HADJI GUISSE, Subcommission Expert, said the study had balanced the national and international aspects well. He asked to what extent affirmative action took into account factors which related to history, and were considered to be the causes of prejudice. These historical factors continued to deny the rights of peoples. There was a need to focus on international relations which lay at the heart of the unjust economic international order. Affirmative action should focus on the international economic imbalance, as well as embargoes such as those imposed on the Iraqi people which were claiming victims every day. Should these measures be used when they harmed millions of people? One had to be careful not use excessive measures. It would be useful to think of the debt problem, transnational corporations, the World Trade Organization and the dangers of globalization in the concept of affirmative action. Apartheid was a concern and Mr. Guisse asked whether affirmative action could address the results of these practices and see to the just redistribution of land.
MANUEL RODRIGUEZ-CUADROS, Subcommission Expert, said the conceptual problems that had to be settled in developing affirmative action as a concept of international law were very interesting and were well dealt with in the study. In trade relations, differentiated treatment in favour of developing countries was not really discrimination; instead one talked of non-reciprocal concessions, and generalized systems of preference. Perhaps, because of the extent of international law developed in economic and trade relations, models and concepts could be found to be applied to affirmative action and human-rights law.
Affirmative action, according to the report, must be temporary and must not be discriminatory. The problem lay in distinguishing which cases one was looking at differentiation that could be the subject of affirmative action. One had to avoid introduction of rules for differentiation that were based on matters that were irrelevant. The part of the report dealing with this matter could, perhaps, be expanded, as the concept was important. The addition of specific examples to the study would also be helpful. Perhaps one could say that affirmative action was not only non-discriminatory but that it had a positive impact on realization of the right to equality; and that affirmative action occurred always with the objective of not clashing with the principles and standards of a democratic society.
YOZO YOKOTA, Subcommission Expert, said he was in total agreement with all the points and views expressed by the Subcommission Experts on the report this morning. He was also concerned by the trend of growing racial tensions in different parts of the world. He stressed the importance of duties and obligations of the States with regard to human rights. If States did not take immediate effective action on racial discrimination it would give rise to responsibility on the part of the States. Furthermore, he agreed with the comments on trade relations and the international economic order. One had to look at affirmative action not only negatively but also positively. It was sometimes regarded as the taking away of rights from people whom had so far enjoyed supremacy. This was not the way to look at it. Affirmative action was not only beneficial for the disadvantaged groups but also for the groups which had until recently enjoyed supremacy. It was not against the ruling people, but was important for the ruling people and it enriched any society.
Affirmative action enhanced the marginalized people and also gave a different meaning to society and brought about peace. Mr. Yokota also referred to Mr. Weissbrodt's paper on the rights of non-citizens. This paper was very important with regard to the international changes, the inter-State relationships and reciprocity. It was important to investigate terminology, particularly in reference to the word 'citizenship' which had different meanings across the world. Due to the important work that Mr. Weissbrodt had undertaken, he should become Special Rapporteur on this topic.
ASBJORN EIDE, Subcommission Expert, said the question of discrimination in criminal justice needed further attention; on Friday a number of Experts had attended a meeting with representatives of a leading anti-racial-discrimination organization from the United States, and had heard some enlightening and alarming statistics. The mechanisms of how discrimination operated in national justice systems required study, along with how a "sectoral" approach to remedying it could be applied. He wished to say that the problem affected not only the United States but a number of countries -- for example, indigenous persons were subject to discrimination in a number of countries when they came in contact with police and the courts, and in Europe one saw the same pattern applied to aliens. A study done in Norway showed that many aliens did not even have a clear idea what was happening when they were in court, even though they were provided with interpreters.
At the upcoming World Conference on Racism, attention should be given to the question of racism in criminal-justice systems, and Mr. Eide hoped Mr. Bossuyt, in his report on affirmative action, could come up with suggestions for programmes that could be used to confront this problem.
SOO GIL PARK, Subcommission Expert, said he agreed with the points raised by the Experts and hoped that they would be part of the report when it was finalized. The concept of affirmative action constituted an important issue under international and national law. It was designed to right the wrongs committed in the past. He agreed with the observation that affirmative action had a firm basis in international law, however, States should also take corrective measures to fulfil the rights of their people. It was regrettable that the lack of time had prevented the inclusion of the responses to the questionnaires. There were no specific national examples. It was hoped that in the next reports, there would be a more practical side with actual examples of State activities in this field. It was true that affirmative action was a temporary measure. The notion of prevention of discrimination required more long-term plans. The distinction between the two was controversial and difficult. Attention was needed when making these distinctions which described socially violated groups. The notion of affirmative action reflected the minimum approach in dealing with the question of racial discrimination.
LEILA ZERROUGUI, Subcommission Expert, said she admired Mr. Bossuyt's study, yet noted that the report focused on affirmative action as applied in international law and as applied to States trying to reduce discrimination within their borders. But in this age of globalization, one also wanted to know what could be done to ensure effective enjoyment of human rights if a State was not capable itself of ensuring such enjoyment. What could be done in those circumstances? Could the right to development be sped up or be made more effective if the concept of affirmative action was applied to it, especially from outside national borders, because sometimes a State could not ensure development and such progress on its own.
FRANCOISE JANE HAMPSON, Subcommission Expert, said there had been serious conflicts in the Solomon Islands, Fiji and the Moluccas where discrimination, whether on ground of race, ethnicity or religion, had been one of the significant elements in the conflict. Concern was expressed when a group within a democratic multi-ethnic community appeared to turn its back on equality before the law. States had power, and power carried with it the responsibility to lead and educate. States had a positive obligation to promote tolerance and to prevent the incitement of racial hatred. Individual States and the international community had identified discrimination, indirect and institutional, as issues which fell within the field of racial discrimination. In some situations there was a risk that the monitoring bodies would look only at the violations of freedom of speech or the violation of the prohibition of arbitrary killings. Human rights monitoring bodies had shown a tendency not to deal with the additional claim of discrimination. This was not only wrong as a matter of law, but it was also potentially dangerous. The past decade had shown only too clearly the danger in not addressing questions of discrimination. Monitoring mechanisms had a special responsibility to address any issue of discrimination which may arise and redress the present blindness of responsibility to the possibility of discrimination.
MARC BOSSUYT, Subcommission Expert and Special Rapporteur on affirmative action, responding to comments on his study of affirmative action, said he would do his best to incorporate the observations of Subcommission members in his follow up report. One thing he wished to emphasis was that this was a preliminary report. The report was academic, it was true, as a number of members had stated; that was because it was not yet based on the practices of States. It could be so based, as long as there were replies to the questionnaire that had been drawn up and mailed to Governments. There were few specific examples now, but there could soon be. He apologized if the necessary layman's language had not yet been adopted; he hoped to progress to that point. And obviously questions of terminology could be confusing and had to be clarified.
It seemed to him that special measures could be adopted that were not discriminatory in nature -- organization of special courses, provision of grants and scholarships, for example, to ensure that those who were behind could catch up. He did not think, as Mr. Joinet had said, that affirmative action should be considered a state of "exception" to the norm. And it bore saying that not all distinctions were wrong -- there were distinctions that were justified and those that were not and amounted to discrimination. Distinctions contained in affirmative-action programmes should not, of course, be discriminatory.
PAULO SERGIO PINHEIRO, Subcommission Expert, presented his report on the first meeting of the Preparatory Committee for the World Conference against Racism. The World Conference would be a unique opportunity to continue in the struggle against racism. The previous conferences had not ended racial discrimination. There had been the dramatic and long-awaited end of apartheid, however, except for this development, there was currently an explosion of ethnic tensions and xenophobia in the world. Mr. Pinheiro said he had briefly summarized his report to the Preparatory Committee on the issues which should be the priority at the World Conference against Racism. One issue was the increasingly discriminatory legislation by the European Union. Important issues such as the exploitation of women were highlighted. The exploitation of women often occurred as a result of racial discrimination and prejudice. There had to be a change in policies to prevent discriminatory or prejudicial practices.
Mr. Pinheiro said that frequently racist policies were presented and justified by social and economic problems. No country could deny the presence of problems such as ethnic tensions and discrimination. Protection and compensatory policies were required for the victims of discrimination as were reforms of the criminal justice system, legal rights, and police accountability. Mr. Pinheiro explained that he had suggested the widest possible participation of civil society in the World Conference against Racism so that together one could find a solution to the explosion of ethnic conflicts and denial of racism and could overcome discrimination by equalizing the content and application of law among the population of every society.
ERICA-IRENE DAES, Subcommission Expert, said she had prepared a working paper on discrimination against indigenous peoples and had presented it to the Preparatory Committee of the World Conference against Racism. She had recommended that the Preparatory Committee ensure a mechanism for the full participation of indigenous peoples and their organizations at the World Conference, as well as at regional meetings and seminars; it was not enough simply to follow the rules of the Economic and Social Council. She had also recommended that an official observance of the International Decade of the World's Indigenous People be included at the World Conference, and that indigenous representatives be invited to address the plenary of the Conference; that the High Commissioner organize a seminar on indigenous peoples and the administration of justice in advance of the Conference, to bring important information before the World Conference; and that a parallel activity be held at the time of the World Conference, such as a round table, on measures taken to end discrimination against indigenous peoples. Funds should be set aside to pay for these activities through contributions from Governments to the Voluntary Fund for the International Decade. A chapter of the final report of the World Conference should be dedicated to indigenous peoples, and the term "indigenous peoples" should be used, instead of such euphemisms as "indigenous populations".
Mrs. Daes said she supported the call for the appointment of Mr. Weissbrodt as Special Rapporteur on the rights of non-citizens.
HORACE PERERA, of the World Federation of United Nations Associations, speaking on behalf of the All India Women's Conference and the World Federation of Democratic Youth, said that the fall of economic frontiers to globalization had resulted in an unprecedented flood of migrants from poorer countries to wealthier ones, either in their own region or elsewhere. The situation facing the European Union revealed the magnitude of the present migration phenomenon. In order to keep the European economies thriving, the European countries would have to import thousands of migrants a year. This inflow on migrants would no doubt increase the levels of xenophobia currently present in Europe.
The three non-governmental organizations stated that political leaders had four options: to reconcile their countries' need for more immigrants with some of their citizens' apparent distaste of them by explaining the value of migrant workers; to seek and receive the cooperation of the so-called supplier countries to prevent illegal immigration; to speed up the investigation process of asylum seekers; and to pander to xenophobic attitudes of their people and withhold some of the rights and freedoms of documented migrants. Unfortunately, many political leaders had decided to chose the last option. The organizations strongly urged that the question of the rights of the migrant workers and their families be given a significant place in the upcoming World Conference against Racism.
JEAN-JACQUES KIRKYCHARIAN, of the Movement against Racism and for Friendship Amongst Peoples, said the term migrant worker was becoming obsolete -- the more applicable term was migration. France had just established an interesting campaign involving public authorities and anti-racism organizations with a free telephone number that victims of discrimination could call. Calls were numbering 2,000 per month, but what would be decisive was what was done in response.
Racism and democracy were incompatible. Any discrimination had individual victims but began with general causes. It was necessary to stop these individual effects and to educate the general populace, but if the causes were not addressed, the problem would continue. The members of the right could be blamed for calling anti-discrimination efforts "reverse discrimination"; this was not proper. It was indispensable to find the cause. Racism should not be a simple label but a concept; it was necessary to look at the example of the United States where civic rights had been achieved for all people and where people of all races had achieved high positions, yet there was racism in terms of poverty and criminal justice -- it was clear one had to look behind the labels to the causes.
BAPURAO PAKHIDDEY, of the International Institute for Non-Aligned Studies, said that the central tenet of democracy meant equality of all, that all human beings were born equal. Yet, it was the so-called liberal and democratic members of the United Nations that continued to perpetuate the regressive practice of racial discrimination. One only had to look at the immigration policies of the developed countries. Voices were also being encouraged to question socio-economic and religious systems of developing countries by seeking definitional changes in the concept of racism. The Indian Constitution had provided for affirmative action to better the lot of scheduled castes and scheduled tribes of India. Yet, oppression continued. The oppression arose from religious attitudinal rigidities that necessitated national change, development and education. The organization called upon those who claimed to have the interest of the castes and tribes at heart to join in the struggle to shape the evolution of Indian society according to the vision enshrined in India's Constitution.
CARRIE DANN, of the Indian Law Resource Centre, said the Western Shoshone people were facing a grave violation of their human rights caused by the United States Government, which had established a claims commission that had claimed that the Western Shoshone's immemorial rights to their ancestral lands had been extinguished. The trick used was that the claims commission put money in a treasury account claiming it was to compensate the Western Shoshone for their lost land rights, and the United States Supreme Court had said that since payment had been made, the Western Shoshone could not claim title any longer to their land. The Western Shoshone had refused the money -- they would never take money for their land, which was their very life. Now the United States was pushing through two additional legislative measures that attempted to put the final nails in the coffin.
The upcoming World Conference against Racism was a unique opportunity for indigenous peoples to bring such issues of discrimination to the world's attention. The Subcommission, meanwhile, should review the situation of the Western Shoshone and should call on the United States to end all ongoing or threatened actions against the Western Shoshone in relation to their lands.
CORRIGENDUM
In press release HR/SC/00/4 of 2 August 2000, the statement by the Representative of the International Organization for the Elimination of All Forms of Racial Discrimination on page 3 should read as follows:
ABDALLAH SHARA FEDDINE, of the International Organization for the Elimination of All Forms of Racial Discrimination, said that discrimination in its widest sense covered injustices which fell on humans as a result of actions of other humans who were selfish and conceited. Israel's law of return allowed any Jew, regardless of his or her nationality, to come to Palestine and live as an Israeli citizen. This same law prevented millions of Palestinians, both Christian and Muslim, to go back to their lands and homes and properties for no reason other that they were not Jewish. Even the Jewish members of the organization were ashamed of this discriminatory law. Another example was the insistence of the United States that the unjust embargo on the Iraqi people continue. This embargo was a nightmare for world conscience and it was a shame for the entire human race to accept this embargo with all the tragedies and pains and destructive results it had on the Iraqi people.
The United States only insisted on the implementation of Security Council and United Nations resolutions if they were against Arabs and Muslims. Was this not the worst kind of discrimination? How could the international human conscience and public opinion accept the unjust embargo on Iraq. The world daily saw and heard of hundreds of Iraqi children dying because of this embargo. Was the developed world's conscience dead, or did it only awake if there was injustice against Europeans or Americans?
In press release HR/SC/00/6 of 3 August 2000, the statement by the Representative of Eritrea on page 3 should read as follows:
AMARE TEKLE (Eritrea) said that since parts of his country had been occupied in May 2000, the violations of human rights and the atrocities committed by the invading forces had reached an incredible level of violence which included indiscriminate bombardment of civilian targets; murder; rape; destruction of religious institutions, economic infrastructure and farmlands; looting and pillage, including that of cultural property; ethnic cleansing; and displacement of populations. The behaviour of the Ethiopian authorities was simply barbaric. War crimes, crimes against peace and crimes against humanity, as well as grave breaches of international humanitarian law, had been carried out by Ethiopia against Eritrea's civilian population.
The speaker was interrupted by a point of order from an expert. The Chairperson allowed the speaker to continue after the speaker explained that the decision of the Subcommission could not apply to his presentation since he was speaking about Eritreans in Eritrea and not about Eritreans in Ethiopia. After a long debate on the matter, the Chairperson asked the speaker whether or not he wished to continue and the speaker preferred not to continue.
* *** *
and Protection of Human Rights
52nd session
7 August 2000
Morning
The Subcommission on the Promotion and Protection of Human Rights this morning continued its debate on how affirmative action can be used to help groups which are discriminated against.
Subcommission Experts commented on a report on affirmative action by Expert Marc Bossuyt who is Special Rapporteur on this issue. Special attention was paid to the limits and scope of affirmative action as a concept. A number of Experts suggested that more work was required to see what role affirmative action could play internationally, particularly in addressing the unequal international economic order and trade relations.
Mr. Bossuyt responded to the remarks made by saying that he would do his best to incorporate the observations in his next report. He said that it would be difficult to incorporate affirmative action in commercial and trade relations as affirmative action dealt with the treatment of individuals and not the treatment of assets.
The following Experts spoke: Halima Embarek Warzazi, Joseph Oloka-Onyango, Christy Ezim Mbonu, Stanislav Ogurtsov, Jose Bengoa, Vladimir Kartashkin, El-Hadji Guisse, Manuel Rodriguez Cuadros, Yozo Yokota, Asbjorn Eide, Soon Gil Park, Leila Zerrougui, Francoise Jane Hampson, Paulo Sergio Pinheirot, and Erica-Irene Daes.
The following non-governmental organizations took the floor on issues relating to the elimination of racial discrimination, the situation of migrant workers and members of their families, xenophobia and the World Conference against Racism: the World Federation of United Nations Associations in a joint statement with the World Federation of Democratic Youth and the All Indian Women's Conference, the Movement against Racism and for Friendship among Peoples, the International Institute for Non-Aligned Studies, and the Indian Law Resource Centre.
The Subcommission will reconvene at 3 p.m. to continue its debate on racial discrimination.
Statements
HALIMA EMBAREK WARZAZI, Subcommission Expert, said that the goal of affirmative action was to promote disadvantaged groups and help them have the same rights in society. These groups should not be approached with suspicion. She was concerned as to the 'limits' to affirmative action set out in the report. This showed that it was necessary to have dynamic special measures to ensure the success of affirmative action and to end negative discrimination. Standards of equality could not be successful unless they were implemented in a realistic manner. More focus was required in the results one aimed to achieve, so that people could emerge from their disadvantageous situation. One should not only consider physical disabilities, but also other factors. There was an additional need to mobilize funds to create free-standing actions to support other disadvantaged groups. There was a need to examine why the Committee on Human Rights was more interested in equality than the Committee on Economic, Social and Cultural Rights. Conventionally, all forms of discrimination should be eliminated.
The concept of affirmative action was important and special measures were needed. How did one determine that disadvantaged groups no longer suffered from previous discrimination? The topic of affirmative action was close to her heart. To allow women to hold political positions was not to distinguish them, but to establish a right for women to hold these positions. This was equally important in the fields of knowledge, economy and society. Affirmative action should not go on for ever, it was there to disappear so that there would be a more equal and just society.
JOSEPH OLOKA-ONYANGO, Subcommission Expert, said the concept of affirmative action should be viewed as only one of several different measures used to combat the scourge of discrimination; it was necessary first of all to take into account the changing, evolving character of discrimination. Slavery, colonialism and apartheid might have come to an end, but their pernicious effects continued to exert influence around the world, and affirmative action amounted only to a minimalist response. Affirmative action was important and should continue to be used, but while still appropriate and necessary, it should not be considered enough -- everyone had to go beyond that, and it should not be used as a way of preserving the status quo.
Institutional and structural mechanisms of racism and sexual discrimination were still the main problem, and these had to be attacked. These institutional mechanisms operated in such a way that it was unlikely that affirmative action would ever redress their imbalances. Who made up the Fortune 500? Who were the leaders of the multilateral financial institutions? Why was it so difficult for people of colour and women to penetrate these institutions? The upcoming World Conference was obviously a welcome idea, but it ran the risk of being completely marginalized, as had other efforts to combat racism; it risked being sidelined by the use of euphemistic code words for inaction, and through lack of political will.
CHRISTY EZIM MBONU, Alternate Subcommission Expert, said that the report had established one vital point: that affirmative action was a concept that existed in international law. The concept should be seen as an essential instrument to be used by governments. One had to address what caused the underprivileged situation for whom the affirmative action was designed. Was it self-inflicted in terms of religion or culture? Was it due to colonialism, the result of years of slavery or institutional discrimination? Was it based on gender or on account of disability? These issues needed to be addressed. The granting of affirmative action should end when the objective had been achieved and emphasis should be faced on remedying the wrong. There would be no need for affirmative action if there had been a remedy of wrongs. What time frame was put on remedying apartheid? There were many complexities in this concept and what was the yardstick to measure when the objectives had been met. The purpose of affirmative action was to right the wrongs done to women and other disadvantaged groups in the past. More information was required on this issue with a stress on the benefits, if there were any. The questionnaire was vital, and she hoped specific examples would be given of what States had actually achieved.
STANISLAV ORGURTSOV, Subcommission Expert, said the affirmative-action report was somewhat academic in character. The document would truly be influential when it was translated into practical action by the Subcommission and others. Affirmative action was described by several other "labels", such as special measures, or reverse discrimination -- and the multitude of terms to cover one phenomenon was no accident. For minorities, affirmative action could be helpful. For majorities, such steps could be seen as discriminatory in nature -- a subject that was treated briefly in the report. Many people in the majority were irritated by them. Real success would be found in a situation where particular characteristics of any group no longer mattered in society; where everyone was treated the same regardless of origin and distinguishing characteristics. The real challenge was to ensure more unity in society.
One gap in the report -- and something not addressed in the attached questionnaire -- involved study of how public opinion was formed, and of how support was created for affirmative-action programmes. How did States educate and enlighten majorities so that such programmes were accepted and supported, and how were societal attitudes changed? And how did affirmative-action programmes affect public perception of the minorities they applied to?
JOSE BENGOA, Subcommission Expert, agreed with the study which was interesting and well-written. However, some focus should be put on affirmative action in international relations such as in trade relations. Reference was made to the banana quotas without which agriculture would not survive and the production of drugs would take over. These decisions were based on a more abstract notion of equality and affirmative action. The concept of discrimination was important internationally, in development and with regard to indigenous peoples. These situations called for policy of an international character.
VLADIMIR KARTASHKIN, Alternate Subcommission Expert, said the report was preliminary; one could not expect it to be exhaustive in nature. The review of international law in the field was useful; quite correctly, reference also was made to measures taken at the national level. It was clear that affirmative action steps had to achieve equality and reduce discrimination in many areas of life, including education. Equal treatment was not the goal; rather preferential treatment was the idea for such groups as indigenous peoples to ensure that minorities ultimately achieved equality with majorities. The temporary quality of such measures should perhaps be called temporary on a "conditional" basis -- it could take many, many years for them to accomplish their goal.
The upcoming World Conference against Racism, meanwhile, should not only be an occasion for discussion of the same old issues but should discuss evolving forms of discrimination, such as the emergence of neo-Nazi movements in countries like France. The Subcommission should pay attention to these problems as well.
EL-HADJI GUISSE, Subcommission Expert, said the study had balanced the national and international aspects well. He asked to what extent affirmative action took into account factors which related to history, and were considered to be the causes of prejudice. These historical factors continued to deny the rights of peoples. There was a need to focus on international relations which lay at the heart of the unjust economic international order. Affirmative action should focus on the international economic imbalance, as well as embargoes such as those imposed on the Iraqi people which were claiming victims every day. Should these measures be used when they harmed millions of people? One had to be careful not use excessive measures. It would be useful to think of the debt problem, transnational corporations, the World Trade Organization and the dangers of globalization in the concept of affirmative action. Apartheid was a concern and Mr. Guisse asked whether affirmative action could address the results of these practices and see to the just redistribution of land.
MANUEL RODRIGUEZ-CUADROS, Subcommission Expert, said the conceptual problems that had to be settled in developing affirmative action as a concept of international law were very interesting and were well dealt with in the study. In trade relations, differentiated treatment in favour of developing countries was not really discrimination; instead one talked of non-reciprocal concessions, and generalized systems of preference. Perhaps, because of the extent of international law developed in economic and trade relations, models and concepts could be found to be applied to affirmative action and human-rights law.
Affirmative action, according to the report, must be temporary and must not be discriminatory. The problem lay in distinguishing which cases one was looking at differentiation that could be the subject of affirmative action. One had to avoid introduction of rules for differentiation that were based on matters that were irrelevant. The part of the report dealing with this matter could, perhaps, be expanded, as the concept was important. The addition of specific examples to the study would also be helpful. Perhaps one could say that affirmative action was not only non-discriminatory but that it had a positive impact on realization of the right to equality; and that affirmative action occurred always with the objective of not clashing with the principles and standards of a democratic society.
YOZO YOKOTA, Subcommission Expert, said he was in total agreement with all the points and views expressed by the Subcommission Experts on the report this morning. He was also concerned by the trend of growing racial tensions in different parts of the world. He stressed the importance of duties and obligations of the States with regard to human rights. If States did not take immediate effective action on racial discrimination it would give rise to responsibility on the part of the States. Furthermore, he agreed with the comments on trade relations and the international economic order. One had to look at affirmative action not only negatively but also positively. It was sometimes regarded as the taking away of rights from people whom had so far enjoyed supremacy. This was not the way to look at it. Affirmative action was not only beneficial for the disadvantaged groups but also for the groups which had until recently enjoyed supremacy. It was not against the ruling people, but was important for the ruling people and it enriched any society.
Affirmative action enhanced the marginalized people and also gave a different meaning to society and brought about peace. Mr. Yokota also referred to Mr. Weissbrodt's paper on the rights of non-citizens. This paper was very important with regard to the international changes, the inter-State relationships and reciprocity. It was important to investigate terminology, particularly in reference to the word 'citizenship' which had different meanings across the world. Due to the important work that Mr. Weissbrodt had undertaken, he should become Special Rapporteur on this topic.
ASBJORN EIDE, Subcommission Expert, said the question of discrimination in criminal justice needed further attention; on Friday a number of Experts had attended a meeting with representatives of a leading anti-racial-discrimination organization from the United States, and had heard some enlightening and alarming statistics. The mechanisms of how discrimination operated in national justice systems required study, along with how a "sectoral" approach to remedying it could be applied. He wished to say that the problem affected not only the United States but a number of countries -- for example, indigenous persons were subject to discrimination in a number of countries when they came in contact with police and the courts, and in Europe one saw the same pattern applied to aliens. A study done in Norway showed that many aliens did not even have a clear idea what was happening when they were in court, even though they were provided with interpreters.
At the upcoming World Conference on Racism, attention should be given to the question of racism in criminal-justice systems, and Mr. Eide hoped Mr. Bossuyt, in his report on affirmative action, could come up with suggestions for programmes that could be used to confront this problem.
SOO GIL PARK, Subcommission Expert, said he agreed with the points raised by the Experts and hoped that they would be part of the report when it was finalized. The concept of affirmative action constituted an important issue under international and national law. It was designed to right the wrongs committed in the past. He agreed with the observation that affirmative action had a firm basis in international law, however, States should also take corrective measures to fulfil the rights of their people. It was regrettable that the lack of time had prevented the inclusion of the responses to the questionnaires. There were no specific national examples. It was hoped that in the next reports, there would be a more practical side with actual examples of State activities in this field. It was true that affirmative action was a temporary measure. The notion of prevention of discrimination required more long-term plans. The distinction between the two was controversial and difficult. Attention was needed when making these distinctions which described socially violated groups. The notion of affirmative action reflected the minimum approach in dealing with the question of racial discrimination.
LEILA ZERROUGUI, Subcommission Expert, said she admired Mr. Bossuyt's study, yet noted that the report focused on affirmative action as applied in international law and as applied to States trying to reduce discrimination within their borders. But in this age of globalization, one also wanted to know what could be done to ensure effective enjoyment of human rights if a State was not capable itself of ensuring such enjoyment. What could be done in those circumstances? Could the right to development be sped up or be made more effective if the concept of affirmative action was applied to it, especially from outside national borders, because sometimes a State could not ensure development and such progress on its own.
FRANCOISE JANE HAMPSON, Subcommission Expert, said there had been serious conflicts in the Solomon Islands, Fiji and the Moluccas where discrimination, whether on ground of race, ethnicity or religion, had been one of the significant elements in the conflict. Concern was expressed when a group within a democratic multi-ethnic community appeared to turn its back on equality before the law. States had power, and power carried with it the responsibility to lead and educate. States had a positive obligation to promote tolerance and to prevent the incitement of racial hatred. Individual States and the international community had identified discrimination, indirect and institutional, as issues which fell within the field of racial discrimination. In some situations there was a risk that the monitoring bodies would look only at the violations of freedom of speech or the violation of the prohibition of arbitrary killings. Human rights monitoring bodies had shown a tendency not to deal with the additional claim of discrimination. This was not only wrong as a matter of law, but it was also potentially dangerous. The past decade had shown only too clearly the danger in not addressing questions of discrimination. Monitoring mechanisms had a special responsibility to address any issue of discrimination which may arise and redress the present blindness of responsibility to the possibility of discrimination.
MARC BOSSUYT, Subcommission Expert and Special Rapporteur on affirmative action, responding to comments on his study of affirmative action, said he would do his best to incorporate the observations of Subcommission members in his follow up report. One thing he wished to emphasis was that this was a preliminary report. The report was academic, it was true, as a number of members had stated; that was because it was not yet based on the practices of States. It could be so based, as long as there were replies to the questionnaire that had been drawn up and mailed to Governments. There were few specific examples now, but there could soon be. He apologized if the necessary layman's language had not yet been adopted; he hoped to progress to that point. And obviously questions of terminology could be confusing and had to be clarified.
It seemed to him that special measures could be adopted that were not discriminatory in nature -- organization of special courses, provision of grants and scholarships, for example, to ensure that those who were behind could catch up. He did not think, as Mr. Joinet had said, that affirmative action should be considered a state of "exception" to the norm. And it bore saying that not all distinctions were wrong -- there were distinctions that were justified and those that were not and amounted to discrimination. Distinctions contained in affirmative-action programmes should not, of course, be discriminatory.
PAULO SERGIO PINHEIRO, Subcommission Expert, presented his report on the first meeting of the Preparatory Committee for the World Conference against Racism. The World Conference would be a unique opportunity to continue in the struggle against racism. The previous conferences had not ended racial discrimination. There had been the dramatic and long-awaited end of apartheid, however, except for this development, there was currently an explosion of ethnic tensions and xenophobia in the world. Mr. Pinheiro said he had briefly summarized his report to the Preparatory Committee on the issues which should be the priority at the World Conference against Racism. One issue was the increasingly discriminatory legislation by the European Union. Important issues such as the exploitation of women were highlighted. The exploitation of women often occurred as a result of racial discrimination and prejudice. There had to be a change in policies to prevent discriminatory or prejudicial practices.
Mr. Pinheiro said that frequently racist policies were presented and justified by social and economic problems. No country could deny the presence of problems such as ethnic tensions and discrimination. Protection and compensatory policies were required for the victims of discrimination as were reforms of the criminal justice system, legal rights, and police accountability. Mr. Pinheiro explained that he had suggested the widest possible participation of civil society in the World Conference against Racism so that together one could find a solution to the explosion of ethnic conflicts and denial of racism and could overcome discrimination by equalizing the content and application of law among the population of every society.
ERICA-IRENE DAES, Subcommission Expert, said she had prepared a working paper on discrimination against indigenous peoples and had presented it to the Preparatory Committee of the World Conference against Racism. She had recommended that the Preparatory Committee ensure a mechanism for the full participation of indigenous peoples and their organizations at the World Conference, as well as at regional meetings and seminars; it was not enough simply to follow the rules of the Economic and Social Council. She had also recommended that an official observance of the International Decade of the World's Indigenous People be included at the World Conference, and that indigenous representatives be invited to address the plenary of the Conference; that the High Commissioner organize a seminar on indigenous peoples and the administration of justice in advance of the Conference, to bring important information before the World Conference; and that a parallel activity be held at the time of the World Conference, such as a round table, on measures taken to end discrimination against indigenous peoples. Funds should be set aside to pay for these activities through contributions from Governments to the Voluntary Fund for the International Decade. A chapter of the final report of the World Conference should be dedicated to indigenous peoples, and the term "indigenous peoples" should be used, instead of such euphemisms as "indigenous populations".
Mrs. Daes said she supported the call for the appointment of Mr. Weissbrodt as Special Rapporteur on the rights of non-citizens.
HORACE PERERA, of the World Federation of United Nations Associations, speaking on behalf of the All India Women's Conference and the World Federation of Democratic Youth, said that the fall of economic frontiers to globalization had resulted in an unprecedented flood of migrants from poorer countries to wealthier ones, either in their own region or elsewhere. The situation facing the European Union revealed the magnitude of the present migration phenomenon. In order to keep the European economies thriving, the European countries would have to import thousands of migrants a year. This inflow on migrants would no doubt increase the levels of xenophobia currently present in Europe.
The three non-governmental organizations stated that political leaders had four options: to reconcile their countries' need for more immigrants with some of their citizens' apparent distaste of them by explaining the value of migrant workers; to seek and receive the cooperation of the so-called supplier countries to prevent illegal immigration; to speed up the investigation process of asylum seekers; and to pander to xenophobic attitudes of their people and withhold some of the rights and freedoms of documented migrants. Unfortunately, many political leaders had decided to chose the last option. The organizations strongly urged that the question of the rights of the migrant workers and their families be given a significant place in the upcoming World Conference against Racism.
JEAN-JACQUES KIRKYCHARIAN, of the Movement against Racism and for Friendship Amongst Peoples, said the term migrant worker was becoming obsolete -- the more applicable term was migration. France had just established an interesting campaign involving public authorities and anti-racism organizations with a free telephone number that victims of discrimination could call. Calls were numbering 2,000 per month, but what would be decisive was what was done in response.
Racism and democracy were incompatible. Any discrimination had individual victims but began with general causes. It was necessary to stop these individual effects and to educate the general populace, but if the causes were not addressed, the problem would continue. The members of the right could be blamed for calling anti-discrimination efforts "reverse discrimination"; this was not proper. It was indispensable to find the cause. Racism should not be a simple label but a concept; it was necessary to look at the example of the United States where civic rights had been achieved for all people and where people of all races had achieved high positions, yet there was racism in terms of poverty and criminal justice -- it was clear one had to look behind the labels to the causes.
BAPURAO PAKHIDDEY, of the International Institute for Non-Aligned Studies, said that the central tenet of democracy meant equality of all, that all human beings were born equal. Yet, it was the so-called liberal and democratic members of the United Nations that continued to perpetuate the regressive practice of racial discrimination. One only had to look at the immigration policies of the developed countries. Voices were also being encouraged to question socio-economic and religious systems of developing countries by seeking definitional changes in the concept of racism. The Indian Constitution had provided for affirmative action to better the lot of scheduled castes and scheduled tribes of India. Yet, oppression continued. The oppression arose from religious attitudinal rigidities that necessitated national change, development and education. The organization called upon those who claimed to have the interest of the castes and tribes at heart to join in the struggle to shape the evolution of Indian society according to the vision enshrined in India's Constitution.
CARRIE DANN, of the Indian Law Resource Centre, said the Western Shoshone people were facing a grave violation of their human rights caused by the United States Government, which had established a claims commission that had claimed that the Western Shoshone's immemorial rights to their ancestral lands had been extinguished. The trick used was that the claims commission put money in a treasury account claiming it was to compensate the Western Shoshone for their lost land rights, and the United States Supreme Court had said that since payment had been made, the Western Shoshone could not claim title any longer to their land. The Western Shoshone had refused the money -- they would never take money for their land, which was their very life. Now the United States was pushing through two additional legislative measures that attempted to put the final nails in the coffin.
The upcoming World Conference against Racism was a unique opportunity for indigenous peoples to bring such issues of discrimination to the world's attention. The Subcommission, meanwhile, should review the situation of the Western Shoshone and should call on the United States to end all ongoing or threatened actions against the Western Shoshone in relation to their lands.
CORRIGENDUM
In press release HR/SC/00/4 of 2 August 2000, the statement by the Representative of the International Organization for the Elimination of All Forms of Racial Discrimination on page 3 should read as follows:
ABDALLAH SHARA FEDDINE, of the International Organization for the Elimination of All Forms of Racial Discrimination, said that discrimination in its widest sense covered injustices which fell on humans as a result of actions of other humans who were selfish and conceited. Israel's law of return allowed any Jew, regardless of his or her nationality, to come to Palestine and live as an Israeli citizen. This same law prevented millions of Palestinians, both Christian and Muslim, to go back to their lands and homes and properties for no reason other that they were not Jewish. Even the Jewish members of the organization were ashamed of this discriminatory law. Another example was the insistence of the United States that the unjust embargo on the Iraqi people continue. This embargo was a nightmare for world conscience and it was a shame for the entire human race to accept this embargo with all the tragedies and pains and destructive results it had on the Iraqi people.
The United States only insisted on the implementation of Security Council and United Nations resolutions if they were against Arabs and Muslims. Was this not the worst kind of discrimination? How could the international human conscience and public opinion accept the unjust embargo on Iraq. The world daily saw and heard of hundreds of Iraqi children dying because of this embargo. Was the developed world's conscience dead, or did it only awake if there was injustice against Europeans or Americans?
In press release HR/SC/00/6 of 3 August 2000, the statement by the Representative of Eritrea on page 3 should read as follows:
AMARE TEKLE (Eritrea) said that since parts of his country had been occupied in May 2000, the violations of human rights and the atrocities committed by the invading forces had reached an incredible level of violence which included indiscriminate bombardment of civilian targets; murder; rape; destruction of religious institutions, economic infrastructure and farmlands; looting and pillage, including that of cultural property; ethnic cleansing; and displacement of populations. The behaviour of the Ethiopian authorities was simply barbaric. War crimes, crimes against peace and crimes against humanity, as well as grave breaches of international humanitarian law, had been carried out by Ethiopia against Eritrea's civilian population.
The speaker was interrupted by a point of order from an expert. The Chairperson allowed the speaker to continue after the speaker explained that the decision of the Subcommission could not apply to his presentation since he was speaking about Eritreans in Eritrea and not about Eritreans in Ethiopia. After a long debate on the matter, the Chairperson asked the speaker whether or not he wished to continue and the speaker preferred not to continue.
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