SUB-COMMISSION BEGINS REVIEW OF AGENDA ITEM ON PREVENTION OF DISCRIMINATION; EXPERT PRESENTS REPORT ON AFFIRMATIVE ACTION

Sub-Commission on the Promotion
and Protection of Human Rights
54th session
8 August 2002
Morning


Debate on Economic, Social and Cultural Rights
Suspended after Presentation of Report of
Working Group on Transnational Corporations



The Sub-Commission on the Promotion and Protection of Human Rights this morning began consideration of its agenda item on the prevention of discrimination which focuses on racism, racial discrimination and xenophobia, and the prevention of discrimination and protection of indigenous peoples and minorities.
Expert Marc Bossuyt, who is the Special Rapporteur on the concept and practise of affirmative action, presented his report, saying that affirmative action took different forms - some controversial and some contentious. Examination to ensure that decisions taken treated marginal groups favourably or were "colour-blind" were accepted. However, preference given to applicants less qualified could contravene international law standards. Affirmative action measures must be limited in time and follow-up must be carried out to verify if the goals intended were reached.
In response to his statement, Sub-Commission Expert Soo Gil Park said that the temporary status of affirmative action called for in the report, as compared to protective measures for minorities which could be permanent, seemed unrealistic in some cases, as injustices targeted by affirmative action programmes might take a very long time to repair.
Sub-Commission Expert Fisseha Yimer, stressed that the conclusions of the report were cautious and that further study might be beneficial for the Committee on the Elimination of Racial Discrimination, within the parameters of which affirmative action belonged.
Expert Soli Jehangir Sorabjee said the principle of affirmative action must not degenerate into reverse discrimination - one injustice could not be repaired by another injustice. However, some measures might appear discriminatory in the quest for real equality.
During the discussion on economic, social and cultural rights, Sub-Commission Expert El Hadji Guisse presented the report of the sessional Working Group on transnational corporations, and said one conclusion was that the free market, privatization and the reduction of the public sector had prevented the economic development of several countries. A legal framework for the activities of transnational corporations was necessary - voluntary codes of practices were not enough. A proposed set of standards would be discussed during the next session.
Sub-Commission Experts Leila Zerrougui, Asbjorn Eide, Stanislav Ogurtsov, Halima Embarek Warzazi and Lammy Betten also addressed the Sub-Commission this morning.
The Himalayan Research and Cultural Foundation also participated in the debate on affirmative action. The representatives of Syria, Iraq, Yugoslavia and Brazil addressed the Sub-Commission and Argentina exercised its right of reply.
The Sub-Commission will reconvene at 3 p.m. to continue consideration of its agenda item on the prevention of discrimination.

Statements on Economic, Social and Cultural Rights
LEILA ZERROUGUI, Sub-Commission Expert, said that in the search for progress and welfare, it was important not to lose sight of the right to life for future generations -- sustainable development, in other words, needed to be pursued vigorously, taking into account genetic patrimony and the health of the environment. Good governance and the elimination of inequality were also vital.
Signal activities had taken place to give flesh to the concept of the right to development, including sustainable development. But sustained efforts on the ground had not been made, and environmental damage continued -- pollution, desertification, climate change, and other damage were causing great harm around the world and would grow worse if something was not done. If this was the price of progress, then it was non-progress; poverty was worsened by such "progress", especially over the long term. Economic needs and respect for ecological balance had to be reconciled. The future work of the Social Forum and studies on extreme poverty must take this matter into account. The export of waste and hazardous material was often done as "recycling" or even as "development aid"; developing countries accepted these transfers, often under the decisions of corrupt leaders or officials. And of course there could be immediate financial gains involved, whatever the negative long-term consequences.
Developing countries faced many problems -- poverty, unequal economic treatment internationally, declining social services, and crippling foreign debt. International solidarity was needed, as under the current climate there simply were not the resources in poorer countries to face up to ecological problems. Settlement of the indebtedness of the poorer countries was important to allow the damaging of the environment, poverty and social exclusion to be faced. Development, when it came, had to involve new technologies that did not exacerbate environmental difficulties.
MOHAMMAD KHAFIF (Syria) said he hoped that this session would led to recommendations and suggestions to help the Commission on Human Rights in its difficulties. This was the only means to achieve a better world in terms of human rights. Political will was also required. Developing countries needed to have increased technical assistance. Hunger, unemployment and the lack of education were the causes of extreme poverty. This situation was exacerbated by the fact that developing country exports did not have adequate access to the world market. The gap between the rich and poor had widened and it was hoped that the world order would change to respect transparency, good governance and justice.
Economic development was needed in order to achieve the noble aims of the United Nations. Developing countries could not achieve development on their own. The cost of one single military programme in one State could help the economic development of a developing country. Syria had done its utmost to assist other countries in their path to development. A serious of domestic initiatives had also been undertaken by President Assad. One difficulty standing in the way of development was the Israeli occupation of the Syria Golan, the disappearances of people and the resources that needed to be spent to resist the Israeli forces. The refusal of Israel to implement relevant Security Council resolutions made Syrian development difficult. The Sub-Commission was called upon to impress on Israel the need to respect international humanitarian law.
ABDUL KARIM ASWAD (Iraq) said the United Nations Charter made it an obligation for all States to enjoy a just and fair international order that fostered peace and solidarity for all nations, big and small. Articles of the International Covenant on Economic, Social and Cultural Rights said States should cooperate internationally in order to realize those rights. Other international instruments, including the Convention on the Rights of the Child, had similar articles. Developing countries ratified these treaties and did their utmost to provide their citizens with the rights referred to, but these countries often lacked resources. In many cases they did not receive sufficient international help. In addition, there were such measures as economic sanctions applied to some countries.
Before 1990, the Government of Iraq was very effective in promoting economic development within its borders, and it had provided widespread and effective social, educational, and health programmes. However, since the economic embargo had been applied to the country in 1990, provision of these basic services had been affected, and the population had suffered greatly. The Sub-Commission's efforts opposing the embargo were appreciated; but the embargo continued, and Iraqis continued to suffer. There was no solution for this tragedy other than a comprehensive, unconditional lifting of the embargo.
MILORAD SCEPANOVIC (Yugoslavia) stressed the importance of the working paper presented by the Chairperson on the right to return of refugees. The experience lived by his country with regard to this issue was very authentic, taking into consideration that it was a country sheltering the largest number of refugees and displaced people in Europe. For the past decade, 700,000 refugees and displaced persons from Croatia, Bosnia and Herzegovina, Kosovo and Metohija had lived in Yugoslavia. Despite economic difficulties, and important challenges presented in the reconstruction and transition of the country, the Government had offered full protection to this very vulnerable category of persons which still constituted 10 per cent of the entire population of the country. Refugees and displaced people were equal before the law with Yugoslav citizens and had access to full health care, education and other forms of protection.
The issue concerning the resolution of the property restitution was of substantial and fundamental importance and was needed for the realization of the return of these persons to their country of origin or for their integration in the host country. Their property had been usurped for some time now and they were faced with procedural obstructions and indifference demonstrated by those competent to resolve this issue. A visit to the region of South East Europe by experts competent to conduct this study would be most useful in order to intensify the overall process of property restitution and promotion of mechanisms for an efficacious implementation of property rights.
El HADJI GUISSE, Sub-Commission Expert, said that during the sessional Working Group on the methods of work and activities of transnational corporations, one of the essential issues discussed had been the relationship between transnational corporations and States. Today's economic situation on the basis of the free market, privatization and the reduction of the public sector had prevented the economic development of several countries and the realization of their economic, social and cultural rights. It had been clear that instead of practices improving, they had worsened and covered all sectors of the economy. The Working Group had asked that the impact of transnational corporation activities be studied in more detail. It was true that, as of now, the transnational corporations were active in the economic life of all countries.
A tool needed to be created that could provide a legal framework for the activities of transnational corporations. Voluntary codes of practices had not been enough. A member of the Group, Mr. Weissbrodt, had been asked to draw up a set of standards for transnational corporations. The code of practice had been discussed widely and received the support of non-governmental organizations and members of the Sub-Commission itself. It had been decided that it would be best to consider the document next year. It was clear when reading the document that the text was different from voluntary codes of practice, since the document contained compulsory and obligatory standards. In the next session, the impact of transnational corporations on the enjoyment of human rights would be considered as well as the code of practice outlined by Mr. Weissbrodt. This would include sections on pharmaceutical transnational corporations and issues of patents. (The report of the Working Group on the methods of work and activities of transnational corporations was not immediately available).

Right of Reply on Economic, Social and Cultural Rights
A Representative of Argentina, speaking in right of reply, said the International Human Rights Federation had referred to the situation in which Argentina found itself. Argentina was undergoing the most serious economic and social crisis in its history, which was the result of a tragic combination of internal and external events; the figures quoted reflected the cruel realities; the country was trying to palliate with the resources available to it, while keeping within international standards. The Government was struggling to provide health services and needed medicines. But the NGO had used certain terms which seemed to assign to the Government the charge of "allowing" its people to suffer. Adjectives alluding to dictators were not appropriate either for a country that had been a democracy for some years.

Prevention of Discrimination
Under this agenda item, the Sub-Commission has before it a note by the Secretariat (E/CN.4/Sub.2/2002/20) on the International Decade of the World's Indigenous People. The note explains that following the provisions of resolution 2001/12 of the Sub-Commission, the High Commissioner had submitted to Governments an annual appeal for funds for the work of the Office in which an outline of activities planned under the programme of activities of the International Decade was included. In September and November 2001, a letter of appeal had been sent by the Office of the High Commissioner to all Governments requesting contributions for both indigenous voluntary funds. In addition to these activities, the secretariat held regular meetings with donor Governments to discuss funding for indigenous-related activities being undertaken by the Office. The note states that information on the results of these fund-raising activities is contained in the annual reports of the Office to the General Assembly, the Commission on Human Rights and the Working Group on Indigenous Populations.
The Sub-Commission will also be considering the final report by Marc Bossuyt, Special Rapporteur on the concept and practice of affirmative action (E/CN.4/Sub.2/2002/21). In resolution 1998/5, the Sub-Commission appointed Mr. Bossuyt as Special Rapporteur with the task of preparing a study on the concept of affirmative action, and authorized him to request the High Commissioner to send out questionnaires to Governments, international organizations and non-governmental organizations inviting them to send all relevant national documentation on affirmative action. Despite highly appreciated contributions, the Special Rapporteur notes that many governments, including those who have elaborate constitutional, legislative or administrative frameworks on affirmative action, did not provide any information. The report consists of sections on the concept of affirmative action; justifications given for affirmative action; the concept of affirmative action in international law; forms of affirmative action; and a section showing that affirmative action measures may not lead to discrimination. The report concludes, among other things, that in matters of human rights, a preference may only be justified if it is based on a ground which is relevant to the right at stake. For instance, in matters of employment and education, the principal criterion is competence. It also states that in cases of "affirmative action" special attention should be given to the temporary nature of the measures taken. It further states that affirmative action policies are only admissible insofar as they do not contravene the principle of non-discrimination. The report concludes that its only ambition is to create awareness of the complexities of the issue in order to enhance the enjoyment of human rights and freedoms of all human beings without any discrimination. The report also consists of an annex of excerpts of some of the replies received by the Special Rapporteur.
There is a note by the Secretariat on the right of minorities (E/CN.4/Sub.2/2002/22) which explains that in resolution 2001/9, the Sub-Commission had requested Asbjorn Eide to update his study on peaceful and constructive approaches to situations involving minorities and to submit a progress report on the update to the Sub-Commission at its forty-fourth session. For reasons relating to his professional workload, Mr. Eide regrets that he is unable to submit the requested report.
There is a note by the Secretariat (E/CN.4/Sub.2/2002/26) on discrimination based on work and descent, in which it is explained that even though Mr. Goonesekere was entrusted with the preparation of an expanded working paper on the topic of discrimination based on work and descent in Sub-Commission resolution 2001/110, Mr. Goonesekere had informed the Office of the High Commissioner that, as he was not re-elected to the Sub-Commission, he would not submit an expanded working paper.
There is a report of the Regional Seminar on Afro-descendants in the Americas (E/CN.4/Sub.2/2002/40) in which the objectives of the seminar are elaborated as: the analysis of the current situation of Afro-descendants in the Americas and in particular Latin America; the discussion and sharing of experiences on the autonomy and integration of Afro-descendant communities in different countries; and the providing of concrete and practical recommendations to the Office of the High Commissioner and the Working Group on Minorities on how they might address Afro-descendant rights, bearing in mind the Declaration and Programme of Action of the World Conference against Racism. The report also consists of two annexes: the first contains the Declaration of the Regional Seminar on Afro-descendants in the Americas which calls on Governments, human rights mechanisms and United Nations agencies, non-governmental agencies and mass media to undertake actions to address the situation of Afro-descendants in the Americas; the second annex consists of a list of participants in the regional seminar.

Statements on Prevention of Discrimination
MARC BOSSUYT, Sub-Commission Expert and Special Rapporteur on affirmative action, presenting his final report, said the document was a compilation and consolidation of his preliminary and interim reports, and he was grateful to those Governments and organizations which had replied to questionnaires he had sent. Terminology had been an issue; he was not happy, for example, with the phrase "positive discrimination". And he was worried that with affirmative action one weakness was that those who would not benefit would be those in the lower echelons of the majority and those in the higher echelons of minorities. He had drawn a distinction between equality of opportunities and equality of results; equality of opportunities was more individualistic in terms of application and results. The concept of equality of results was a more controversial one. Certainly affirmative action programmes did not substitute for the fight against poverty, nor should they be used to replace anti-discrimination legislation.
Affirmative action took different forms, some non-controversial and some contentious, Mr. Bossuyt said. Setting up of training programmes for minorities to give them the capacity to apply on equal footing for employment and promotion, to put the less-favoured in a position of competitiveness, was not controversial. Meticulous examination to ensure that decisions taken treated marginal groups fairly, that decisions were "colour-blind", was also well accepted. Preference in terms of gender, race, whatever, in the granting of a good, between otherwise equally qualified applicants, also was accepted, by and large. But preference given to applicants who were less qualified was a more controversial matter and in some cases even might contravene various standards of law.
Among his conclusions, Mr. Bossuyt said, was that constant discrimination in the past against certain groups could indeed justify special measures in response. Depending on the situation, different forms were appropriate. One critical issue was competence -- when hiring a violinist, nothing mattered of background at all; all that mattered was performance; and such an applicant played behind a screen so that the musician hired was hired solely on the basis of competence. But in the public sector, account might reasonably be taken of the need for proportionate representation of different groups, and other characteristics of the applicant might be important too. For the police, for other public jobs, it might indeed be important to take factors such as race, gender, and ethnicity into account. Judges, in the end, might have to take account in each specific case of the circumstances prevailing in specific societies to see if affirmative action rules were appropriate, reasonable, and legal. He also felt affirmative action measures should be limited in time, and that non-controversial forms should be tried before controversial forms were employed. Follow-up should be carried out to find out if the steps taken achieved the goals intended. He also thought it a good principle for States to use such programmes to raise qualifications so that disadvantaged groups could produce qualified candidates -- this approach was better overall than that of lowering standards for jobs and the provision of other "good" things.
FISSEHA YIMER, Sub-Commission Expert, said it went without saying that affirmative action was a difficult topic. The study brought out the controversial nature of the topic very clearly. It was a term used frequently but had different meanings for different people in different circumstances. Affirmative action was always directed at certain target groups. One clear issue was the selection and definition of that target group. There was also an issue between the equality of opportunities or equality of results. The forms of affirmative action were brought up very clearly, however the most controversial part was on "affirmative action may not lead to discrimination" which focused on what affirmative action should not be. This part of the report included its real conclusion. Excessive caution had been used in the other conclusions of the report, which might detract from the usefulness of the report. The report should be on what affirmative action was, not on what it should not be. Maybe the subject justified caution, but given the aim of the study, it would have been interesting to hear what affirmative action actually was. The report had indeed helped to create an awareness of the complexities surrounding the issue. What next? Further study might be beneficial for the Committee on the Elimination of Racial Discrimination. The Sub-Commission had dedicated enough time to this issue, which actually belonged within the parameters of the Committee on the Elimination of Racial Discrimination.
ASBJORN EIDE, Sub-Commission Expert, said this report was the product of a life-long involvement of the Special Rapporteur with affirmative action; it was an extremely useful study, and was solid conceptually and analytically. It recognized the benefits and the problems that affirmative action programmes could generate. It was noteworthy that the report admitted that there was no easy way to evaluate affirmative action schemes; this was only honest, given the difficulties that existed even over basic terminology. The statement of the report that affirmative action programmes did not substitute for anti-poverty programmes might benefit from adding that affirmative action also did not substitute for efforts to enhance economic, social and cultural rights. These rights, if effectively applied to all, were effective in improving the well-being of disadvantaged people of whatever colour, gender or ethnicity, and if they did so, then the progress was accomplished without even a hint of "positive" bias.
Mention of issues relating to the value of social diversity, and to the value of diversity in the public sector, were welcome, but perhaps could be extended and elaborated on, Mr. Eide said. Overall, he continued, the report was the best conceptual study ever on affirmative action versus the concept of non-discrimination; it was a valuable intellectual tool that could be applied to specific situations.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, congratulated Mr. Bossuyt for the undertaking of an Herculean job in his study on affirmative action. The rationale of affirmative action was to compensate for intentional discrimination in the past which had put descendants of groups which were discriminated against in a disadvantaged situation. Such situations might require special measures such as affirmative action. In order to achieve real equality it was necessary to have such a thing as affirmative action. The study was well-balanced, however, the aim of affirmative action must not degenerate into reverse discrimination. An injustice could not be repaired by another injustice. Certain measures might appear to be discriminatory in the quest for real equality. Members of groups which were discriminated against wanted empowerment, which was what affirmative action must be aimed at. Concerning the question of duration, affirmative action must end when disadvantaged groups could compete on an equal footing.
SOO GIL PARK, Sub-Commission Expert, said the comment made by Mr. Yimer concerning the "caution" exercised throughout Mr. Bossuyt's report perhaps reflected the very fine distinction drawn in the report, marking the boundary between affirmative action and non-discrimination. He concurred with Mr. Eide's point that affirmative action should not replace the fight against discrimination and poverty. And he appreciated Mr. Sorabjee's remarks noting the Indian experience, as India was among the leading countries for putting into effect programmes of this sort.
The report was an incisive and impressive analysis of the issue. The working definition given of affirmative action -- the report noted there was not a conclusively accepted definition of affirmative action -- was useful, but he wondered if the correcting of historical injustices mentioned later in the report fell comfortably within the working definition. It was regrettable that some States had not responded to the Special Rapporteur's questionnaire; this lack of cooperation might have hindered him in carrying out a thorough analysis of national efforts involving affirmative action; it perhaps could be hoped that further information would come in and allow further development of the topic. The temporary status of affirmative action programmes called for in the report, as compared to protective measures for minorities, which could be well-nigh be permanent, seemed perhaps unrealistic in some cases, as injustices attacked by affirmative action programmes might take a very long time to repair; it was likely that some affirmative action programmes, to have beneficial effects, might have to last a long time, too.
STANISLAV OGURTSOV, Sub-Commission Expert, said that the report was extremely important - it dealt with one of the most difficult issues. What Mr. Bossuyt had presented had met all of his expectations and more. A whole series of new issues had been raised which required new examination in the future. He stressed that the example used in the report of a violist was not a good example. A better example would be to use football players where the main criteria was technical skill, he said and stressed that most football players in European teams came from Brazil. Any action which ensured the provision for full equality was legitimate. Concerning the future work on affirmative action, some provisions needed further study; however the rest of the report was absolutely brilliant.
HALIMA EMBAREK WARZAZI, Sub-Commission Expert, said when the matter of this study was first touched on by the Sub-Commission, it seemed to her that the intent was to prove on the basis of international instruments that affirmative action was positive and must be encouraged, in order to promote the disfavoured so that they could actively participate in national life. She thought the report was brilliant, but worried that it was so brilliant that it could be exploited in a manner the Sub-Commission would not like by those who were not in favour of affirmative action. In the introduction, she was not pleased with the statement that affirmative action should not become discriminatory; certain people with fixed ideas would seize on that.
Affirmative action was a must to permit the disadvantaged to get out of a blind alley wherein all doors were locked. It applied to women, for example, in many countries, who could not gain elective office; in such countries women were as qualified if not more qualified than many male candidates who stood for election. The problem was not women with sufficient qualifications but social attitudes. She appealed to male politicians -- they often were not willing to cede their seats to women, even qualified women. In politics, the quotas in such countries as Spain, France, and lately in her own country of Morocco, for representation of women in Parliament, might help change things; she hoped eventually that there would be numerous women in her home country's Parliament. The crusade of affirmative action must be pursued.
LAMMY BETTEN, Sub-Commission Expert, said she was especially worried about certain conclusions of the report, including the extreme cautiousness expressed. Such caution made affirmative action almost impossible. Affirmative action was an incredibly important tool for disadvantaged groups to redress situations of the past, and she found it difficult to understand why such caution was necessary. She suggested that the Sub-Commission not leave the report where it stood, but use it as an important starting point for discussion to come to a point where affirmative action was promoted in all parts of the world.
EL HADJI GUISSE, Sub-Commission Expert, said the report was admirably detailed; it was intended to be a final report, but as had been noted it was really a report for the Sub-Commission that required an overall reflection to follow that took a broader view. The study had been carried out in a context that did not necessarily apply in all parts of the world. An overview also was needed of the situation of societies in the South -- societies that were suffering from widespread poverty. The question was, how could there be affirmative action for most citizens in these places, since they all needed improvements to their daily economic and political realities? Talking about affirmative action for a country that could not feed its people, finding a way to do that, would be a real contribution. The specific context of each region, of each country, needed to be taken into account. Realities in the poorer countries were different than those prevailing in the report, it seemed to him. Majorities suffering from injustice also had problems that had to be overcome through "affirmative action". Scarce resources in this case should go to whom? The Sub-Commission should consider this matter and look at specific cases to make sure that existing programmes in such places did not violate the rights and ignore the needs of some to the benefit of others.
ALEXANDRE PENA GHISLENI (Brazil) congratulated Mr. Bossuyt on his in-depth report and informed the Sub-Commission that Brazil had, last May, adopted a programme for affirmative action aimed particularly to the hiring of people of African descent in Brazil. His delegation would be most pleased to give Mr. Bossuyt further information on their programme.
SYED KAZMI, of the Himalayan Research and Cultural Foundation, said the report's conclusion on the temporary nature of affirmative action programmes was important; the open-ended nature of some affirmative action programmes in real life was creating tensions in some countries; some had been going on for decades and there had been little effort to see how well they were working. Further, in developing countries, affirmative action programmes often were used by political parties to benefit certain constituencies, and the point really was not to help the disadvantaged, or at least to help all disadvantaged in a fair way. The importance of following up on the effectiveness and fairness of affirmative action programmes had to be stressed.
MARC BOSSUYT, Special Rapporteur, thanked all the members of the Sub-Commission for their input and their comments, as well as for the criticisms. He was aware that the issue was complex and controversial and when asked to prepare this study he had questioned what the outcome would be. Before, several officials had drafted country reports on the issue in question. This approach would have avoided some of the problems encountered in the writing of the report. Sufficient information had not been submitted to be able to conclude with concrete best practices. Some countries, that had highly developed affirmative action programmes, had not been forthcoming to allow such a conclusion. Concerning the caution with regard to affirmative action, he said that he had attempted to show that there was a wide range of "affirmative action" type practices. It was stressed that there was a need to distinguish between "preferential treatment" and affirmative action, particularly in public service.
Discrimination must be overcome through anti-discrimination measures. Affirmative action was going beyond that stage. Concerning the follow-up, he stressed that it was not up to him to decide the fate of the report. He believed that this report had contributed to the raising of awareness on this issues. Measures needed to be taken by Governments, and the Sub-Commission could assist in recommendations as to when, where and how these measures were taken.



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