SUBCOMMISSION BEGINS CONSIDERATION OF RACIAL DISCRIMINATION, PROTECTION OF MINORITIES, INDIGENOUS PEOPLES

Subcommission on Promotion and
Protection of Human Rights
53rd session
9 August 2001
Morning


Affirmative Action Report Discussed


The Subcommission on the Promotion and Protection of Human Rights began discussion this morning on its agenda item on prevention of discrimination, focusing on such topics as racism and the bolstering of the rights of indigenous peoples and minorities.

Marc Bossuyt, former Subcommission Expert and now a member of the Committee on the Elimination of Racial Discrimination, introducing a report on affirmative action, said among other things that affirmative action was meant to remedy past social injustices and to enhance social diversification, but that in no case should anybody be deprived of his rights, including the right to equal protection of the law, with the excuse that this could help groups that previously had been discriminated against.

Subcommission Experts commenting on the document said among other things that there would always be controversies over affirmative action, as they reflected underlying ideological prejudices and the degree of liberalism or social orientation of the societies concerned; that it would be interesting to have a list of countries that had carried out so-called "positive discrimination" programmes and a review of the effects that had resulted; and that affirmative action efforts and attempts to achieve equality were especially important in the field of education.

Earlier in the morning the Subcommission concluded its review of economic, social and cultural rights, hearing additional remarks on the topic of globalization and its ramifications for human rights. The subject was much discussed over two days following presentation of a report by Subcommission Expert Joseph Oloka-Onyango and Alternate Expert Deepika Udagama which contended, among other things, that international financial institutions such as the World Trade Organization and the International Monetary Fund should pay greater attention to the effects of their policies on human rights situations in developing countries.

Among those addressing the meeting were representatives of the non-governmental organizations (NGOs) International Indian Treaty Council and International Youth and Student Movement for the United Nations.

Subcommission Experts or Alternates Iulia-Antonella Motoc, Joseph Oloko-Onyango, Deepika Udagama, Louis Joinet, Manuel Rodriguez Cuadros, Asbjorn Eide, Vladimir Kartashkin, Halima Embarek Warzazi, Fisseha Yimer, Erica-Irene A. Daes, Yoshiko Terao, Rajendra Kalidas Wimala Goonesekere, and Soo Gil Park spoke, as did a representative of Iraq.

Turkey and Iraq delivered statements in exercise of the right of reply.

The Subcommission will reconvene at 3 p.m. to continue its debate on the prevention of discrimination. The Subcommission's Working Group on the administration of justice will meet from 5 to 6 p.m.

Prevention of discrimination

Under this agenda item, the Subcommission has before it a series of documents.

A working paper submitted by Subcommission Expert Erica-Irene Daes (E/CN.4/Sub.2/2001/2) on discrimination against indigenous peoples concludes that it is very important that the Preparatory Committee for the World Conference against Racism ensure a mehcanism for the full and active participation of representatives of indigenous peoples and organizations. The report also suggests that the Office of the High Commissioner for Human Rights hold a seminar on indigenous peoples and the administration of justice during the preparatory phases of the World Conference.

A progress report submitted by Marc Bossuyt, the Special Rapporteur on affirmative action (A/CN.4/Sub.2/2001/15) on the concept and practice of affirmative action focuses on, among other things, target groups, and the issues of over- and under-inclusiveness. It also assesses the justification of affirmative action, and explores its forms.

A working paper submitted by Subcommission Expert Rajendra Kalidas Wimala Goonesekere (E/CN.4/Sub.2/2001/16) on discrimination based on work and descent concludes that there were 250 million persons discriminated against in this regard. It was the responsibility, the report reads, of the respective States to endeavour, not merely the passing of remedial laws, but by positive state action, to ensure that these violations did not go unpunished.

A note by the secretariat (E/CN.4/Sub.2/2001/18) on the prevention of discrimination and protection of indigenous peoples and minorities notes the recommendation from the Subcommission that the Coordinator of the International Decade of the World's Indigenous People hold a special fund-raising meeting with the permanent missions of Geneva and the members of the Advisory Group for the Voluntary Fund for the Decade to encourage financial contributions to the United Nations Voluntary Fund for Indigenous Populations.

A note by the secretariat (E/CN.4/Sub.2/2001/19) on the prevention of discrimination and protection of indigenous peoples and minorities notes the recommendation from the Subcommission that the United Nations High Commissioner for take necessary action in order to promote the establishment of a database on national legislation on matters of relevance to indigenous peoples.

A preliminary report submitted by Subcommission Expert David Weissbrodt (E/CN.4/Sub.2/2001/20, and Add.1) on the rights of non-citizens discusses relevant international human rights standards relating to non-citizens, including the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention of the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child, among others.

A final working paper submitted by Subcommission Expert Erica Irene-Daes (E/CN.4/Sub.2/2001/21) on indigenous peoples and their relationship to land offers several conclusions and recommendations, among them that the rule of law must be rigorously established and maintained in every country with respect to indigenous peoples and their lands, territories and resources, and all State and international actions and legal measures in regard to indigenous lands, territories and resources should meet the standard of fundamental fairness for all indigenous and non-indigenous parties, and all such actions should be characterized by justice in historical, political, legal, social and economic terms.

A report (E/CN.4/Sub.2/2001/22) of the Working Group on minorities on its seventh session offers several recommendations to governments, regional and subregional organizations, treaty bodies, the United Nations, the Commission on Human Rights, and non-governmental organizations. Among them, to governments, was a recommendation to ratify, if they had not already done so, the seven major treaties and the provisions relating to individual petitions, in particular to ratify the International Convention on the Elimination of All Forms of Racial Discrimination, and to make the declaration under Article 14 of the Convention.


Statements on Economic, Social and Cultural Rights

MARIO IBARRA, of the International Indian Treaty Council, said it was regrettable that the Commission on Human Rights had failed to approve a draft decision on the Subcommission carrying out a study on drinking water. There were geo-political problems concerning water on the planet, but what was more important was the right to life and the right to drinking water for the people on this planet. The Subcommission should insist on the draft decision that was before the Commission. In recent times, the international press had written about the Kyoto Protocol and other climate change issues. Indigenous organizations were disturbed because of the irresponsible approach to the future of the planet. It was disturbing to see that the clean development systems provided for in the Kyoto Protocol did not consider forests a priority, and did not look to indigenous peoples who lived in or near forests for help and advice. For indigenous people who depended on fragile ecosystems, the situation was crucial. In the years to come, this would produce a new type of refugees -- environmental refugees. The Subcommission which had played an integral role in the promotion and protection of the rights of indigenous peoples should investigate this.

ABDELSAM LEHCENE OMAR, of the International Youth and Student Movement for the United Nations, said the group was deeply concerned over the worsening situation of the Western Saharan population under Moroccan domination. There had been demonstrations by students seeking a better life; although peaceful, the demonstrations had been violently repressed by Moroccan forces and the demonstrators in many cases had been unfairly imprisoned. Children had been taken from their homes and had been detained and tortured by Moroccan officials, and then imprisoned far from home. Saharan workers did not have the right to make union claims, including those working in phosphate mines. Spanish employees in the same mines did have these rights. Interrogation, intimidation and abuse had been carried out by the police, and dozens of Saharan workers had been detained and had disappeared for claiming their rights.

This worsening situation had been caused in part by the departure of Spain, leaving Saharan workers to the mercy of the Moroccan occupiers. The Western Sahara was rich in resources, which was why it was so coveted; Saharans had lost control over their resources. This wealth should be put under international control so that it could be preserved for the benefit of the Saharan population.

IULIA-ANTOANELLA MOTOC, Subcommission Expert, said the various international financial organizations had different views concerning the obligations and requirements for human rights. An example was what the representative of the International Monetary Fund had said yesterday. These bodies did not have these human rights matters in their terms of reference, but the European Court of Justice said these were matters of international customary law. Human laws had implications for customary law. The question was what ranking should be given to economic, social and cultural rights. There was a liberal school of thought that economic, social and cultural rights could only come through growth and development.

ADAN YOUNES (Iraq) said sanctions had very harmful consequences on the enjoyment of economic, social and cultural rights; the Subcommission had passed a resolution on the harmful consequences of sanctions. Iraq's Government wished to continue to meet the economic, social and cultural needs of its citizens; it had made much progress in this area; but the economic embargo imposed against Iraq since 1990 had held back such efforts. Malnutrition, the spread of disease, and infant mortality had risen notably under the embargo. Just in May, 5,712 children under the age of 5 had died. A world campaign had been under way to end these sanctions. Meanwhile, the United States and the United Kingdom were claiming that the sanctions were not effective enough and should be intensified; they sought "smart" sanctions that would alleviate the effects on the public and increase the effects on the Government. The people of Iraq rejected this idea. In fact it was aimed at harming them further.

The Government of Iraq called upon the Subcommission to continue its efforts to end the sanctions and urged it not to be taken in by so-called "smart sanctions" and the hypocritical policies behind such proposals.

Rights of Reply

The representative of Turkey, in a right of reply, said that yesterday a statement was made by a non-governmental organization (NGO) that contained serious misrepresentations about his country. With regards to human rights in Turkey, the Turkish delegation had already spoken to the Subcommission about the evolving situation there, and how the Government was determined to take steps to create a society where human rights and the rule of law were respected. As to the comments about the dissolving of the Welfare Party in Turkey, the Constitutional Court had ordered its dissolution in January after the leaders of the Party had said it was their intent to implement a system of laws based on Islamic law. The Court had imposed a ban on their sitting in Parliament for five years. The Party had appealed to the European Court of Human Rights, and last month, the Court had ruled that there had been no violation of the European Charter of Human Rights. That was exactly what had happened to the Welfare Party in Turkey.

A representative of Iraq, speaking in right of reply, said the statement by Interfaith International deserved comment. This non-governmental organization (NGO) purported to advance human rights and allegedly was neutral; but in fact it took political positions and represented a terrorist organization that employed armed force in Iraq; it had fired rockets over residential areas, killing innocent people. This organization, working in conjunction with alien elements, sought to bring down the Iraqi Government. Iraq called upon Interfaith International to halt its connections with these terrorists. If the NGO really cared about human rights, it should have talked about the inhumane embargo imposed against Iraq which was seriously violating the human rights of Iraqis.

Concluding Statements on Economic, Social and Cultural Rights

JOSEPH OLOKA-ONYANGO, Subcommission Expert, said in the last few days, the contributions that had been made had been so extensive that it would be impossible to address everything that had been said. All the directions and suggestions that had been offered would be taken into account. The observers from the World Trade Organization and the International Monetary Fund should be thanked for participating and opening up an avenue for further deliberation on this issue. It was hoped that this would not be the final dialogue. This discussion should take place at different levels, taking into account the different suggestions that had been raised.

The legal aspect of the discussion on globalization was the paramount issue. The World Bank representative said there should not be talk about law -- there should be talk about people. But there needed to be discussion about people's legal obligations. Different opinions had been expressed about the legal question. The issues which emerged were varied -- recognizing what the legal obligations were; promoting human rights; the non-violation obligation; and the need for accountability. This was the beginning of a very exciting journey, and this type of dialogue and discussion should be further encouraged.

DEEPIKA UDAGAMA, Subcommission Alternate Expert, said the discussion had been valuable because it elicited refreshing and interesting statements from representatives of the international financial institutions. There had been statements, for example, that human rights were relevant to the World Trade Organization (WTO) and were considered in elaborating policies of the WTO; this was a change from what had been said a few months ago. No legal obligation to respect human rights had been stated by the WTO, but still the attitude indicated was progress. The admission by the International Monetary Fund (IMF) representative, if she understood correctly, that structural adjustment policies had been a failure was refreshingly candid. However, she was concerned at the statement that the IMF must only follow its charter and that it was not required to respect human rights. The point in such fora as the Subcommission was to find common ground, to find how international economic and international human rights systems could mesh. As for the World Bank, she felt it was important to acknowledge the legal frameworks for human rights, and to acknowledge that they imposed obligations.

The representative of the WTO had stated that its dispute-settlement mechanism was not to determine if human-rights instruments had been violated but if WTO trade rules had been violated. She accepted that, but human rights standards were nonetheless relevant to the WTO regime, and hence should be relevant to the dispute-settlement regime. She continued to feel, among other things, that the dispute-settlement mechanism lacked impartiality; and that developing countries should have greater numbers of panellists and should receive greater financial help when bringing cases before the settlement system.

LOUIS JOINET, Subcommittee Expert, praised chapter 3 of the study on globalization concerning the juridic aspects. He invited the Special Rapporteurs to come to France to debate their points of view.

MANUEL RODRIGUEZ CUADROS, Subcommission Expert, said the report on globalization had justifiably underlined the legal aspects of economic and social rights; it was clear that the issue could not be restricted to an economic and political approach involved in fulfilment of the obligations assumed by States. Economic and social rights within the United Nations sphere and international human rights law had the characteristic of progressive attainment, and this did not diminish State obligations; States had to continue to pursue progressive attainment of such rights. Within the international system there should be a mechanism with objective criteria to gauge whether such progressive progress was being achieved.

Decisions by international financial bodies, when they had targets for reducing tax burdens, should make it possible to measure the impact of such steps on other rights, such as rights to employment and to health. Mechanisms which could measure the harmful impact on the economic and social fields could allow developing countries to have some negotiating leeway and allow them perhaps to limit the effects of international bodies taking measures that would harm the economic and social well-being of their populations.

Statements on the Prevention of Discrimination

MARC BOSSUYT, former Subcommission Expert, introducing a report on affirmative action, said the Governments who participated in the report should be thanked. In his preliminary report, attention had been generally paid only to the non-discrimination principle. In the current report, the target groups were the focus, as were the different forms of affirmative action. The target groups were groups that all had characteristics in common, including that they found themselves often in disadvantaged positions. Experience showed that very often affirmative action was aimed at a particular group, and later, it was expanded to other groups. The majority members affected were likely to come from the bottom of the majority, while the minority members benefitting were likely to come from the top of the minority group.

Affirmative action was meant to remedy past social injustices, and to enhance social diversification. The report paid attention to the different forms of affirmative action. There was affirmative mobilization, in which the targeted groups were aggressively encouraged to apply for certain positions that they otherwise might not be aware of. Affirmative fairness was about a meticulous examination to make sure that members of target groups were treated fairly. Both of these measures were well-received and non-controversial. In affirmative preference, someone's origin or race was taken into account. It could take two different forms. One was if there were two equally qualified candidates, the one belonging to a targeted group would be given preference. The second form it could take was even if some people were better qualified than others, the preference would be given to members of the targeted group. One could apply lower standards or guidelines. This was the most controversial.

Affirmative action should not be interpreted as justifying any distinction based on any ground with respect to any right merely because the object of the distinction was to improve the situation of disadvantaged individuals or groups. In no case should somebody be deprived of his rights, including the right to equal protection of the law, with the excuse that this could help groups that were previously discriminated against. It was the principle of non-discrimination that established limits to each affirmative action. This report showed that there was much room for thought, reflection and discussion. This was not an easy matter. The question was not whether affirmative action was good or bad. The point was how far could affirmative action go without violating the non-discrimination principle.

ASBJORN EIDE, Subcommission Expert, said the analytical tools provided in Mr. Bossuyt's report were valuable. There would always be controversies over affirmative action, as they reflected underlying ideological prejudices and the degree of liberalism or social orientation of the societies concerned. Social value systems came into play on this topic. Affirmative action must not lead to discrimination, that was agreed; but the problem was how to define when affirmative action amounted to discrimination as opposed to a "legitimate distinction", as Mr. Bossuyt put it.

The positive and negative consequences of different kinds of affirmative action were examined in the report, and it was true that such analyses depended on context; in different situations, countries, and points in time, one might weigh the positive arguments more than the negative. The purposes or justifications of affirmative action also needed careful weighing; remedies for historical injustices and current discrimination were different from such matters as "nation-building". Minority issues, of course, had to do with stability in multi-cultural societies, and different justifications for programmes to aid minorities would vary in value from situation to situation. One also had to find an adequate balance between affirmative action and economic and social rights; the United States had a big problem here -- it had major policies on affirmative action but deficiencies in economic, social and cultural rights, leading to tensions between the two spheres.

VLADIMIR KARTASHKIN, Subcommission Alternate Expert, said this was an interesting report. It was interesting because the report contained many controversial provisions, and it could not be any other way. Sometimes points of view could be expressed that contradicted one another. Detailed analysis could take a lot of time, and time was limited in the Subcommission. Mr. Bossuyt defined in the report what affirmative action was, and that definition needed to be referred to over and over. Only when a group was targeted for preference could equality be achieved. Mr. Bossuyt referred to equality of opportunity and equality of results. It was hard to tell which side Mr. Bossuyt supported. Each person needed to be given equality from the time of birth -- the right to education, medical care, and work. Each individual from the time of birth had to have the entire list of rights. But this was where the equality ended. Every individual could not be required to be a Nobel Prize Laureate. It was not possible to achieve equality of results with human beings. People were born with different capabilities and different inclinations.

HALIMA EMBAREK WARZAZI, Subcommission Expert, said she continued to have reservations about the reports submitted on this topic; it was important in dealing with this kind of problem that men were involved, even and especially when women's issues were under consideration. The idea of "positive discrimination", she thought, had originated in Sweden; it was a real political gesture made by the Government that had achieved excellent results. Other countries, including Egypt, had followed, to aid the situation of women in elections to enable them to achieve posts in Parliament. It would be interesting to have a list of countries that had employed this idea and a review of the effects of positive discrimination programmes. Norway, she understood, had achieved 50 per cent women's representation in Parliament, which was extraordinary.

In her opinion anything that favoured women was not "discriminatory" but simply positive; women were not a minority, of course; they made up more than half of humanity. The vital question was that for women, the first positive action Governments should take should involve access to education. That above all provided women with the weapons to protect themselves; it put women in a position where they could fight for their rights. It was worth noting that a study of women's representation in parliaments around the world had revealed that the situation -- with a few exceptions -- was still catastrophic. Quotas related to politics were a delicate topic; and it happened that women who achieved political prominence sometimes forgot where they had come from and forgot other women -- that had happened with Margaret Thatcher. What was needed was not a few symbolic women in politics but enough of a presence for them to have true political power on behalf of the women of their country. She hoped that the forthcoming affirmative action report would pay greater attention to women.

FISSEHA YIMER, Subcommission Expert, said this was a difficult study. It would not be an exaggeration to say that this was one of the most difficult assignments given by the Subcommission. It was important to make up one's mind -- you could not have positive discrimination. If it was positive, it was not discrimination. There was a question about what was meant by a two-class theory. It was said it could result in the creation of another disadvantaged or discriminated against minority within the majority. The report assessed the justification of affirmative action -- this was a tall order. To remedy a historical injustice was understandable, but in remedying social discrimination, wasn't affirmative action also creating a social discrimination? The reason of pre-empting social unrest was questionable also. When talking about nation building, why was affirmative action necessary for nation building? The thrust of the argument was that as the justifications were multiplied, there would be more and more difficulties. Could not the only justification be to remedy historical injustices?

ERICA-IRENE A. DAES, Subcommission Expert, said the report could be used by national executives, judicial bodies, and members of the United Nations system in activities related to affirmative action. She wondered if the Special Rapporteur could elaborate further on the matter of under represented groups; more detail would be useful; other parts of the document could benefit from further elaboration and clarification, but she had no doubt that that would be the case in the final report. Meanwhile she recommended that the document be sent once again to Governments and non-governmental organizations for their comments and views.

YOSHIKO TERAO, Subcommission Alternate Expert, said it was true that the recent Supreme Court decision in the United States said that the Constitution was colour blind. It said there would be no affirmative action in the coming century. It was important to know how the concept of affirmative action began in the United States -- it began because racial segregation -- or apartheid -- existed in the United States. Look at the field of education. There was racial segregation, and the 1954 case of Brown versus the Board of Education said it was unconstitutional. They began to desegregate, but the southern states did not want to desegregate. This was how the Government began to understand the need of affirmative action. Equal opportunity was needed for all students. This began the whole civil rights movement, and society began to change. More black students were admitted to schools and universities and medical schools. Now it was getting less and less clear if there could be affirmative action in the educational field. Anti-affirmative action groups began to litigate. It was important to understand the background. When society started to recognize social injustices, it started to understand the importance of affirmative action.

Before hand, there were not many black lawyers or doctors, or women lawyers or doctors. Children did not think they could become lawyers or doctors. The idea of role models was very important. The United States had a history individuality, not based on groups. But the United States had a very important role in affirmative action.

RAJENDRA KALIDAS WIMALA GOONESEKERE, Subcommission Expert, said different phrases were used in this valuable report, but this linguistic care was important; it was valuable to know the different terms used and to know about the different sorts of affirmative action programmes employed in various countries. It was curious to see that quotas had not been allowed in the United States but that quotas were used in other countries such as Nigeria, where they were used to apportion legislative posts. In Malaysia there was a different system of quotas. One might argue that quotas were not sufficiently fair and violated the principle of equality, but there were some justifications for them based on political considerations. There might be reasons based as well on underdevelopment in certain areas that had to be addressed, with the aim of achieving equality. Groups in society sometimes needed this specific form of help. The broader principle of fairness could be seen to apply to such efforts to bring marginalized groups into society; what would perhaps be undesirable would be to continue such actions when the reasons for such special policies no longer existed, or -- as had occurred in the United States -- there was a backlash from people who through no fault of their own had suffered from a lack of opportunity when such opportunity was being preferentially granted to others.

There was the larger issue of the private sector and its discriminatory policies, notably in the case of gender. How could that sector be persuaded not to adopt discriminatory policies on gender, minorities, or religion? Could civil society not take some positive steps to require the private sector to observe affirmative action principles? That was important because a number of activities formerly carried out by Governments were being privatized.

MR. JOINET said this was one of the most difficult subjects to address. The document before the Subcommission raised good questions, and that should be appreciated. It would allow the subject to be discussed in a dispassionate manner. There were many complex matters, including who were the disadvantaged groups, and could there be discrimination within discrimination? What was to be done when rights were being violated? There was a question of the quota policy. With relative quotas, French civil servants had a quota of disabled persons, and it gave no rise to problems, at least not with physically disabled -- there might be a little more of a problem with mentally disabled. There was also a question about what should be done when the objects of the measures were eventually met. In France, the debate began upon liberation. It was DeGualle who, against public opinion, decided that women had the right to vote.

SOO GIL PARK, Subcommission Expert, said this second report on affirmative action was an impressive accomplishment and covered new ground; the concept and practice of affirmative action was an indispensable part of human rights practice at the current time, as it had proved an effective way of redressing past discrimination. At times, perhaps, Governments should consider it a required course of action. It was important to strike careful balances and to be make choices with care in the designing of such programmes; perhaps one disadvantaged group that could benefit from affirmative action would be illegal aliens.

It seemed necessary that the subject of affirmative action be seen under the greater framework of international human rights law. Despite the activities of many human rights machineries, it was not easy to identify and point to specific fora where matters of affirmative action could be dealt with as distinct from nearby topics such as non-discrimination. Affirmative action programmes, he felt, should last long enough to ensure that remedial effects leading to equal treatment could be seen.

MR. BOSSUYT said there was one element in common in all of the interventions -- that this was a complex and difficult issue. He would not be able to reply to all the observations of the members. The crucial issue was when could a measure labelled affirmative action be considered discriminatory? That was the main issue. The justifications that were put in the report were not those of the author -- they were justifications that were given during the preparation of the report. It was also important to note that affirmative action programmes should never be substituted for anti-poverty programmes, or other good social policy programmes. Some members would agree that equality of opportunity was more important than equality of results. Women played a large part in this report. It was also difficult to use the term "positive discrimination".

In the preliminary report, there had been reference to international instruments, and perhaps more could have been done in that regard in this report. Answering a question about a court case in the United States, it was agreed that a diverse student body was a goal. The difference between mobilization, affirmative fairness and affirmative preference was that in the first two, steps were taken to help foster opportunities without giving preferences to someone who was less qualified. It was not entirely correct to state that affirmative action had nothing to do with the equality of opportunity. A distinction had to be made between the public and private sector, although that did not mean the private sector should be totally ignored.