Equality and Affirmative Action in International Human Rights Law and its Relevance to the European Union
| Author | Ursula O'Hare |
| Published date | 01 March 2000 |
| Date | 01 March 2000 |
| DOI | http://doi.org/10.1177/135822910000400102 |
International
Journal
of
Discrimination
and
the
Law,
2000,
Vol.
4,
pp.
3-45
1358-2291/2000
$10
©
2000
A B
Academic
Publishers. Printed
in
Great
Britain
EQUALITY
AND
AFFIRMATIVE ACTION IN
INTERNATIONAL HUMAN RIGHTS LAW
AND
ITS
RELEVANCE TO THE EUROPEAN UNION
URSULA O'HARE*
School
of
Law, University
of
Newcastle, UK
ABSTRACT
Human rights norms have played an increasingly important role
in
recent equality
cases before the European Court of Justice, including the Marschall case on posit-
ive action. This paper aims
to
contribute
to
the positive action debate in Commun-
ity law
by
exploring the meaning
of
the equality principle in human rights law and
outlining
the
potential relevance of the human rights approach
to
affirmative action
for the development
of
the equality principle in Community law. The paper sug-
gests that
the
equality principle
in
human rights law, not only permits, but arguably
may,
in
certain circumstances, require states
to
adopt affirmative action in fulfil-
ment of their obligations
to
respect the equality principle. Human rights law thus
represents a valuable resource upon which the Court could draw
in
developing the
equality principle in Community law. Should the Court have regard to human
rights
law
in
framing the future scope of the equality principle in Community law
this
may
result in a bolder approach
to
positive action in Community law than
hitherto adopted by the Court. The paper, however, also recognises the limits
of
human rights law and concludes with an assessment of those steps which the inter-
national community
may
need to take if the Court is
to
be expected to draw upon
human rights norms in informing its interpretation of Community equality law.
1. INTRODUCTION
The European Court
of
Justice has a long-standing commitment to
uphold within the Community legal order fundamental rights as reco-
gnised in the constitutional traditions
of
the Member States and in
international instruments to which they are parties. In a series
of
recent equality cases, international human rights standards have been
raised in argument before the Court concerning the parameters
of
the
equality principle in Community law.1 In one
of
these cases, the
Marschall case, the issue
of
the interpretation
of
of
international human rights law carne
before the Court in the context
of
a challenge to the legality
of
a
German State affirmative action scheme. In argument before the
4
Court, the German authorities, joined by the Finnish, Austrian and
Norwegian governments, maintained that the legality
of
the German
positive action programme should be considered in light
of
interna-
tional human rights law, in particular, Article 4(1)
of
the United
Nations Women's Convention which envisages the use
of
affirmative
action measures as a means
of
achieving equality.
3 The relevance
of
human rights standards to the European positive action debate was
first raised by the European Commission and the Economic and
Social Committee following the Kalanke decision in 1995 which pro-
hibited the use
of
automatic preference schemes to address women's
under-representation in employment.4 In Marschall, the Advocate-
General considered human rights standards to be too vague to be
of
decided the case without explicit reference to these standards.
This paper aims to examine these human rights norms with a
view to determining the potential relevance
of
the international
human rights law approach to affirmative action in shaping the devel-
opment
of
the equality principle in Community law.5 The paper con-
siders whether affirmative action is permitted
or
precluded by the
equality principle in international human rights law and explores the
nature
of
states' obligations under human rights law to respect the
equality principle.
6 This issue has a particular relevance to the Euro-
pean Union equality debate at this point for two reasons. First,
because the Treaty
of
Amsterdam 1997 (ToA) not only firmly roots
equality at the core
of
the European Union's activities (new Articles
2 and 3(2) identify equality between men and women as a key
objective
of
the Union and new Article
13
establishes a legal basis
for action to combat discrimination on a number
of
grounds
7
),
but
also renews the European Union's commitment to respect human
rights.
8 Second, because
in
addition to the growing number
of
cases
to have recently come before the Court concerning the legality
of
positive action programmes,9 Article
141
(ex Article 119 EC) has
been amended by the Treaty
of
Amsterdam to facilitate the use
of
positive action as part
of
a European-wide equality strategy. Taken
together, there is now some expectation that human rights standards
may become increasingly relevant within the Community legal order
in general and, as has already begun to be demonstrated by cases
such as P & S, Grant and Marschall, the equality principle in human
rights law may come to have an increasing relevance (and resonance)
within the European equality debate in particular.
10
Part One
of
this paper briefly traces the development
of
positive
action as an equality tool within the European Union. It analyses the
judicial interpretation
of
these provisions with a view to exploring
the permissible limits
of
positive action in Community law and
considers the relevance
of
human rights standards to the European
5
positive action debate. Part Two examines the meaning
of
equality
in human rights law.
It
considers the place
of
affirmative action in
human rights law and explores the nature
of
state's obligations under
human rights law to respect the equality principle. Finally, Part Three
considers the potential relevance
of
the equality principle in interna-
tional human rights law to the development
of
the equality principle
in Community law.
PART ONE: EQUALITY
AND
POSITIVE ACTION IN
THE
EUROPEAN UNION
(i) Positive Action
in
Community Law
Positive action finds expression in a number of provisions
of
Com-
munity law. Article 2(4)
of
EEC) provides that 'measures to promote equal opportunity for men
and women, in particular by removing existing inequalities which
affect women's opportunities' in access to employment, training, pro-
motion and working conditions do not violate the anti-discrimination
principle in Article 2(
1)
of the Directive.
11
In the early 1980s the Community considered the issue
of
posit-
ive action in the context
of
its first Community Action Programme
on Equal Opportunities.
12 Positive action was seen as crucial to the
realisation of women's equality but a proposal for a Community dir-
ective on positive action was rejected by the Commission on the
grounds that such a measure would be unlikely to attract the neces-
sary support to pass through Council.
13
Instead, a 'soft-law' measure
was proposed and in 1984 the Council adopted the non-binding
Recommendation 84/635 on the Promotion of Positive Action.14 No
further steps were taken to embed positive action as a component
part
of
the Community's equality strategy until negotiation
of
the
made provision for the use
of
positive action measures in the context
of
women's pay15 but it was not until the 1995 decision in Kalanke
that the positive action debate captured widespread attention across
Europe. In response to the controversy generated by the judgment,
the Commission, in an effort to protect certain forms
of
positive
action, published an explanatory communication to clarify the lawful
scope
of
positive action measures under Community law. 16 The Com-
mission's communication proposed an amendment to Article 2( 4)
of
measures short
of
automatic preference schemes. 17 No action has
been taken on the Commission's proposal,18 but the Member States
did react to the Kalanke-controversy by way
of
a Treaty amendment.
To continue reading
Request your trial