© T.M.C. Asser Press and the authors 2015Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_12
12. Special Temporary Measures and the Norm of Equality
Tulane University School of Law, New Orleans, USA
Temporary laws or measures arise in different circumstances to deal with a wide array of perceived problems or concerns. This essay deals with one specific kind of temporary measures, which are provided for in international human rights treaties: ‘preferential treatments’ or ‘positive measures’, as they are called. The essay examines whether these measures undermine the predictability and stability of the norm of equality on which behalf they are said to have been adopted. The essay argues that these measures will be inconsistent with and destablise equality only if equality is understood narrowly as a principle that only requires sameness of treatment rather than the more substantive notion of equality (equality of opportunity) that this essay endorses and advances.
KeywordsEqualityEqual opportunityExceptionsTemporarinessTemporary measures
W. Ray Forrester Professor of Public and Constitutional Law, Tulane University School of Law, New Orleans, U.S.A.
Equality is a fundamental political and legal norm. Ronald Dworkin, who invested his considerable intellectual energy to understanding the nature of equality, once observed that no government ‘is legitimate that does not show equal concern for the fate of all those citizens over whom it claims dominion and from whom it claims allegiance.’1 Equality as a norm is, therefore, important in two senses. First, and most importantly, it demands that individuals be treated as having equal worth. Second, a government that does not comply with the demands of this norm is one that does not deserve to be treated as legitimate.
The norm is enshrined in both domestic and international law. The constitutions of almost all countries give prominent position to the ideal of equality.2 And many international documents announce the fundamental nature of the norm. The preamble of the United Nations Charter, the founding document of the United Nations, ‘reaffirms faith … in the equal rights of men and women.’ Article 1 of the Charter is more expansive when it declares that one of the purposes of the United Nations is to promote and encourage ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.’3 Equal concern for and equal treatment of every individual is affirmed as one of the purposes that the United Nations was established to pursue.
The ideal of equality is also central in core international human rights documents. Those documents declare, even more explicitly and in a more extended way, that equality is a basic norm, which signatory States are required to provide, protect, and promote.4 The United Nations Human Rights Committee in its General Comment 18 declared that ‘non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.’5 There is unanimity among international human rights documents that equality is a cornerstone concept in international human rights law and every state is required to show ‘equal concern’6 for the fate of those over whom it has jurisdiction and from whom it expects allegiance. And some have declared the norm to be a rule of customary international law as well.7
Yet, international human rights documents and some national laws8 provide for what they call special temporary measures (sometimes referred to as ‘affirmative action’, ‘preferential treatment’ and ‘positive measures’),9 which on the face of it appear to be inconsistent with this general and fundamental norm. Some human rights conventions provide in the text itself for those special and temporary measures while at the same time affirming the centrality of equality in the state’s treatment of people under its jurisdiction. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) are the two core human rights treaties that explicitly authorise the adoption of temporary measures.10 Other core human rights conventions have been read (by the relevant monitoring committees) as authorising special measures.11 The general principle of equality is said to coexist happily with those measures that have been referred to as special and temporary.
In this essay I shall explore whether these ‘special temporary measures’ are, by their very nature, exceptions to the norm of equality, temporary interruptions to the ideal of equality, and if so what the long-term impact of these measures is on the very idea of equality (its predictability and stability).
The notion of ‘exception’ suggests a limit on a general rule to fulfill its mandate. For those who think that these special measures are temporary exceptions to the ideal of equality, the worry is that the norm of equality may be seriously undermined by the adoption of such temporary measures. The analogy here is the effect that emergency measures often have on constitutional and legal sovereignty.12 Under this account, exceptions to the application of a norm, however temporary and however intended to be in pursuit of the general norm in the long run, undermine the coherence and predictability of the norm itself.
While I agree that special temporary measures do raise important questions about their relationship to the norm of equality, I argue that the analogy with emergency exceptions is misplaced and the worry that these measures will undercut the very coherence of the norm of equality is unwarranted. I argue that unlike emergency measures, which suspend constitutional sovereignty, these special and temporary measures do not leave the general norm of equality in suspension for a temporary period. Rather, they assume and prepare the ground for a more defensible conception of equality.13 In this sense, special temporary measures are simultaneously inside and outside the norm of equality. They suspend non-discrimination in its narrow and formal sense while preparing the ground for a broader and more robust notion of equality. By ‘non-discrimination’ I mean to refer to what in the United States is called the ‘anti-discrimination’ principle, the idea that the state is only required to provide sameness of treatment. ‘Similar things should be treated similarly’.14 Thus, according to this principle distinguishing on the bases of, e.g., race or gender and distributing parcels of goods and activities on these bases is not providing equal treatment.15
The conception of equality that these temporary measures assume and are in furtherance of is what I shall refer to as equality of opportunity. Equalising opportunities involves a good deal more than well-policed laws enforcing non-discrimination. Opportunities are never really equal unless societies have dealt with, in some way, the inequitable effects of past unequal access to advantages and resources.16 Justice Ruth Ginsburg of the United States Supreme Court emphasised this point in a recent dissenting opinion.17
The notion of equality of opportunity has four especially compelling attractions to international legal theorists. First, unlike non-discrimination (in the way I have described it above), equality of opportunity allows us to take into account the effects of unfair and unequal distributions of goods and advantages in the past in how we conceptualise equality in the present. Second, unlike equality of welfare (equality of outcome), equality of opportunity recognises that different people value different things and hence societies cannot meet the mandate of equality by handing out identical parcels of goods and activities.18 Indeed, the object of equal opportunity is to work towards an ‘“optimal” equilibrium that reflects the actual distribution of talent in society.’19 Third, again unlike equality of welfare, equality of opportunity acknowledges people as responsible agents accountable for the choices they make and the actions they take. Equality of opportunity is superior to equality of welfare to the extent that it takes seriously and is committed to the idea of personal responsibility and individual agency. Fourth, equality of opportunity better reconciles the special temporary measures that human rights documents and committees have adopted and the general norm of equality that is declared to be a fundamental international legal principle. In sum, if equality is understood as equality of opportunity, then special temporary measures do not undermine the long-term stability or certainty of the ideal of equality, but rather they focus us on a coherent and defensible notion of equality.
Of course, durational limit is essential if special temporary measures are not to transform equality of opportunity into equality of welfare (result), which I argue is not consistent with the idea of individuals as responsible agents accountable for the actions that they take and for the choices that they make. The essay will indicate what factors should inform the appropriate durational limit. At bottom, the argument of this essay is that whether in the realm of domestic or international law, temporary special measures are (or should be) in the service of equality of opportunity and would need to be terminated when that objective has been achieved. Determining whether or not that objective has been achieved in a given circumstance will often not be easy. As I shall explain later, this is why there is a need for institutional setups that require adopters and implementers of such policies to engage in periodic reviews and justification of the continuing need for such policies both (and especially) domestically and before international tribunals. One thing, however, must be clear: an arbitrary expiration date is as illogical as an indefinite pursuit of preferential policies.
The essay is organised in a manner that is intended to facilitate an orderly examination of the issue. Section 12.2 describes the nature of special temporary measures and distinguishes them from special rights although admittedly there are some overlaps between the two. Section 12.3 explores the relationship between special measures and the norm of equality and argues that these measures cannot be viewed as exceptions to the norm of equality if equality is understood as equality of opportunity. In Sects. 12.4 and 12.5 the article signals the importance of durational limits and political and legal candor to ensure that special temporary measures are not transformed into a process of undermining the very notion of equality as equality of opportunity. The conclusion is meant to raise two issues. First, it points out that special temporary measures are not unique in that temporary laws and measures are common phenomena adopted to deal with a wide array of perceived problems and concerns. Second, the conclusion introduces the notion of critical mass that I have utilised and developed in considerable detail in an earlier article to suggest that the concept perhaps help us to determine when it is time to end the temporary measures.
12.2 The Nature of Special Temporary Measures
12.2.1 Special Rights and Special Measures
Before I describe the nature of special measures, let me draw an important distinction, lest there be a misunderstanding. The special measures that are the concern of this essay are very different from the special rights that are granted to certain minorities as a group. Examples of the latter are rights given to certain minorities such as the right of minorities to enjoy their own culture, profess and practice their own religion and use their own language20 as well as the special rights (e.g. the right to land) recognized for indigenous peoples.21 These are rights and they are permanent. They are special rights, because the rights are provided to the individual within a particular group and the exercise of the right is premised on the protection and flourishing of the group. For example, an individual’s right to speak a minority language would be meaningless unless the linguistic minority of which the individual is a member is recognized as possessing a right as a group and as a result is able to survive and even flourish.22
The special measures that are the focus of this essay, on the other hand, are not rights but policies in pursuit of a general and non-group specific individual right. Special measures here are not meant to confer special rights. Indeed, to the contrary, many treaty bodies have on many occasions declared that the maintenance of these measures indefinitely would constitute a violation of the right of others (a violation of the non-discrimination principle). In the American context, Justice Sandra Day O’Connor of the United States Supreme Court and the author of the majority opinion of a major affirmative action case, made a statement in the closing lines of the opinion which attracted a great deal of attention and some confusion. ‘[A]ll government use of race must have a logical end point’, she wrote.23 That is fair enough and consistent with what international human rights committees have been saying, but then she added the following: ‘We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.’24 Justice O’Connor not only signaled that these are temporary measures and must have a logical end but she apparently was confident enough to suggest a time frame as well.25 Justice O’Connor’s worry, of course, is that temporary measures that do not have (or assume) an end point will destabilise our notion of equality—the idea that equality is individual (not group) specific and that it is about individuals having equal opportunity not equal welfare. I shall say something about durational limit and its effect on the norm of equality in a later part of this chapter, but for the moment what is important is to realise that the special temporary measures that are the concern here are very different from the special rights of minorities.
12.2.2 The Nature of Special Measures
Some international human rights documents or the committees that were set up to monitor the rights in those documents refer to these programs as ‘special measures’.26 Other human rights documents refer to them as ‘temporary special measures’.27 What makes them ‘temporary’ appears to be clear. They are meant to end when the purposes for which they were adopted has been achieved. As CEDAW’s Committee in its General Comment 25 put it, ‘[s]uch measures should … not be deemed necessary forever.’28 The purposes might be to accelerate ‘de facto equality’ between certain groups.29 Or it might be to ensure ‘groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms’.30 Or, as CEDAW put it, the objective may be to ensure ‘equality of opportunity’.31 It is, of course, never easy to determine as to whether and when those goals are met, but for the moment it is sufficient to note that these measures are considered to be temporary and taken for the ‘sole’32 purpose of achieving those specific goals.
In what sense are they ‘special’? One straightforward reading, adopted by some, is that they are special because they are meant to achieve specific goals.33 The specificity of the goals determines their specialness. However, that reading does not seem to me plausible to distinguish these measures from other measures, for every measure in that sense is special for it is adopted to achieve certain specific goals.
Perhaps the notion of special measure could reasonably be read to imply that there is a departure from a normal or ordinary process. So, perhaps one way to understand the notion of ‘special’ in this case is to say that the measures are a departure from the application of the general and abstract norm of equality. Under this reading, the relationship between these special measures and equality could be analogised to the relationship between emergency measures and ordinary juridical sovereignty.34 Each of the former is viewed as an exception to (or as a suspension of) the latter (the general norm). The special measures are outside the norm of equality in the same way that emergency powers (rules) might be said to be outside the law itself. In both of these cases, so the argument goes, the particular special act is an exception to the general norm.35 But quite often, even in relation to emergency measures it is not clear that those who adopt those measures view them as either inside or outside the norm of juridical sovereignty itself. In a speech he delivered to Congress when it finally convened, President Abraham Lincoln of the United States justified some of his actions (such as the suspension of habeas corpus) during the American Civil War, which many considered as unconstitutional, by claiming that ‘whether strictly legal or not’ the measures he took were born out of ‘public necessity’. He asked: ‘Are all the laws but one to go unexecuted and the Government itself go to pieces lest the one be violated?’36 The first part of Lincoln’s statement seems to suggest that ‘necessity’ is an exception to (outside of) the law itself. That is, necessity has no law (necessitate legem non habet). But the second part seems to suggest that the exception is in fact implied in the very notion of juridical sovereignty, for he claims that the suspension of the laws was done in the service of sovereignty itself. So, even in relation to emergency exceptions the view of some seems to be that exceptions are both internal and external to the juridical order.
But if you view these special measures as operating in a universe where the general norm (equality) is suspended, then you might be tempted to conclude that temporary measures do not have a lasting effect on the general norm. They operate on a different plane in the same way that a state of emergency, or the ‘state of exception’, as some refer to it,37 operates outside the ordinary rule of law. When the emergency is over we are back to constitutional government and when the special measures have achieved their goal we are back to a stable and predictable notion of equality with which we started. This argument seems to me to be erroneous in relation to both special temporary measures and state of emergencies. Each, in fact, has a lasting effect on the general norm or what is considered to be normal, but in different ways. In relation to state of emergencies, even if the threat that induced the state of emergency (the state of exception) is gone and normal structures of the state are restored, the notion of what is normal is often perceptibly altered. The impact of the terrorist attack of September 11, 2001 and the American government response to it have had long-lasting effects on the American body politic, by blurring the distinction between normalcy and emergency, war and peace, as two different states of affairs.38
In relation to special temporary measures, the long term impact is of a different kind. Special measures do not simply suspend non-discrimination (formal equality) for a period, but they require us to think of equality very differently. That is, special temporary measures are not exceptions to the general norm of equality but an aspect of a way of understanding the norm of equality itself.39 Under this reading and as I shall show later, the exception is both outside and inside the norm itself.40 By that I mean to suggest that the special measures require us to suspend the norm of non-discrimination (formal equality) but the suspension of the non-discrimination is done so as to reflect on a broader and more defensible notion of equality than the notion of non-discrimination, as defined above, recommends. When both CEDAW and CERD declare that these temporary special measures ‘shall not be considered discrimination’,41 they cannot be saying that the norm of equality is suspended in relation to this specific circumstance, but rather that the measures are consistent with (or even required by) the norm itself. Indeed, each of them indicates in the same article that the maintenance of ‘separate rights for different racial groups’ or ‘unequal and or separate standards’ between men and women would be considered inconsistent with the norms of equality or non-discrimination.
12.3 Equality and Special Measures
12.3.1 Equality as Non-discrimination (Equality of Treatment)
Non-discrimination is a prohibition on the state from making any distinction and/or preference among people within its territory and subject to its jurisdiction in the provision of the rights provided for by the various human rights conventions.42 When it acts in a non-discriminatory way (taking a seemingly neutral stance), the state is of course acting in the context of private and public acts and practices that have shaped the individuals and their circumstances before it. And yet non-discrimination would suggest that the state be agnostic about those circumstances. So, if non-discrimination is the only conception of equality that is in play, then special temporary measures seem to be inconsistent with it.
Now, human rights treaties themselves or the committees that monitor those rights have specifically and often declared that temporary measures ‘shall not be considered discrimination as defined’ in the particular convention.43 To be sure, those conventions and committees indicate that there are circumstances where special measures cross from being consistent with to being contrary to the norm of non-discrimination. This happens when those measures lead to ‘the maintenance of unequal or separate standards’44 for different groups and when they are continued ‘after the objectives for which they were taken have been achieved.’45 The Special Rapporteur on affirmative action, Marc Bossuyt, was more general in his report about the relationship between non-discrimination and special measures. He observed that ‘[n]on-discrimination and affirmative action if not carefully framed may clash with each other.’46 The Special Rapporteur is right about that but what is the proper frame that would allow coexistence?