Affirmative Action and the Law: Efficacy of National and International Approaches 0367219530, 9780367219536

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Table of Contents
List of Contributors
Part I: Typology of Affirmative Action Measures
1 Introduction
General Background
Conceptual Framework of Affirmative Action
The Typology of Affirmative Action Measures in State Practice
Opposition and Criticisms to Affirmative Action Measures
Overview of the Chapters
2 Universalism or fragmentation: United Nations treaty
bodies and affirmative actions in Latin-America, the
United Kingdom, South Africa, China and India
Introduction
United Nations Human Rights Bodies Approach to Special Measures: Overview
Treaty Provisions on Special Measures
Conceptual Framework
Special Measures as A Distinct Category
Conditions and Beneficiaries
United Nations Treaty Bodies Approach To Special Measures In The United Kingdom, Latin America, South Africa, China And India
United Kingdom of Great Britain and Northern Ireland
China and India
Central America
Argentina, Chile, Colombia and Peru
Brazil
South Africa
Conclusions
Part II: Analysis of Affirmative Action Measures
3 Unravelling history and undermining law through
politics: The erosion of diversity protection and
emerging existential threats to India and China
Introduction
Origins and Evolution of Affirmative Action Measures in China and India
India
China
The Rise of ‘Politics’ Over ‘Law’
China
India
Conclusions
4 Effectiveness of Affirmative Action in the United Kingdom and South Africa
Introduction
Overview of the Origin and Evolution of Affirmative Action Measures In the UK and South Africa
England, Scotland and Wales
Northern Ireland
South Africa
Comparison
Implementation and Efficacy
England, Scotland and Wales
Northern Ireland
South Africa
Obstacles to Implementation: Contestation
Special Focus: Disability
Conclusions: Possible Alternative Models to Reach Substantive Equality
5 Effectiveness of Affirmative Action in Brazil
Introduction
Creation, Implementation and Efficacy of Affirmative Action Measures in Brazil
Women
Afro-Brazilians
Indians
Disabled People
LGBT People
Obstacles to the Implementation of Affirmative Action Measures’ In Brazil: Financial Costs and Priority Levels in the Federal Government Budget
Public Budget to Reduce Gender Inequality
Public Budget to Reduce Racial Discrimination
Public Budget to Preserve Indians’ Culture and Their Lands’ Demarcation
Public Budget to Promote Disabled People’s Social Inclusion
Public Budget for LGBT People
Alternative Models to Make Affirmative Action Measures in Brazil More Effective
Alternative Models to Reduce Gender Inequalities
Alternative Models to Reduce Racial Discrimination
Alternative Models to Preserve Indians’ Culture and Land Demarcation
Alternative Models to Promote Disabled People’s Social Inclusion
Alternative Models to Promote LGBT Inclusion
Final Considerations
6 The Implementation Process of Affirmative Action in Argentina, Chile, Colombia and Peru
Introduction
The Origins and Evolution of Affirmative Action
Argentina
Chile
Colombia
Peru
Challenges Before National Courts
Argentina
Chile
Colombia
Peru
Design, Implementation and Efficacy
Argentina
Chile
Colombia
Peru
Special Focus: Cultural and/or Budgetary Implications
Argentina
Chile
Colombia
Peru
Conclusions
7 Affirmative action in Central America: Influence of
the international legislation and jurisprudence of the
Inter-American system
Introduction
Overview of the Origin and Evolution of Affirmative Action in Central-America
Analysis of Affirmative Action at National Level
Guatemala
Belize
Honduras
El Salvador
Nicaragua
Costa Rica
Panama
Design, Implementation and Efficacy: Relevance of the Regional Framework in Jurisprudence and International Instruments in Relation to Affirmative Action
Efficacy of Affirmative Action in Central America
Obstacles to Implementation
Special Focus: Budget Analysis and Decision-Making Priorities
Conclusions
Part III: Case Studies
8 Women on Corporate Boards of Public Listed Companies – a UK and EU Gender Diversity Conundrum
Introduction
Initiatives Taken to Improve Gender Diversity
The European Union Normative Framework
The United Kingdom
Gender Diversity – Policy and Procedural Stagnation
The Principle of Subsidiarity
The Principle of Proportionality
Corporate Theory Debates
Positive Discrimination or Affirmative Action
Implementation Methodology – ‘Comply or Explain’ Model
Conclusions – Remedying Gender Homogeneity
9 Persons with Disabilities and Access to Higher Education in Brazil
Introduction
Education as a Fundamental Right and Duty in the Brazilian Constitutional Architecture
General Aspects
The Specific Problem of a Fundamental Right of Access to Higher Education in Brazil
Persons with Disabilities and Access to Higher Education in Brazil
The Social Model as a Premise and Key Point for the Understanding and Solution of the Problem — The Role of the FC and the PDA
Persons with Disabilities and the Affirmative Action Policies Ensuring Access to Education in Brazil — Some General Remarks
Affirmative Actions and Access of Persons with Disabilities to Higher Education
Some Data on the Brazilian Higher Education System
Main Affirmative Actions Created and Implemented To Ensure Access of Persons with Disabilities to Higher Education
Effectiveness of Affirmative Actions for Access to Higher Education by Persons with Disabilities
Concluding Remarks
10 Achieving substantive equality: Mainstreaming duties
to complement affirmative action measures
Introduction
Mainstreaming Duties in Europe
Equality Duties in the UK
Northern Ireland
Great Britain
Assessment of the Public Sector Equality Duty in Great Britain
Conclusions
11 Conclusions
Index

Citation preview

Affirmative Action and the Law

‘Affirmative Action and the Law’ analyses the practical application of affirmative action measures and their efficacy in achieving substantive equality through the lenses of the United Nations human rights machinery and the legal regime and policies implemented in China, India, Central and South America, South Africa and the United Kingdom. The product of a joint research project involving academics from the Brazil, Chile, Mexico, India, Spain and the United Kingdom, the findings identify and reflect on trends emerging from State practice across the world in eradicating structural inequality through special measures for certain designated groups. The book seeks to provide a coherent and systematic approach to the analysis of special measures in the targeted countries. It also comprises two case-studies with in-depth insights on gender diversity on the boards of public listed companies in the UK and the European Union and the access of persons with disabilities to higher education in Brazil. The book will be a valuable resource for students and academics in the field of human rights, law, sociology and politics. It will also provide a source of good practice for states and policy makers in the framing of responses to increased inequality at national and international level; and for civil society actors seeking to explore meaningful interaction with a highly controversial topic in society. Erica Howard is Professor of Law, Middlesex University, London, UK. Elvira Dominguez-Redondo is Associate Professor of International Law at Middlesex University, London, UK. Narciso Leandro Xavier Baez is Chief Academic Officer at the Centre for Excellence in Law at the Universidade do Oeste de Santa Catarina, Brazil.

Affirmative Action and the Law Efficacy of National and International Approaches

Edited by Erica Howard, Elvira Dominguez-Redondo, and Narciso Leandro Xavier Baez

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Erica Howard, Elvira DominguezRedondo, and Narciso Leandro Xavier Baez; individual chapters, the contributors The right of Erica Howard, Elvira Dominguez-Redondo, and Narciso Leandro Xavier Baez to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Baez, Narciso Leandro Xavier, editor. | Domínguez Redondo, Elvira, editor. | Howard, Erica, editor. Title: Affirmative action and the law : efficacy of national and international approaches / edited by Narciso Leandro Xavier Baez, Elvira Dominguez Redondo, and Erica Howard. Description: New York, NY : Routledge, 2020. | Includes bibliographical references and index. Identifiers: LCCN 2020018757 (print) | LCCN 2020018758 (ebook) | ISBN 9780367219536 (hardback) | ISBN 9780429268991 (ebook) Subjects: LCSH: Affirmative action programs—Law and legislation. | Affirmative action programs—Government policy. | Discrimination— Law and legislation. Classification: LCC K3242 .A937 2020 (print) | LCC K3242 (ebook) | DDC 342.08/7—dc23 LC record available at https://lccn.loc.gov/2020018757 LC ebook record available at https://lccn.loc.gov/2020018758 ISBN: 978-0-367-21953-6 (hbk) ISBN: 978-0-429-26899-1 (ebk) Typeset in Galliard by codeMantra

Contents

List of contributors PART I

xi

Typology of affirmative action measures

1

1 Introduction

3

E LV I R A D O M I N G U E Z -R E D ON D O A N D E R IC A HOWA R D

General background  3 Conceptual framework of affirmative action  4 The typology of affirmative action measures in state practice  6 Opposition and criticisms to affirmative action measures  7 Overview of the chapters  9 2 Universalism or fragmentation: United Nations treaty bodies and affirmative actions in Latin-America, the United Kingdom, South Africa, China and India E LV I R A D O M I N G U E Z -R E D ON D O

Introduction 13 United Nations human rights bodies approach to special measures: overview  14 Treaty provisions on special measures  15 Conceptual framework  16 Special measures as a distinct category  19 Conditions and beneficiaries  20 United Nations treaty bodies approach to special measures in the United Kingdom, Latin America, South Africa, China and India  25 United Kingdom of Great Britain and Northern Ireland  25 China and India  26 Central America  28 Argentina, Chile, Colombia and Peru  32

13

vi Contents

Brazil 33 South Africa  34 Conclusions 35 PART II

Analysis of affirmative action measures

37

3 Unravelling history and undermining law through politics: The erosion of diversity protection and emerging existential threats to India and China

39

JO S H UA C A S T E L L I N O A N D S A Y A N T A N I S E N

Introduction 39 Origins and evolution of affirmative action measures in China and India  42 India 43 China 45 The rise of ‘politics’ over ‘law’  48 China 48 India 51 Conclusions 55 4 Effectiveness of affirmative action in the United Kingdom and South Africa

58

E R IC A HO WA R D

Introduction 58 Overview of the origin and evolution of affirmative action measures in the UK and South Africa  59 England, Scotland and Wales  59 Northern Ireland  61 South Africa  62 Comparison 63 Implementation and efficacy  64 England, Scotland and Wales  64 Northern Ireland  67 South Africa  68 Obstacles to implementation: contestation  70 Special focus: disability  74 Conclusions: possible alternative models to reach substantive equality 76 5 Effectiveness of affirmative actionin Brazil N A R C I S O L E A N DR O X AV I E R B A E Z

Introduction 78

78

Contents  vii

Creation, implementation and efficacy of affirmative action measures in Brazil  80 Women 82 Afro-Brazilians 85 Indians 87 Disabled people  89 LGBT people  91 Obstacles to the implementation of affirmative action measures’ in Brazil: financial costs and priority levels in the Federal Government budget  94 Public budget to reduce gender inequality  94 Public budget to reduce racial discrimination  96 Public budget to preserve Indians’ culture and their lands’ demarcation  98 Public budget to promote disabled people’s social inclusion  100 Public budget for LGBT people  101 Alternative models to make affirmative action measures in Brazil more effective  103 Alternative models to reduce gender inequalities  104 Alternative models to reduce racial discrimination  105 Alternative models to preserve Indians’ culture and land demarcation  107 Alternative models to promote disabled people’s social inclusion 109 Alternative models to promote LGBT inclusion  111 Final considerations  112 6 The implementation process of affirmative action in Argentina, Chile, Colombia and Peru I VÁ N OB A N D O - C A M I N O, G U S T AVO R A YO -U R RU T I A , A L BE R T O OL I VA R E S - G A L L A R D O A N D R ODR IG O H E R N Á N DE Z - F E R N A N DE Z

Introduction 114 The origins and evolution of affirmative action  115 Argentina 115 Chile 117 Colombia 118 Peru 119 Challenges before national courts  120 Argentina 120 Chile 121 Colombia 123 Peru 124 Design, implementation and efficacy  125 Argentina 125

114

viii Contents

Chile 128 Colombia 131 Peru 133 Special focus: cultural and/or budgetary implications  134 Argentina 134 Chile 135 Colombia 136 Peru 136 Conclusions 137 7 Affirmative action in Central America: Influence of the international legislation and jurisprudence of the Inter-American system

138

A M A L I A PA T R IC I A C OB O S C A M P O S

Introduction 138 Overview of the origin and evolution of affirmative action in Central-America  139 Analysis of affirmative action at national level  142 Guatemala 142 Belize 143 Honduras 143 El Salvador  144 Nicaragua 144 Costa Rica  145 Panama 146 Design, implementation and efficacy: relevance of the regional framework in jurisprudence and international instruments in relation to affirmative action  146 Efficacy of affirmative action in Central America  154 Obstacles to implementation  156 Special focus: budget analysis and decision-making priorities 157 Conclusions 158 PART III

Case studies

161

8 Women on corporate boards of public listed companies – a UK and EU gender diversity conundrum

163

H A M I I S I J U N IOR N S U BU G A

Introduction 163 Initiatives taken to improve gender diversity  165

Contents  ix

The European Union normative framework  165 The United Kingdom  167 Gender diversity – policy and procedural stagnation  171 The principle of subsidiarity  171 The principle of proportionality  172 Corporate theory debates  173 Positive discrimination or affirmative action  173 Implementation methodology – ‘comply or explain’ model  174 Conclusions – remedying gender homogeneity  175 9 Persons with disabilities and access to higher education in Brazil

179

I N G O WOL F G A N G S A R L E T A N D G A BR I E L L E BE Z E R R A SA LES SA R LET

Introduction 179 Education as a fundamental right and duty in the Brazilian constitutional architecture  181 General aspects  181 The specific problem of a fundamental right of access to higher education in Brazil  183 Persons with disabilities and access to higher education in Brazil  184 The social model as a premise and key point for the understanding and solution of the problem — the role of the FC and the PDA  184 Persons with disabilities and the affirmative action policies ensuring access to education in Brazil — some general remarks  188 Affirmative actions and access of persons with disabilities to higher education  189 Some data on the Brazilian higher education system  189 Main affirmative actions created and implemented to ensure access of persons with disabilities to higher education 190 Effectiveness of affirmative actions for access to higher education by persons with disabilities  193 Concluding remarks  196 10 Achieving substantive equality: Mainstreaming duties to complement affirmative action measures E R IC A HO WA R D

Introduction 198

198

x Contents

Mainstreaming duties in Europe  199 Equality duties in the UK  201 Northern Ireland  201 Great Britain  202 Assessment of the public sector equality duty in Great Britain  208 Conclusions 211 11 Conclusions

213

E LV I R A D OM I N G U E Z -R E D ON D O A N D E R IC A HOWA R D

Index

223

Contributors

Narciso Leandro Xavier Baez:  Chief Academic Officer at the Centre for Excellence in Law at Universidade do Oeste de Santa Catarina, Brazil. He holds a PhD in Fundamental Rights’ Effectiveness Mechanisms, from Universidade Federal de Santa Catarina; a doctorate degree in Fundamental Rights and Contemporary Rights with a foreign trainee scholarship (PDEE Capes) at the Centre for Civil and Human Rights (Notre Dame University, Indiana, USA, February-July 2011); an LLM degree in Public Law (UNESA); a graduate degree in Civil Procedure, and he has been working as a Federal Judge (4th Region) since 1996. Joshua Castellino:  Executive Director of Minority Rights Group International and Professor of Law at Middlesex University, London, UK. He is also Adjunct Professor of Law at the Irish Centre for Human Rights (Ireland). He has held visiting positions in Ireland, Spain, Hungary and Italy. Joshua worked as a journalist in Mumbai, with the Indian Express Group, was awarded a Chevening Scholarship to pursue an MA in International Law & Politics in 1995, and completed his PhD in International Law in 1998. He is the author of a wide range of publications in international law, human rights law, self-determination, title to territory and minority rights. Amalia Patricia Cobos Campos: PhD in law; research professor at the Faculty of Law of the Autonomous University of Chihuahua, Mexico; she is a member of the National System of Researchers with publications in international journals and individual and collective books in Mexico and other countries such as Brazil and Spain Elvira Dominguez-Redondo:  LLB, Dip. Business Management, MPhil and PhD); is Associate Professor of International Law at Middlesex University, London, UK. She has held visiting positions at Columbia University (USA) and University Alcalá de Henares (Spain). She is the author of a wide range of publications on international law and human rights topics. Rodrigo Hernández-Fernandez:  Instructor Professor of Constitutional Law at the University of Talca, Chile. He holds an LLM and an LLB from

xii Contributors the University of Talca. His research interests focus on social rights and environmental urban planning. Erica Howard: Professor of Law, Middlesex University, London, UK. She holds a PhD in European discrimination law from the University of London; an MA in law and sociology from Brunel University, UK and an LLM in law from Tilburg University, The Netherlands. Her research interests are in the area of equality and non-discrimination law and human rights. Hamiisi Nsubuga: Lecturer in Law, Middlesex University, London, UK. He holds a PhD in Comparative Bankruptcy and Insolvency Law from Nottingham Trent University, UK; an LLM in Corporate Law and an LLB (Hons) from the University of London, UK. He is an advocate of the Supreme Court (Uganda). His main research interests are in the area of Corporate Law, Comparative Bankruptcy and Insolvency Law with a particular focus on the UK, US and the EU. Iván Obando-Camino:  Associate Professor of Constitutional Law at University of Talca, Chile; He holds a PhD in Political Science from the University of Albany, New York, US and an LLB from the Catholic University of Valparaíso, Indiana, US. His research interests focus on fundamental rights and institutional design. Alberto Olivares-Gallardo:  Postdoctoral Researcher at Centre for Advanced Studies of Baines of the Spanish National Research Council (CEAB-CSIC). He holds an S.JD. and an LLB from the Rovira i Virgili University, Spain. He held previous teaching appointments at the University of Talca and the Catholic University of Temuco, both in Southern Chile. His research interests focus on fundamental rights and environmental policy. Gustavo Rayo-Urrutia: Assistant Professor of Public Administration at University of Talca, Chile. He holds a PhD in Political Studies from the University of Grenoble, Switzerland and a BPA from the University of Chile. His research interests focus on social policy and governmental transparency. Gabrielle Bezerra Sales Sarlet:  Lawyer, Undergraduate and Master of Law from the Federal University of Ceará (UFC), Brazil. She holds a PhD in Law from the University of Augsburg, Germany. Post-Doctorate in Law from the University of Hamburg, Germany and Post-Doctorate in Law from the Pontifical Catholic University of Rio Grande do Sul (PUCRS) Porto Allegre, Brazil. She is currently Associate Professor of Constitutional Law at PUCRS. Ingo Wolfgang Sarlet:  PhD and Post-Doctorate in Law from the University of Munich, Germany, and Post-Doctorate at the Max-Planck-Institute for Social Law and Social Policy in Munich and at the Max-Planck-Institute for International and Comparative Private Law in Hamburg, Germany. He is a

Contributors  xiii full Professor at the Pontifical Catholic University in Porto Alegre, Brazil (PUCRS). He is also a judge at the State Appeal Court Rio Grande do Sul, Brazil. Sayantani Sen:  Legal Research Associate at Minority Rights Group International, London, UK. She holds a Masters of Law from the University of Liverpool as Hodgson fellow (2018–9). She is a lawyer and has been admitted to practice in the Bar Council of India.

Part I

Typology of affirmative action measures

1

Introduction Elvira Dominguez-Redondo and Erica Howard

General background This book is the result of a joint research project between Universidade do Oeste de Santa Catarina (UNOESC, Brazil) and Middlesex University (United Kingdom) on affirmative action measures in the UK, South Africa, China, India and Latin America. Academics from the Pontifical Catholic University in Porto Alegre, Brazil (PUCRS), University of Talca (Chile) and University of Chihuahua (Mexico) have also collaborated in this joint effort to analyse affirmative action policies in the countries under review. The first phase of the project culminated in another edited book where contributors reviewed the existing affirmative action measures and how these have developed in the countries chosen for analysis.1 During the second phase of the project, the scope of the research was expanded to the practical application of affirmative action measures and their utility and efficacy in achieving their aims in the relevant jurisdictions. The researchers involved have focused on the role of temporary affirmative action measures in redressing structural inequalities suffered by designated groups by increasing the proportion of members in these groups in relevant labour, academic, governmental or non-governmental positions where they are underrepresented. This book includes the main conclusions reached by assessing the progress of such legal and policy measures in Argentina, Belize, Brazil, Chile, China, Colombia, Costa Rica, Guatemala, Honduras, India, Nicaragua, Panama, Peru, El Salvador, South Africa and the United Kingdom. All the countries chosen provide for some form of affirmative action for certain disadvantaged groups in their national laws, but little research has been done into the extent and efficacy of these measures in many of these countries and literature on this remains scarce. Most scholarship (especially in the English language) focuses on the United States, where these measures have been studied, tested and contested at length. Some other countries have also been studied, but these studies often focus on specific and narrow measures, for example, gender-based quotas or projects for indigenous people. 1 Baez, N; Dominguez-Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018.

4  Elvira Dominguez-Redondo and Erica Howard This book is divided into three parts with 11 constituent chapters overall. The first part (Chapters 1 and 2) describes and classifies the emerging and/or consolidated typology of affirmative action measures. The research supporting this section seeks to offer a commentary on the extent to which affirmative action forms an integral part of the international norm prohibiting discrimination, reflecting on trends emerging from State practice and opinio juris. The decision to establish affirmative action measures remains a prerogative of the State, but growing international jurisprudence is advocating their adoption, particularly when engaging with African-descent discrimination and discrimination against women. This development seems concomitant to the progressive acceptance of an autonomous right to ‘equality’ rather than its understanding as a principle underpinning the human rights agenda or as an accessory to the enjoyment of other rights, although the scope and concrete meaning of such a right remain controversial. Whether this advancement bears fruits in terms of a more effective enjoyment of human rights, or in saving the human rights discourse currently under attack, remains uncertain. The second part of this collection (Chapters 3–7) aims at providing a coherent and systematic approach to the analysis of special temporary measures in the targeted countries. The final part of the book (Chapters 8–10) comprises two thematic case-studies seeking to provide insight into the outcomes derived from implementing affirmative actions in concrete areas. This part also has a chapter suggesting an alternative way towards greater equality which can be used to complement affirmative action measures. Chapter 11 contains main conclusions derived from the comparative analysis of the success or failure of affirmative action measures which will be systematically presented in the final, concluding section of the book. This introductory chapter will start with an overview of the conceptual framework of affirmative action measures for the purpose of this book, followed by the typology of affirmative action measures in State practice. The last part of this introduction gives an overview of the subsequent chapters.

Conceptual framework of affirmative action State practice reveals a great variety of affirmative action measures in terms of identification of the groups benefiting from them, the ‘soft’ or ‘hard’ approach adopted, the legal framework embedding special measures and the forms of implementation. Moreover, the term ‘affirmative action’ is not the only term used in this context, as, for example, in Europe, ‘positive action’ is more common; international institutions tend to prefer the term ‘special measures’; other terms such as ‘remedial measures’, ‘preferential policies or treatment’, ‘reservations’, ‘compensatory actions’ or ‘distributive justice’ can also be found. These terms are often used as synonyms without much explanation as to what the terms mean and there is, therefore, a lack of unified terminology. In this book, the terms ‘affirmative action’, ‘special measures’ or ‘positive action’ will be used to describe the use of policies, programs, rules and administrative actions that

Introduction  5 treat members of disadvantaged groups differently to assist in overcoming the obstacles and discrimination they face in contemporary society.2 In simple terms, the objective pursued through the adoption of affirmative action measures is de facto equality. However, here again, there is lack of agreement on what exactly this means and there is confusion about the terms used; for example, terms like ‘equal opportunities’, ‘effective equality’, ‘substantive equality’, ‘factual equality’ or ‘equality in practice’ can all be found in the literature. For a better understanding of the intended meaning, when referring to de facto equality, it is necessary to examine the rationale explaining the creation and development of affirmative action measures. When States adopt measures with the aim of achieving equality, the first step is usually to adopt legislation which declares that everyone is equal before the law and has a right to equal protection of the law. This includes a right to be treated equally to everyone else who is in the same situation. This is often referred to as formal equality, equality before the law, de jure equality or equal treatment. This concept of equality is based on the Aristotelian premise that like should be treated alike. Therefore, formal or de jure equality lies in the consistency of treatment. However, looking at equality in this way raises the question: who is like whom? This concept does not appear to take account of or recognise the material differences between people. Neither is there any attention for inequalities and social disadvantages that exist for certain groups in society because of past and ongoing discrimination. For this reason, a more substantive concept of equality as an additional basis for anti-discrimination legislation has been introduced in most countries to correct these inequalities and, thus, aiming for de facto equality3 or equality in practice.4 Laws allowing for affirmative action and aiming at substantive equality could fall into either of two types of substantive equality: equality of opportunity or equality of results. Both concepts recognise that some groups cannot reach the situation of ‘being alike’ because of past and ongoing discrimination and thus that applying a formal equality concept to them will not lead to more equality. Laws aiming at a concept of equality of opportunity concentrate on equalising the starting point for everybody, on reaching the point where they are alike and thus can be treated alike. Laws aiming at equality of results concentrate on 2 O’Cinneide, C. Positive action. ER A, 2012. P. 1: http://www.era-comm.eu/oldoku/SNLLaw/ 04_Positive_Action/2012_Cinneide_EN.PDF (accessed 6 April 2020). 3 This term is used in Article 4 of the Convention on the Elimination of All Discrimination Against Women which mentions: ‘temporary special measures aimed at accelerating de facto equality between men and women…’. 4 The term ‘equality in practice’ is, for example, used by the European Union in its legislation allowing affirmative action measures, see, for example, article 157(4) of the Treaty on the Functioning of the European Union (TFEU). This section starts with: ‘with a view to ensuring full equality in practice…’. The articles regarding affirmative action in the EU anti-discrimination Directives contain the same words. See further on this: Howard, E. Affirmative action in the UK and in South Africa. In: Baez, N; Dominguez-Redondo, E. (supra note 2, PP. 186–190).

6  Elvira Dominguez-Redondo and Erica Howard equalising not the starting point but the end result. Such laws aim to correct the unequal distribution of goods and resources in society and to achieve a more representative participation of all groups in public life.5 The objective of affirmative action measures is thus substantive or de facto equality, and this can encompass either or both equality of opportunity and equality of results, depending on how these measures are laid down in legislation. Independent of the objective, the kind of affirmative action this book focuses on involves preferential or more favourable treatment to some groups, and this means that other groups are treated less favourably or unequally. Many affirmative action measures are considered to be going against the idea of equal treatment and are thus seen as unfair and unjust especially by those who do not get the preferential treatment, who see themselves as ‘innocent victims’. All this should be kept in mind when reading the chapters in this book.

The typology of affirmative action measures in state practice The colourful spectrum of terminology to refer to affirmative action measures denotes a lack of consensus over their conceptual contours. The different terms used as synonyms are not reflecting the same meaning depending on the user and the context. Not all affirmative actions involve differential treatment, once implemented. There is a wide range of measures that are included under the banner ‘affirmative action’. While certain measures may be aimed at achieving greater equality for targeted groups, they may equally benefit the rest of the population. This is the case, for instance, of the introduction of lifts in public buildings for persons with impaired mobility. Following the typology advanced by Bossuyt, it is possible to distinguish between ‘affirmative mobilisation’, ‘affirmative fairness’ and ‘affirmative preference’.6 The first category (affirmative mobilisation) comprises measures to encourage and sensitise the targeted group to apply for a social good, such as a job or a place in an educational institution. These measures are designed to facilitate the acquisition of necessary skills or awareness to allow their beneficiaries to compete for the aspired job or place in a particular educational programme. The term ‘affirmative fairness’ refers to measures that are adopted to ensure the attribution of a social good has not been tainted by discrimination based on sex, ethnicity, age or any other relevant ground. They include grievance procedures to handle discrimination complaints or anonymous evaluation of merits for the purpose of recruitment or promotion. Both affirmative mobilisation and affirmative fairness measures encounter little resistance among the general

5 For a more extensive discussion see: Howard, Ibid., PP. 186–190. 6 Bossuyt, M. The concept and practice of affirmative action. In: Boerefijn, I; Coomans, F; Goldschmidt, J; Holtmaat, R; Wolleswinkel, R. (Eds.) Temporary special measures. Antwerp/Oxford/ New York: Intersentia, 2003. P. 65.

Introduction  7 population because the measures do not entail the exclusion of those who are not members of the targeted group.7 Affirmative action measures are normally associated with what Bossuyt calls ‘affirmative preferences’, where the characteristics of the beneficiary group, such as race or sex, will be taken into account when granting or denying a social good. Their milder version consists of giving preference of access to the specific social good to the person belonging to the designated group. For instance, this is mainstream practice in the UK where women may be given preference in recruitment if they are otherwise equally qualified as other candidates. In their more radical form, affirmative preferences consist of measures, such as quotas, that prevent persons not belonging to the designated group access to a public good. Affirmative actions may be introduced as voluntary guidelines or compulsory rules. They can apply only to sectors controlled by the State, such as public educational institutions or public-work contracts or to all relevant agents, public and private, as illustrated in the chapters of the book. ‘Softer’ measures, such as the portrayal of women in the marketing materials of the Science Department of a University to combat gender stereotypes are generally well accepted and received, while ‘harder’ measures such as imposing obligatory quotas for the employment of women are hotly contested, using arguments that are summarised below.

Opposition and criticisms to affirmative action measures The well-argued rationale supporting the existence of affirmative action and their protracted history at national, regional and international level are not enough to dismantle the strong opposition towards affirmative action. Several factors contribute to this outcome. First, as already alluded to, affirmative action measures suffer from lack of popularity because they tend to target minority groups and therefore their benefits are inaccessible to the majority of the population. However, measures aimed at accelerating the equality of groups who are not a minority, such as women or Afro-descendants in Brazil, still face strong antagonism. Therefore, other aspects also influence the backlash against affirmative action measures. The ultimate objective pursued through the adoption of affirmative action measures is de facto equality. Equality and non-discrimination are probably the least contested principles of all legal systems and the pillar of the international human rights edifice. However, there is no consensus on the content of the ‘equality’ different societies seem to agree on. The dissimilar approach to affirmative action in the countries under examination in this book and by United Nations (UN) human rights mechanisms, partly responds to lack of agreement on the meaning of de facto equality, which includes a range of disputed ideals such as equal opportunities, equality of results, effective equality or substantive equality.

7 Ibid., P. 67.

8  Elvira Dominguez-Redondo and Erica Howard The existence of affirmative action measures in a growing number of countries on all continents, and their increased presence in the jurisprudence of international human rights mechanisms, suggest that they are perceived as a necessary tool to achieve equality. However, more reliable data is still needed to support the need to adopt such provisions, to identify the beneficiary groups and to assess their effectiveness in the short, medium and long term. Statistics on the beneficiaries of affirmative actions are unreliable and controversial in many regions of the world. Existing statistics are also deficient or inexistent for measuring how much affirmative action measures are narrowing the gap they are trying to eliminate. States should maintain a compilation of affirmative actions in force that would allow their periodic evaluation at national and international level. In absence of such information, decision-making bodies at domestic level and international bodies are attempting to provide recommendations that can only remain vague with limited value. Even when evidence exists, policy-makers and the public seem to ignore it and/or reject it. For instance, using persons with disabilities as a relevant example, the British Chancellor Phillip Hammond concluded, in 2017, that affirmative actions to increase participation ‘by marginal groups’ were linked to the low levels of productivity in the UK.8 As amply illustrated by the chapters of Baez or Nsubuga in this book, the introduction of ‘soft’ measures have made little difference in achieving their objectives while others, such as quotas, have resulted in dramatic increases in women holding positions of responsibility or the representation of Afro-Brazilians in education.9 However, making data available and launching awareness-raising campaigns aimed at debunking myths about affirmative action measures have not yielded the expected positive results.10 In addition, common criticisms also refer to the potential for special measures to be perceived as paternalistic by the members of the targeted group, stigmatising beneficiaries and breeding resentment against them. When there is a need to demonstrate the beneficial impact of affirmative action measures, a significant amount of resources is devoted to this aim rather than achieving the original goal. Finally, affirmative action measures hardly ever address the reasons conducing to structural inequality. For instance, affirmative action measures



Introduction  9 targeting the poor often try to mitigate the damage caused by austerity policies, instead of redressing the situation by reversing the original cause.

Overview of the chapters In Chapter 2, Dominguez-Redondo analyses the fragmented approach of the UN bodies to special measures. This approach reflects the diversity of policies, legislation and administrative practices across jurisdictions. The right to effective equality in the enjoyment of human rights, articulated in international treaties, has been interpreted as creating a positive obligation on the State to incorporate provisions on special measures in their legal system. This obligation has been a rticulated for the most part, but not consistently, as distinct from the general positive obligation of States parties to protect human rights on a nondiscriminatory basis. Domínguez-Redondo argues that the treatment of affirmative actions by UN human rights bodies, especially treaty bodies, is scattered and that this undermines their potential contribution to this field. She also argues that there is no common consensus on the design and implementation of actual affirmative actions. In this chapter, Dominguez-Redondo analyses the recommendations of UN human rights treaty bodies regarding the States examined in this book. She identifies emerging trends in the international jurisprudence, in particular, the growing number of recommendations calling upon States to address structural inequalities affecting women, people of African descent and indigenous peoples through the adoption of affirmative action measures. Part II, which looks at the efficacy of affirmative action measures in a number of countries, starts with a chapter by Castellino and Sen who examine such measures in China and India. Both these countries have well-advanced legal provisions that are based on a pragmatic realisation that the accommodation of difference through de facto equality is directly linked to the maintenance of peace and security. The two most populous countries in the world have generated significant materials, governmental policies and legislative and administrative measures to seek to enshrine values of equality within their national consciousness. While these measures could be enhanced by better design, their main drawback lies in the extent to which they can be implemented in a meaningful manner through the existing political systems. The authors seek to offer a contrast between the ways affirmative action measures are designed in each country, focusing on their efficacy and implementation. Through highlighting recent contestations, motivated by socio-economic realities, Castellino and Sen portray the contemporary factors that have arisen in both countries against two very contrasting political systems: a multi-party democracy and a single-party authoritarian regime, to show how, despite these widely different backgrounds, the outcome and attitude towards affirmative action measures are strikingly similar. The chapter sheds light on the extent to which populist governments have undermined affirmative actions in both countries. In Chapter 4, Howard examines the efficacy of affirmative action measures in the UK and in South Africa by focusing on the implementation of the specific

10  Elvira Dominguez-Redondo and Erica Howard forms of affirmative action provided for in legislation in these countries, if and how they are used in practice and whether they achieve their aim: de facto equality. The legislation and the forms of affirmative action are different in England, Scotland and Wales on the one hand, and in Northern Ireland on the other, and the latter is thus analysed separately. The criticism raised against these measures and the influence of this on their use and efficacy is part of this analysis. Howard examines the duty to make reasonable accommodation for disabled people in the UK and South Africa. She argues that one area where affirmative action measures in the form of a duty to make reasonable accommodation appear to have been more successful and to have been accepted more easily by many who criticise such measures in other areas are affirmative action measures for people with a disability. In Chapter 5, Baez explores the challenges facing the implementation of affirmative action measures in Brazil through the lens of domestic and international law. He concentrates on five groups: women, Afro-Brazilians, Indians, disabled people and LGBT people and starts with an overview of the creation, implementation and efficacy of affirmative action measures for these groups. He then analyses the obstacles to their efficacy, including the costs of affirmative action measures and attempts to identify a suitable methodology through which a cost-benefit analysis can be undertaken. Through a budget analysis based on the current Brazilian government’s budget allocations to affirmative action measures for these five groups Baez seeks to assess how this budget reflects priorities in governmental policies. He finishes with a part on alternative models to make these measures more effective. This is followed by an analysis by Obando Camino, Olvares Gallardo, Rayo Urritia and Hernandez Fernandez of the efficacy of affirmative action measures in Argentina, Chile, Columbia and Peru. All four countries have adopted different affirmative action measures over the past decades to address the demands for equality by some groups in their respective societies that have been historically excluded and segregated from the public space, such as women, indigenous people and persons with disabilities. This chapter includes an overview of constitutional provisions guaranteeing equality and their link with affirmative action measures. Authors conclude that their analysis of the effectiveness of such measures reveals mixed results in the medium term, especially when one considers their implementation process. Authors describe how, in some of the targeted countries, the implementation of affirmative action measures have faced legal challenges before the courts, in addition to the cultural and budgetary implications that the policy-making process apparently overlooked at their inception. Obando Camino et al. review the legal, cultural and budgetary factors that have affected the implementation process of affirmative action measures in these countries, and assess their effectiveness. Chapter 7, by Cobos Campos, examines the incorporation and the efficacy of affirmative action measures in Central America from the perspective of international, regional and domestic law. The author scrutinises the impact of the jurisprudence of the Inter-American System for the promotion and protection

Introduction  11 of human rights in Central America and uses it as benchmark for the American Convention on Human Rights, the Protocol to the American Convention on Rights Human Rights on Economic, Social and Cultural Rights, the ‘Protocol of San Salvador’, the Inter-American Convention to Prevent and Punish Torture and the Inter-American Convention on Forced Disappearance of People. It explores the constitutional framework governing affirmative action measures in Central American countries as a central litmus test for the entire legal system. This chapter also engages with the budgetary implications of affirmative action measures in countries with limited resources. After this overview of affirmative action measures and their efficacy, Part III presents two thematic case studies and a chapter about an alternative and complementary way to achieve de facto equality. In Chapter 8, Nsubuga analyses the current state of affairs in relation to gender diversity on the boards of public listed companies in the UK and the EU. The author analyses the proposed EU Directive on Women on Company Boards and related matters, the current stage of the proposed Directive and the reasons why it has not been adopted for over seven years. Key conceptual underpinnings that may have contributed to the procedural paralysis in the adoption of the Directive are included in the analysis. Nsubuga examines the position and current state of affairs of women on corporate boards of FTSE listed companies in the UK as well as initiatives taken by the UK government and institutional players to address this concern. The chapter also discusses the reason why the UK government’s recommendation for FTSE listed companies to achieve a 40% representation of women on FTSE boards by 2020 has not been attained and offers a suggestive solution. In Chapter 9, Sarlet and Sarlet examine the situation regarding access to higher education in Brazil. They discuss the 1988 Brazilian Federal Constitution that established a generous catalogue of fundamental rights, including civil, political, social, economic and cultural rights; and, that one of the major goals of the constitutional order is to reduce inequalities and combat any kind of discrimination. The authors explain several equality-oriented policies adopted since then, including affirmative action measures to improve the inclusion of people with disabilities. They also analyze additional obligations and standards accepted by Brazil’s ratification of the United Nations Convention on the Rights of Persons with Disabilities and the Brazilian Statute for Persons with Disabilities and the challenges they add for the State and for civil society, one of which is to guarantee access to education, from primary school through to University. They then outline the legal framework and the measures introduced to combat discrimination in the access to education for persons with disabilities and attempt to assess the impact of such measures based on available socio-economic data. The authors finish with suggesting alternative measures to improve the inclusion of persons with disabilities in the education system in the context of a profoundly unequal country. In Chapter 10, Howard discusses mainstreaming duties as they exist in the EU and the UK. Mainstreaming equality means that an authority or organisation must take equality into account in everything they do, including decision

12  Elvira Dominguez-Redondo and Erica Howard making, service delivery and employment. It means that they need to consider the impact of their actions on equality and on the groups protected by antidiscrimination legislation. The commitment of the EU to mainstream equality and non-discrimination is briefly examined, but the main part of this chapter focuses on the Public Sector Equality Duty, a mainstreaming duty, laid down in section 149 of the British Equality Act 2010. This section determines that a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination and other prohibited conduct, to advance equality of opportunity and to foster good relations. A similar duty can be found in section 75 of the Northern Ireland Act 1998. Howard discusses that the duty means that public sector bodies need to be more proactive towards avoiding discrimination and promoting equality. She argues that this duty can provide a clear addition to the affirmative action measures as discussed throughout the book in order to reach de facto equality or real equality in practice for all people. Chapter 11 contains the conclusion as to the efficacy of affirmative action measures. Relying on the findings of the different chapters, this concluding section offers an overview of the success of affirmative action measures in the countries examined and globally from a comparative perspective and highlights the obstacles to full efficacy.

2

Universalism or fragmentation United Nations treaty bodies and affirmative actions in Latin-America, the United Kingdom, South Africa, China and India Elvira Dominguez-Redondo

Introduction Equality and non-discrimination are the most fundamental pillars of the international human rights edifice. The State founders of the United Nations (UN) were not ready to agree on a catalogue of rights despite timid references to human rights in different provisions of its foundational treaty.1 Conversely, the UN Charter already proclaimed equality between men and women to participate in the organs of the United Nations (article 8) and universal respect for human rights without distinction as to race, sex, language or religion (article 55). Since then, all human rights instruments at international and national level explicitly refer to the principles of equality and non-discrimination. The consensus on the principle is yet to be translated into consensus on the best means to achieve equality, with disagreement especially visible regarding the efficiency of affirmative action measures. Decisions on types of measures, targeted groups and monitoring mechanisms to assess the attainment of objectives pursued by affirmative action measures, where those exist, depend on the specific environment in which they are introduced. As this book demonstrates, different approaches adopted towards the design and implementation of affirmative action around the globe obey to specific cultural, geographical, economic or social factors; they also reflect the absence of consensus that characterises this issue at domestic, regional and international level. Existing scholarship and jurisprudence in the field further reveals the absence of standardised approaches to policies and measures conventionally included under the rubric ‘affirmative action’ or ‘special measures’ as they will be referred to in this chapter. The absence of uniform terminology or criteria to decide whether specific groups should receive different treatment with the aim of achieving greater 1 Reference to ‘human rights’ can be found in the preamble of the Charter as well as in articles 1, 13, 55, 56, 60, 62 and 68, UN Charter of the United Nations, adopted on 26 June 1945, in force on 24 October 1945.

14  Elvira Dominguez-Redondo equality hinders the attempt to frame the issue beyond the boundaries of individual States in a coherent manner, especially from a legal perspective, because their implementation becomes particularly unpopular when States enforce them by law. This chapter addresses whether the international human rights regime contributes to harmonise regulatory frameworks and principles concerning affirmative action or, conversely, whether it merely reflects on the diversity of State practices in this area. For this purpose, this chapter explains and updates the arguments and conclusions drawn from previous research analysing the relevant activity of UN human rights monitoring mechanisms and treaty provisions in this field.2 It then focuses specifically on the recommendations on affirmative action measures issued by the United Nations treatybodies to the States covered by this book. It evaluates the different engagement of committees with relevant State parties and identifies common trends and inconsistencies of the UN human rights mechanisms in their treatment of special measures.

United Nations human rights bodies approach to special measures: overview Nine international human rights treaties have set up a body of experts (known as committees or treaty-bodies) to monitor the compliance of State parties with their provisions with the administrative support of the United Nations Organisation. These conventions are known as the core human rights treaties.3 In all of them, a specific article contains a general prohibition of discrimination in the application of the relevant treaty. For decades, only the 1965 Convention on the Elimination of All Forms of Racial Discrimination4 and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women5 included specific provisions on affirmative action measures, joined, more recently, by the 2006 Convention on the Rights of Persons with Disabilities.6 The Convention on the Rights of Persons with Disabilities uses the terminology ‘specific

2 See: Dominguez-Redondo, E. The United Nations approach to temporary special measures. In: Baez, N; Dominguez Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018. PP. 239–266. 3 The list of treaties included under this category is available at the Website of the Office of the UN High Commissioner for Human Rights (OHCHR): https://www.ohchr.org/EN/ ProfessionalInterest/Pages/CoreInstruments.aspx (accessed 2 April 2020). 4 The oldest of the core human rights treaties, it was adopted on 7 March 1965, entry into 4 January 1969, 660 UNTS 195. 5 Adopted on 18 December 1979, entry into force 3 September 1981, 1249, United Nations Treaty Series (UNTS) 13. An Optional Protocol to this Convention was adopted on 6 October 1999, conferring competence to CEDAW to deal with individual complaints, entry into force 22 December 2000, 2131 UNTS 83. 6 Along with its Optional Protocol, it was adopted on 13 December 2006, entry into force 3 May 2008, 2515 UNTS 3.

UN approach. Universalism or fragmentation  15 ­

Other UN Committees monitoring core human rights treaties that do not enshrine specific provisions regarding affirmative action have also contributed to clarify the criteria to identify beneficiaries of differentiated treatment and scope of special measures. Similarly, the bodies known as ‘UN Charter bodies’, including the Special Procedures and the Universal Periodic Review mechanisms which are subsidiary to the Human Rights Council, have addressed the topic of affirmative action in their role of monitoring the compliance of States with international human rights standards.

Treaty provisions on special measures The Convention on the Elimination of All forms of Racial Discrimination clarifies from its first article that special measures aimed at ensuring the development and protection of certain racial groups or individuals belonging to them with the aim of guaranteeing them the full and equal enjoyment of human rights do not constitute discrimination. Article 1(4) states: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however that such measures do not, as a consequence, lead to the maintenance of separate rights or different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. This is complemented by article 2.2 imposing an obligation to adopt special measures under certain circumstances: States parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure

16  Elvira Dominguez-Redondo the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. Article 3 of the Convention on the Elimination of All Forms of Discrimination Against Women imposes similar positive obligations on State Parties to ensure the advancement of women.7 Article 4 highlights the permissibility of special measures to accelerate the process of advancing equality: 1 Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2 Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory The Convention on the Rights of Persons with Disabilities also clarifies that specific measures aiming at accelerating or achieving equality are not considered discrimination (article 5.1).

Conceptual framework States around the globe have used affirmative action measures as a means of redressing structural inequality profusely. They have been the object of scrutiny by academics, legislators, policymakers and the public. They have also been addressed by bodies belonging to regional organisations and the United Nations as attempts to standardise practices or assess their compatibility with international standards. However, there is no generally accepted legal definition of special measures at national or international level, despite relevant initiatives. At United Nations level, the now defunct Sub-Commission on the Promotion and Protection of Human Rights appointed an expert, Marc Bossuyt, as Special Rapporteur to prepare a study on the concept of affirmative action in 1998. His final report, submitted in 2002, outlines the concept of affirmative action, 7 Article 3: State Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

UN approach. Universalism or fragmentation  17 the criteria to justify their design and implementation and different forms of ­affirmative action.8 The Special Rapporteur started by adopting the following working definition of affirmative action: Affirmative action is a coherent packet of measures, of a temporary character, aimed specifically at correcting the position of members of a target group in one or more aspects of their social life, in order to obtain effective equality.9 The approach of the Special Rapporteur focused on the criteria to identify the groups sufficiently disadvantaged to deserve special treatment, emphasising the need for a sufficient connection between the aim sought with affirmative action measures and the means to achieve such purpose. The report also highlights ‘the importance of not basing affirmative action solely on group membership, but of taking other factors, such as socio-economic factors into account to verify if someone qualifies or affirmative action’.10 As for the grounds justifying the introduction of affirmative action for specific groups, Marc Bossuyt listed the following: (a) remedying or redressing historic injustices; (b) remedying social/structural discrimination; (c) creation of diversity or proportional group representation; (d) social utility generated by increasing the well-being of people; (e)  pre-emption of social unrest; (f) better efficiency of the socio-economic system; and, (g) as a means of nation building. The outcome has been criticised for its formalistic approach, the emphasis on meritocracy, the disregard for the impact of historic discrimination in present generations and the neglect towards updating the meaning of equality sought with the 2001 Durban Conference.11 In the context of the Convention it monitors, CERD has articulated the most complete definition of the meaning of special measures. According to this Committee: “Measures” includes the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture, and participation in public

8 The concept and practice of affirmative action. Final report submitted by Mr. Marc Bossuyt, Special Rapporteur in accordance with Sub-Commission Resolution 1998/5, UN doc. E/CN.4/ SUB.2/2002/21 (2002). 9 Ibid., Para. 6. 10 Ibid., Para. 15. 11 Romany, C; Chu, J.B. Affirmative action in international human rights law: a critical perspective of its normative assumptions. 36 Connecticut Law Review (2004) PP. 859 and 860.

18  Elvira Dominguez-Redondo life of disfavoured groups, devised and implemented on the basis of such instruments.12 In the jargon of the United Nations Organisation, the term ‘special’ refers to the temporary nature of any measure that is meant to be removed once the objective aimed at with its implementation is achieved. The time and objective-bound nature of special measures is implied in the word ‘special’. Contrary to the Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women includes the redundant expression ‘temporary special measures’ in its article 4.2 reproduced above. This probably explains that, in its General Comment No. 25, CEDAW distinguishes the meaning of ‘temporary’ from ‘special’, relating ‘temporary’ to their provisional nature and ‘special’ to the specificity of the goal they aim to achieve.13 CEDAW and CERD have been the most prolific human rights mechanisms in addressing affirmative action, as can be expected from the bodies monitoring treaties containing express provisions on affirmative action and the many years they have been in operation. Still, other treaty-bodies have also engaged with the issue. Already in 1981, the Human Rights Committee – monitoring the implementation of the Covenant on Civil and Political Rights14 – concluded that its articles 2.1 (prohibition of discrimination), 3 (equality between women and men) and 26 (equality before the law) ‘requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights’.15 The attempts of treaty-bodies to provide definitions of special measures have been mostly linked to advancing effective equality as primary purpose. Special measures are generally conceived as remedial actions to address the substantial discrimination suffered by certain groups. The Committee on Economic and Social Rights (CESCR) has adopted a more ambitious stance.16 In its General Comments No. 16 (2005) and No. 20 (2009) this body has departed from a more traditional interpretation,17 and has understood affirmative action as a means to suppress conditions that perpetuate discrimination, implying that these measures should tackle the underlying causes of discrimination. Furthermore, CESCR has advanced a conception of special measures that should bring ‘disadvantaged or marginalised persons or groups of persons to the same substantive level as others’. In other words, CESCR considers that the objective 12 General Recommendation No. 32 – The meaning of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD/C/GC/32, 24 September 2009) Para. 13. See also CEDAW General Recommendation No. 25 on Temporary Special Measures (2004) Para. 22. 13 CEDAW General Recommendation No. 25 (supra note 12, paras 20–22). 14 Adopted on 16 December 1966, entry into force 23 March 1976, 999 UNTS 171. 15 ICCPR General Comment 4, Article 3: Equality between the sexes (1981) Para. 2. 16 CESCR monitors the implementation of the International Covenant on Economic, Social and Cultural Rights, adopted on 13 March 1966, entry into force 3 January 1976, 993 UNTS 3. 17 See, for instance: CESCR General Comment No. 13, UN doc. E/C.12/1999/10 para. 32 or ICCPR General Comment No. 18 on non-discrimination (1990) para. 10.

UN approach. Universalism or fragmentation  19 of such provisions should be the achievement of equality of results, although this interpretation is at odds with the intention of the drafters of the Covenant on Economic, Social and Cultural Rights for whom equality of opportunity constituted the main objective.18 Both CEDAW and CERD’s position is that obligations of States parties towards achieving effective equality are independent of proof of historic discrimination; CEDAW also takes a more progressive view on the objective of affirmative action measures and conceives them as a means to transform structural, social and cultural changes underpinning past and current discrimination associating them with equality of results.19

Special measures as a distinct category It is normal to distinguish affirmative action or special measures from other measures that share the objective of promoting equality. Special measures are articulated as exceptional with an autonomous meaning and serving a specific function. The successful implementation of special measures is theoretically assessed by becoming unnecessary, when the goal sought with their introduction is achieved.20 As explained by CERD, they are thus allegedly different from the positive obligation imposed on States ‘to secure human rights and fundamental freedoms on a non-discriminatory basis to persons and groups subject to their jurisdiction’.21 The temporary nature of special measures also distinguishes them from permanent rights enjoyed by specific categories of persons or community such as minorities or indigenous peoples.22 CEDAW adopts the same approach in its General Recommendation No. 25 to clarify the relationship between paragraphs 1 and 2 of article 4 of the Convention on the Elimination of All Forms of Discrimination Against Women. Using the words of CEDAW:23 There is a clear difference between the purpose of the ‘special measures’ under article 4, paragraph 1, and those of paragraph 2. The purpose of article 4, paragraph 1, is to accelerate the improvement of the position of

18 See: Teklè, T. An international perspective on affirmative action. In: Dupper, O; Sankaran, K. (Eds.) Affirmative action, a view from the global South. Stellenbosch: Sun Press, 2014. P. 113. 19 See: Chinkin, C. The CEDAW Committee and violence against women. In: Farrior, S. (Ed.) Equality and non-discrimination under international law. London/New York: Routledge, 2017. P. 369; Teklè, T. (supra note 18, PP. 99–100). 20 CERD General Recommendation No. 32 (supra note 12, paras 12 and 13). See also general comments of the Human Rights Committee regarding the implementation of the International Covenant on Civil and Political Rights: ICCPR General Comment No. 18 on non-discrimination (1990) Para. 173 and ICCPR General Comment No. 25 on the right to participate in public affairs, voting rights and the right to equal access to public services (1996) Para. 23. For an early reminder of the obligation contained in the Convention, see: CEDAW General Recommendation No. 5 (1988). 21 CERD General Recommendation No. 32 (supra note 12, para. 14). 22 Ibid., Para. 15. 23 CEDAW General Recommendation 25 (supra note 12, paras 15 and 16).

20  Elvira Dominguez-Redondo women to achieve their de facto or substantive equality with men, and to effect the structural, social and cultural changes necessary to correct past and current forms and effects of discrimination against women, as well as to provide them with compensation. These measures are of temporary nature. However, the measures referred to in article 4.2 provide for different treatment of women and men based on biological differences that are, therefore, permanent unless scientific or technological advances warrant review of this position.24 The attempts to formulate different conceptual frameworks for temporary special measures and permanent positive obligations based on characteristics of persons belonging to a group reveals that boundaries are blurred, and the theoretically distinct categories can apply to a wide variety of situations. This is reflected in the language used in the 2009 General Comment of the Committee on Economic, Social and Cultural Rights (ICESCR), when it states that: In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved. Such positive measures may exceptionally, however, need to be of a permanent nature, such as interpretation services for linguistic minorities and reasonable accommodation of persons with sensory impairments in accessing health-care facilities.25 The Committee on the Rights of the Child also refers at times to ‘affirmative measures’. However, the Committee normally refers to steps to ensure that children gain the facto enjoyment of their rights, such as education and health, rather than measures aiming at achieving ‘equality’.

Conditions and beneficiaries Treaty bodies have laid out the conditions that special measures should meet in order to remain compatible with the principle of non-discrimination. They must aim at achieving the objectives and purposes protected by the relevant human rights treaty. Their duration in time is subjected to accomplishing the objective pursued with their creation, and therefore they must be temporary.26 Commit-

24 Ibid. 25 ICESCR General Comment No. 20, Non-discrimination in economic, social and cultural rights (article 2.2. of the International Covenant on Economic, Social and Cultural Rights) UN doc. E/C.12/GC/20 Para. 9. 26 CERD General Recommendation XIV (March 1993) UN doc A/48/18; CERD General Recommendation XXX on discrimination against non-citizens (2005) Para. 4; CESCR General

UN approach. Universalism or fragmentation  21 tees have rarely expressed concern about the longevity of special measures, 27 but have insisted that their temporary nature implies the need to follow-up, which in turn, requires a revision of the data justifying their introduction in the first place.28 In designing special measures, States must assess the socio-economic and cultural status of different groups in the population and their participation in the development of the country. This assessment must be based on disaggregated data, incorporating a gender perspective, by race, colour, descent and ethnic or national origin.29 Beneficiaries of the special measures should be consulted, and they have an active role regarding their design and implementation. In all cases, the special measures should be tailored to the situation they are trying to change, necessary in a democratic society and should respect the principles of fairness and proportionality. The identification of the beneficiaries of special measures must be based on structural disadvantage, as proven by reliable disaggregated data. Three specific human rights treaties identify as potential beneficiaries of affirmative action – people suffering from racial discrimination, women and persons with disabilities. The identification of other groups depends on the economic, social and cultural realities of concerned countries and regions, a task that is normally left to the legislator.30 Therefore, while committees have identified beneficiaries of special measures in their jurisprudence resulting from individual communications and the review of country reports, it is unusual they do so for all communities fitting a specific category universally. Over time, treaty bodies have started identifying groups that deserve to be beneficiaries of special measures worldwide. This approach can be found for the first time in the 1994 Human Rights Committee’s General Comment on persons belonging to minorities.31 Under the expression ‘positive measures’ both general obligations of the State and temporary special measures are addressed as a tool to advance the material equality of minority groups and persons belonging to minorities. In 2002, CERD reaffirmed, in its General Recommendation No. 29, that States had to adopt special measures as one of the tools to eliminate descent-based discrimination and remedy its consequences. The vagueness of

27

28

29 30 31

Comment No. 19 (1999) Para. 32; CESCR General Comment No. 16, Article 3L The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights (2005) Paras 10, 15, 21, 35 and 36. See: UN doc. A/HRC/28/81 (2015) summarising the expert presentation and initial discussion on the topic of ‘Special measures, including affirmative or positive measures, strategies or actions, to prevent, combat and eradicate all forms and manifestations of racism, racial discrimination, xenophobia and related intolerance. Section B. Para. 44. See: Pastor Murillo Martínez, E. Affirmative action measures or special measures: for redressing historical injustices and structural discrimination against Afro-descendants’. Summary of the 10th Session of Afro-Descendants Work Team. Geneva, March 2011. P. 6. CERD General Recommendation No. 32 (supra note 12, para. 17). The concept and practice of affirmative action (supra note 8, para. 9). CCPR/C/21/Rev.1/Add.5 (1994).

22  Elvira Dominguez-Redondo the disadvantaged groups under consideration, ‘minorities’ and descent-based communities, probably facilitated this approach. There is evidence of a growing consensus on the need for affirmative action at universal level regarding specific groups identified by treaty bodies. In 2011, CERD called for the adoption of urgent special measures around the globe and to educate and raise the awareness of the public on their relevance in addressing structural discrimination that affects people of African descent.32 A few years earlier, the same Committee advocated such measures for Roma populations.33 CEDAW has also identified rural women, in particular landless rural women, as a group that needs to be addressed and prioritised in the design and implementation of special measures globally.34 CEDAW also covers special measures, albeit superficially, in its general recommendations on older women and on disabled women.35 Among Charter bodies, and in contrast with the general fragmented approach of Special Procedures to special measures, several mandate holders have considered Afro-descendent persons as a deserving beneficiary group worldwide.36 Unsurprisingly, the Working Group of Experts on People of African Descent has been the most vocal in supporting affirmative action for this collective, advocating specifically for the always controversial introduction of quotas. For instance, the Working Group considered the adoption of the Quota law by Brazil in 2012 ‘a landmark step towards equality in education’ and recommended the provision of sufficient support to enact legislative measures ‘for further affirmative action, particularly in creating quotas in government’.37 The Working Group has expressed its strong stance in favor of: …an action plan that will include special measures- such as the full span of legislative, executive, administrative, budgetary and regulatory instruments at every level in the State apparatus, as well as plans, policies, programs and preferential regimes in areas such as employment, housing, education, culture, and participation in public life for disfavored groups, devised and implemented on the basis of such instruments.38

32 See: CERD/C/CG/34 (2011) Paras 7, 18–20, 25, 45, 59 and 64. 33 CERD General Recommendation No. 27 (2000) Paras 28, 29 and 41. 34 CEDAW General Recommendation No. 35, CEDAW/C/CG/34 (2016) Paras 4, 17(b), 20, 21, 57, 78(d) and 94. 35 CEDAW General Recommendations No.18 (1991) and No. 27 (2010) respectively. 36 Information and relevant links to the work of the current Special Procedures can be found at the OHCHR Website: https://www.ohchr.org/en/hrbodies/sp/pages/welcomepage.aspx. 37 Report of the Working Group of Experts on People of African Descent on its mission to Brazil (4–14 December 2013) UN doc. A/HRC/27/68/Add.1 (2014) Para. 107b and e). See also: Chapter 5 by Baez in this volume. 38 See: Perspectives of the Working Group on positive action, presentation by Monorama Biswas, 10th session of the Working Group of Experts on People of African Descent (280 March to 1 April 2011): www2.ohchr.org/english/issues/racism/groups/african/docs/WGPAD_10th_ AUV.doc.

UN approach. Universalism or fragmentation  23 The Working Group on People of African Descent has articulated guidelines on conditions to be met by special measures. They should be part of ‘goal-directed programs’ aiming at alleviating and remedying disparities in the enjoyment of human rights, targeted narrowly to avoid the perception or actual introduction of reverse discrimination. The operationalisation of such programmes is envisaged as follows: a

b

c

d

e

States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice. The distinction between special measures and permanent rights implies that those entitled to permanent rights may also enjoy the benefits of special measures. Special measures should be appropriate to the situation to be remedied, be legitimate, be necessary in a democratic society, should respect the principles of fairness and proportionality, and be temporary. The measures should be designed and implemented on the basis of need, grounded in a realistic appraisal of the current situation of the individuals and communities concerned. Appraisals of the need for special measures should be carried out on the basis of accurate data, disaggregated by race, color, descent and ethnic or national origin and incorporating a gender perspective, on the socio-economic and cultural status and conditions of the various groups in the population and their participation in the social and economic development of the country. State parties should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities.39

Other mandate holders in charge of special procedures have been more ambiguous in their approach, issuing scattered recommendations regarding the convenience of adopting special measures, without providing clear details. For instance, the Special Rapporteur on violence against women has recommended the United Kingdom to adopt special measures in line with the recommendations of CEDAW to accelerate de facto equality between men and women in the country as a whole, as well as the full implementation of Security Council Resolution 1325 (2000) in Northern Ireland.40 The Special Rapporteur on the right to education has reminded states about the relevance of special measures targeted at vulnerable groups, such as enrolment quotas or financial objectives.41 Similarly, the Special Rapporteur on the rights of indigenous people has emphasised the pertinence and necessity of adopting special measures to

39 Ibid. 40 Report of the Special Rapporteur on violence against women. Mission to the United Kingdom and Northern Ireland (30 March to 15 April 2014), UN doc (2015) Paras 81 and 107. 41 UN doc. A/HRC/17/29, 2011. Para. 6.

24  Elvira Dominguez-Redondo overcome discrimination against indigenous peoples.42 The Working Group on African Descent has also been more specific than other special procedures when directing recommendations to specific countries. For instance, it has called on the United Kingdom to introduce special measures aiming at empowering people of African descent to be represented in political structures such as 43 Parliament. ­ Also in relation to the United Kingdom, the Special Rapporteur on violence against women has underlined the need for special measures that recognised that women were disproportionately affected by violence, inequality and discrimination.44 The Universal Periodic Review is the newest UN human rights mechanism. Since it became operative in 2008, the topic of affirmative action has become increasingly present among the recommendations that States issue to each ­other.45 By March 2019, 44 States under review have received recommendations on affirmative action mainly concerning the situation of women, indigenous peoples and minorities. It is remarkable that nearly all recommendations were accepted.46 The overall picture emerging from the recommendations and general comments of UN human rights treaty bodies and Charter bodies is one of increasing relevance of special measures. UN human rights mechanisms have progressively shifted their attention from individual cases towards addressing more structural factors determining inequality in the enjoyment of human rights. A growing consensus on the need to introduce special measures to achieve equality is particularly noticeable in relation to women and people of African descent. This development seems concomitant to the progressive acceptance of an autonomous right to ‘equality’ rather than its understanding as a principle underpinning the human rights agenda or instrumental to the enjoyment or reinforcement of other rights, although the scope and concrete meaning of such autonomous right ­remains controversial.47

42 43 44 45

UN doc. A/69/267 Paras 23–29 and 85. UN doc. A/HRC/24/52/Add.1 (5 August 2013) Paras 85, 90–92 and 97. UN doc. A/HRC/29/27/Add.2 (19 May 2015) Para. 106. On this mechanism see: Domínguez Redondo, E. The Universal Periodic Review of the Human Rights Council: an assessment of the first session. 7, 3 Chinese Journal of International Law (2008) P. 721. 46 Argentina, Australia, Azerbaijan, Belize, Bhutan, Botswana, Brazil, Bulgaria, Canada, Costa Rica, Czechia, Dominican Republic, Ecuador, Germany, Ghana, Guyana, Haiti, Hungary, Iceland, Japan, Kazakhstan, Kenya, Libya, Macedonia, Maldives, Malta, Marshall Islands, Mauritius, Mexico, Mongolia, Paraguay, Peru, Salomon Islands, Sierra Leone, Slovakia, South Africa, Switzerland, Thailand, Tonga, Turkey, Turkmenistan, Ukraine, Vanuatu and Zambia. See: database available at upr_info Website: https://www.upr-info.org/database/ under ‘text search’ using terms ‘temporary special measures’, ‘affirmative action’ and ‘affirmative actions’. 47 Bayefsly, A. The Principle of Equality or Non-Discrimination in International Law. 11, 1–2 Human Rights Law Journal (1990) P. 1.

UN approach. Universalism or fragmentation  25

United Nations treaty bodies approach to special measures in the United Kingdom, Latin America, South Africa, China and India When States ratify core human rights treaties, they are under the obligation to report periodically to the relevant committee on the steps they have taken to comply with the provisions of the concerned treaty. These periodic national reports are examined by the treaty bodies taking into account other relevant information and engaging in a dialogue with the country under examination. At the end of this process, the relevant treaty body adopts ‘concluding observations’ that contain recommendations on which measures the State party should adopt to improve the implementation of its international obligations. In their task of assessing the performance of States vis-à-vis human rights compliance through periodic country reports, treaty bodies have frequently referred to special measures. Among them, CEDAW has been the most prolific committee in evaluating the introduction of special measures by countries.48 The following sections outline the main conclusions and recommendations issued by treaty bodies on this issue regarding the countries covered by this book, using the most salient examples between 2014 and March 2020. In those conclusions and recommendations, treaty bodies commend the introduction of special measures, including quotas, or recommend their adoption or expansion. There is also confirmation about a growing consensus regarding the ‘universal’ beneficiaries of affirmative action. Women, indigenous peoples and persons of African-descent are the most likely to be named as the beneficiaries of the special measures recommended by the different committees.49

United Kingdom of Great Britain and Northern Ireland The United Kingdom of Great Britain and Northern Ireland (UK) has ratified all core human rights treaties except the Convention for the Protection of All Persons from Enforced Disappearances and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Several committees have issued recommendations on special measures, as a result of the examination of the periodic report. In 2013, CEDAW expressed its concern at the failure of the United Kingdom to introduce further special measures to address the underrepresentation of women in decision-making positions and the continuous use of the ‘Voluntary Search Code’ despite the recommendations

48 The compilation of such concluding observations covering the period between 1994 and 2001 can be found in the United Nations Human Rights Treaties Website maintained by Prof. ­Bayefsky: http://www.bayefsky.com/bytheme.php/index/theme. 49 Examples of some of the recommendations of CEDAW and CERD covering other countries of the world can be found in Dominguez-Redondo, E. (supra note 2).

26  Elvira Dominguez-Redondo contained in the Lord Davies’ report.50 CESCR has also recommended that the United Kingdom adopts effective measures to eliminate the gender gap and persistent underrepresentation of women in decision-making positions in the public and private sector.51 Similarly, the Human Rights Committee has recommended the United Kingdom to consider special measures as part of the efforts to achieve equitable representation of women in the civil service and in the judiciary.52 In March 2019, CEDAW elaborated further recommending the United Kingdom to adopt special measures ‘to improve the representation of women, including “Black, Asian and Minority Ethnic” women and women with disabilities, in Parliament, the judiciary and decision-making positions in the foreign service and its diplomatic missions’.53 It also called for ensuring the implementation of the Sex Discrimination (Northern Ireland) Order 1976 enabling the use of gender quotas.54 CEDAW also recommended special measures to facilitate access for women belonging to marginalised groups, to the labour market, increasing employment rates and reducing their concentration among low-pay employees.55 In 2016, CERD manifested its concern about the shift of the United Kingdom towards policies not including special measures. A few months later, and in relation to persons with disabilities, the CRPD highlighted the insufficient affirmative action and provision of reasonable accommodation to ensure their access to employment on the open labour market, despite the obligations contained in the EU Directive 2000/78/EC on non-discrimination in the workplace.56 Overall, the United Kingdom’s policies on affirmative action have been closely scrutinised internationally in recent years. All the treaty bodies concerned have found shortcomings and recommended that the United Kingdom strengthens its special measures to address inequality.

China and India China is a State party of six core human rights treaties, having ratified the Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment; the Convention on the Rights of the Child; and the Convention of the Rights of Persons with Disabilities.







UN approach. Universalism or fragmentation  27 A wide range of affirmative action policies characterise the approach of China towards minorities.57 This may explain that treaty bodies have paid relatively little attention to this issue and when they have, their recommendations have mainly consisted of requests to strengthen the measures already in place. For instance, CERD called upon China, in 2018, to strengthen special measures aiming at ensuring that ethnic groups have equal access to secondary education.58 The same committee also encouraged the expansion of special measures targeting ethnic minorities with the objective of reducing the high level of poverty and related inequality affecting those groups.59 CESCR has urged the country to strengthen the effectiveness of job quotas to promote the integration of persons with disabilities into the labour market,60 while CEDAW has lamented the insufficient use of special measures, in particular, to enhance the rights of ethnic religious minority women and women with disabilities.61 CEDAW has also recommended the adoption of more prescriptive affirmative action measures such as quotas to accelerate women’s participation in political and public life through elected and appointed bodies.62 Except for the treaties on torture, disappearances and migrant workers, India has ratified all the core human rights treaties. Most treaty bodies and Charter bodies addressing India have focused on the discrimination faced by minorities and against scheduled castes and tribes. Similar to China, the UN human rights bodies in general and treaty bodies in particular, have not given special importance to special measures when assessing the human rights situation in the country.63 Affirmative action policies have merited little assessment, despite their prominence in the domestic agenda.64 Against this background, some references to affirmative action policies can be found in the limited jurisprudence of treaty bodies addressing India in the past six or seven years. In September 2019, the first concluding observations issued by the CRPD concerning India, noted the lack of implementation of the domestic legislation establishing a 4% quota in employment for persons with disabilities.65 Additionally, CRPD urged the country to ‘promote the participation of persons with disabilities in political life and in public decision-making

57 Castellino, J. Historical evolution and contemporary debates on affirmative action measures in India and China. In: Baez, N; Dominguez-Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018. PP. 215–236. 58 UN doc. CERD/C/CHN/CO/14–17 (19 September 2018) Para. 24. 59 Ibid., Para. 19. 60 UN doc. E/C.12/CHN/CO/2 (13 June 2014). 61 UN doc. CEDAW/C/CHN/CO/7–8 (14 November 2014) Paras 22, 23, 31, 52, 53 and 59. 62 Ibid. 63 As reflected on the Compilation of UN documents prepared by the OHCHR for the latest cycle of the Universal Periodic Review at the time of writing this pages, available in UN doc. A/HRC/WG.6/27/IND/2 (22 February 2017). 64 Castellino (supra note 57). 65 UN doc. CRPD/C/IND/CO/1 (29 October 2019) Para. 56

28  Elvira Dominguez-Redondo processes at all levels, including through affirmative action measures’.66 In its latest concluding observations to India, issued in 2014, CEDAW recommended that officials became familiar with special measures and to encourage their application to achieve a higher number of girls enrolled in secondary and tertiary education. Additionally, it called for actions to increase the number of women in the judiciary, through a quota system for recruitment.67 Finally, India was urged to adopt effective measures in the formal labour market, including temporary special measures, to increase female participation, to narrow and close the wage gap between women and men and to ensure the application of the principle of equal pay for work of equal value, in addition to equal opportunities at work.68

Central America As in the rest of Latin-America, Central American countries have ratified all, or almost all, core international human rights instruments. Belize and Honduras are State parties of all them. Guatemala, El Salvador and Nicaragua have ratified all treaties except the Convention on Enforced Disappearances. Costa Rica and Panama have ratified all core human rights treaties save for the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. During the period under examination in this chapter (January 2014 to March 2020) Belize only received relevant recommendations from the Human Rights Committee,69 calling for the enhancement of efforts to achieve the equal representation of women and men in political and public life, including through the introduction of special measures such as quotas.70 Contrary to Belize, Honduras has been scrutinised closely by several treaty bodies in recent years. UN human rights mechanisms have addressed the ground-breaking policies adopted by Honduras to achieve substantial equality, some of them following international pressure coming from UN human rights bodies.71 This includes ‘The Gender Equality and Equity Plan for 2010–2022’ (Plan de Igualdad y Equidad de Género 2010–2022, adopted in 2010); ‘The Public Policy on the Rights and Social Inclusion of Persons with Disabilities in 66 67 68 69

Ibid., Para. 58. UN doc. CEDAW/C/IND/CO/4–5 (24 July 2014) Paras 19 and 20. Ibid., Para. 29. Concluding observations issued by the Committee on Migrant Workers (CMW) in 2014 do not address the issue of special measures, see: UN doc. CMW/C/BLZ/CO/1 (26 September 2014). 70 UN doc. CCPR/C/BLZ/CO/1/ADD.1 (11 December 2018) Para. 17. 71 For instance, in 2016, CESCR highlighted the lack of a comprehensive anti-discrimination framework in Honduras, naming particularly discrimination against indigenous peoples, Hondurans of African descent, persons living with HIV/AIDS and discrimination on the grounds of sexual orientation and gender identity UN doc. CESCR/C.12/HND/CO/2 (11 July 2016).

UN approach. Universalism or fragmentation  29 Honduras’ (Política Pública para el Ejercicio de los Derechos de Las Personas con Discapacidad y su Inclusión Social en Honduras, adopted in 2013); ‘Comprehensive Services and Inclusion of Persons with Disabilities Act’ (Ley de Fomento y Desarrollo para la Atención Integral e Inclusión de las Personas con Discapacidad, 2013); ‘The Honduran Sign Language Act’ (Ley de la Lengua de Señas Hondureña (LESHO), 2014); and ‘Public Policy against Racism and Racial Discrimination for the Comprehensive Development of Indigenous and Afro-Honduran Peoples 2016–2022’ (Decreto Ejecutivo PCM-02-2016 Política Pública contra el Racismo y la Discriminación Racial para el Desarrollo Integral de los Pueblos Indígenas y Afrohondureños¸ 2016). In light of the impetus given to anti-discrimination through the normative and policy framework outlined above, treaty bodies have focused on its effective implementation. Their recommendations are not usually very concrete and, as such, defy measurement and follow-up. For instance, CERD has requested Honduras to adopt special measures to terminate the structural discrimination suffered by indigenous and Afro-Honduran peoples.72 The Human Rights Committee has suggested special measures as part of the efforts to increase the presence of women in political and public life.73 CRPD has expressed concern about the Honduran failure to monitor compliance with employment quotas in the public sector.74 CEDAW has concluded that Honduras lacks adequate understanding of affirmative action to achieve substantive equality between men and women. It has deplored the absence of special measures beyond electoral quotas, especially to address discrimination against women belonging to communities of African descent, from rural areas or women with disabilities as well as intersectional discrimination against indigenous women.75 This Committee has recommended special measures to increase the participation of women in political and public life, naming in particular positions in the National Congress and other decision-making posts in governmental institutions.76 It called upon the State to ensure that legislated quotas of 50% representation of women are fully implemented in all elections at the national and local levels. CEDAW also recommended the adoption of a bill on harassment and political violence towards women, enforcement of laws on gender equality, freedom from violence and discrimination against women in political and public life. Finally, CEDAW has recommended ‘softer’ measures including awareness activities on the importance of the participation of women in decision-making for society as a whole.77 Guatemala has also been subjected to intense monitoring by treaty bodies in the past five years. In May 2019, CERD recommended the State to adopt

72 73 74 75 76 77

UN doc. CERD/C/HND/CO-6–8 (14 January 2019) Para. 17. UN doc. CCPR/C/HND/CO/2 (22 August 2017) Para. 13. UN doc. CRPD/C/HND/CO/1 (4 May 2016) Para. 57. UN doc. CEDAW/C/HND/CO/7–8 (25 November 2016) Paras 18 and 19. Ibid., para. 27. See also: UN doc. CEDAW/C/HND/CO/6 (10 August 2007) Para. 23. UN doc. CEDAW/C/HND/CO/7–8 (25 November 2016) Para. 27.

30  Elvira Dominguez-Redondo special measures aimed at eliminating structural discrimination against indigenous people, as part of a national policy to combat racial discrimination.78 A year earlier, the Human Rights Committee called upon Guatemala to increase the representation of women, indigenous persons and persons of African descent in political and public life, using, among others, special measures such as quotas.79 CEDAW has been more specific in recommending the adoption of: …sustained measures, including temporary special measures, such as amending the Election and Political Parties Act to introduce statutory quotas for women’s representation in elected and appointed decision-making positions, enforcing the alternation of men and women for the nomination of candidates within political parties and providing financial incentives to political parties with an equal number of women and men at equal ranks on their electoral lists.80 Uncharacteristically, CRPD uses the terminology ‘special measures’ when recommending their introduction by Guatemala ‘to eliminate the particular disadvantages faced by indigenous women, children and older persons with disabilities who have been abandoned or live in extreme poverty.’81 The Committee also recommended special measures under the terminology ‘remedial measures’ and ‘affirmative action’ to address discrimination of women and girls with disabilities,82 and access to employment.83 Treaty bodies’ recommendations on special measures addressed to El Salvador have also focused on women, indigenous people and Afro-descent communities. While CEDAW has welcomed the introduction of quotas on electoral lists for women in relation to elected positions in political parties since 2013, both this Committee and the Human Rights Committee have expressed concern about the limited participation of women in political and public life and their underrepresentation in decision-making positions.84 CERD has also highlighted the regulation deficit regarding special measures for indigenous women and women of African descent.85 The use of special measures is normally recommended as part of a range of anti-discrimination actions the State should introduce in addressing inequality. The language used by CRPD in its concluding observation on El Salvador is exceptional. The Committee has recommended not only the establishment 78 UN doc. CERD/C/GTM/CO/16–17 (27 May 2019) Para. 14. 79 UN doc. CCPR/C/GTM/CO/4 (7 May 2018) Para. 9. 80 UN doc. CEDAW/C/GUA/CO/8–9 (22 November 2017) Para. 27; see also: Paras 16, 17, 33 and 35. See also: UN doc. CEDAW/C/GUA/CO/7 (12 February 2009) Para. 26. 81 UN doc. CRPD/C/GTM/CO/1 (30 September 2016) Para. 66. 82 Ibid., Para. 20. 83 Ibid., Paras 63 and 64. 84 UN docs. CCPR/C/SLV/CO/7 (9 May 2018) Paras 11 and 12; and CEDAW/C/SLV/CO/8–9 (9 March 2017) Paras 20, 21, 31 and 43. 85 UN doc. CERD/C/SLV/CO/18–19 (13 September 2019) Para. 26.

UN approach. Universalism or fragmentation  31 of affirmative measures, with quotas to increase the number of persons with disabilities in the labour market in the public and private sector, especially women with disabilities; it has also called for the imposition of sanctions for non-compliance.86 The dramatic deterioration of the situation of human rights in Nicaragua, especially since 2018, has resulted in scarce engagement with international and regional human rights mechanism. Apart from the CMW (in 2016), treaty bodies have not formulated concluding observations on this country.87 Having welcomed progress made at national level by Costa Rica in relation to gender equality, CEDAW has recommended the adoption of further special measures at local level to address intersectional discrimination against indigenous women,88 women of African descent, migrant women, refugee and asylum-seeking women, female heads of households and women with disabilities.89 The Human Rights Committee has focused on special measures to eliminate the gender gap in decision-making positions.90 CRPD has called for affirmative measures to raise awareness to promote employment of persons with disability in the private sector as well as effective monitoring of compliance with employment quotas in the public realm.91 It is worth highlighting that Costa Rica has received, in February 2020, recommendations on special measures to advance its human rights agenda that were linked to the 2030 Agenda for Sustainable Development.92 In relation to the Sustainable Development Goals targets 5.1 (‘End all forms of discrimination against women and girls everywhere’) and 10.3 (‘Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and actions in this regard’) the Committee of the Rights of the Child (CRC) has recommended the adoption of special measures to strengthen the country’s efforts to eliminate gender stereotypes and remove patriarchal ideologies in education and in the family.93 Only the CRPD has issued relevant recommendations on special measures addressed to Panama during the period under examination. After deploring the failure to achieve the 2% quota for persons with disabilities in the labour market, the Committee has called for the implementation of specific strategies to achieve this objective.94

86 UN doc. CRPD/C/SLV/CO/2–3 (1 October 2019) Para. 51. 87 UN doc. CMW/C/NI/CO/1 (11 October 2016). This report – as it is the general case for the concluding observations issued by CMW - does not report on special measures. 88 See also: UN doc. CERD/C/CRI/CO/19–22 (25 September 2015) Para. 25. 89 UN doc. CEDAW/C/ CR/CO/7 (24 July 2017) Paras 12, 13, 25 and 41. 90 UN doc. CCPR/C/CRI/CO/6 (21 April 2016) Para. 16. 91 UN doc. CRPD/C/CRI/CO/1 (12 May 2014) Para. 56. 92 UN General Assembly Resolution 70/1, 25 September 2015. 93 UN doc. CRC/C/CRI/CO/5–6 (4 March 2020) Para. 17. 94 UN doc. CRPD/C/PAN/CO/1(3 September 2017) Paras 52 and 53.

32  Elvira Dominguez-Redondo Argentina, Chile, Colombia and Peru As it will be explored in Chapter 6, the ratification of international treaties has had an impact on the design and implementation of affirmative action in Argentina, Chile, Colombia and Peru. All four countries have ratified all nine core human rights treaties, demonstrating a strong commitment to engage with the international human rights machinery. CESCR has commended Argentina for its National Plan Against Discrimination, but has also expressed concern about its implementation, regretting in particular the failure of the State to meet the quota for the hiring of transsexual persons in the public sector of the Province of Buenos Aires.95 Compared with other recommendations and concluding observations regarding special measures, the concision and concrete nature of this statement, referring to the 2015 Act No. 14783, adopted in the Province of Buenos Aires, is remarkable. Also referring to a specific national regulation, CERD has recommended the proper implementation of the Argentinian programme ‘Promoting and Raising Awareness of the Rights of the Afro-descendent Community’, bearing in mind, inter-alia, its General Recommendation No. 32 on special measures.96 The concluding observations of CEDAW further demonstrate that committees are able to issue more accurate and detailed evaluations and recommendations when they are addressing specific regulatory frameworks. This Committee has acknowledged the establishment of quotas for the representation of women in the National Congress and trade unions, as well as the bills regarding parity in the participation of women and men in the executive, legislative and judiciary branches of the government. Based on those pre-existing measures, CEDAW has recommended further implementation of special measures at the federal, provincial and municipal levels, establishing specific targets and time frames to accelerate substantive equality of women, mentioning expressly indigenous women, women of African descent, migrant women, older women and women with disability. The Committee has also suggested the regular monitoring and evaluation of these measures,97 and implementation of the female union quota established by Act No. 25.674 of 28 November 2002.98 Chile has been criticised both by Charter bodies and treaty bodies for the lack of provisions relating to affirmative action in its 2012 Anti-Discrimination Act.99 Conversely, CEDAW has commended the normative advances allowing

95 96 97 98

UN doc. E/C.12/ARG/CO/4 (1 November 2018) Paras 24 and 25. UN doc. CERD/C/ARG/CO/21–23 (17 January 2017) Para. 7. UN doc. CEDAW/C/ARG/CO/7 (25 November 2016) Paras 16 and 17. Ibid., Para. 27. See also: Para. 29 (on special measures to accelerate equality for indigenous girls and women as well as to enhance access to education by improving school infrastructure in rural and remote areas). See also, on equality between men and women: UN doc. CCPR/C/ARG/ CO/7 (10 August 2016) Para. 8. 99 See: Report of the mission to Chile of the Special Rapporteur on extreme poverty and human rights, UN doc. A/HRC/32/31/Add.1 (8 April 2016), Paras 36–37. See also: CCPR/C/ CHL/CO/6 (13 August 2014) Para. 11, and E/C.12/CHL/CO/4 (7 July 2015) Para. 12.

UN approach. Universalism or fragmentation  33 the Ministry for Women and Gender Equity to propose special measures as well as the introduction of a programme for the priority inclusion of gender equality by the Faculty of Physics and Science of the University of Chile, resulting in increased enrolment of girls in the Faculty of Physics.100 This positive recognition is followed by the standard CEDAW recommendation calling for the introduction of special measures as ‘a necessary strategy to accelerate the achievement of substantive equality in all areas covered by the Convention, in particular in political and public life, where women are underrepresented, and in education and employment, to which migrant and indigenous women have limited access’.101 As for the other countries in this group, Colombia’s special measures have been debated by treaty bodies repeatedly. CERD has urged the State to adopt special measures to eliminate structural discrimination against indigenous peoples and persons of African descent.102 In 2019, CEDAW noted good practices strengthening women’s organisations but regretted the absence of special measures aimed at accelerating equality of women in politics, education, employment and health.103 Therefore, Colombia had yet to comply with the recommendation made by CESCR two years earlier, calling for the adoption of special measures to promote full access for women to education, employment, health care, social security and land.104 CESCR also recommended affirmative action to prevent and eliminate the factors that perpetuate structural discrimination against indigenous and Afro-Colombian peoples, in order to improve their enjoyment of economic, social and cultural rights.105 CRPD has used the terminology ‘affirmative action’ and called for their adoption in its latest concluding observations on Colombia.106 CEDAW has regretted the failure of Peru to meet existing electoral gender quotas in regional and municipal elections and has recommended the adoption of further special measures to accelerate equality between men and women.107 CERD has suggested affirmative action measures to eliminate structural discrimination against indigenous peoples and the Afro-Peruvian population at all levels of the civil service.108

Brazil Chapter 5 discusses at length the wide range of special measures adopted in Brazil to address structural discrimination affecting women, Afro-Brazilians, 100 UN doc. CEDAW/C/CHL/CO/7 (14 March 2018) Para. 18 101 Ibid., Para. 19; see also Paras 28 (regarding participation in public and political life) and 33 (on equal access to all levels of education by indigenous girls and women in rural areas). 102 UN doc. CERD/C/COL/CO/17–19 (22 January 2020) Para. 17 103 UN doc. CEDAW/C/COL/CO/9 (14 March 2019) Paras 21 and 22. 104 UN doc. CESCR/C/COL/CO/6 (19 October 2017) Para. 26. 105 Ibid., Para. 24. 106 UN doc. CRPD/C/COL/CO/1 (30 September 2016) Para. 61. 107 UN doc. CEDAW/C/PER/CO/7–8 (24 July 2014) Para. 15 108 UN doc. CERD/PER/CO/22–23 (23 May 2018) Para. 13.

34  Elvira Dominguez-Redondo indigenous people, persons with disabilities and LGBT persons. The reports of the Brazilian government to the UN human rights machinery demonstrate that this is a source of national pride in terms of human rights achievements.109 Different human rights bodies have welcomed the quantity and quality of the special measures adopted in Brazil. For instance, following a country visit, the Working Group on People of African Descent declared Brazil ‘a leader in affirmative action policies in employment and education for Afro-Brazilians and other marginalized groups’.110 Brazil has also ratified – and incorporated into domestic legislation – all core human rights treaties except the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Contrary to other States of the Americas analysed in this book, Brazil has disengaged from cooperating with treaty bodies, and many of its periodic reports are overdue. During the period examined here, only the CRPD published relevant concluding observations expressing concern about the low levels of compliance with the quota system by private businesses, and recommending the adoption of measures to remedy the situation.111

South Africa South Africa is a State party of all core human rights instruments except the Convention for the Protection of All Persons from Enforced Disappearances and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Treaty bodies have paid attention to the topic of affirmative action in several concluding observations aimed at South Africa. In 2018, the CESCR, highlighted the inadequate implementation of the 2% employment quota for persons with disabilities in the private sector and recommended measures to remedy this situation.112 CRDP has elaborated further on this point, deploring the absence of legislation and policies, including special measures, ‘aimed at addressing multiple and intersecting forms of discrimination against women and girls with disabilities, particularly against black women and girls’. Accordingly, this Committee recommended the design and adoption special measures with the objective of empowering and facilitating the full inclusion of women and girls with disabilities in all spheres of life, addressing multiple and intersecting forms of discrimination.113

109 See e.g.: ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/2’ UN doc. A/HRC/WG.6/27/BR A/1 (27 April 2017) Paras 53–57 (on affirmative actions regarding ethnic-racial equality); and Para. 49 (women representation in popular elections). 110 UN doc. A/HRC/27/68/Add.1 (23 September 2014) Para. 25. 111 UN doc. CRPD/C/BR A/CO/1 (29 September 2015) Paras 48 and 49. 112 UN doc. CESCR/C/ZAF/CO/1 (29 November 2018) Paras 28 and 29. 113 UN doc. CRPD/C/ZAF/CO/1 (23 October 2018) Paras 10 and 11; see also: Para. 45.

UN approach. Universalism or fragmentation  35 Referring specifically to the Employment Equity Act 1998 and the BroadBased Black Economic Empowerment Act 2003, CERD has acknowledged the challenges faced by South Africa to implement affirmative action to redress inequalities deriving from the apartheid era. However, it has also expressed concern at the absence of comprehensive data on the efficiency of special measures in the areas of employment, education and representation in public and political affairs. It also regretted the lack of information on the impact of special measures on indigenous peoples.114

Conclusions The vast majority of countries are State parties of most of the so-called core human rights treaties. The countries covered in this book are no exception. This means that all of them are evaluated periodically by the same international standards and the same monitoring bodies. Through their evaluation of periodic reports, their jurisprudence and their interpretation of provisions of the treaties they monitor, UN human rights treaty bodies are ideally placed to provide an overall picture of the treatment of a specific human rights topic worldwide. All data examined above confirms former conclusions regarding a growing consensus on the need for special measures among international human rights mechanisms, especially, policies and rules aimed at women and people of African-descent as well as persons with disabilities and, to a lesser degree, indigenous people. It also confirms that treaty bodies’ examination of periodic reports is more useful as compilation of data regarding the compliance of States with international human rights standards than as appraisers of the effective implementation of remedies. Treaty bodies do not seem to follow their own advice when issuing recommendations on special measures. With the notable exception of the concluding observations published by CEDAW, recommendations are mostly ambiguous, unmeasurable and not associated with a specific timeline for their implementation. This is a common feature to all treaty body recommendations.115 It has been suggested that the strength of treaty bodies lies not in their final assessment and role in promoting implementation of their recommendations but ‘in providing states with learning opportunities and an accurate overview of their internal situation’.116 The analysis included in this Chapter seems to confirm that suggestion.

114 UN doc. CERD/C/ZAF/CO/1 (5 October 2016) Paras 14 and 15. 115 See e.g.: Krommendijk, J. The (in)effectiveness of UN human rights treaty body recommendations. 33, 2 Netherlands Quarterly of Human Rights (2015) P. 194. 116 Carraro, V. Promoting compliance with human rights: the performance of the United Nations’ Universal Periodic Review and Treaty Bodies. 63, 4 International Studies Quarterly (2019) P. 1079.

Part II

Analysis of affirmative action measures

3

Unravelling history and undermining law through politics The erosion of diversity protection and emerging existential threats to India and China Joshua Castellino* and Sayantani Sen**

Introduction India and China have a range of similarities in terms of their size and complexity, but very different human histories, especially over the last few centuries.1 Over the centuries they have shared moments of deep friendship and cultural exchange but have, in nearly equal measure, also shared distrust and hostility,2 most recently in the second half of the twentieth century where it resulted in armed conflict.3 The legacy of that conflict is a continued territorial claim that has often lain dormant in Sino-Indian relations but has begun to come to the fore as competition heats up between two significant players of the G20.4 The Chinese Belt and Road Initiative (One Belt One Road)5 which attempts to spread Chinese influence in the region and globally has been perceived as a threat to India’s own aspirations,6 and this has no doubt contributed to the insecurity felt in India towards China. * Executive Director and Professor of Law, Minority Rights Group (International) London, UK. ** Legal Research Associate, Minority Rights Group (International), London UK. The views expressed in this article are personal. An earlier version of this paper was accepted for publication in the Chinese Journal of Comparative Law. 1 For typically narrated histories of China and India see e.g. Loewe, M; Shaughnessy, E.L. The Cambridge history of ancient China: from the origins of civilization to 221 BC. Cambridge: Cambridge University Press, 1999; Raychaudhuri, H; Mukherjee, B.N. Political history of ancient India: from the accession of Parikshit to the extinction of the Gupta Dynasty. 8th ed. Oxford: Oxford University Press, 1999. 2 Holslag, J. China and India: prospects for peace. New York: Columbia University Press, 2010. 3 Deepak, B.R. India & China 1904–2004: a century of peace and conflict. New Delhi: Manak Publications, 2005. 4 Frankel, F.R; Harding, H. The India-China relationship: rivalry and engagement. Oxford: Oxford University Press, 2004. 5 Ling, X. (Ed.) Mapping China’s ‘one belt one road’ initiative. London/New York: Palgrave Macmillan, 2019. See also: Lim, T.L; Chan, H; Tseng, K; Lim, W.X. China’s one belt one road initiative. London: Imperial College Press, 2016. 6 For an Indian view on One Belt, One Road, see: Thaliyakkattil, S. China’s Achilles heel: the belt and road initiative and its Indian discontents. Singapore: Springer, 2019.

40  Joshua Castellino and Sayantani Sen Despite their stark differences in history over the last two centuries, mainly flowing from the extent to which India fell under European colonial rule while China went into relative isolation, this chapter argues that the two countries appear poised at a similar existential moment in their respective histories. The key battleground for both it would seem is the issue that lies at the heart of this edited collection: namely, how to create a mechanism that provides equal rights and dignity to all, especially when significant parts of the population may not belong to the dominant ethno-religious or social milieu that is in power. A previous paper published in the context of this research project sought to shed light on the historical evolution and debates that were attendant to the establishment of significant affirmative action measures in both countries.7 These stemmed from enlightened and pragmatic leadership in both countries that understood the extent to which the governance of large tracts of land with diverse populations is fraught with significant existential threats without a unifying ideology. That unifying ideology was captured in a distinct Chinese narrative that focussed on the established need to ‘curb Han chauvinism’8 and find ways to unite the 55 minzhu, translated as ‘minority nationalities’,9 that formed the family of ‘Chinese’ nations.10 Many questions were posed as to the efficacy of this ideology: the extent to which it accurately cast and identified the variety of groups that could be deemed ‘nations’;11 whether the Chinese State was truly committed to implementing an agenda to promote what may have been ‘fringe’ groups;12 the exclusion of a number of claimants to their eventual detriment;13

7 Castellino, J. Historical evolution and contemporary debates on affirmative action measures in India and China. In: Baez, N; Dominguez-Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018. PP. 211–232. 8 This phrase is also included in the Preamble to the 1982 Constitution of China. For more see [editorial] Chinese Academy of Social Sciences. ‘Nationalities’ 3 Information China. Beijing: Pergamon Press, 1988. PP. 9–12. 9 According to a past Government White Paper for example, the fourth national census (1990) revealed that 91.96% of the country’s total population belonged to the Han ethnic group, and 8.04% belong to minority ethnic groups. It also gives figures from a sample survey in 1995 suggesting a 0.94% point increase over the 1990 figures for minorities. See: Information Office of the State Council of the People’s Republic of China, Government White Paper National minorities policy and its practice in China (1999). 10 See: [editorial] Common programme of the Chinese people’s political consultative conference concerning the minority nationalities [1949]. 14, 4 Chinese Law and Government (1981) PP. 11–12; Hsiao-T’ung, F. Towards a people’s anthology. Beijing: New World Press, 1981. 11 See criticism of this ‘Stalinist’ definition of minorities: Sautman, B. Ethnic law & minority rights in China: progress and constraints. 21 Law & Politics (1999) PP. 283–314. 12 Deal, D. The question of nationalities in twentieth century China. 12, 3 Journal of Ethnic Studies (1984) PP. 23–53. 13 Heberer, T. China and its national minorities: autonomy or assimilation? Armonk: M. E. Sharpe, 1989.

India and China  41 the extent to which the measures designed were implemented;14 and, perhaps most crucially, the extent to which membership to the Community Party and therefore loyalty to a nationalist agenda trumped over any considerations over identity.15 These significant problems could be more synonymous with the form and scope of governance in China rather than design flaws in the objectives to ensure that all the 55 minority nationalities had access to development. In an Indian context, the project of modern Statehood ran into difficulties at birth itself when a significant chunk of the territory of British colonial India was divided on the basis of religion at the cost of significant loss of lives and population transfer.16 The attempt to maintain the territorial integrity of India at the time of transition floundered on fear stoked through colonial ‘Divide and Rule’ policies that drew on ancient simmering but often contained tensions.17 A significant fissure in the Indian independence movement led by the Congress Party resulted in the establishment of the Muslim League whose prime demand was the establishment of a separate independent homeland for Muslims.18 This claim was based on a fear of Muslims being submerged and made second class citizens in Hindu India, citing violence that had been perpetrated against the community at various points in history.19 However, the ‘problem’ did not end with the birth of the two States, since a sizeable Muslim population, the largest in the world at the time, 20 remained in India, with small communities of Hindus unable or unwilling to move home in the two parts of Pakistan (the East of which subsequently became Bangladesh) that emerged.21 Thus with the birth of the two States, India in 1947 and China in 1949, the incumbent governments found themselves in charge of vast tracts of land both of which had a history of trading relationships as a consequence of which significant influences had been brought to bear on their polities. These societies subsumed communities of different religions, spoke different languages and bore allegiances to a range of different values. Uniting them into strong independent

14 For more information on this, see: Minority rights in China. In: Castellino, J; DominguezRedondo, E. Minority rights in Asia: a comparative legal analysis. Oxford: Oxford University Press, 2006. 15 See an old critique that remains valid: Luoji, G. A human rights critique of the Chinese legal system. 9 Harvard Human Rights Law Journal (1996) PP. 1–14. 16 Ambedkar, B.R. Pakistan or partition of India. Bombay: Thackers, 1946. See also the more contemporary reflection in Singh, A; Iyer, N; Gairola, R. (Eds.) Revising India’s partition: new essays on memory, culture and politics. Lanham: Lexington Books, 2016. 17 Tharoor, S. Inglorious empire: what the British did to India. London: Hurst and Co., 2017. 18 Talbot, I. (Ed.) The independence of India and Pakistan: new approaches and reflections. Karachi: Oxford University Press, 2013. 19 Minority Rights in India. In: Castellino, J; Dominguez-Redondo, E. (supra note 14, PP. 58–59). 20 The Muslim population estimated at around 55 million would have made India the largest Muslim country in the world. See also: Humayun Kabir, H. Islam and India. 9, 3 Indo-Asian Culture (January 1961) P. 241. 21 See the classical text by Butalia, U. The other side of silence: voices from the partition of India. London: Penguin, 2017. See also: Ali Sha, S. The Hindu heritage of Pakistan. Islamabad: Constellation Plus, 2013.

42  Joshua Castellino and Sayantani Sen modern States became the prerogative of the two ruling parties, and they reached out to ideology as an important rallying point. Both emphasised and embarked on the creation of a national narrative, and both these narratives emphasised a message concerning unity in diversity. As the previous contribution to this research project testified, 22 this element of ‘unity in diversity’ was enunciated through administrative diktat in the case of China and through what could be defined, in the aftermath of the British colonial experience, as formal law in the case of India. In both cases, the status quo on the States’ founding myths on these issues held firm despite significant contestations and threats for nearly seven decades. This chapter seeks to highlight the extent to which politics, in the shape of populist government, has sought to extend its hegemony over the two States through undermining these affirmative action measures in both countries. The chapter is divided into two further sections. The next section will seek to enunciate the origin and evolution of affirmative action measures in each of the countries, highlighting the historical necessity perceived for them. The second section will examine challenges that have arisen in both jurisdictions and how incumbent governments’ actions have shattered founding myths, in both cases offering an alternative founding myth that has gained significant popular support.23 The section will include comments on the efficacy of the proposed ideologies. The article concludes by highlighting the threats that emanate from this shift, arguing that the measures heighten the likelihood of the spectre they are designed to combat.

Origins and evolution of affirmative action measures in China and India The evolution of affirmative action measures in the world’s two most populous States with long documented histories can be traced to the period of major transition in the aftermath of the 1940s; for India, from British colonial rule to independence, and for China with the arrival in power of the Chinese Community Party at the end of the Chinese civil war. In both States, the State creation process was accompanied by explicit recognition of the need to construct a ‘coherent’ national narrative in a bid to emphasise new threads envisaged as binding together disparate and sometimes competing communities, tribes, ethnicities, religions, and nations into one State.24 For this process to work, the national narrative was particularly important to those who would likely contest, dissent, resist or even destroy the attempt at unity, usually on the grounds of their own distinction from the emerging narrative. Affirmative action measures, in this general landscape of inequalities, was one policy imperative often called upon, as a crucial 22 Castellino, J. (supra note 7). 23 The dangerous rise of populism: global attacks on human rights values (World Report 2017, Human Rights Watch 2017). 24 See Deutch K.W; Foltz W.J. Nation Building. American Political Science Association: Atherton Press, 1963.

India and China  43 bridge to combatting the gap between de jure and de facto equality, 25 by establishing unity and ensuring that groups far from sites of power would be given the wherewithal to promote their own culture and realise their rights. In both these instances, the ‘nation-building’ imperative involved significant overtures toward the diverse communities that would come to live within the vast frontiers of each State through measures that could be deemed affirmative actions. This makes their study a key litmus test in assessing whether the State-building process has been successful, especially for groups that are far removed from sites of power.26 Studying India and China, especially in a comparative vein is particularly useful to understand how each of the States are responding to a rising tide of intolerance towards minorities, especially given that both States share the emphasis given to equality and affirmative action measures, which have been an important facet of policymaking, but which have begun to come under pressure emanating from populism. There is a growing trend towards believing in the need for homogenisation, to take an aggressive stance and to eliminate what may be viewed as ‘privileges’ for particular groups, especially if they may also be deemed disloyal to the State. This sentiment appears to be growing in the popular imagination in both States creating downward pressure on affirmative action measures nurtured and designed over decades.

India Modern India is characterised by hyper-diversity: its billion-strong population consists of six main ethnic groups, 52 major tribes, six major religions, 6,400 castes and sub-castes, 18 major languages and 1,600 minor languages and ­dialects.27 Faced with such multicultural and multinational components, several challenges manifest themselves in relation to protection of minorities, languages and castes. In this regard, five primary characteristics explain the contours of affirmative action measures, seeking to eradicate differences and centuries-old prejudices in India. The first of these, which forms the bulwark to the entirety of India’s equality framework, is the adoption and creation of a ‘national’ narrative based on secularity in a bid to harmonise the different submerged nations and identities.28 Constructing such a narrative was particularly significant at

25 For general reading, albeit set in an American context, see Cosson, M.J. Affirmative action. Minneapolis, MN: ABDO Publishing, 2007; Kellough, J. Edward. Understanding affirmative action: politics, discrimination and the search for justice. Washington, DC: Georgetown University Press, 2006; and Cahn, Steven M. The affirmative action debate. 2nd ed. New York: ­Routledge, 2002. 26 For the extent to which these public policies measures can be considered a litmus test of a State’s adherence to human rights, see Castellino, J. No room at the international table: the importance of designing effective litmus tests to protect minorities at home. 35, 1 Human Rights Quarterly (2013) PP. 201–228. 27 Castellino, J; Dominguez-Redondo, E. (supra note 19). 28 See Bhargava, R. The promise of India’s secular democracy. New Delhi: Oxford University Press, 2010.

44  Joshua Castellino and Sayantani Sen the time, when the events in the lead up to independence had been divisive and had resulted in separation of India into two entities on the grounds of religion. With Pakistan declaring itself as a religious State for Muslims, India’s assertion of its secular credentials was crucial to not only allaying the fears of its remaining Muslim minority, but also to assert the need to protect the other religious communities inhabiting the State. This also emphasised the importance given to identity in the nation building process, and as a consequence justified many of the affirmative action measures that have emanated in Indian public policy. The second characteristic of Indian policy in this regard was the reorganisation of the map of India based on the need to promote and protect the linguistic rights of the different communities. Instead of viewing this as an affirmative action measure per se, this crucial decision enabled the birth of a system of regional governance which facilitated the use of the regional language and the determination of State policy for a range of sectors including education, labour, political participation and others, thus making India more governable. Granting non-territorial autonomy to the religious communities by allowing them to practise their religious laws (alongside national law) and preserve their values was the third important characteristic of the approach to affirmative action measures.29 This has enabled five religious communities in India to be governed by their religious laws in matters concerning marriage, divorce and inheritance. The fourth characteristic of the regime consists of the designation within the Indian Constitution, of ‘special areas’ in the Northeast of the country that were integrated into the State as an agglomeration of princely kingdoms,30 to provide autonomy and special protection for indigenous communities who continue to reside therein, to maintain their cultural distinctiveness through autonomous governance. However, the clearest example of affirmative action measures and by far the one that has merited the most study has been India’s regime of ‘reservations’.31 Having derived from special protection afforded by the British during colonial rule to ‘untouchables’ or India’s excluded communities, and having gained significant prominence subsequently, the measures have spawned the systemic use of quotas and were expanded to promote political participation including participation of women in public life, education and public-sector employment.32 Their range in

29 See Larson, G.J. (Ed.) Religion and personal law in secular India: a call to judgment. Bloomington, IN: University Press, 2001. Also see Pereira, F. The fractured scales: the search for a uniform personal code. Calcutta: Stree Publishers, 2002. 30 See Barpujari, H.K. North-east India: problems, policies and prospects since independence. New Delhi: Spectrum Publications, 1998; Jacobs, J. The Nagas: hill peoples of Northeast India. London: Thames & Hudson, 1990. 31 See Pai Panandiker, V.A. (Ed.) The politics of backwardness: reservation policy in India. New Delhi: Konark Publishers, Private Limited, 1997. Also see Prakash, L. Scheduled castes and tribes: the reservations debate. 38, 25 Economic and Political Weekly (21–27 June 2003), PP. 2475–2478; Galanter, M. Competing equalities: law and the backward classes in India. Berkeley: University of California Press, 1984. 32 Chandra, S. Enslaved daughters: colonialism, law & women’s rights. New Delhi: Oxford University Press, 1999.

India and China  45 contemporary India extends to a class of persons defined in law as ‘SC/ST and OBC’ which stands for Scheduled Castes and Scheduled Tribes as designated in the Indian Constitution,33 and ‘Other Backward Castes’ a political extension to those meritorious of affirmative action, who may not have been listed in the Schedule, but are considered to be in a vulnerable position.34 The design and efficacy of these measures are varied and constructed to work in individual and collective settings. Yet the manner of the design is sometimes perceived as tokenistic and has, as a consequence, often failed to overcome deepseated and ingrained social attitudes towards those far from sites of power. Its most significant failure has been in educating the majority populations about the importance of such measures both in terms of the pragmatism of dampening conflict and in terms of realising the full economic potential that could be gained from the significant diversity of the ‘national minority’ populations.

China The ebb and flow of history had led to the presence of significant ‘nations’ within the Chinese frontiers of 1949, which have been maintained until today. This is acknowledged in several Chinese governmental white papers which also emphasise the need for unity between the different Chinese nations, and call for curbing what is referred to as ‘Han chauvinism’ in a bid to enable the other nationalities to see a positive future within the Chinese State.35 The emphasis on equality between peoples and nations was one of the founding principles of the Chinese State, and there has been awareness throughout modern Chinese history of the need to create an egalitarian society through the mechanism of communism. Even though the Chinese State under Deng Xiaoping adopted ‘pragmatic communism’36 which enabled the growth of small businesses as the State sector began to deregulate,37 the emphasis on equality continued through various governmental policies especially targeted towards minority nationalities that sought to spread economic wealth.38 However as the areas came under pressure, the minority agenda ebbed in the face of the growth and attraction of market-based capitalism. As a consequence, the attempted replication of the economic model

33 This is enshrined in law by The Constitution (Scheduled Castes) Order (1950) which lists castes across India in its First Schedule, and the Constitution (Scheduled Tribes) Order (1950) which lists tribes across the Indian States in its First Schedule. 34 See Hassan, Z. Caste, social backwardness and OBC reservations (Mandal I and II). Politics of inclusion: castes, minorities and affirmative action. Oxford: Oxford University Press, 2009. 35 See Chinese Academy of Social Sciences (supra note 8, PP. 9–12); Editorial (supra note 10, PP. 11–12); Hsiao-T’ung (supra note 10). 36 See White, G; Howell, J; Xiaoyuan, S. In search of civil society: market reform and social change in contemporary China. Oxford: Clarendon Press, 1996. 37 Chua, A.L. Markets, democracy, and ethnicity: toward a new paradigm for law and development. 108, 1 Yale Law Journal (1998) PP. 1–106. 38 Lollar, Xia Li. China’s transition toward a market economy, civil society and democracy. Bristol: Wyndham Hall Press, 1997.

46  Joshua Castellino and Sayantani Sen that served as the contemporary take-off for the Chinese economy, the free trade areas in the east, looked and felt very different when attempted in China’s Go West policy, which pertained to the western minority-dominated area of the country.39 This has perpetrated a degree of fear amongst certain groups, notably the Uyghur. As a consequence, while Chinese affirmative action policies are widespread and progressive in design, they have limited impact in some communities that seek more than what is being offered. The Peoples’ Republic of China could be said to have four key characteristics in its approach to affirmative action measures. The first of these is the recurring re-statement of their importance in building the unity of the Chinese nation, as put forth in the Preamble to the 1982 Constitution which states: The People’s Republic of China is a unitary multinational state built up jointly by the people of all its nationalities. Socialist relations of equality, unity and mutual assistance have been established among them and will continue to be strengthened. In the struggle to safeguard the unity of the nationalities, it is necessary to combat big-nation chauvinism, mainly Han chauvinism, and also necessary to combat local national chauvinism. The state does its utmost to promote the common prosperity of all nationalities in the country.40 Article 4 adds further prominence to this value by (a) reiterating the importance of equality, (b) emphasising the importance of state assistance in development and the need to focus on peculiarities (sic) of minority nationalities, (c) identifying regional autonomy as an option, governed by the Autonomy Law Paragraph (3) highlighting the cultural and identity-based question of language and custom, though it does not explicitly identify a State obligation towards this.41 A second clear characteristic underpinning the Chinese approach is one that has identified 56 internal ‘nationalities’, each based on linguistic, ethnic, religious features and diverse practices that are deemed to be especially meritorious of such actions. While a majority of the population in China belong to Han ethnic group thus forming a large majority, the remaining 55 nationalities are customarily referred to as ‘minority nationalities’. Without any official definition of a minority, there is relatively little information and significant controversy for the precise terms on which the 56 nationalities were identified.42 Some such as the Hui and the Zhuang are closest in tradition and belief to the Han majority, while the Turkic people living in Western China including the Uygurs

39 See Moneyhon, M.D. China’s great Western development project in Xinjiang: economic palliative, or political Trojan horse? 31, 3 Denver Journal of International Law & Politics (2003), PP. 491–519. 40 Constitution Peoples Republic of China (1982). 41 Ibid. 42 See the numbers, supra note 9.

India and China  47 and the Kazaks, have closer links to the Middle East and the Central Asian Republics. The importance of the identity question to China’s own growth and development can be emphasised by the fact that while only accounting for a small percentage of the total Chinese population, minorities occupy a land mass equivalent to close to 60% of Chinese territory, mainly on account of the vast under-populated Western areas. The two elements identified above have led to the third characteristic of the Chinese approach to affirmative action, namely the design of a wide range of measures to promote equality of opportunity and cultural autonomy within the strict frame of loyalty to the idea of One China and the Communist Party. Official government statements imply a progressive attitude towards minority nationalities by way of opposing forced assimilation, granting territorially based nationalities autonomy (whether at regional, provincial, or township level), and creating provisions for the furtherance of minority participation in the educational, political, administrative, or cultural realm.43 Importantly, the most striking aspect of Chinese policy towards minorities is the detailed arrangements vis-à-vis autonomy, based primarily on the Law of the People’s Republic of China on Regional National Autonomy.44 The fourth and final characteristic, and the one that has gained increased prominence in the landscape on identity-based equality, is China’s strict adherence to state unity. Like a majority of States, Chinese politics fiercely opposes secession, and the government has shown, on a number of occasions, that it is willing to use force to repel movements it considers as destabilising to the State. China’s attitude to minority rights can thus be summed up in the words of article 28 of its Constitution: The State maintains public order and suppresses treasonable and other criminal activities that endanger State security; it penalizes actions that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals.45 Thus, despite the relative sophistication in the legal design of measures to promote effective equality, it could hardly be said that the rights of China’s minorities are well respected. While the affirmative action measures are relatively well designed and widespread in the range of issues they seek to influence, their impact in gaining full participation for minorities is limited due to restrictions on the role of dissent in the State. Against this, the significant improvements in raising populations out of poverty suggest that some of the affirmative action measures, especially ones that focus on minorities of regional and sub-regional 43 Minority Rights in China. In: Castellino, J; Dominguez-Redondo, E. (supra note 14). 44 Adopted at the Second Session of the Sixth National People’s Congress, promulgated by Order No. 13 of the President of the People’s Republic of China on 31 May 1984, and effective as of 1 October 1984. For a critique see: Heberer, T. (supra note 13). 45 Constitution of the Peoples Republic of China (1982).

48  Joshua Castellino and Sayantani Sen autonomy may have succeeded in combatting the most egregious of exclusions from socio-economic life. For more controversial nationalities (e.g. Tibetans and Uygurs) major obstacles remain owing to their perceived loyalty to ‘splittism’ i.e. separation from the Chinese State. The increasingly militarised border where the minorities live, and their ever-closer monitoring and surveillance also bring the value of these measures into sharp focus.

The rise of ‘politics’ over ‘law’ China The rise of Xi Jinping to power has come at a time when China has become an increasingly important global economic player. As technology has enabled the rapid design and distribution of augmented quantities of goods and services, countries with significant population sizes have begun to benefit from their comparative advantages in terms of size and market.46 China’s economic pragmatism has been long admired among circles that could assess the country objectively, and this economic pragmatism also spilled over to political pragmatism that enabled schemes like One Country Two Systems, prompted by the return of Hong Kong’s capitalist and more democratic society to the communist and restricted Chinese State at the end of the 100-year lease of the island to the United Kingdom in 1997. It is no accident that this scheme is also currently under considerable strain.47 One key factor played a significant role in changing China’s most recent rise of power: the creation of special economic zones in the East of the country by President Deng Xiaoping in the 1980s that first fostered Chinese trade with the so-called East Asian tigers.48 It enabled China to start raising its capacity for production, in the knowledge that trading with fast-moving trade-oriented economies would ensure wider distribution and markets for its goods. A similar move to the West of the country was launched, the Go West Development policy,49 which sought to replicate the Eastern miracle but ran into significant difficulty. Unlike the east of the country, China’s western frontier is heavily populated by nations with a historical animosity towards the Chinese State. These communities have been closer or further away from power at various points in China’s long illustrious history. Under the current historical era commencing in 1911, modified through ascendance of the Communist Party in Beijing (then Peking), these communities were ‘united’ under the Chinese banner and globally accepted as part of the Peoples Republic of China though their allegiance

46 Economy, E. The third revolution: Xi Jinping and the new Chinese state. Oxford: Oxford University Press, 2018. 47 Suisheng, Z. (Ed.) Chinese foreign policy: pragmatism and strategic behaviour. London: ­Routledge, 2016. 48 Lollar, X.L. (supra note 38). 49 Moneyhon, M.D. (supra note 39).

India and China  49 was not really determined in any meaningful way.50 Pragmatic policymaking at the commencement of the Communist Party reign ensured that there was heightened respect for these nationalities in the national rhetoric, but prior to the significant attempt to ‘develop’ the areas they remained relatively isolated, in a country also isolated from international affairs. The Go West Development policy may normally have been welcomed in provinces such as Xinjiang, Inner Mongolia, Tibet and Yunan, home to the highest number of minority nationalities, areas beyond the traditional focus of comparable central governmental funding. However, while the policy brought infrastructure projects and investment to the regions, this came with the creation of jobs for China’s growing Han population.51 Thus, while investment was needed in these areas and is crucial to spreading development, a feeling of resentment grew, building on latent historical feelings of exclusion and domination, as significant numbers of Han migrated to the area to take up opportunities at the cost of the local population.52 This heightened tensions towards Beijing and led to the commencement of policies that have begun to unravel the notion of China as an umbrella state to many nationalities. With tensions in Tibet relatively high through each of the seven decades since the foundation of the Chinese State,53 difficulties began to arise in Xinjiang where the Uyghurs began to mobilise. In a phenomenon parallel to what will be discussed in the Indian context, these voices were deemed anti-national, or ‘splittist’ i.e. seeking to undermine the territorial sovereignty of China, and were met with significant repression. The earlier manifestation of Chinese policy, ‘Strike Hard, Strike Harder’ created new enmities, and the rise in brutality led to greater disenfranchisement among youth who saw no prospect for themselves in the new ‘developments’ in their region.54 External influences are likely to have played a role since the communities in that border area, due to their own history and association with neighbouring Turkic speaking communities in Kazakhstan, Turkmenistan and Tajikistan, who were also newly independent from the break-up of the Soviet Union, changed their aspiration for their own self-determination. The Chinese response of building the world’s longest railway lines to Urumxi and Llhasa, the capitals of Xinjiang and Tibet respectively, celebrated in Chinese circles as significant achievements that would aid regional development, was

50 See e.g. Drompp, M.R. Tang China and the fall of the Uighur empire. Leiden: Brill, 2005. 51 Gladney, D. Internal colonialism and China’s Uyghur Muslim minority. X, 1 ISIM Newsletter (1998). 52 Gladney, D. China’s minorities: the case of Xinjiang and the Uyghur people. UN Doc. E/CN.4/ Sub.2/AC.5/2003/WP.16. 53 Shakya, T. The dragon in the snow: a history of modern Tibet since 1947. New York: Columbia University Press, 1999; Sautman, B. Cultural genocide and Tibet. 38, 1 Texas Intentional Law Journal (2003) PP. 173–247. 54 Bovington, G. The Uyghur: strangers in their own land. New York: Columbia University Press, 2010.

50  Joshua Castellino and Sayantani Sen viewed by many in the region as a means to dispatch troops to forcibly pacify boundary populations in ways that are historically salient.55 The ascendance of Xi Jinping to effectively occupy the metaphorical throne of historical Chinese Emperors and Elders,56 and his genuine desire to further the prosperity of China led him to articulate the One Belt One Road initiative.57 This constitutes expansion of the physical trade routes through which Chinese manufacturing could reach the global economy through a land and sea route, where it has significant comparative advantage in terms of cost and, more recently, also of quality.58 In view of China’s growing population, this serves as a means to attract investment and economic opportunities to China, and inevitably, as established in the previous century by European expansion plans to Africa and Asia, to spread its influence. While not significantly different from Pax Britannia, ­ its blanket criticism in Western writings shows the deep bias in European and American writings. From the perspective of minorities, however, this quest for economic dominance comes directly upon lands and territories of people who appear not to believe that the economic development would benefit them. They view the expansion as similar to the manner in which European colonisation was received in parts of Africa and Asia in the past two centuries: exploitative of indigenous resources to little benefit for its inhabitants. As their agitation has grown, and the autonomy given under a bespoke law to facilitate ‘self-governance’ has failed to restore order,59 resistance to the harshness of the Central government response has grown. In response, President Xi has provided a clear statement denouncing ‘splittism’,60 directed aggression towards communities caught within these claims, and attempted to silence critics who seek to support the call for rights and dialogue, most recently through establishment of detention camps to ‘re-educate’ those whose loyalty to the Chinese State is deemed as faltering.61

55 See e.g. Xinhua News Net. China approves railway project in Xinjiang. Source: Xinhua 2018-05-08 1823:34 http://www.xinhuanet.com/english/2018-05/08/c_137164333.htm (accessed 10 January 2020). 56 The speech delivered by Xi Jinping in 2017 is considered to be the marker of a new generation in Chinese law and politics. A full official transcript of this speech, translated into English, is available at: http://www.xinhuanet.com/english/download/Xi_Jinping’s_report_at_19th_ CPC_National_Congress.pdf. For his own writings and perspective see Xi Jinping. Xi Jinping, the governance of China. Beijing: Foreign Languages Press, 2014. 57 Zeng, J. ‘Does Europe matter? The role of Europe in Chinese narratives of ‘one belt one road’ and ‘new type of great power relations’. 55, 5 Journal of Common Market Studies (2017) PP. 1162–1176. 58 Ferdinand, P. ‘Westward Ho – the China dream and ‘one belt one road’: China foreign policy under Xi Jinping. 92, 4 International Affairs (2016) PP. 941–957. 59 The Law on Autonomy was adopted at the Second Session of the Sixth National People’s Congress, promulgated by Order No. 13 of the President of the People’s Republic of China on 31 May 1984, and effective as of 1 October 1984. 60 Xi Jinping speech. (supra note 57, PP. 13–14). 61 Scholars at Risk Network. Obstacles to excellence: academic freedom and China’s quest for world class universities. 2019. Full text: https://www.scholarsatrisk.org/resources/obstaclesto-excellence-academic-freedom-chinas-quest-for-world-class-universities/.

India and China  51 India The rise of Prime Minister Narendra Modi in India at the head of a ‘Hindutva’ movement mirrors the Chinese experience,62 though a very crucial difference lies in the fact that this rise was achieved through popular consent, expressed through free and fair elections.63 Having inherited a party cadre system that invoked grass root movements, in his first term the Prime Minister appeared to largely accept the compromises made at the foundation of the State in a bid to consolidate and secure the territory of India and the complex identities, religious and others, that formed a significant part of the population. At its foundation, India had adopted key principles within a fierce all-encompassing multi-religious and secular ideology,64 but was also pragmatic in generating a narrative of national identity designed to curb the further haemorrhaging of land and people. Among these elements were the following: the principle of self-determination which enabled each of the former princely states to consent to the idea of India as a united entity; the decision to constitute India into a federal State with considerable devolved power;65 the redrawing of the administrative boundaries of India’s former administrative units to ensure that India’s significant linguistic diversity would be maintained through linguistically determined statehood within the federation;66 an overarching protection of equality and non-discrimination that underscored the need for accessible rights for all;67 affirmative action measures (reservations) that sought to create bespoke mechanisms to advance the specific socio-economic development of Tribes and Castes that were specifically identified in a Schedule to the Constitution;68 special protection for Kashmir which remained India’s Muslim majority state (revoked in 2019, spurring protests); special protection for the North-eastern States of India designed to enhance cultural protection and protection from

62 Berenschlot, W. Political fixers and the rise of Hindu nationalism in Gujarat, India: lubricating a patronage democracy. 34, 3 South Asia: Journal of South Asian Studies (December 2011) PP. 382–401. 63 Corbridge, S; Harriss, J. Reinventing India: liberalization, Hindu nationalism and popular democracy. Cambridge: Polity Press, 2000. 64 Bhargava, R. The promise of India’s secular democracy. New Delhi: Oxford University Press, 2010. 65 Benedikter, T. Language policies and linguistic minorities in India: an appraisal of the linguistic rights of minorities in India. Berlin: Lit Verlag, 2009. 66 Rao, B.V.R. The constitution and language politics of India. Delhi: B.R. Publishing Corporation, 2003; see also: King, R. Nehru and language politics of India. Delhi: Oxford University Press, 1997. 67 This element as well as the specific measures on caste are attributed to the work of Dr. B.R. Ambedkar who went on to become India’s first law minister. For the impact of Ambedkar on Indian law and society see: Keer, D. B.R. Ambedkar: life and mission. Bombay: Prakashan, 1962. 68 This is enshrined in law by The Constitution (Scheduled Castes) Order (1950) which lists castes across India in its First Schedule; and, the Constitution (Scheduled Tribes) Order (1950) which lists tribes across the Indian States in its First Schedule. See Pai Panandiker, V.A. (supra note 31).

52  Joshua Castellino and Sayantani Sen encroachment;69 and, guarantees of religious freedom to practise religion and to establish educational systems in line with their own belief systems. The constitutional debates that led to the framing of the Indian Constitution had insisted on the country being ‘secular’, and the ongoing nature of the discussion into the first few decades of the State even led to a Constitutional Amendment specifically changing the name of the State to reflect this in 1976.70 In subsequent case law the Courts have sought to specify that secularity as understood in the Indian context was different to that elsewhere in that it was not the avoidance of religion, but a neutrality towards it, appropriate in keeping with the diverse faiths that have characterised Indian history.71 The ‘minority rights’ package within Indian law included affirmative action measures at the very heart of the discussion, as articulated in the previous paper that forms part of this research project72 and as summarised in the previous section. Indeed the model of protection afforded to ‘Scheduled Castes, Scheduled Tribes and Other Backward Classes’ in the Indian terminology, (abbreviated in the literature to SC/ST/OBC) is worthy of global study and replication as it accepts short-term inequality for the majority in favour of achieving structural change.73 The expansion of the category of special measures to ‘OBCs’ created significant tension in the 1980s in India, leading to nation-wide protests on a scale that is being re-witnessed towards the end of the last few years of the first decade of the twenty-first century.74 However, affirmative action measures of the nature of job reservations were never extended to religious minorities, whose rights package included the right to form religious institutions and to be governed by their own personal laws (also applicable to Hindus).75 There had always been low-level criticism of the affirmative action policies within the country, heightened at times of economic difficulties as scarcity of opportunities generated resentment that some should be earmarked on the grounds of identity. There was also a trend by which some from other communities sought to ‘pass’ as members of a ‘reserved’ category to benefit from measures specifically designed for that group. Many opponents of ‘reservations’ as the affirmative action measures were labelled, suggested that such engineering was bad for the system since it did not provide an opportunity to the best talents, and therefore impacted overall efficiency. These criticisms in the public realm made the majority less willing to accept these kinds of preferences against 69 Barpujari, H.K. (supra note 30); Jacobs, J. (supra note 30). 70 The clause ‘socialist secular’ was inserted into the title of the State between ‘sovereign’ and democratic’ yielding the full title of the State as the ‘Sovereign Socialist Secular Democratic Republic of India’ by the 42nd Amendment Act 1976. 71 As articulated in Valsamma Paul v Cochin University, All India Reports 1996 SC 1011, para. 25. 72 Castellino, J. (supra note 7). 73 Galanter, M. (supra note 31). 74 Louis, P. Scheduled castes and tribes: the reservations debate. 38, 25 Economic and Political Weekly (21–27 June 2003) PP. 2475–2478. 75 Larson, G.J. (Ed.) Religion and personal law in secular India: a call to judgment. Bloomington: Indiana University Press, 2001; Pereira, F. (supra note 29).

India and China  53 them.76 However, tackling the system of reservations would have created a significant schism for the current ruling political party (Bharatiya Janata Party) whose political strategy consisted of uniting the significantly greater Hindu numbers to seize control of the political system. Seeking to unwind long-term measures put in place to tackle caste-based discrimination would have significantly reduced its political numbers, allowing Dalits and groups that broadly fell within the problematic ‘Other Backward Classes’ category in India to build competing movements. Attention therefore turned to ‘the old enemy’ of Muslims. The Indian Muslim population is diverse in terms of its religious belief (sect), and linguistic backgrounds, with most speaking the local languages of the states in which they have lived for generations. The extent to which the ‘Muslim’ communities have been assimilated into ‘Indian’ society varies tremendously from urban to rural settings and is different in different states. In addition, the Muslim population of India grew in the aftermath of the brutal war between India and Pakistan resulting in the eventual establishment of the State of Bangladesh. The tensions in the Kashmir valley have also been a source of conflict due to which populations may have moved across the British-inspired artificially constructed boundaries of the subcontinent.77 These have become exacerbated as the special protection afforded to Kashmir under article 370 of the Indian Constitution was unilaterally revoked by the Modi Government in 2019.78 A separate issue had been brewing in the State of Assam in the Northeast of India, nearest the Bangladeshi frontier, where the local tribal population had for long feared being assimilated into ‘Indian’ culture as their lands, rich in the tea plantations developed by the British, attracted non-Assamese owners who took over the departing colonial leases on estates. The tea plantations and the arrival of non-indigenous Assamese cultures had always been a source of tension in the region (as is currently the case in Nagaland), and this was not helped by the flow of Bengalis from the Indian State of West Bengal as well as those fleeing from what was traditionally East Bengal but had become part of Pakistan with Indian partition. These incomers deemed ‘foreigners’ were referred to as ‘Bengalis’ which refers to a linguistic rather than religious group, whose members could be Hindu, Muslim or from other religious minorities that have lived either in the former (undivided) colonial province of Bengal, or within one of the two entities that

76 Hassan, Z. (supra note 34). 77 Bose, S. Kashmir: roots of conflict, paths to peace. Cambridge, MA/London: Harvard University Press, 2003. 78 Kumar, A. The constitutional legitimacy of abrogating article 370. 54, 38 Economic and ­Political Weekly (21 September 2019): https://www.epw.in/journal/2019/38/commentary/ constitutional-legitimacy-abrogating-article-370.html; Verma, M. Diminishing the role of Parliament: the case of the Jammu and Kashmir reorganisation bill. 54, 45 Economic and ­Political Weekly (16 November 2019): https://www.epw.in/engage/article/diminishing-roleparliament-case-jammu-and-kashmir.

54  Joshua Castellino and Sayantani Sen it broke into – the Indian State of West Bengal or the modern sovereign State of Bangladesh (formerly East Pakistan and even more formerly, East Bengal). The tensions in Assam led to a long low-intensity armed conflict with significant spikes, and the matter was finally brought to a ‘close’ with the agreement of the Assam Accord in 1985, which was, among other measures designed to promote Assamese culture and promised the establishment of a ‘National Register of Citizens’.79 The problematic nature of formulating this register was clear to all: lack of evidence in often destitute populations made proving anything difficult; the poor state of administration across India and levels of illiteracy made the generation of paperwork hard. Successive Indian governments had also realised that it would be impossible to instigate a system that could prevent or evict Indians from other States who had moved to Assam, in contravention of their right to free movement and residence in any part of the country. As a result, the aspiration for a National Register of Citizens deemed to identify and evict those who did not belong in Assam was shelved until the rise of the current Modi government, which not only instigated a series of Foreigner Tribunals,80 it built detention centres where the mass disenfranchised would be held.81 The controversy of rendering a number of people, that at one stage was estimated to be close to 4  million, stateless, warranted significant criticism from within and outside India. Making individuals stateless goes against the fundamental principles of international law. In addition, depriving individuals of citizenship based on failures to prove their identity through a series of specific documents, unfairly places the onus upon individuals. The lack of a published plan as to what was meant to happen to those deemed ‘foreign’ is a grave concern to international peace and security, as already evidenced from the unfolding Rohingya crisis stemming from Myanmar. Two further elements fuelled mass response in India: a promise made by the Home Minister (but denied in the midst of pressure by the Prime Minister) that a National Register of Citizens would be rolled out across the country;82 and, that due to their alleged persecution in India’s non-Hindu surrounding neighbouring States, the Government of India would offer Indian citizenship to Hindus, Sikhs and Christians from these countries, enshrined in law through the Citizenship Amendment Act (2019). This effectively meant that long-standing Muslim populations that had resided in India since time immemorial could be 79 For a full text of the Accord, see: https://peacemaker.un.org/sites/peacemaker.un.org/files/ IN_850815_Assam%20Accord.pdf. 80 [editorial] Fact-finding team pick holes in Assam’s foreigner tribunals’. The Telegraph Online, 17th September 2019: https://www.telegraphindia.com/states/north-east/fact-finding-teampicks-holes-in-assam-s-foreigners-tribunals/cid/1705688. 81 Dutta, P.K. NRC and story of how Assam got detention centres for foreigners. India Today, 27 December 2019: https://www.indiatoday.in/india/story/nrc-story-how-assam-got-detentioncentres-for-foreigners-1631835-2019-12-27. 82 See: PM Modi counters what Amit Shah, BJP Manifesto says on bringing all-India NRC. 22 December 2019: https://www.indiatoday.in/india/story/pm-modi-counters-what-amit-shahbjp-manifesto-say-on-bringing-all-india-nrc-1630576-2019-12-22.

India and China  55 rendered stateless, while Hindu or other communities that had no ties to the physical territory of modern India could be encouraged to get citizenship and move to India. This effectively signalled a complete reversal of direction for the modern State of India from a secular and diverse country with religious tolerance, to a theocratic State that was setting itself up as a homeland for one particular religion.

Conclusions The world’s two most populous States (China 1.4 billion and India 1.3 billion) are more than four times the size of the next most populous State (the United States of America, 327 million), and each have a greater population than each of the other continents in the world (Africa 1.2 billion, the Americas 1 billion, Europe 750 million and Oceania 38 million). The other continents account for as many as 193 of the 195 sovereign States that currently exist in the world. Even if the populations of China and India were homogenous, adhering to a single religion, or ethnic group or language, such a mass of people spread over considerably variable geographic terrain would be close to impossible to govern effectively.83 Two other issues need to be factored in. First, the size of the Chinese and Indian diasporas amidst their immediate neighbours and further abroad is significant. China’s reign of influence traditionally spread into South East Asia, and many Southeast Asian States have significant Chinese populations. Overseas Chinese populations feature strongly in every part of the globe with presence in every OECD country, and in more recent years through migration into Africa, following Chinese investment. Modern India is significantly smaller postindependence than it could have been if it had emerged undivided from British colonial rule. Pakistan (216 million) and Bangladesh (163 million), formerly part of that entity, are the fifth and eighth most populous States in the world. In addition, as a consequence of the spread of British colonial rule, Indian populations form significant and at times influential minorities in many countries in Eastern Africa, Oceania, Southern Africa, Europe, North America and, since the 1970s due to labour migration, in the Gulf Cooperation Countries of the Middle East. This diversity and movement of peoples has made descriptions of ‘Chinese’ or ‘Indian’ identities fraught with the prospect of inaccuracy. Seeking to determine a single identity in the context of the sheer size of such numbers is likely to be an endlessly futile task. Second, the sizeable populations within the territorial jurisdiction of each State have significant ethnic, religious and linguistic differences.84 This is a 83 For up to date population estimates based on census and growth rates see: https://population. un.org/wpp/. 84 In the case of India this diversity was articulated in the judgment of the T.M.A. Pai case. See: T. M. A. Pai Foundation and others v State of Karnataka and others, WP (Civil) No. 317/1993 (31 October 2002) Para. 158.

56  Joshua Castellino and Sayantani Sen



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India and China  57 financial and moral leadership towards creating a more sustainable future built on lessons of long and rich histories would have been more in line with the traditional pragmatism in both States. Instead, both arrive at this point paranoid about existential threats, worried that diversity will lead to the disintegration and suspicious of the loyalties of people increasingly defined as ‘enemies within’. Within the next few years and decade, the manner in which the governance of these vast States progresses will determine whether these threats will come to pass. Irrespective of their efficacy (and there are significant valid critiques to be heard), affirmative action measures in both countries have served to placate and convince diverse populations that their future lies within the State. Dismantling or undermining these for upholding narrow political interests may not have as salutary an effect on the maintenance of the territorial integrity and unity of these States.

4

Effectiveness of affirmative action in the United Kingdom and South Africa Erica Howard

Introduction This book shows that there is a growing international agreement on the principle of equality of opportunity for all, a principle which, as Kennedy-Dubourdieu writes, underpins a stable and just society.1 She continues that this raises the question of how best to achieve equality and that ‘one of the great innovations in social policy in recent times has been that of “affirmative action”, set up in various parts of the world’.2 Such affirmative action measures in the United Kingdom (UK), the European Union (EU) and South Africa are the focus of this chapter. It begins with a short overview of the origins and evolution of affirmative action in the UK, the EU and South Africa as explored in a previous publication.3 This paper builds on that research in which it was explained that affirmative action is, in the UK and the EU, generally referred to as positive action. It explained these measures in Great Britain (England, Scotland and Wales) and Northern Ireland (where the term ‘affirmative action’ is used), which has different provisions due to its history. The terms ‘affirmative action’ and ‘positive action’ will be used as interchangeably and will be understood as referring to a concept that ‘involves the use of special measures to assist members of disadvantaged groups in overcoming the obstacles and discrimination they face in contemporary society’.4 The overview of the legislation is followed by an assessment of the implementation and efficacy of the affirmative action measures. Then, the obstacles to their implementation and their contestation are examined. The next part focuses on a specific form of affirmative action for disabled people: duties of reasonable accommodation. The conclusion includes the suggestion of another measure, 1 Kennedy-Dubourdieu, E. Introduction. In: Kennedy-Dubourdieu, E. (Ed.) Race and inequality. London/New York: Routledge/Taylor & Francis Group, 2006. P. 1. 2 Ibid. 3 Howard, E. Affirmative action in the UK and in South Africa. In: Baez, N; DominguezRedondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018. PP. 185–214. 4 O’Cinneide, C. Positive action. ER A, 2012. P. 1: http://www.era-comm.eu/oldoku/SNLLaw/ 04_Positive_action/2012_Cinneide_EN.pdf (accessed 16 January 2020).

UK and South Africa  59 mainstreaming equality, which can complement affirmative action measures in working towards more equality in practice. Mainstreaming is further analysed in a case study in Part III of this book.

Overview of the origin and evolution of affirmative action measures in the UK and South Africa England, Scotland and Wales In England, Scotland and Wales, sections 158 and 159 of the Equality Act 2010 (EA 2010)5 on positive action apply. Section 158 concerns general provisions and is not applicable to recruitment and promotion. This section allows generally for the taking of affirmative action measures to alleviate disadvantage suffered by people who share one of the protected characteristics, or to reduce their underrepresentation or to meet their particular needs. Any measures taken under this section are subject to a proportionality test which means that the measure must be a proportionate way to achieve one of the legitimate aims mentioned in the section. When assessing proportionality, the seriousness of the relevant disadvantage, the extremity of need or underrepresentation and the availability of other means of countering them are taken into account. This means, first, that these measures are time-limited and should finish when the aim is achieved as they will then no longer be proportionate. Second, the measure will generally not be considered proportionate if there are other, less discriminatory ways of achieving the aim. Section 159 EA 2010 allows for positive action measures in recruitment and promotion. So an employer can take a protected characteristic into account when deciding who to recruit or who to promote where people having the protected characteristic are at a disadvantage or are underrepresented. However, the employer can only do so where the candidates for recruitment or promotion are as qualified as each other – in other words, this can only be done in a so-called ‘tie break’ situation – and the employer cannot have a policy which automatically treats all persons who share a particular protected characteristic more favourably than others, as the merits and qualifications of each candidate have to be considered. Moreover, the actions adopted under this section are subjected to the same proportionality test applied to section 158. Sections 158 and 159 EA 2010 conform to EU law, where the same rules were established through the case law on positive action in relation to sex discrimination. EU law allows for positive action measures in article 157(4) TFEU (Treaty on the Functioning of the European Union) and in the Anti-Discrimination Directives.6 For gender discrimination, this is also laid down in article 23 of 5 Equality Act 2010: https://www.legislation.gov.uk/ukpga/2010/15/contents. 6 Article 5 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180/22; article 7 Council Directive 2000/78/EC of 27 November 2000 [2000] OJ L 303/16; article 6 Council

60  Erica Howard the EU Charter of Fundamental Rights, which determines that ‘the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex’. Both the TFEU and the Directives mention that positive action measures are allowed ‘to ensure full equality in practice’. The Court of Justice of the European Union (CJEU) has held that the provisions exclude programmes which involve automatic preferential treatment at the point of selection in employment.7 The CJEU allows positive (affirmative) action in employment where two candidates are equally qualified.8 The CJEU has also held that positive measures in relation to gender discrimination must be interpreted strictly because they are a derogation of the principle of equal treatment.9 Moreover, the CJEU has determined that a proportionality test applies to positive action measures.10 Therefore, such measures should not last beyond the time when “full equality in practice” has been achieved. Section 104 EA 2010 allows political parties, in order to address the underrepresentation of women, to use all women shortlists in local and national elections – in other words, they can have a list with only women, thus guaranteeing that a woman is elected. This can be done until 2030. However, political parties cannot use shortlists with, for example, only ethnic minority candidates, despite the fact that this group is also severely underrepresented in Parliament.11 It must be noted that the use of sections 104, 158 and 159 EA 2010 and of positive action measures in the EU is entirely voluntary and there is no duty to take such measures under these provisions. An individual cannot, therefore, claim against their employer for failing to take positive action measures.

7

8 9 10

11

Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L 373/37; article 3 Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L 204/23. See, for example, the following cases: C-450/93 Kalanke v Freie Hansestadt Bremen, ECLI:EU:C:1995:322; C-409/95 Marschall v Land Nordrhein-Westfalen, ECLI:EU:C:1997:533; C-158/97 Badeck’s Application, ECLI:EU:C:2000:163; C-407/98 Abrahamsson and Anderson v Fogelqvist, ECLI:EU:C:2000:367; C-319/03 Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation Nationale and Ministre de la Justice, ECLI:EU:C:2004:574. Para. 23 of the latter case sums this up. For all judgments of the CJEU: http://curia.europa.eu/juris/recherche. jsf?language=en For a more extensive discussion of the development of positive action in EU law. see: Ellis, E; Watson, P. EU anti-discrimination law. 2nd ed. Oxford: Oxford University Press, 2012. PP. 420–437. See the cases in the previous footnote. See Kalanke v Freie Hansestadt Bremen, para. 21; Marschall v Land Nordrhein-Westfalen, para. 32. (both: supra note 7). Case C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij, ECLI:EU:C: 2002:183, para. 39; see also: Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation nationale and Ministre de la Justice. (supra note 7, para. 24). Browning, S; Uberoi, E. Ethnic diversity in politics and public life. House of Commons Library, Briefing paper number SN01156, 19 September 2019: https://commonslibrary.parliament.uk/ research-briefings/sn01156/.

UK and South Africa  61 Northern Ireland Northern Ireland’s equality laws have developed in a different way from the legislation in the rest of the UK due to the historical situation there with Catholics and Protestants highly segregated from each other in employment. Catholics were concentrated in particular sectors of the labour market and in particular firms, and they suffered unemployment rates which were two or three times as high as those for Protestants.12 As McColgan writes, in Northern Ireland, having actual or perceived status as Catholic has traditionally been associated with systemic disadvantage and oppression as a result of the creation of a Protestant state in the early part of the twentieth century and a robust approach to its maintenance at least until the mid-1970s.13 Due to this historical situation, discrimination on the grounds of religion or belief has been prohibited in Northern Ireland since 1976, when the first Fair Employment (Northern Ireland) Act was adopted. However, that legislation ‘rejected, the option of positive discrimination in the form of quotas or fixed ratios for Protestants and Catholics in workplaces’.14 Thirteen years later, the new Fair Employment (Northern Ireland) Act 1989 introduced a duty on both public and private employers to actively practice equality and use affirmative action to achieve fair employment between Catholics and Protestants where necessary. The current provisions can be found in section 4 of the Fair Employment (Northern Ireland) Order 1998 (FETO 1998).15 The aim of this section is to ensure fair participation, to redress imbalances and underrepresentation. Under the legislation, employers must carry out regular reviews of the composition of their workforce to determine whether there is fair employment and they must take remedial action, including affirmative action, where this is required. Lawful affirmative action includes encouraging people to apply for jobs and training opportunities; offering training opportunities and facilities; adopting indirectly discriminatory redundancy selection procedures in order to protect the gains of affirmative action programmes; and, reserving job vacancies for persons who are unemployed. There was, between 2000 and 2011, a special provision for the police service in Northern Ireland, which could be found in section 46 of the Police (Northern

12 McCrudden, C; Muttarak, R; Hamill, H; Heath, A. Affirmative action without quotas in Northern Ireland. 4 Equal Rights Review (2009) P. 7. 13 McColgan, A. Discrimination, equality and the law. Oxford/Portland, OR: Hart Publishing, 2014. P. 67. 14 Equinet. Positive action measures. The experience of equality bodies, 2014. P. 51: http://www. archive.equineteurope.org/Positive-Action-Measures. 15 Fair Employment (Northern Ireland) Order 1998: http://www.legislation.gov.uk/nisi/1998/ 3162/contents/made.

62  Erica Howard Ireland) Act 200016, and which aimed at increasing the number of Catholic police officers and support staff. This section required the appointment of one Catholic person for every person of another religion who was awarded a post (50–50 recruitment). This section would have been incompatible with EU law, and, thus, article 15 of Directive 2000/78/EC contained a specific exception for this.17 The measure ended on 28 March 2011.

South Africa Affirmative action in South Africa has clear links with the history of apartheid. Section 9(2) of the 1996 Constitution of South Africa18 explicitly provides for affirmative action measures, defined as ‘measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’. The South African Constitution prohibits only ‘unfair’ discrimination and this is the same for South Africa’s anti-discrimination law, the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA 2000).19 The latter builds on the Constitutional provisions and provides, in section 14, for affirmative action measures. Moreover, the Employment Equity Act 1998 (EEA 1998)20 imposes a duty on private employers with more than 50 employees and on public authorities to implement affirmative action measures for people from designated groups, namely, black people (including black, coloured and Indian people), women and people with disabilities according to section 1, in order to achieve workplace equity. Section 15(3) explains that the affirmative action measures ‘include preferential treatment and numerical goals, but exclude quotas’. Section 15(4) EEA 1998 determines that nothing in section 15 requires an employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups. The Act does not appear to be very clear on what is and what is not permitted. However, the case law suggests that the key distinction between quotas, which are not allowed, and numerical targets, which are allowed, turns on the flexibility of the mechanism: an equity plan based on designated groups filling specified percentages of the workforce is allowed as long as it allows for deviations; in other words, as long



UK and South Africa  63 as there is no absolute bar to present or continued employment or advancement of people who do not fall within the designated group. However, an equity plan that does not cater for deviations would be against section 9(2) of the Constitution and section 15 EEA 1998.21

Comparison After comparing the normative framework regarding affirmative actions in the UK and in South Africa, 22 we have concluded that the South African approach was a more substantive equality approach than the approach in the UK and in the EU. A substantive equality approach goes beyond formal equality: where formal equality consists of treating everyone in the same way, substantive equality is more sensitive to inequalities caused by past discrimination. The approach to affirmative action in the UK and the EU goes beyond mere formal equality but represents a ‘derogation approach’ which regards affirmative action as an exception to the prohibition against discrimination. Such action is thus construed strictly but is legitimate in certain defined circumstances. In contrast, in South Africa, affirmative action is seen as an integral aspect of the equality guarantee in the Constitution and thus as a legitimate means to fulfil the non-discrimination principle.23 The difference between British and EU law on the one hand and South African law on the other is that, whereas the former only allow for preferential treatment in a ‘tie-break’ situation, in a situation where the candidates for a job or promotion are equally qualified, the South African provisions allow for preferential treatment as long as the person of the designated group is ‘suitably qualified’ even when there is a candidate from a non-designated group who is more qualified (section 15(2)(d)(i) EEA 1998). 24 The CJEU has clearly rejected the latter.25 What none of these frameworks appears to allow for is giving automatic preference without considering the individual qualifications of each candidate or without any provision for deviating from this in certain circumstances.

21 See, for example: Solidarity and Others v Department of Correctional Services and Others (CCT78/15) [2016] ZACC 18; Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 107. 22 See: Howard, E. (supra note 3). 23 Ibid., See also on the South African approach: Ngcobo, S. The meaning of Article 4(1) of the UN Convention on the elimination of all discrimination against women: a South African perspective. In: Boerefijn, I; Coomans, F; Goldschmidt, J; Holtmaat, R; Wolleswinkel, R. (Eds.) Temporary special measures. Antwerp/Oxford/New York: Intersentia, 2003. P. 189; Dupper, O. Restraint, deference and reasonableness affirmative action in South Africa. In: Dupper, O; Sankaran, K. (Eds.) Affirmative action, a view from the global South. Stellenbosch: Sun Press, 2014. P. 255. 24 Howard, E. (supra note 3, PP. 213–214). 25 Abrahamsson and Anderson v Fogelqvist. (supra note 7). See on this: Ellis, E; Watson, P. (supra note 7, PP. 434–436).

64  Erica Howard

Implementation and efficacy Affirmative action is provided for in the legislation of all jurisdictions examined in this chapter. All these measures are aimed at achieving equality in practice and all take account of the disadvantage that the targeted groups experience because of past and ongoing discrimination. All aim at dealing with the underrepresentation of these groups in employment and in other areas of life. However, are these measures being used and achieving these aims? This is examined in this part of the chapter.

England, Scotland and Wales In the Discrimination Law Review in 2007, which assessed the then existing anti-discrimination legislation prior to proposing a new Equality Bill, the British Government clearly stated that: There is a very important distinction between positive action and positive discrimination. Positive action means offering targeted assistance to people so that they can take full and equal advantage of particular opportunities. Positive discrimination means explicitly treating people more favourably on the grounds of race, sex, religion or belief, etc. by, for example, appointing someone to a job just because they are male or just because they are female, irrespective of merit. Positive discrimination is prohibited under British and European law and we do not believe it provides a solution to addressing disadvantage.26 The Government then explained that positive action measures are permitted ‘to compensate for disadvantage or to meet the special needs arising from membership of a protected group’ and that ‘they are designed to create a level playing field so that disadvantaged groups can compete on equal terms for jobs, access to services etc. or to provide services to meet their special needs’.27 The Government announced that it was going to propose such measures in the new Equality Bill and also stated that it was important to provide clarity about what was and what was not allowed.28 The explanatory notes to section 159 of the Equality Act 2010 make clear that this is an expansion of what was allowed before, as previous legislation ‘did not allow employers to take any form of positive action at the actual point of recruitment or promotion’.29 Therefore the provisions in

26 Discrimination Law Review: A Framework for fairness: proposals for a single equality bill for Great Britain. London: Department for Communities and Local Government, 2007. Part 2. Para. 7: http://webarchive.nationalarchives.gov.uk/20120919212654/http://www.communities.gov. uk/documents/corporate/pdf/325332.pdf. 27 Ibid., Chapter 4. Para. 4.15. 28 Ibid., Para. 4.46. 29 Explanatory notes section 159: https://www.legislation.gov.uk/ukpga/2010/15/notes/contents.

UK and South Africa  65 the Equality Act 2010 were meant to expand and clarify the existing positive action measures. However, has the Equality Act brought clarity and made it easier to use positive action measures? Are sections 158 and 159 of the Equality Act 2010 being used more frequently than previous provisions? As mentioned, the use of these sections is entirely voluntary. Davies points out that this is likely to limit their impact and their utility very considerably.30 Evidence suggests that these sections are indeed little used.31 For example, Johns et al. write that there has been ‘a relatively muted response’.32 And, Davies and Robison write that the indications are ‘that employers prefer to avoid the use of not only these measures in the recruitment and selection procedure, but also positive action measures in general’ and that ‘it appears that these provisions are relied on just as infrequently as the more limited provisions of the antecedent legislation’.33 The latter authors also point out that employers, who do try to use positive action measures, are more comfortable with measures involving outreach and encouragement, which both aim at attracting more applications from the disadvantaged group, and training than with preferential treatment as allowed by section 159.34 The reasons for this reluctance are analysed in the next part of this chapter. An exception to this is the changes brought to the selection process for judges by the Judicial Appointments Commission (JAC) by the Crime and Courts Act 2013.35 This Act introduced an ‘equal merit provision’. This means that, where two or more candidates for a position as judge are assessed as being of equal merit, the JAC can select a candidate for the purpose of increasing judicial diversity. This has been applied since 1 July 2014. The JAC stresses that ‘recommendations for appointments continue to be made on merit’.36 The

30 Davies, A. Employment law. Harlow: Pearson, 2015. PP. 202 and 204. 31 See, for example, Hepple, B. Equality: the legal framework. 2nd ed. Oxford/Portland, OR: Hart Publishing, 2014. P. 160; Johns, N; MacBride-Stewart, S; Powell, M; Green, A. When is positive action not positive action? Exploring the conceptual meaning and implications of the tiebreak criterion in the UK Equality Act 2010. Equality, Diversity and Inclusion: an International Journal ­ (2014) P. 98; Davies, A. (supra note 30); Davies, C; Robison, M. Shifting the starting blocks: an exploration of the use and impact of positive action in the UK. In: Beyond 2015 shaping the future of equality, human rights and social justice. Equality and Diversity Forum, 2015. PP. 65 and 70: http://www.edf.org.uk/wp-content/uploads/2015/04/EDFJ3259_Beyond_ 2015_publication_22.07.15_WEB.pdf. This article explains why empirical evidence is needed of how the positive action measures in the Equality Act 2010 work in practice. The results of authors’ study can be found in: Davies, C; Robison, M. Bridging the gap: an exploration of the use and impact of positive action in the UK, 2016. P. 4: https://core.ac.uk/download/pdf/ 33794901.pdf. 32 Johns, N; MacBride-Stewart, S; Powell, M; Green, A. (supra note 31, P. 98). 33 Davies, C; Robison, M. (supra note 31, P. 70). 34 Ibid., P. 20. 35 See Schedule 13 of the Crime and Courts Act 2013: http://www.legislation.gov.uk/ ukpga/2013/22/schedule/11/part/1/crossheading/crime-and-disorder-act-1998-c-37 36 See: https://www.judicialappointments.gov.uk/sites/default/files/sync/about_the_jac/equalmerit-provision-policy-mar2017.pdf.

66  Erica Howard JAC reports the number of instances where an individual has been selected following application of the policy in its annual Official Statistics bulletins.37 The statistics show that between 1 April 2014 and 31 March 2015, 11 out of 305 recommendations were made using the equal merit provision.38 In the same period in 2015–2016, this was 14 out of 308 recommendations.39 In 2016–2017, 12 recommendations were made using the equal merit provision (10 for women and 2 for black, Asian and minority ethnic candidates). In that period, there were also 12 instances where candidates were considered to be of equal merit, but the provision was not applied as all candidates shared the same diversity characteristic, for example, both were women.40 Between 1 April 2017 and 31 March 2018, 3 recommendations (all for women) were made following the application of the equal merit provision. In no other instances were candidates considered to be of equal merit for the purpose of this provision, as the recommended candidates were all demonstrably more meritorious than the remaining candidates.41 Section 104 of the Equality Act 2010, allowing for all-women shortlists for political parties, has only been used by the Labour party. Kelly and White report that the Labour party’s use of all-women shortlists in the 2005, 2010 and 2015 elections have been important in increasing the number of women Members of Parliament.42 Other political parties introduced alternative methods to address the gender imbalance on their benches, for example twinning (constituencies paired and with one man and one woman as candidates) and zipping (men and women alternate on the lists of candidates).43 However, after the 2019 General Elections, 34% of Members of the House of Commons are women (up from 29.4% after the General Elections in 2015) and 27% of the House of Lords. Scotland and Wales do better, as 36% of the Scottish Parliament and 47% of the Welsh Assembly are female.44 Therefore, it appears that section 104, but also other measures, have had some success in increasing the number of female Members of Parliament but a 50%– 50% representation has still not been achieved.



UK and South Africa  67 Northern Ireland The provisions for affirmative action in Northern Ireland have been in place since 1989 and aim at fair participation of Catholics and Protestants in employment. Employers must carry out regular reviews of the composition of their workforce and, if necessary, take remedial action to ensure fair participation. The Equality Commission Northern Ireland can use the reviews and make voluntary or legally enforceable agreements with employers when necessary. According to McCrudden et al. and Equinet, these agreements were successful and resulted in improvements in fair employment at all levels, including managerial and professional occupations, with voluntary agreements proving to be more effective than legally enforceable agreements.45 Hinds and O’Kelly wrote in 2006 that after the introduction of these measures, ‘the Catholic employment share rose from 38% in 1990 to 41% in 1999, leading to a fall in the employment gap between Catholics and Protestants from 3% to less than 1% during the 1990s.46 These authors suggest that ‘it does seem that directed affirmative action programmes were having a considerable impact’.47 In 2016, the employment rate for Protestants was 71%, with a 5% unemployment rate, while that for Catholics was 68% with a 7% unemployment rate.48 This does, indeed, suggest that the affirmative action measures in Northern Ireland have been successful in raising the employment rate of Catholics to almost the same level as that of Protestants. The quota introduced by section 46 of the Police (Northern Ireland) Act 2000 aimed at a representation between 29% and 34% of Catholics in the police force: both of police officers and of support staff.49 At the time this measure was introduced, the police force was over 90% Protestant.50 This provision had mixed success: the number of Catholic police officers rose from 8% in 2000 to nearly 30% in 2011, so the aim of the provision was reached for this group; however, the quota was less successful in relation to police support staff, with numbers rising from 12% in 2000 to only 18% in 2011.51 Despite not meeting the number of support staff aimed for, the measure ended in 2011. The Government consulted on the measures and this showed that 94% of respondents were in favour of ending the provisions and of letting the recruitment of police officers 45 McCrudden, C; Muttarak, R; Hamill, H; Heath, A. (supra note 12, P. 7); Equinet (supra note 14, P. 51). 46 Hinds, B; O’Kelly, C. Affirmative action in Northern Ireland. In: Kennedy-Dubourdieu, E. (supra note 1, P. 121). 47 Ibid., P. 122. 48 Northern Ireland Statistics and Research Agency. Labour Force Survey Religion Report 2016, annual update – January 2018. P. 3: https://www.executiveoffice-ni.gov.uk/sites/default/files/ publications/execoffice/lfs-religion-report-2016.pdf. 49 See: Northern Ireland Office. Consultation paper Police (Northern Ireland) Act 2000 Review of temporary recruitment provisions, 2010. P. 6: https://www.gov.uk/government/uploads/ system/uploads/attachment_data/file/136382/50_50_consultation.pdf. 50 See on this: McColgan, A. Discrimination, equality and the law. Oxford/Portland, OR: Hart Publishing, 2014. P. 97. 51 Northern Ireland Office. (supra note 49, P. 4).

68  Erica Howard be based solely on merit.52 The Government concluded that, with the transformation in the Police Service Northern Ireland, the use of special measures was no longer justified.53

South Africa Affirmative action is provided for in the South African Constitution and is part of the principle of equality. As Ngcobo writes, the guarantee of equality has a twofold purpose: to prohibit discrimination and to remedy the historical disadvantage which was the result of the policy of Apartheid.54 Building on the Constitution, the EEA 1998 and the PEPUDA 2000 also provide for affirmative action. These statutes recognise that ‘systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes’ and that this undermines ‘the aspiration of our constitutional democracy’.55 Have these affirmative action provisions been successful in dealing with the historical disadvantage in South African society? A mixed picture emerges here. Ncgobo, who looks at the advancement of women, writes that, compared to the pre-1994 period, there has been significant progress in relation to the number of women in Parliament, due to affirmative action but also to the Constitutional requirement, in section 195(1)(i), that all public institutions must be broadly representative of the South African people.56 Dupper writes that the public service has become broadly reflective of national racial demographics, but that this is, according to many, because people who were not suitably qualified were appointed.57 This will be discussed in more detail in the next section of this chapter. On the other hand, Thaver, who looked at affirmative action in three sectors: in the economy, in public services and in higher education, concludes that ‘the implementation of affirmative action is rather uneven across the three sectors and somewhat small in scale’.58 She continues that there is some movement in the public service towards a more representative bureaucracy that reflects the demographics of society, but women, and especially black women, continue to be under-represented.59 She also explains that, in public service, ‘there continues to be an over representation of white males in the middle to senior level occupational categories’.60 The affirmative action in higher education to address the representation of designated groups among both students and staff had some success in relation to students, but were less successful in relation

52 53 54 55 56 57 58 59 60

Ibid., P. 3. Ibid., P. 6. Ncgobo, S. (supra note 23, P. 189). Ibid., P. 190. Ibid., PP. 186 and 192. Dupper, O. (supra note 23, PP. 272–273). Thaver, B. Affirmative action in South Africa. In: Kennedy-Dubourdieu, E. (supra note 1, P. 170). Ibid. Ibid., P. 166.

UK and South Africa  69 to staff.61 Thaver points out that affirmative action is taking the form of black advancement that seeks to promote the participation and contribution of black people in the economy, but that more research is needed to show the scale of the impact in terms of the different sections of society.62 Archibong and Adejumo report that perceptions of the impact or even benefit of affirmative action in South Africa seem to vary from person to person.63 Participants in their research believed ‘that affirmative action is effective only in terms of meeting numerical targets as quality has not been emphasized in the implementation’ and saw the attempts by the Government in this area as not effective enough.64 Burger and Jafta come to the conclusion that ‘the effect of affirmative action policies in reducing the employment or wage gaps have been marginal at best’ and point out that improving access to education has been more successful.65 The Annual Report for 2017–2018 of the Commission for Employment Equity shows that there is still a long way to go. The conclusions are: first, there is a lack of equitable representation at the top and senior management level, which means that the workplace continues not to be inclusive and representative of the demographic population groups, especially in relation to the African and coloured population groups, and in relation to gender and disability. Second, the representation of persons with disabilities remains at 1% of the total workforce and their representation at all occupational levels remains low. Third, at all the critical occupational levels, the governmental sector appears to be more transformed than the private sector, particularly in terms of the representativeness of the designated groups. Fourth, the white population group and the Indian population group appear to do well in the private sector, particularly at the upper-four occupational levels. And, last, the representation of the male group also remains dominant in the private sector.66 From the above it is clear that, with the exception of the measures for the police force in Northern Ireland, all affirmative action provisions are still in force and none of them have yet achieved what they set out to do. In fact, it can 61 Ibid., PP. 164–165. Thaver was writing in 2006. More recent figures of student and staff numbers in the four categories: African, Coloured, Indian and White, can be found in: Department of Higher Education and Training. Statistics on post-school education and training 2016, published March 2018: http://www.dhet.gov.za/Research%20Coordination%20Monitoring%20 and%20Evaluation/6_DHET%20Stats%20Report_04%20April%202018.pdf 62 Thaver, B. (supra note 58, P. 171). 63 Archibong, U; Adejumo, O. Affirmative action in South Africa Are we creating new casualties? 3, 51 Journal of Psychological Issues in Organizational Culture (2013) P. 14. 64 Ibid., P. 20. 65 Burger, R; Jafta, R. Affirmative action in South Africa: an empirical assessment of the impact on labour market outcomes, CRISE (Centre for Research on Inequality, Human Security and Ethnicity) Working Paper No. 76, 2010. P. 23: https://assets.publishing.service.gov.uk/ media/57a08b2ced915d622c000b5d/workingpaper76.pdf. 66 Department of Labour, South Africa, 18th Commission for Employment Equity Annual Report 2017–2018, RP 220/2018. P. 55: https://www.abp.org.za/wp-content/uploads/2018/07/ Commission-for-Employment-Equity-18th-Annual-Report.pdf. This report contains information on the workforce distribution amongst the population groups.

70  Erica Howard be concluded that these measures, when they have been used, have had limited and varied success in achieving a more equal and equitable society. A number of reasons have been given for this and these will be examined next.

Obstacles to implementation: contestation A number of reasons for the limited use and/or the ineffectiveness of affirmative action measures have been given. Many of these reasons have been put forward in both the UK and in South Africa, but some are more applicable to one of the jurisdictions than to the others. Where this is the case, it will be pointed out. One of the reasons given for the limited use of the positive action provisions in the British Equality Act 2010 is the lack of obligation on employers to take such measures. It must be noted that the positive action provisions in EU law are also permissive rather than mandatory. The provisions are thus entirely voluntary and this, coupled with a lack of awareness of the provisions and a lack of understanding about what action can be taken, means that employers in Britain are not using affirmative action very often. Davies and Robison found that 25% of the employers in their study were not even aware of sections 158 and 159 of the Equality Act 2010 and only 30% reported that they had used the provisions (all of these were public sector education institutions).67 Johns et al. point out the limited publicity and the limited public discussion which the tie-break provision in section 159 of the Equality Act 2010 has received.68 They also comment on the ‘way in which it has been “sold” to the general public as having a potentially unfair outcome for the rejected candidate’.69 This was echoed for the EU in a report, which mentioned that ‘negative attitudes held by mainstream society as well as stereotypes and prejudices perpetuated by the media were thought to problematize positive action and render any positive action outcomes as tokenistic’.70 Therefore, the way these measures were reported on in the media has been rather negative and often based on stereotypes and prejudice and this has not encouraged employers to use them. This ‘potential unfair outcome for the rejected candidate’ leads to fear among employers of laying themselves open to a legal challenge of discrimination against an unsuccessful candidate. As Fredman writes, ‘the line between invidious discrimination and appropriate steps to achieve equality might not always be clear’.71 Because of this lack of clarity as to what is and what is not allowed, employers are often reluctant to use affirmative action measures. This

67 68 69 70

Davies, C; Robison, M. (supra note 31, PP. 18–19). Johns, N; MacBride-Stewart, S; Powell, M; Green, A. (supra note 31, P. 99). Ibid. European Commission. International perspectives on positive action measures A comparative analysis in the European Union, Canada, the United States and South Africa. Luxembourg: Office for Official Publications of the European Communities, 2009. P. 42: https://publications.europa. eu/en/publication-detail/-/publication/45515983-3e3e-4a24-bcbc-477f04f0ba04. 71 Fredman, S. Discrimination law. 2nd ed. Oxford: Oxford University Press, 2011. P. 259.

UK and South Africa  71 is compounded by a dearth of case law or good practice examples. Davies and Robison conclude: it may be that the lack of clarity provided by section 159 (in particular) is failing to provide employers with the confidence they require. Arguably, it may be more appropriate to provide clearer legislative tools in this regard and more overtly remove the risk of ‘reverse discrimination’.72 This, in turn, is linked to the fact that affirmative action is often seen as going against the principle of equal treatment and thus as unfair for the group who is not given preferential treatment. These measures mean that some groups are given preferential treatment over other groups and are thus treated unequally. This argument is probably the most widely and universally used argument against affirmative action measures. The term ‘reverse discrimination’ is often used in relation to this both in the UK and South Africa.73 This is also often how the public and the press see affirmative action. McHarg and Nicolson write that affirmative action is presumed to create ‘innocent victims’.74 The groups that cannot benefit from affirmative action thus often see affirmative action as discriminating against them.75 Another reason for the unwillingness of employers to use affirmative action is, according to Davies and Robison, ‘fear of creating segregation and stigmatisation for those benefiting from the “tie-break” measures’.76 Again, this is an argument used in both the UK and South Africa. O’Cinneide explains the segregation argument in the following way: the use of special measures to help disadvantaged groups ‘maintains social distinctions between groups and contributes to the fracturing of society along religious, ethnic, racial or social lines’.77 Moreover, it can also accentuate or create resentment and hostility between those who are given preferential treatment and those who are not, so it could, for example, lead to racial hostility. Affirmative action is also said to contravene the merit principle and thus it lowers standards and stigmatises the people benefitting from the measures. A number of interrelated issues are at work here. First, the ‘merit’ principle, the principle that people should be selected for promotion or for a job because of merit and not because they have a certain protected characteristic, is often brought forward against affirmative action measures. The problem with this is that merit tends 72 Davies, C; Robison, M. (supra note 31, P. 23). 73 See, for example, McHarg, A; Nicolson, D. Justifying affirmative action: perception and reality. 33, 1 Journal of Law and Society (2006) P. 9; Thaver, B. (supra note 58, P. 169); Archibong, U; Adejumo, O. (supra note 63, P. 24). 74 McHarg, A; Nicolson, D. (supra note 73, P. 9). 75 See, for example, Cuddihy, M. White South Africans complain affirmative action policy is causing them to face discrimination, 2016: http://www.abc.net.au/news/2016-08-01/white-southafricans-complain-of-a-reverse-apartheid/7676764. 76 Ibid., P. 23. 77 O’Cinneide, C. (supra note 4, P. 13).

72  Erica Howard to be subjective and is likely to be measured against conventional norms of society, which tends to be those of the dominant group, like white males. It also ignores that some groups, because of past discrimination, have not been able to ‘obtain’ merit, for example, they could not get higher educational qualifications. As McHarg and Nicolson write, ‘supporters of affirmative action are not arguing for the abandonment of merit, but for different means of identifying merit or different criteria of what constitutes merit’.78 And, of course, affirmative action measures often involve training for those people who did not get the opportunity, through past discrimination, to attain educational qualifications. It is suggested that the importance attached to selection on merit is the reason why both UK and EU law only allow preferential treatment when two candidates for employment or for promotion are equally qualified. Second, if those who are, for example, selected for a job, have inferior qualities but were selected because they have a protected characteristic, those selected feel patronised and stigmatised. They are seen as ‘undeserving beneficiaries’79 and this has an impact on them: they feel they did not succeed on their own merits. They do not want to be selected because of their characteristics, but because they are the best person for the job. For example, Gani reports on the thoughts of a number of female candidates for the UK parliamentary elections in 2014. Candidates said: I don’t want to see women just gifted safe seats on a plate; if you can’t do the job you do a disservice to women in parliament; the women elected on all-women shortlists were not terribly effective; I want to be there on my own merits, not because I am a woman; are we picked because we are good enough, or just because it is an all women shortlist?80 Thaver writes that ‘in South Africa, affirmative action practices are fraught with tension regarding the best candidate for the job’. She continues that the appointment of a black candidate is seen as an equity, or affirmative action, appointment, with the denotation of tokenism, while the appointment of a white candidate is viewed to be one of merit with the denotation of excellence.81 Goldschmidt, writing about affirmative action for women in general, confirms that those who are given preferential treatment are stigmatised where she writes that ‘it seems to be quite common that women who have been appointed as a result of preferential treatment are perceived as not really good enough and certainly less qualified than the best male candidate’. She points out that the decision as to who has the best qualifications for the job is often influenced, consciously and intentionally or even unconsciously and unintentionally, by stereotyped perceptions.82 This links back to what was said above about who decides what merit is.

78 McHarg, A; Nicolson, D. (supra note 73, P. 14). 79 Ibid., P. 9. 80 Gani, A. Should there be all-women shortlists? The Guardian, 22 August 2014: https://www. theguardian.com/politics/2014/aug/22/-sp-should-there-be-all-women-shortlists. 81 Thaver, B. (supra note 58, PP. 169–170). 82 Goldschmidt, J. Ms Goldschmidt is it true that you are deaf? That would really help us to meet the quota! Positive discrimination revisited… In: Van Den Brink, M; Burri, S; Goldschmidt, J. (Eds.)

UK and South Africa  73 Third and clearly connected with the second point: if people with inferior qualities are selected, this could lead to a lowering of standards. As was mentioned, Dupper writes that the South African public service is now broadly reflective of national racial demographics but that many have argued that this ‘accelerated drive to transform the public service has often led to the appointment of people who did not have the qualifications, experience, commitment or culture of service needed to be productive and loyal public servants’, in other words, who were not ‘suitably qualified’. This has been, as even the State admitted, ‘severe and even counter-productive’ as it has ‘led to a skills exodus’ – Archibong and Adejumo refer to a ‘brain drain’83 – and ‘has impeded the State’s ability to spend revenue and deliver effective services, something that impacts most adversely on the poorest and most marginalised of the citizenry’.84 Dupper points out that, under the South African EEA 1998, employers must require at least a ‘threshold of performance’: a candidate must at least be suitably qualified. Appointing someone who is not ‘may lead to a level of performance below the threshold, and surely reinforce rather than change stereotypical and prejudicial views towards members of the disadvantaged group’.85 Archibong and Adejumo report that ‘the process [of affirmative action] allows unqualified people to hold key positions based on gender and race’. It is suggested that this reason lies behind the requirement in the legislation in South Africa that a candidate is at least ‘suitably qualified’, and behind the condition in UK and EU law that preferential treatment can only be given where candidates are ‘equally qualified’. Fourth, there is evidence that the people who benefit most from affirmative action are the more privileged persons within the designated group and, thus, this would not promote equality of the disadvantaged group as a whole. For example, Archibong and Adejumo write that the application of the Broad Based Black Economic Empowerment Act 2003, which aims to help those previously disadvantaged to commence their own trade or to become part of existing businesses, ‘has been criticized as benefiting the Black elite, while the majority of the Black population is yet to tap into and realize the opportunities available’.86 They also point out that ‘the African population has benefited the most in contrast to other racialized groups categorized as black’;87 and, that a number of groups are not benefiting, such as disabled people, LGBT people, religious groups, age groups and low socio-economic groups.88 All these issues are aggravated in case of quotas, which prescribe a certain number to be reached within a certain time. For example, a legal obligation

83 84 85 86 87 88

Equality and human rights, nothing but trouble? Utrecht: SIM/Utrecht University, SIM Special 38, 2015. P. 349: https://dspace.library.uu.nl/handle/1874/328046. Archibong, U; Adejumo, O. (supra note 63, P. 20). Dupper, O. (supra note 23, PP. 273–274). Ibid., P. 273. Archibong, U; Adejumo, O. (supra note 63, P. 16). Ibid., P. 17. Ibid., P. 21.

74  Erica Howard on all employers with 50 or more employees to employ at least 5% of disabled people by a given date. This raises a number of questions: should an employer, if they cannot create new jobs, make some employees redundant and replace them with disabled employees? Would this then not lead to a legal challenge from the employees who are made redundant? What if there are not enough disabled people qualified and suitable to do the jobs required, should the employer appoint candidates who are not qualified? This would lead to the disabled people being stigmatised and would create resentment against them from other employees. It is submitted that this is the reason why the legislation in the UK, Northern Ireland, the EU and South Africa, does not allow for the setting of quotas.

Special focus: disability This section examines the duty to make reasonable adjustments for disabled people, as laid down in the British Equality Act 2010. Section 20 of the Act imposes a duty on both employers and service providers to make reasonable adjustments for disabled persons. This provision can be seen as a form of affirmative action for disabled people. It must be noted that section 13(3) of the Act determines that treating a disabled person more favourably than a non-disabled person does not constitute discrimination. Moreover, sections 158 and 159 of the Act on positive action are both applicable to disability as well. In EU law, there is a duty of reasonable accommodation and the latter term is used in many other jurisdictions, e.g. the US and Canada. Here, these terms will be used as having the same meaning. It must be noted that, contrary to sections 158 and 159 which are entirely voluntary, section 20 imposes a clear duty on employers and service providers to provide reasonable adjustments if certain circumstances are present. This duty to make reasonable adjustments in section 20 of the Equality Act 2010 arises where a disabled person is put at a substantial disadvantage compared with a person who is not disabled. Reasonable steps must be taken to avoid this disadvantage in three situations. The first covers changes in the way things are done, for example, providing sign-language interpreters or an induction loop at conferences to ensure that deaf or hearing-impaired people can take part; the second covers changes in the built environment, like ramps for wheel chair users. The third is the provision of auxiliary services, for example, providing information in large print or Braille.89 Section 21 of the Equality Act 2010 makes clear that a failure to comply with the duty amounts to discrimination against the disabled person. EU law also imposes, in article 5 of Directive 2000/78/EC, a duty of reasonable accommodation on employers in relation to disabled people unless this would impose a ‘disproportionate burden’. And, article 5(3) of the Convention on the Rights of Persons with Disabilities 2006 (CRPD), which came into effect in 2008, also contains the same duty. Article 2 CRPD gives a definition:

89 See the explanatory notes to section 20 and Hepple, B. (supra note 31, PP. 94–95).

UK and South Africa  75 “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. The UK and the EU have both signed and ratified this Convention.90 As with the duty in the Equality Act 2010, failure to make reasonable accommodation under both EU law and the CRPD constitutes discrimination. There are two provisions for reasonable adjustments: one in Schedule 2 of the Equality Act 2010, covering services and public functions and one in schedule 8, covering work. There is a difference between these two areas; the duty of employers to make reasonable adjustments is a reactive duty: it only arises when there is a disabled employee or job applicant and the employer does not have to anticipate needs of a potential employee or job applicant. The employer thus does not need to do anything until there is a disabled job applicant or employee. The duty covering services and public functions is, generally, proactive: it requires service providers and persons exercising public functions to take proactive steps to make their services accessible, by, for example, providing ramps, hearing loops or allowing access for guide dogs. The purpose is to provide access to a service that is as close as is reasonably possible to achieve the standard normally offered to the public at large.91 In relation to reasonable adjustments at work, there is no duty if the employer does not know or could not be expected to know of the disability. The beneficiaries of this duty are job applicants and employees. The extent of the adjustments needed is subject to a reasonableness test. A number of factors are taken into account in considering whether an employer has made reasonable adjustments: the operational needs of the employer; the interests of other employees; the extent to which the adjustment would prevent the discriminatory effect; the nature of the employer’s activities; the size of the undertaking; and the financial implications of the adjustments. However, the adjustments must be job-related and an employer is not required to provide personal care.92 An employer or service provider must thus make reasonable adjustments for disabled persons. In both UK and EU law, the duty only exists in relation to disabled persons, in contrast to, for example, Canada, where it extends to cover all prohibited grounds of discrimination. This is the same in South Africa, where section 15(2)(c) of the Employment Equity Act 1998 determines that affirmative action measures implemented by a designated employer must include ‘making reasonable accommodation for people from the designated groups in order to 90 The CRPD is the first human rights treaty that has been signed and ratified by the EU itself, as well as by all its Member States. The CRPD has been ratified by 181 States, including South Africa. 91 Hepple, B. (supra note 31, PP. 95–97). 92 Emir, A. Selwyn’s law of employment. 19th ed. Oxford: Oxford University Press, 2016. P. 141.

76  Erica Howard ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer’. Therefore, the duty covers all designated groups, not only disabled people. But, as Archibong and Adejumo write, people with disabilities are not benefitting from affirmative action measures, they are still underrepresented in the South African working population and ‘people living with disabilities are heavily marginalised’.93 Despite these provisions, there is still a large ‘disability employment gap’ in the UK as well. In 2019, people with disabilities had an employment rate which was 28.6% lower than people without disabilities.94 In 2017, the Conservative Party’s election manifesto pledged to get ‘1 million more people with disabilities into employment over the next ten years’. To meet this target, 285.000 more disabled people should be in employment by the end of these ten years, an increase which would represent a growth of 7% on current levels.95 Between 2013 and 2019, the disability employment gap has been reduced by 5.6%,96 but it is not clear how much the duty to make reasonable adjustments has contributed to get disabled people into jobs.

Conclusions: possible alternative models to reach substantive equality Of the jurisdictions examined in this chapter – Great Britain, Northern Ireland and South Africa – a rather mixed picture emerges as to the efficacy of the affirmative action measures which are provided for in national laws. With the exception of section 46 of the Police (Northern Ireland) Act 2000, all provisions are still in force. It is suggested that despite the difference in approach to affirmative action between the UK and South Africa, the aims of affirmative action, to make a more equitable and representative work force and society, has not been achieved yet in either country. The reasons for this mixed picture were analysed and it became clear that similar reasons were brought forward in the UK, in the EU and in South Africa. The importance attached generally to the merit principle played a role in many of these reasons. The most successful affirmative action measures appear to be those in Northern Ireland: the employment rate of Catholics is now almost as high as that of Protestants; and, the number of Catholic police officers has reached the level aimed for. However, section 46 has been less successful in relation to police support staff. It is suggested that section 4 of the Fair Employment (Northern Ireland) Order 1998 could be seen as an example of good practice, but a caveat needs to be added. The affirmative action measures in Northern Ireland were very much based on the specific situation there

93 Archibong, U; Adejumo, O. (supra note 63, P. 21). 94 Powell, A. House of Commons Library Briefing Paper Number 7540. People with disabilities in employment, January 2020. P. 3: https://researchbriefings.parliament.uk/ResearchBriefing/ Summary/CBP-7540. 95 Ibid., P. 5. 96 Ibid.

UK and South Africa  77 and targeted only two distinct religious communities. This indicates that such measures are often very situation-specific and it might, therefore, not be quite so easy to transplant the Northern Ireland provisions to other countries. However, with this in mind, a closer inspection of these provisions would be warranted. Another measure that would warrant closer examination is a duty to mainstream equality as it exists in the EU and in the British Equality Act 2010. Mainstreaming equality means that an authority or organisation must take equality into account in everything they do, including decision making, service delivery and employment. It means that they need to consider the impact of their actions on equality and on the groups protected by anti-discrimination laws. It is suggested that such a duty would provide an alternative but complementary way of achieving substantive equality. For example, section 149 of the Equality Act 2010 determines that a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination and other prohibited conduct; to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and, to foster good relations between these groups. This could involve treating some persons more favourably than others. Hinds and O’Kelly write that equality mainstreaming refers to ‘equality programmes that aim towards the development of a more equal society in general, through the mainstreaming of equality in service outcomes of public sector and publicly funded bodies’ and that affirmative action and equality mainstreaming ‘are neither opposed to each other, nor entirely discrete’ but that they ‘lie in a continuous relationship to each other, differing in emphasis and degree rather than being categorically distinctive’.97 Equality mainstreaming is, therefore, a useful addition to affirmative action measures in the quest for substantive equality. It can be argued that a duty to mainstream equality is part of the equality guarantee in article 9 the South African Constitution, which states that equality includes the full and equal enjoyment of all rights and freedoms. Affirmative action measures and equality mainstreaming duties laid down in law can both contribute towards realising equality in practice for all people. However, as the section on efficacy of the former shows, they need to be used more widely. In designing and developing such measures, the obstacles and contestation discussed above must be kept in mind. Moreover, these measures are also only a part of the quest for greater equality and must be combined with and supported by economic and social policies as well as measures in the field of education and awareness-raising campaigns. We may never reach ‘full equality in practice’ but that does not mean we should give up trying.

97 Hinds, B; O’Kelly, C. (supra note 46, P. 105).

5

Effectiveness of affirmative action in Brazil Narciso Leandro Xavier Baez

Introduction Brazil is a continental country with a territorial extension of 8,516,000 km. By February 2019, its population was 207.7 million people and 51% of them were women.1 According to available estimates, 54% of the Brazilian population are composed of mixed race people and Afro-Brazilians. 2 Disabled people3 constitute 23.91% of the population, while LGBT people make up 10%.4 Indians represent 0.43% of the country’s population in 13.8% of its territorial extension.5 According to the International Monetary Fund Trimestral Report, World Economic Outlook, of 2018, Brazil is the ninth world’s biggest economy.6 Taking into account the strength of its economy and diversity, it is reasonable to expect Brazil to act as a role model in terms of equal social opportunities, regardless of gender, race, sexual orientation or physical or intellectual condition, guided by the United Nations Universal Declaration of Human Rights (1948) and the Constitution of the Federative Republic of Brazil 1988. However, statistics demonstrate that Brazil has a long path ahead to achieve equality among its population. In relation to gender equality, Brazil is ranked

1 Instituto Brasiliero de Geografia e Estatisticas (IBGE). Estatísticas de gênero Indicadores sociais das mulheres no Brasil: https://biblioteca.ibge.gov.br /visualizacao/livros/liv101551_informativo. pdf (accessed 14 January 2020). 2 Negros representam 54% da população do país, mas são só 17% dos mais ricos. São Paulo: UOL Economia, 4 December 2015: https://economia.uol.com.br/noticias/redacao/2015/12/04/ negros-representam-54-da-populacao-do-pais-mas-sao-so-17-dos-mais-ricos.htm. 3 IBGE. Censo 2010: https://censo2010.ibge.gov.br/resultados.html. 4 The acronym LGBT refers to any non-heterosexual person who questions their sexual identity. Therefore, it does not only include lesbians, gays, bisexuals, and cross-dressers, but also anyone who is not cisgender. See: Ferris, J. The nomenclature of community: an activist’s perspective. In: Shankle, M. (Ed.) The handbook of lesbian, gay, bisexual, and transgender public health: a practitioner’s guide to service. New York: Haworth Press, 2006. 5 Fundação Nacional do Índio (Fundai) Os índios. Brasília, 2013: http://www.funai.gov.br/index. php/indios-no-brasil/o-brasil-indigena-ibge. 6 International Monetary Fund. Projected GDP ranking (2018–2023). April 2018: https://www. weforum.org/agenda/2018/04/the-worlds-biggest-economies-in-2018/.

Brazil  79 95th out of 144 countries, according to the 2017 World Economic Forum Global Gender Gap Report (GGI),7 which demonstrates the flagrant bias against Brazilian women. Although mixed race Afro-Brazilians are 54% of the population, they represent only 17.4% of the richest people and 76% of the poorest ones.8 Additionally, they receive lower pay than white people working in the same 9 positions. ­ Brazilian Indians have been facing a degradation of culture. From a total population surpassing five million people, there are now only 899,000.10 LGBT people suffer hate crimes and restriction of rights. In the year 2017 alone, Brazil registered a murder every 25 hours, based exclusively on the victim’s sexual orientation.11 Finally, disabled people, who make up 23.9% of the Brazilian population, represent only 0.84% of the workforce with salaries lower than those of non-disabled people.12 Considering the reality of severe inequalities, the affirmative action measures that have been applied in Brazilian history are essential mechanisms to achieve substantive equality. This chapter aims to analyse the Brazilian challenges in implementing affirmative action measures to five specific groups of people who have been suffering from historical discrimination: women, Afro-Brazilians, Indians, disabled people and LGBT communities. We examine the cost of these measures to the Brazilian Federal Government budget to identify the priority levels they receive in the country’s public policies, among other aspects. Part I offers a brief exposition of the affirmative action measures’ origin and evolution in Brazil, focusing on their conception, implementation and efficacy in advancing equality of the groups under analysis. This is followed, in Part II, by an explanation of the main historical obstacles hindering the implementation of affirmative actions, focusing on their budgetary implications. There is also a detailed study of the Government priority levels in investments to achieve full equality when making those measures possible, considering the Federal Government budget. Finally, alternative models to raise the efficacy of these measures in Brazil are put forward.

7 World Economic Forum. Global gender gap report 2018: http://www3.weforum.org/docs/ WEF_GGGR_2018.pdf. 8 UOL Economia. (supra note 2). 9 IBGE. Pretos ou pardos são 63.7% dos desocupados: https://agenciadenoticias.ibge.gov.br/agencia-noticias/2012-agencia-de-noticias/noticias/18013-pretos-ou-pardos-sao-63-7-dosdesocupados.html. 10 Povos indígenas no Brasil. Localização e extensão das terras indígenas: https://pib.socioambiental.org/pt/Localiza%C3%A7%C3%A3o_e_extens%C3%A3o_das_TIs. 11 Vinhal, G. A cada 25 horas, uma pessoa LGBT é assassinada no Brasil, aponta ONG. Correio Brasiliense, 17 May 2017: http://www.correiobraziliense.com.br/app/noticia/brasil/2017/05/ 17/internas_polbraeco,595532/a-cada-25-horas-uma-pessoa-lgbt-e-assassinada-no-brasil. shtml. 12 Cresce número de pessoas com deficiência no mercado de trabalho formal. Government of Brazil, 27 September 2016: http://www.brasil.gov.br/economia-e-emprego/2016/09/cresce-numerode-pessoas-com-deficiencia-no-mercado-de-trabalho-formal (accessed 2 August 2019).

80  Narciso Leandro Xavier Baez

Creation, implementation and efficacy of affirmative action measures in Brazil The history of Brazil’s European colonisation happened scarcely more than 500 years ago, and its development has been ingrained in unequal treatment towards some social groups, especially women, Afro-Brazilians, Indians, disabled people and LGBT people.13 Mainly after 1988, when the current Federal Constitution was enacted, several public policies and private initiatives have established affirmative actions in favour of these groups, seeking to achieve equality between them and the rest of the country’s population.14 Judicial activism has influenced governmental and parliamentary decisions15 and Brazilian courts have played an evolving role in imposing measures aimed at reducing inequalities, in a clearly redistributive, restorative or repairing role.16 The seven Brazilian constitutions have recognised equality before the law as a fundamental right,17 a principle well-anchored in the Brazilian legal framework.18 Brazil has also undertaken to fight any kind of discrimination at international level. It was among the States voting in favour of the General Assembly Resolution adopting the United Nations Universal Declaration of Human Rights in 1948. That same year, it became a signatory of the Convention on the Prevention and Punishment of the Crime of Genocide.19 In 1968, it was also among the signatories of the International Convention on the Elimination of All forms of Racial Discrimination which contains a specific provision on affirmative actions (article 1.4).20 These provisions were incorporated into domestic law in 1969.21 Over the years, Brazil has ratified eight UN core human rights treaties

13 Baez, N. Affirmative action – concept, theories, and measures. Historical development in Brazil. In: Baez, N; Dominguez-Redondo, E. The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America & Brazil. Joaçaba: Editora UNOESC, 2018. PP. 9–11. 14 Ferreira Filho, M. Aspectos jurídicos das ações afirmativas. 69, 2 Revista do Tribunal Superior do Trabalh (July to December 2003) P. 74. 15 Mello, M.A. Ótica constitucional - a igualdade e as ações afirmativas. In: discriminação e sistema legal Brasileiro - Seminário Nacional em comemoração do Dia do Zumbi dos Palmares. Anais Tribunal Superior do Trabalho. Brasília, 2001. PP. 27–28. 16 Gomes, J. Ação afirmativa e princípio constitucional da igualdade. O direito como instrumento de transformação social. A experiência dos EUA. Rio de Janeiro: Renovar, 2001. P. 32. 17 Kaufmann, R. Ações afirmativas à brasileira: necessidade ou mito? uma análise histórico-jurídicocomparativa do negro nos Estados Unidos da América e no Brasil. Porto Alegre: Livraria do advogado, 2007. P. 233. 18 Baez, N. (supra note 13, PP. 19–22). 19 United Nations, Treaty Series, (UNTS) vol. 78, P. 277, entered into force 12 January 1951, ratified by Brazil 15 April 1952. 20 UNTS, vol. 660, P. 195, entered into force 4 January 1969, ratified by Brazil 27 March 1968. On the UN provisions addressing special measures see: Dominguez-Redondo, E. The United Nations approach to temporary special measures. In: Baez, N; Dominguez-Redondo, E. (supra note 13, PP. 239–266). 21 Law 65.810, of 8 December 1969, Article 1(4): http://www.planalto.gov.br/ccivil_03/decreto/ ­ 1950-1969/D65810.html (accessed 9 January 2020). The new perspective of pursuit of

Brazil  81 containing non-discrimination clauses.22 Brazil also ratified the International Labour Organisation Convention C111 - Discrimination (Employment and Occupation) in 1964 and committed to fighting discrimination in employment and occupation. However, those commitments were not transformed into effective actions until the 1988 Federal Constitution set up a new constitutional framework, based on the dignity and worth of the human person and the pursuit of full equality. The new constitutional paradigm includes a series of measures and programmatic objectives that include the necessary implementation of affirmative action measures, 23 aiming at eliminating any form of discrimination. For instance, considering the search for gender equality, the 1988 Federal Constitution expressly establishes specific incentives to protect the labour market for women, defining them in infra-constitutional norms. Additionally, the Constitution guarantees that women’s state pension age and insurance payment are five years less than those of men, as a way of compensating them for their double burden of waged work and household tasks.24 The law has also guaranteed Afro-Brazilians the right of property in the lands occupied by people remaining from the ‘Quilombos’; 25 and, any form of racial discrimination has become a non-bailable crime.26 The legal measures for Indians involve the protection of the lands they have traditionally occupied, as well as their customs, social organisation, languages and creeds. Also, the State should have demarcated their lands within five years after the 1988 Constitution was enacted.27 Finally, the 1988 Constitution lays down the rights of disabled people

22

23

24

25

26 27

full equality among people through affirmative action measures can be found in Article 3 Federal Constitution 1988 (FC 1988): http://www.planalto.gov.br/ccivil_03/constituicao/ constituicaocompilado.htm. English version: http://www.stf.jus.br/arquivo/cms/legislacao Constituicao/anexo/brazil_federal_constitution.pdf. Office of the High Commissioner for Human Rights: https://tbinternet.ohchr.org/ _layouts/TreatyBodyExternal/Treaty.aspx?CountryID=24&Lang=EN. See also Chapter Two by Dominguez-Redondo. Sarlet, I. Affirmative action and the fight against inequalities in Brazil: the case of race and equal access to higher education. In: Dupper, O; Kamala, S. (Eds.) Affirmative Action: A View from the Global South. Cidade: Sun Press, 2014. P. 202. ‘Double burden’ refers to a woman’s situation of having paid and unpaid work, working regular hours and doing household tasks. Articles 5, I; 7, XX; 40, III, a and b, and 201, §7º, I and II FC 1988 concern different forms of gender equality and impose affirmative action measures in favour of women. ‘Quilombos’ is the name of groups historically formed by African slaves or their descendants who have escaped slavery in sugar cane farms and small lands where they have been forced to do manual labour. They gathered together in small groups to hide from their abusers and those hiding places have been named ‘Quilombos’. Dos Santos Gomes, F. A hidra e os pântanos: mocambos, quilombos e comunidades de fugitivos no Brasil, (Séculos XVII-XIX). São Paulo: Ed. UNESP, 2005, P. 39. Article 5, XLII FC 1988. Articles 20, XI and 231 FC 1988 have created a complex group of mechanisms to protect and guarantee Indigenous’ rights in Brazil.

82  Narciso Leandro Xavier Baez to a differentiated access to health and to quotas in exams to apply for civil servant positions of appointment to offices.28

Women Brazilian women are, historically, victims of discrimination considering their role in society has always been secondary to men. To exemplify, they only got the right to participate in the political system when the 1934 Federal Constitution was enacted and they then got the right to vote for the first time. Women lacked legal capacity to make decisions based on their own free will and, therefore, until 1962, they depended on their husbands to make decisions.29 For instance, they were prevented from certain labour sectors until the end of the 1970s.30 Brazil’s first historical commitment to fighting discrimination against women happened in 1968, when the country ratified the International Labour Organization C111 - Discrimination (Employment and Occupation) Convention. The Federal Government undertook to promote gender equality in employment and occupation and to fight any kind of discrimination.31 The country ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1984 with some reservations concerning family law, maintaining the husband as the head of the conjugal entity. Even though the country had formally accepted these international rules, Brazil only started implementing the first affirmative action measures32 in 1988, when its current Federal Constitution was enacted, with the purpose of achieving equal treatment between men and women in politics33 and in the labour market34 and solving the violence against women.35 In this sense, the first affirmative action measures have arisen in two private associations: the Labour Party (‘Partido dos Trabalhadores’) and the Unified Workers’ Central (‘Central Única dos Trabalhadores’). The first one established

28 Articles 23, II; 24, XIV; 37, VIII; 203, IV; 227, §1º, II, §2º, and 244 FC 1988 provide different ways to promote disabled people’s social inclusion. 29 Article 233 FC 1988; Law 3.071, of 1 January 1916: http://www.planalto .gov.br/ccivil_03/ leis/L3071.htm (accessed 3 August 2019). 30 Cavalcanti, S. Igualdade, discriminação positiva e políticas públicas para mulheres no Brasil. Revista do Mestrado em Direito da Universidade Federal de Alagoas. 2, 2 (1 Semester 2006) P. 354. 31 Moehlecke, S. Açaõ affirmative: história e debates no Brasil. 117 Cadernos de Pesquisa (November ­ 2002) P. 206. 32 Baez, N. (supra note 13, P. 31). 33 Law 9.100, of 29 September 1995: http://www.planalto.gov.br/ccivil_03/leis/L9100.htm. 34 Cavalcanti, S. (supra note 30, P. 368). 35 Law 11.340/2006 of 7 August 2006 has created ways to fight domestic violence against women in Brazil, following the FC 1988 (article 226, para. 8) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women: http://www.planalto. gov.br/ccivil_03/_ato2004-2006/2006/lei/l11340.htm.

Brazil  83 30% quotas for women in the party leadership in 1991.36 The second one did likewise two years later.37 It took the Brazilian Federal Government seven years after enacting the 1988 Constitution to implement the first affirmative action measure for women: it established a guarantee of 20% quotas for women candidates in political parties in 1995. Law 9.100 brought the percentage up to 30% in 1997.38 However, the measures’ results have not been satisfactory. Women’s participation in the Brazilian political system is still low. Although they represent more than half of the country’s population, they are not successful in winning elections. The Brazilian Institute of Geography and Statistics shows astounding numbers: in the eight national congress four-year elections, from 1990 to 2018, only 15% of women have been elected to the Chamber of Deputies, and 18.5% to the Federal Senate.39 Regarding women in the workforce, Brazil signed an international agreement to set a quota system and other legal measures to reduce gender inequality,40 during the Fourth World Conference on Women, in Beijing, in 1995. It resulted in law 9.029/95 that prohibits requiring pregnancy certificates and sterilisation examinations when hiring women, something very common at that time.41 Additionally, law 11.770 extended women’s maternity leave or adoption leave from 120 to 180 days in 2010 and assured them the right to their incomes while taking care of their new-born children. These actions have directly impacted on the situation of women in the labour market in Brazil: they made up 33.9% 42 of workers in 1988 and the number rose to 53.7% 43 in 2016, which guaranteed them more than half of the positions in the labour market, since they represent 51% of the Brazilian population. In terms of salary, women’s income corresponded to 53.1% of that of men in the same

36 Godinho, T. Ação afirmativa no Partido dos Trabalhadores. 4, 1 Estudos Feministas, IFCS/ UFRJ-PPCIS/Uerj (1996) P. 150. 37 Delgado, M. Mais mulheres na direção da CUT. 4, 1 Estudos Feministas, IFCS/UFRJ-PPCIS/ Uerj (1996) P. 140. 38 Law 9.100. (supra note 33). 39 Historical percentage of women elected in the Chamber of Deputies: 1990 – 5.57%; 1994 – 6.4%; 1998 – 5.65%; 2002– 8.19%; 2006 – 8.77%; 2010 – 8.77%; 2014 – 9.94%; 2018 – 15%; in the Senate: 1998 – 6%; 2002 – 12.35%; 2007 – 14.81%; 2014 – 18.5%; 2018 – 18.5%; In: IBGE. Indicadores sociais sobre a mulher: https://educa.ibge.gov.br/jovens/materias-especiais/materias-especiais/ 20453-estatisticas-de-genero-indicadores-sociais-das-mulheres-no-brasil.html. 40 Dias, M. Ações afirmativas: uma solução para a desigualdade. 4 Revista Del Rey (1998) P. 24. 41 Cavalcanti, S. (supra note 30, P. 368). 42 Knapp, E. Dois séculos separam mulheres e homens da igualdade no Brasil. Jornal Folha de São Paulo, 26 September 2015: http://www1.folha.uol.com.br/asmais/2015/09/1675183-no-ritmo-atual-fim-da-desigualdade-entre-homens-e-mulheres-demoraria-240-anos.shtml. 43 IBGE. Síntese de indicadores sociais: uma análise das condições de vida da população brasileira. Coordenação de População e Indicadores Sociais. Rio de Janeiro: IBGE, 2017. P. 24.

84  Narciso Leandro Xavier Baez work in the 1980s,44 but it reached 76.5% in 2016, following the implementation of affirmative action measures.45 It is possible to infer that the advances in the number of women in employment and occupation is still not enough to guarantee full gender equality in terms of income. Women in Brazil still earn less than men do. Based on the records from the last 20 years, it is estimated that women will only have income equality in 2047.46 In this sense, the affirmative action measures that have been taken so far are only relatively effective. New affirmative actions are necessary to speed up the process towards full equality and abolish the flagrant discrimination against women, whether in salary or in the wider field of employment and occupation. Finally, in relation to violence against women, it is important to mention that Brazil created Women Police Departments in all its states in the mid-1980s.47 The National Household Sample Survey, done by the Federal Government in 1988, did not cover national data regarding violence against women.48 This piece of information was only added to the survey after Women Police Departments released the abuse numbers registered in 1991 and 1992: 205,000 gender-based crimes all over the national territory.49 The “Maria da Penha” law was enacted in 2006, with an aim to fight domestic violence against women in any intimate relationship, by applying severe punishment and restraining orders against the aggressors.50 That same year, the Brazilian National Council of Justice determined the creation of courts specially designed to deal with domestic violence against women, aiming at investigating the crimes more effectively.51 Despite of all the elements that have been created to protect women against violence, the number of this type of crime has been increasing significantly, showing the complete inefficacy of the affirmative action measures in this field. To demonstrate this, 749,024 cases of violence against women were registered

44 Revista Exame. Mulheres ganham espaço no mercado de trabalho. 18 Februrary 2019: https:// exame.abril.com.br/negocios/dino/mulheres-ganham-espaco-em-mercados-corporativos-antesdominados-por-homens/. 45 Historical percentage of women’s salary compared to men’s: 1980- 53.1%; 1991- 63.1%; 2000- 70%; 2010- 71.5%; 2015- 74%; 2016- 76.5%. Mulher estuda mais, trabalha mais e ganha menos do que o homem. Estatísticas Sociais. 08 June 2018, Agência IBGE de Notícias: https:// agenciadenoticias.ibge.gov.br/agencia-noticias/2012-agencia-de-noticias/noticias/20234mulher-estuda-mais-trabalha-mais-e-ganha-menos-do-que-o-homem.html. ­ 46 OXFAM Brasil. Os números da desigualdade no Brasil: https://www.oxfam.org.br/ o-que-fazemos/os-numeros-das-desigualdades-no-brasil (accessed 3 August 2019). 47 Rifiotis, T. As delegacias especiais de proteção à mulher no Brasil e a «judiciarização» dos ­conflitos conjugais. 19, 1 Sociedade e Estado (June 2004) P. 90. 48 Giffin, K. Violência de gênero, sexualidade e saúde. Cad. 10, suppl. 1 Saúde Pública [online] (1994) P.147. 49 Heise, L. Violence against women: The hidden health burden. Relatório Preparado para o Banco Mundial. (Mimeo.) (Manuscript published under the same title in World Bank Discussion Papers 255, Washington, DC: World Bank, 1994). 50 Law 11.340. (supra note 35). 51 De Souza Cruz, Á. O direito à diferença. Belo Horizonte: Arraes Editores, 2009, P. 189.

Brazil  85 in Brazil in 2015,52 which puts the country in the fifth position in the world ranking of murders of women. The numbers increased to 1,133,345 in 2016, representing an increase of 51% in cases of gender-based violence.53 These sorrowful numbers show there is a lot to do in Brazil in order to extinguish discrimination and violence against women.

Afro-Brazilians The history of Brazil’s European colonisation started in 1500 when the country was discovered by the Portuguese, who, between then and the mid-nineteenth century, brought 3.6 million African people to Brazil to work as slaves in agriculture, the country’s economy at the time.54 It took the country 30 years to enact the Golden Law in 1888 and effectively abolish slavery within its territory. Brazil was the last American continent country to do so.55 Even after 130 years of freedom, Afro-Brazilians, who make up 54% of the country’s population,56 still face social inequality, resulting from a historical issue concerning discrimination; and, the Golden Law has not solved the problems regarding prejudice and unequal treatment when it comes to education, housing and fair and just working conditions.57 The distressing neglect of Afro-Brazilians only started changing 30 years ago when the 1988 Federal Constitution paid them attention and introduced and backdated the prohibition of any kind of discrimination; and, when racism became a non-bailable crime. It is even more disturbing to realize it has been only 24 years since the Brazilian Human Rights Bureau officially started working, in 1996, to implement affirmative action measures to guarantee Afro-Brazilians the access to professionalisation and higher education.58 Shamefully,the first affirmative action measure to change this sad reality only happened in 2001, when the National Institute for Colonisation and Agrarian Reform and the Ministry of Justice determined 20% quotas for Afro-Brazilians in its positions.59

52 Cidadania e Justiça. Ligue 180 realizou mais de um milhão de atendimentos a mulheres em 2016. Brasília, 2017: http:// http://www.brasil.gov.br/cidadania-e-justica/2017/03/ligue-180realizou-mais-de-um-milhao-de-atendimentos-a-mulheres-em-2016 (accessed 3 August 2019). 53 Ibid. 54 Prado Jr., C. Formação do Brasil contemporâneo. São Paulo: Companhia das Letras, 2011. P. 88. 55 Da Silva, P; Rosemberg, F. Brasil: lugares de negros e brancos na mídia. In: Van Dijk, T. (Eds.) Racismo e discurso na América Latina. São Paulo: Contexto, 2008. P. 75. 56 Supra note 2. 57 Ribeiro, M; Piovesan, F. Dossiê 120 anos de abolição. 16, 3 Revista de Estudos Feministas (December 2008) P. 881. 58 Piovesan, F. Ações afirmativas no Brasil: desafios e perspectivas. 16, 3 Revista de Estudos ­Feministas (December 2008) P. 892. 59 Gomes, J. O debate constitucional sobre as ações afirmativas. In: Santos, R; Lobato, F. (Eds.) Ações afirmativas: políticas públicas contra as desigualdades raciais. Rio de Janeiro: DP&A, 2003. PP. 15–16.

86  Narciso Leandro Xavier Baez The year they benefitted from the most significant affirmative actions was 2002, when there was a radical change in relation to the framework addressing their discrimination. The ‘National Programme of Affirmative Action Measures’ has benefitted government suppliers in public tenders when they have demonstrated social inclusion policies for Afro-Brazilians.60 Rio de Janeiro State has reserved quotas of 40% in public universities for Afro-descendants and mixedrace people. The other federation States have followed this example, maintaining the quota system to the present day.61 The national quota system was established ten years later, in 2012. It establishes quotas for Afro-descendants in all public federal institutions62 by specific law.63 Statistics show the impressive effects of these measures. For instance, there were only 4% of Afro-Brazilians and mixed-race people in universities (or with a degree) in 1997, even though they represented more than a half of the Brazilian population.64 However, the number of Afro-Brazilians in universities has significantly increased after implementation of the quota system: there were 34.2% of the enrolled students in 200465 and this rose to 50.8% in 2010,66 reaching 45.5% of the intake in 2014.67 The number was estimated to be 50% in 2016.68 However, this number was not reached due to the ceasing of federal investment to maintain the quotas in non-federal higher education institutes and of the payment of scholarships to maintain Afro-Brazilians in universities that same year.69 Therefore, it appears that affirmative action measures aimed at guaranteeing Afro-Brazilians equal access to higher education were about to reach a high level

60 Law 4.228/02: http://www.planalto.gov.br/ccivil_03/decreto/2002/d4228.htm (accessed 3 August 2019). 61 Moelecke, S. (supra note 31, P. 209). 62 Lobo, B. O direito à egualdade na Constituição Brasileira: comentários ao estatuto da egualdade racial e a constitucionalidade das ações afirmativas na educação. Belo Horizonte: Forum, 2013. P. 175. 63 Law 12.711, of 29 August 2012: http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2012/ lei/l12711.htm. 64 Secretaria Nacional de Políticas de Promoção da Igualdade Racial. Em 3 anos, 150 mil negros ingressaram em universidades por meio de quotas. 2016: https://www.mdh.gov.br/noticias_ seppir/noticias/2016/03-marco/em-3-anos-150-mil-negros-ingressaram-em-universidadespor-meio-de-cotas. 65 Associação Nacional dos Dirigentes das Instituições Federais de Ensino Superior. Perfil Socioeconômico e Cultural dos Estudantes de Graduação das Universidades Federais Brasileiras. Fórum Nacional de Pró-Reitores de Assuntos Comunitários e Estudantis (FONAPR ACE). Brasília, 2011. P. 23: http://www.andifes.org.br/wp-content /files_flutter/1377182836Relatorio_do_ perfi_dos_estudantes_nas_universidades_federais.pdf (accessed 3 August 2019). 66 Ibid. 67 Sales, R. IBGE: Acesso de negros à universidade cresce; maioria ainda é branca. Jornal Valor Econômico, 4 December 2005: https://valor.globo.com/brasil/noticia/2015/12/04/ibge-acessode-negros-a-universidade-cresce-maioria-ainda-e-branca.ghtml. 68 Supra note 65. 69 Senado Federal. SIGA Brasil. LOA 2016 – Despesa execução: orçamento egualdade racial: https://www12.senado.leg.br/orcamento/sigabrasil. All references to Senado Federal in the following can be found on this website.

Brazil  87 of effectiveness when the federal government scrapped the budget set up for this. This shows a strict relationship between financial investment by the State and the Brazilian affirmative measures’ efficacy. Regarding their inclusion in employment and occupation, the situation is totally negative. Afro-Brazilians make up 54% of the country’s population but also 63% of unemployed people, according to data from the Brazilian Institute of Geography and Statistics, in The National Household Sample Survey, held in November 2017.70 This is made worse by the fact that an Afro-Brazilian person’s salary was around 48% of a white person in the exact same job position in 2003.71 The amount rose to 57.4% in 2013.72 Nevertheless, the number decreased to 56.4% in 2017 which meant that Afro-Brazilian workers had an annual salary average of R$ 1,588, while for white workers this was R$ 2,814.73 This inequality means that Afro-Brazilians make up 76% of the poorest 10% of people in the country, and they comprise only 17.4% of the richest ones.74 The statistics show the depth of discrimination in Brazil and the long path to achieve full equality between Afro-Brazilians and the rest of the society.75 Based on the progress made in the last 20 years, it is possible to estimate that Afro-Brazilians will only achieve full equality in employment and occupation in 2089, 70 years from now.76 This amount of time is excessive and unacceptable. Thus, new affirmative action measures for Afro-Brazilians are necessary to guarantee their intensive inclusion in higher education, which hopefully will provide them not only with better qualifications, but also with a dignified and proportional part of the labour market and an improvement of their social conditions.

Indians Pre-Columbian Indians are an outnumbered social nation inside the hegemonic Brazilian nation,77 who have been suffering arbitrary and colonialist integration

70 IBGE. Pretos ou pardos são 63,7% dos desocupados: https://agenciadenoticias.ibge.gov.br/ agencia-noticias/2012-agencia-de-noticias/noticias/18013-pretos-ou-pardos-sao-63-7dosdesocupados.html. 71 Pinheiro, L; Soares, V. Brasil – Retrato das desigualdades de genero e raca. Braília: Instituto de Pesquisa Econômica Aplicada (IPEA), 2003. P. 22: http://www.ipea.gov.br/retrato/pdf/ primeiraedicao.pdf (accessed 3 August 2019). 72 Calegari, L. Negros ganham, em média, pouco mais da metade dos brancos, mostra IBGE Economia. Uol Notícias. 30 January 2014: https://economia.uol.com.br/empregos-e-carreiras/ noticias/redacao/2014/01/30/trabalhadores-negros-ganham-pouco-mais-da-metade-dosbrancos-mostra-ibge.htm. 73 IBGE. As cores da desigualdade. retratos – a Revista do IBGE, 11 May 2018. P. 17: https:// agenciadenoticias.ibge.gov.br/media/com_mediaibge/arquivos/17eac9b7a875c68c1b 2d1a98c80414c9.pdf. 74 Supra note 2. 75 Fernandes, F. O negro no mundo dos brancos. 2nd ed. São Paulo: Global, 2007. P. l23. 76 OXFAM. (supra note 46). 77 Kymlicka, W. Ciudadania multicultural. Barcelona: Paidós, 1996. P. 26.

88  Narciso Leandro Xavier Baez since the country’s colonisation process, which started in 1500.78 In the past, their population reached more than five million persons living across the whole of the Brazilian territory, but their group has been decimated throughout history and, in 1980, there were only 210,000 living in less than 1% of the national territorial extension.79 Thus, there are two historical problems concerning the Indian communities80 in Brazil: the first one concerns the preservation of their culture and traditions; the second one refers to maintaining their ancestral lands. It is important to stress that the development of affirmative action measures for Indian communities in Brazil is a complex process, considering they are not a socially discriminated group that needs equal inclusion in the places where they live. This misunderstanding might lead to extinguishing the Indians’ cultural characteristics, considering they aim at maintaining their right to be different and have their culture respected and to keep the lands they have traditionally occupied. The 1934 Federal Constitution was the first one in the country’s history to assess the right of Indians to the small space of land they still occupied at the time.81 Aside from that, the main historical advances for Indians in Brazil started in 1988, with the current Federal Constitution.82 On the one hand, the 1988 Constitution established that the Government had to demarcate all the lands traditionally occupied by Indians within five years; on the other hand, it recognised their right to have their social organisation, language and customs acknowledged.83 From this constitutional rule, Brazil has started the demarcation process of Indian lands and has created public policies to strengthen their traditions and to acknowledge them. As a result, the Indian communities have been growing and there are now 896,000 people84 living on 13.8% of the Brazilian territorial extension.85 Despite these advances, a great portion of Indians’ ancestral lands has still not been demarcated. The Federal Government has discontinued the demarcation process, which has led to many

78 Mignolo, W. Histórias locais, projetos globais: colonialidade, saberes subalternos e pensamento ­liminar. Belo Horizonte: UFMG, 2003. PP. 40–41. 79 Ribeiro, D. Culturas e línguas Indígenas do Brasil. 6 Centro Brasileiro de Pesquisas Educacionais (1957) P. 61. 80 In this chapter, these Indians are referred to as Indian Communities in a social, historical and anthropological sense, following the expression used in: Ribeiro, D. O povo brasileiro: a formação e o sentido do Brasil. São Paulo: Companhia das Letras, 1995. 81 Montanari Jr, I. Terra indígena e a Constituição Federal: pressupostos constitucionais para a caracterização das terras indígenas. Anais do XV Congresso Nacional do CONPEDI – Manaus, 2006. P. 3. 82 Article 231 FC 1988. 83 Dos Anjos Filho, R. Breve balanço dos direitos das comunidades indígenas: alguns avanços e obstáculos desde a Constituição de 1988. 2, 8 Revista Brasileira de Estudos Constitucionais (2008) P.10. 84 Funai. (supra note 5). 85 Povos indígenas no Brasil. (supra note 10).

Brazil  89 disputes about land between Indians and farmers, causing danger, conflicts and deaths.86 Since 1988, the Government has done little regarding the preservation of the cultures of Brazilian Indian communities and the scarce actions that have been taken are criticised by experts. The Federal Government developed the ‘Guidelines to a National Policy for Indigenous Education’ in 199387 and created the ‘National Guidelines for Indigenous Schools’, in 1999.88 However, these national policies, implemented to preserve indigenous culture in these schools, have not taken into consideration that those communities are comprised of 305 ethnic groups, each with their own traditions and languages.89 The governmental inclusion actions are thus taking place regardless of the differences among the groups, which can be seen as a new acculturation process.90 Therefore, the affirmative action measures to preserve Brazilian Indians’ cultures and traditions are ineffective; they are based on a general notion of what an Indian is, without considering the different communities’ peculiarities, imposing a pattern that is different from the one that corresponds to their ethnic realities.

Disabled people The Brazilian Federal Government has been concerned about the inclusion of disabled people since Brazil endorsed both the United Nations 1971 Declaration on the Rights of Mentally Retarded Persons and the 1982 Declaration on the Rights of Disabled Persons.91 However, the Government started creating effective measures for this group only after the enactment of the 1988 Constitution.92 Following the constitutional rules, it has established a quota system in public work positions93 and has guaranteed a minimum wage for disabled people who are unable to take care of themselves, or whose family is unable to do so.94

86 United Nations. Relatório da missão ao Brasil da Relatora Especial sobre os direitos dos povos indígenas: http://unsr.vtaulicorpuz.org/site/index.php/es/documentos/country-reports/ 154-report-brazil-2016. 87 Ministério da Educação e da Cultura. Diretrizes para a política nacional de educação escolar indígena. Brasília, DF, 1993. 88 Ibid., CEB. Diretrizes Nacionais Para o Funcionamento das Escolas Indígenas. Brasília, DF, 1999. 89 Funai. (supra note 5). 90 Coelho, E. Ações afirmativas e povos Indígenas: o princípio da diversidade em questão. 10, 2 Revista Políticas Públicas (2nd Semester, 2006) P. 90. 91 De Souza Cruz, Á. (supra note 51, P. 112). 92 Lanna Jr, M. História do movimento político das pessoas com deficiência no Brasil. Brasília, DF: Secretaria de Direitos Humanos. Secretaria Nacional de Promoção dos Direitos da Pessoa com Deficiência, 2010. 93 Article 37 FC 1988. 94 Article 203 FC 1988.

90  Narciso Leandro Xavier Baez In relation to education, back in 1989, the initial idea was to ensure total access to public and free education, in a different system, adapted to their needs.95 Nevertheless, the policy showed itself as discriminatory and hard to implement. On the one hand, there was a lack of public money to prepare teachers and give them teaching material adapted to the student’s disability.96 On the other hand, it resulted in 55% of disabled children studying in special schools, while only 16.4% of them attended the mainstream ones, which has made it even more difficult to include them in society.97 By 2010, 61.14% of them were illiterate or had only an incomplete elementary school education.98 In response to this situation, the Federal Government created the National Plan for the Rights of Persons with Disabilities (‘Living giving Without Limitations’) in 2011, aiming at strengthening existing public policies and grantingdisabled persons with a range of rights, including the extension of access for disabled children and teenagers to mainstream schools.99 Additionally, in 2014, the Government established a goal to guarantee disabled people, aged between 4 and 17, universal and inclusive access to basic education.100 As a result, there were 88.4% of disabled children in mainstream public schools in 2015.101 Two years later, in 2017, the school census of basic education showed the rates were 90.9%.102 The official numbers regarding the inclusion of disabled people in the mainstream education system illustrate the effectiveness of the Federal Government investments in affirmative action measures for this purpose. Nevertheless, concerning their participation in employment and occupation, it is clear that, despite the amount of affirmative action measures the Federal Government has taken, their effectiveness is barely noticeable.103

95 Article 2 FC 1988. There are other articles in the 1988 Constitution that provide welfare in society and the economy. See also: Law 7.853, of 24 October 1989: http://www.planalto.gov. br/ccivil_03/leis/l7853.htm (accessed 5 August 2019). 96 De Souza Cruz, Á. (supra note 51, P. 215). 97 Ministério da Educação, Instituto Nacional de Estudos e Pesquisas Educacionais Anísio ­Teixeira. Censo escolar, 2003: http://inep.gov.br/sinopses-estatisticas-da-educacao-basica. 98 Censo Demografico 2010. Características da população e dos domicílios: resultados do universo. Rio de Janeiro: IBGE, 2011: https://biblioteca.ibge.gov.br/visualizacao/periodicos/94/cd_ 2010_religiao_deficiencia.pdf. 99 Law 7612, of 17 November 2011: http://www.planalto.gov.br/CCIVIL_03/_Ato2011-2014/ 2011/Decreto/D7612.htm. 100 Institutio Nacional de Estudos e Pesquisas Educacionas. Plano Nacional de Educação: PNE 20142024: linha de base. Brasília: INEP, 2015: http://portal.inep.gov.br/informacao-da-publicacao/-/ asset_publisher/6JYIsGMAMkW1/document/id/493812. 101 Institutio Nacional de Estudos e Pesquisas Educacionas. Relatório do 1º ciclo de monitoramento das metas do PNE: biênio 2014–2016. Brasília: INEP, 2016: http://download.inep.gov.br/ outras_acoes/estudos_pne/2016/relatorio_pne_2014_a_2016.pdf. 102 Censo Escolar Educação Básica 2017. Brasília: INEP, 2017: http://portal.inep.gov.br/web/ guest/sinopses-estatisticas-da-educacao-basica. 103 De Barros M. Portadores de deficiência e o concurso público. IV, 45 Boletim dos Procuradores da República (January 2002) PP. 22–24.

Brazil  91 The Brazilian Federal Government created the ‘National Council of Rights of Persons with Disabilities’ in 1989, to develop and carry out national policies for the integration of disabled people, especially concerning monitoring and evaluating their inclusion in employment and occupation.104 Moreover, in 1990, the Government established a 20% quota for disabled people when applying for civil servant positions in public federal jobs.105 The quota system was imposed on private companies in 1991: companies with more than a 100employees had to a llocate 2%–5% positions to disabled people. However, many private companies do not respect the quota system and the monitoring organs are not able to change this reality.106 As a result, from the 45 million disabled people in Brazil (23.91% of the country’s population), only 403,200 had a job in 2010; in other words, 0.70% of disabled people were in employment.107 The number rose to 0.73% in 2013, reached 0.77% in 2014, 0.84% in 2015108 and 0.91% in 2016. This 0.91% represents 418,500 workers.109 From the statistics, it is possible to infer that less than 1% of disabled people work in Brazil110 and thus the affirmative action measures have not been effective.

LGBT people LGBT people in Brazil are definitely the most discriminated against minority social group in the last decades.111 The main reason for this is that this group has been treated as suffering from a mental illness, according to the World Health Organization.112 Thus, the only type of governmental assistance they used to get concerned public health, especially during the HIV epidemic in the 1980s.113 Even though the 1988 Federal Constitution expressly prohibits any kind of discrimination, the bias against LGBT people only started to change on 17 May 1990, when the World Health Organization removed homosexuality from its list of diseases.114 Same-sex relationships did not get any kind of legal

104 Law 7853. (supra note 95). 105 Article 5 (2): disabled people are assured the right to apply for public contests, to positions compatible to their needs, with a quota system of 20% of the vacancies offered: Law 8.112 of 11 December 1990: http://www.planalto.gov.br/ccivil_03/leis/L8112cons.htm. 106 Sassaki, R. Inclusão, construindo uma sociedade para todos. Rio de Janeiro: W VA, 1997. 107 IBGE. (supra note 3). 108 Supra note 12. 109 Government of Brazil. Brasil contratou 418 mil pessoas com deficiência em 2016. 6 March 2018: http://www.brasil.gov.br/noticias/cidadania-e-inclusao/2018/01/brasil-contratou-418mil-pessoas-com-deficiencia-em-2016 (accessed 5 August 2019). 110 Ibid. 111 De Souza Cruz, Á. (supra note 51, P. 92). 112 Matias D. Psicologia e orientação sexual: Realidades em transformação. 25, 1 Aná. Psicológica, Lisboa (January 2007) PP. 149–152. 113 Mello, L; De Avelar, R; Maroja, D. Por onde andam as políticas públicas para a população LGBT no Brasil. 27, 2 Revista Sociedade e Estado (May/August 2012) P. 295. 114 Mot, L. Homoafetividade e direitos humanos. 14, 2 Revista Estudos Feministas (May/August 2006) P. 510.

92  Narciso Leandro Xavier Baez acknowledgment until that historical moment.115 Therefore, a homosexual couple could not have civil and social rights which were recognised exclusively for heterosexual relationships.116 For instance, for same-sex couples, there was no right to pensions on the death of a spouse, nor to the inheritance.117 In cases of dissolution, liquidation, and division of the matrimonial relationship, there were no rights to divide matrimonial property, nor to maintenance payments, among other kinds of restrictions.118 Moreover, discrimination against LGBT people is a historic problem in Brazil: 3196 LGBT people were murdered (hate crimes) from 1980 to 2009, an average of 110 deaths per year.119 Brazil has started fighting these discriminatory issues after the civil rights movements jolted the discussion about LGBT’s rights to a recognized legal relationship.120 Moreover, since the legislative and executive branches had done nothing about the issue, the discussion has been taken to the judiciary branch through a great number of lawsuits regarding the topic, which have acknowledged the civil and social rights of LGBT people.121 First, homosexual couples got given social rights in the Brazilian General Social Welfare Policy in the 1990s,122 which, after ten years of judicial dispute, led the National Institute of Social Security to administratively acknowledge same-sex couples for social security rights.123 The right of LGBT people to adopt children or to apply to do so came in 2010124 without restrictions to the adopted person’s gender or age.125 One year later, in 2011, the Supreme Court of Justice acknowledged civil partnerships between same-sex couples with its property effects.126 The National Council

115 Fachin, L. Aspectos jurídicos da união de pessoas do mesmo sexo. 85, 732 Revistas dos Tribunais (1996) PP. 47–54. 116 Moraes, M. A união entre pessoas do mesmo sexo: uma análise sob a perspectiva civilconstitucional. 1 Revista Trimestral de Direito Civil (January/March 2000) PP. 89–112. 117 Barroso, L. Diferentes, mas iguais: o reconhecimento jurídico das relações homoafetivas no Brasil. 17 Revista Brasileira de Direito Constitucional (January/June 2011) PP. 105–138. 118 Dias, M. Família homoafetiva. 3 Revista Bagoas (2009) PP. 39–63. 119 Benevides, C; Galdo, R. Número de assassinatos de gays no país cresceu 62% desde 2007, mas tema fica fora da campanha. Jornal O Globo, 16 October 2010: https://oglobo.globo.com/ brasil/eleicoes-2010/numero-de-assassinatos-de-gays-no-pais-cresceu-62-desde-2007-mastema-fica-fora-da-campanha-4984070. 120 Alvarez, S. A globalização dos feminismos latino-americanos. In: Alvarez, S; Dagnino, E; Escobar, A. (Orgs.). Cultura e política nos movimentos sociais latino-americanos. Belo Horizonte: Editora UFMG, 2000. P. 385. 121 Ramos, S; Carrara, S. A constituição da problemática da violência contra homossexuais: a articulação entre ativismo e academia na elaboração de políticas públicas. 16, 2 Physis - Revista de Saúde Coletiva (August to December 2006) P. 189. 122 Ibid. 123 Martins, S. Direito da seguridade social. 30th ed. São Paulo: Atlas, 2010. P. 366. 124 Superior Tribunal de Justiça. Recurso Especial 889.852-RS, 2010. 125 Supremo Tribunal Federal. Recurso Extraordinário 615.264, 2010. 126 Supremo Tribunal Federal. Ação Direta de Inconstitucionalidade (ADI) 4277 e Arguição de Descumprimento de Preceito Fundamental (ADPF) 132, 2011.

Brazil  93 of Justice determined, in 2013, that registry offices should promote legal civil partnerships in their offices.127 The intense pressure of LGBT civil movements and the court decisions motivated the Federal Government to promote affirmative action measures for this group in 2002. The National Human Rights Programme,128 giving special emphasis to the programme ‘Brazil without homophobia’ was implemented in 2014, aiming at fighting violence and promoting LGBT citizen rights.129 Additionally, in 2005 and 2006, the Federal Government created the ‘Human Rights and Same-Gender Citizenship Reference Centres’ in every Brazilian State capital, with a view to promote psychological and legal assistance to LGBT ­people.130 However, this service no longer exists due to lack of financial resources and investment from the Government. Despite the fact that these centres’ maintenance has failed, it is important to say that the measures taken so far for LGBT people have guaranteed them the same social and civil rights as heterosexual couples. However, hate crimes are still a problem.131 To illustrate, in 2017, there was a murder against LGBT people every 25 hours, motivated only by the victim’s sexual orientation.132 That still happens due to the high levels of cultural bias against and rejection of LGBT people, whether inside their families, in schools and universities, or in jobs and leisure facilities.133 There is also no specific law protecting them against violence, as there are for women and Afro-Brazilians. Women can count on special Police Departments and also the ‘Maria da Penha’ Law, which have been created to stop domestic violence.134 Afro-Brazilians are constitutionally protected from racism as it is a non-bailable crime with a confinement penalty.135 These facts show there is still much to do in Brazil to stop hate crimes against LGBT people and that the affirmative action measures taken so far have not reached been effective in stopping these.

127 Conselho Nacional de Justiça. Resolução 175, 14 May 2013: http://www.cnj.jus.br/atosnormativos?documento=1754. 128 Ramos, S; Carrara, S. (supra note 121, PP. 185–205). 129 Ministério da Justiça. Programa Brasil Sem Homofobia – Programa Brasileiro de combate à violência e à discriminação contra gays, lésbicas, transgêneros e bissexuais, e de promoção da cidadania homossexual. Brasília, 2004. 130 Mello, L; De Avelar, R; Maroja, D. (supra note 113, P. 297). 131 Number of fatal victims of hate crimes against LGBT people from 2008-2017: 2008 – 187; 2009 – 198; 2010 – 260; 2011 – 266; 2012 – 338; 2013 – 318; 2014 – 326; 2015 – 318; 2016 – 343; 2017 – 445. Madeiro, C. ONG aponta recorde de LGBTs mortos no Brasil em 2017. UOL Notícias 25 September 2017: https://noticias.uol.com.br/cotidiano/ultimas-noticias/ 2017/09/25/brasil-tem-recorde-de-lgbts-mortos-em-2017-ainda-doi-diz-parente.htm. 132 Vinhal, G. (supra note 11). 133 Gomes, A; Francisco Dos Reis, A; Kurashige, K. Violência e homofobia: um estudo sobre o preconceito e a agressão contra a população LGBT em Mato Grosso do Sul. 8, 11 Bagoas Estudos Gays: Gêneros e Sexualidades (2014) P. 145. 134 Law 11.340. (supra note 35). 135 Article 5, XLII FC 1988.

94  Narciso Leandro Xavier Baez

Obstacles to the implementation of affirmative action measures’ in Brazil: financial costs and priority levels in the Federal Government budget The brief synthesis about the process of creation, implementation, and effectiveness of affirmative action measures for women, Afro-Brazilians, disabled people, Indians, and LGBT people shows important advances in achieving full equality. However, many of the analysed affirmative action measures show low efficacy levels, due to the financial obstacle to their implementation, as well as other elements, since their enforcement depends on public policies136 with money from the Federal Government budget. It is time to assess how much of the budget has been allocated to each of the five discriminated groups, to establish the relationship between the amount invested and their effectiveness level.

Public budget to reduce gender inequality The main issues women still face in Brazil are as follows: (1) their devaluation in employment and occupation, since they are paid less than men in the same work positions;137 (2) the low numbers of women candidates in elections, which prevents them from participating in the country’s political reality;138 and, (3) the high levels of domestic abuse, especially violent behaviour from their partners.139 By analysing the Federal Government Annual Budget Laws, it is possible to infer that there was no gender-responsive budgeting, from 1988 to 2001, which means the State did not invest in fighting these three discrimination problems against women.140 The first specific gender-gap investments arose in the budget in 2002, when R$ 3.5 billion was used in women’s projects,141 which represented 0.54% of the total budget at that time. The Federal Government created the Special Secretariat of Politics for Women in 2003, aiming at adopting, coordinating and implementing gender affirmative action measures.142 One year later, in 2004, it established the National Plan of Politics for Women aiming at building gender parity and is allocated an amount of R$ 19.2 billion, for the first time in its history, which represented 1.3% of the Federal Government budget to affirmative action measures to fight gender disparity.143 These investments have been used to create day-care support

136 137 138 139 140 141 142

De Souza Cruz, Á. (supra note 51, P. 164). Supra note 45. Supra note 39. Supra note 52. Senado Federal. LOA 2004–2015 – Despesa Execução: Orçamento Mulher. Ibid., LOA 2002 – Despesa Execução: Orçamento Mulher. Medida Provisória 103, 1 January 2003: http://www.planalto.gov.br/ccivil_03/MPV/Antigas_ 2003/103.htmimpressao.htm. 143 Prestação de Contas do Presidente da República: 2004. Controladoria Geral da União: http:// www.cgu.gov.br/assuntos/auditoria-e-fiscalizacao/avaliacao-da-gestao-dos-administradores/ prestacao-de-contas-do-presidente-da-republica/exercicios-anteriores/2004.

Brazil  95 facilities, restaurants and launderettes to help employed women; and, to create qualifying programmes for female managers in urban and rural productive sectors. Moreover, money has been allocated to fight gender violence and crimes, by promoting total and free legal assistance for women.144 The Federal Government budget amount allocated to promote gender equality varied from 1.3% to 5.6% of the total budget, from 2004 to 2015.145 The main investments concerned qualifying women to manage rural and urban productive sectors and fighting gender violence.146 From 2006 onwards, the main focus has been on economic independence in the labour market and effective violence prevention, rather than bare prevention.147 Investments in the exercise of citizenship and women’s rights achievement have doubled since 2008, reaching R$ 58.8 billion (4.3% of the total Federal Government budget) and the target has been broadened: at first it was targeted at providing rural women with legal register as farmers and expert assistance; then came the creation of national programmes to stimulate fair working conditions and gender parity in employment and occupation, as well as a focus on women’s economic independence and entrepreneurship; and, last, the setting up of a system to protect them against domestic abuse, to protect human rights with redress in case of violation.148 The highest investments to reduce gender equality were made in 2014, when the Federal Government destined 5.6% of its total budget to the inclusion of women, adding programmes such as productive organisation, support for gender parity social planning and managing, rural development and policies to tackle gender violence.149 Despite the significant budget allocations to women, the amount specifically reserved to promote their participation in the labour force was slight, not exceeding 0.036% of the total budget for women in 2012, around R$ 46.46 million, and representing only 0.003% of the total Federal Government budget.150 The low investment in promoting gender parity explains why Brazilian women still have lower salaries compared to men. There is a straightforward relation between the amount of money allocated 144 Ibid. 145 History of investments in gender equality: 2002: R$ 3.5 billion (0.54% of the budget); 2003: 3.5 billion (0.33%); 2004: 19.2 billion (1.3%); 2005: 22 billion (1.39%); 2006: 25.4 billion (1.55%); 2007: 29.1 billion (1.91%); 2008: 58.8 billion (4.3%); 2009: 65.8 billion (4.16%2010: 72.7 billion (4.11%); 2011: 82.4 billion (4.19%); 2012: 104 billion (4.84%); 2013: 115.4 billion (5.3%); 2014: 135 billion (5.66%); 2015: 144 billion (5.02%); 2016: 84 billion (2.89%). Senado Federal. (supra note 140). 146 Senado Federal. LOA 2004–2005 – Despesa Execução: Orçamento Mulher. 147 Ibid., LOA 2006 – Despesa Execução: Orçamento Mulher. 148 Ibid., LOA 2008 – Despesa Execução: Orçamento Mulher. 149 Ibid., LOA 2014 – Despesa Execução: Orçamento Mulher. 150 History of investments in women’s inclusion in employment: 2004: R$1.93 million (0.0085% of the budget); 2005: 2.56 million (0.0095%); 2006: 3.51 million (0.011%); 2007 3.68 million (0.0095%); 2008, 24.92 million (0.034%); 2009: 28.62 million (0.034%); 2010: 30.9 million (0.035%); 2011: 29.61 million (0.029%); 2012: 46.46 million (0.036%); 2013, 41.87 million (0.027%); 2014, 36.60 million (0.022%); 2015: 20.47 million (0.012%). Senado Federal (supra note 140).

96  Narciso Leandro Xavier Baez to a specific affirmative action measure and its effectiveness in Brazil. Without significant amounts of investment, this will remain the case, and it will take 29 years for women to gain equality with men, as was mentioned before. In addition, gender-based violence is another underinvested area in Brazil. Judging by the Federal Government budget, affirmative action measures to prevent it were between 0.00034% and 0.0037% of the country’s total financial resources.151 This suggests that this issue is not a priority in Brazil, thus, the levels of gender-based violence are still an insoluble problem. Regarding women’s participation in politics, there is no gender-responsive budgeting in the Federal Government. There is only the law that imposed the 30% quota system for women in political parties for every election.152 The bias level is so severe that even the amount allocated to political party funding is disproportional since only a 10% average of the total money the parties get has been assigned to women.153 An interesting aspect to consider is the measures included in the genderresponsive budget which were developed until 2016, the year when the first Brazilian female president was impeached.154 From 2017 onwards, the Federal Government budget has no longer included gender-responsive amounts, the topic is included in the general budget,155 leading to stagnation of the gender equality situation.

Public budget to reduce racial discrimination Afro-Brazilians face many discriminatory acts in Brazil, but some have been more latent in the last decades, especially those related to higher education, to their inclusion in employment and occupation – because their salaries are lower when compared to the others – and to their social condition itself, since, as mentioned 76% of people in this group correspond to the 10% poorest people in the country and only 17.4% of them are among the richest ones.. The Federal Government initiated specific budget investments in order to reduce racial discrimination in the country in 2008 and kept appropriations for this purpose until 2016.156 The average amount allocated to those programmes

151 Ibid., LOA 2002–2016 – Despesa Execução: Orçamento Mulher. 152 Law 9.100. (supra note 33). 153 Da Silva, H. Dinheiro para mulheres candidatas: menos ou nada? JOTA, 19 March 2018: https:// www.jota.info/opiniao-e-analise/colunas/e-leitor/dinheiro-para-mulheres-candidatas-menosou-nada-19032018. 154 Senado Federal. Impeachment de Dilma Rousseff marca ano de 2016 no Congresso e no Brasil. Senado Notícias. Brasília, 28 December 2016: https://www12.senado.leg.br/noticias/materias/ 2016/12/28/impeachment-de-dilma-rousseff-marca-ano-de-2016-no-congresso-e-no-brasil. 155 Senado Federal LOA 2016–2017 – Despesa Execução: Orçamento Mulher. 156 History of investments in racial equality: 2008: R$ 23.2 million (0.0017% of the budget); 2009: 27.7 million (0.0018%); 2010: 51.1 million (0.0029%); 2011, 113.6 million (0.0058%); 2012: 279.6 million (0.013%); 2013: 550’5 million (0.025%); 2014: 852.4 million (0.035%); 2015:

Brazil  97 was R$ 1.13 billion per year, corresponding to 0.048% of the total Government budget.157 Some of the most significant investments are in promoting affirmative action policies for racial equality, with emphasis in qualifying Afro-Brazilians for citizenship, public administration, and the labour market, as well as supporting initiatives for tackling racism and promoting racial equality.158 Other initiatives worth mentioning include the promotion of the edition, publication and distribution of literature and audio-visual material about racial equality, and encouraging social and ethnic-racial inclusion in higher education.159 The Federal Government budget included, from 2012 to 2015, important new affirmative actions to guarantee Afro-Brazilians access to and to retain them in higher education: the first one was aimed at supporting private superior institutions to maintain quotas; the second one concerned scholarships to keep them studying, so they could finish university courses; the third one consisted of scholarships to apply for a career in the diplomatic service.160 The programmes included in the Federal Government budget to provide Afro-Brazilians with professional qualifications have helped to reduce some of the differences in terms of salary when comparing Afro-Brazilians to white people’s wages. However, they are far from solving the issue, because they received only 48% of what white people in the same work did in 2003.161 After the investments, the difference rose to 57.4% in 2013,162 and it reduced to 56.4% in 2017.163 This inequality in remuneration shows how deep the latent discrimination in the Brazilian labour market is. The lack of specific budgetary investments in this area has also hampered the search for solutions. Therefore, as mentioned, it is estimated that Afro-Brazilians will only have equivalent salaries in 2089.164 With regard to their university access, it is important to highlight that affirmative action measures have guaranteed almost 150,000 Afro-Brazilians the opportunity to access higher education,165 representing 45.5% of students in 2014.166 Moreover, it was estimated that they could reach 50% of students in 2016 in all the country’s universities.167 However, these numbers have not

157 158 159 160 161 162 163 164 165

166 167

829.2 million (0.028%); 2016: 587.4 million (0.020%). Senado Federal. LOA 2008 a 2016 – Despesa Execução: Orçamento Igualdade Racial. Ibid., LOA 2008 a 2016 – Despesa Execução: Orçamento Igualdade Racial. Ibid. Ibid. Ibid., LOA 2012 a 2015 – Despesa Execução: Orçamento Igualdade Racial. Calegari, L. (supra note 72). Ibid. Supra note 73. Supra note 46. Consciência Negra: apenas 34% dos alunos de ensino superior são negros no Brasil. UFJF Notícias. Juiz de Fora, 20 November 2017: https://www2.ufjf.br/noticias/2017/11/20/ consciencia-negra-apenas-34-dos-alunos-de-ensino-superior-sao-negros-no-brasil/. Sales, R. (supra note 67). Supra note 64.

98  Narciso Leandro Xavier Baez been confirmed, considering that the Federal Government has stopped providing budgetary allocations to maintain affirmative action measures to support the system of quotas and scholarship for Afro-Brazilians in universities in 2016.168 Another issue is that the programmes have not used the total amount allocated to implement affirmative actions: only around 37.67% of the total amount was used from 2008 to 2016, which means about R$ 368.3 million per year, from 1.13 billion available.169 This neglect has reduced the effective annual financial investment in affirmative action for Afro-Brazilians to only 0.015% of the total federal budget.170 Even worse, around R$ 764.2 million have been returned to the Government, which is double the amount invested in programmes to reduce racial inequality.171 There were some retrogressive years, e.g. 2012, when the amount used reached only 14.24% of the total allocated amount to those measures.172 The only exception worth mentioning was the year 2016 when 93.98% of the total budget was used for empowering programmes for Afro-Brazilians.173 Nevertheless, from that year on, there has been no more public investment to provide Afro-Brazilians access and help them continue higher education. Analysing the Federal Government budget allocation to reducing racial inequality, it is worrying to see that almost 70% of the amount destined to these programmes returns to the public purse, as the country has been absolutely unable to use the amount to ensure racial equality. This is undoubtedly one of the greatest current obstacles to the effectiveness of affirmative action measures for Afro-Brazilians. Without the effective use of public resources aimed at reducing racial inequalities, it is difficult to achieve the important ideal of justice and full equality among all people regardless of their skin colour.

Public budget to preserve Indians’ culture and their lands’ demarcation Indian communities have been facing two great historical problems in Brazil: the first one concerns their traditions that are constantly threatened by the acculturation process imposed by the Federal Government; the second one refers to the resistance in recognising and demarcating the lands they have traditionally occupied. The Federal Government budget included Indian communities’ needs from 2002 to 2018, with an average allocation of 0.035% of the total amount to Indian’s culture preservation and lands’ demarcation measures.174 168 169 170 171 172 173 174

Senado Federal LOA 2016 – Despesa Execução: Orçamento Igualdade Racial. Senado Federal. (supra note 157). Ibid. Ibid. Ibid., LOA 2012 – Despesa Execução: Orçamento Igualdade Racial. Senado Federal. (supra note 157). History of investments on Indian Communities: 2000: R$ 93.7 million (0.0093% of the budget); 2001: 150.7 million (0.015%); 2002: 190.7 million (0.0293%); 2003: 209.1 million (0.0202%); 2004: 275.3 million (0.0187%); 2005: 333.1 million (0.0211%); 2006: 409.5 million (0.025%); 2007: 458 million (0.03%); 2008: 651.9 million (0.0479%); 2009: 739.2 million

Brazil  99 The annual average investment has been R$ 747.5 million applied in two major initiatives: the first one focused on ethnic identity programmes and cultural heritage of Indigenous peoples, seeking to develop education activities through school construction and production of teaching material; the second one is the identification, demarcation, and regularisation of Indigenous lands, as well as the environmental impact statement of projects developed within these areas.175 It is possible to see that the amount allocated to demarcate and regularise the Indians’ lands has proved itself efficient. To illustrate this, Indian communities occupied 13.8% of the total territorial extension after the investments in 2017, which represents 117,380,129 hectare (ha).176 To a community of 896,000 Indians, who represent 0.43% of the total population (207.7 million people), this is a satisfactory land amount, resulting in an average of 131 ha for each I ndian,177 while here is a total area equivalent to 3.55 ha per person to the rest of the population (206.8 million people), according to the 2017 Census.178 Conversely, regarding Indians’ culture preservation, the Federal Government has been widening the programmes aimed at Indian communities since 2011, including actions in the budget to promote their identity and cultural diversity, underlining the support to the Indians’ cultural and educational ­projects.179 Those measures are important since Indian communities are a social group who have been suffering since the first contact with the European colonisers, who imposed a colonialist and arbitrary integration.180 The budgetary allocation would target building schools and designing teaching material and teachers’ courses until 2010, so the access to ‘education’ and social inclusion could be promoted. However, differences in language and culture among the over 305 Brazilian Indian ethnicities have not been taken into consideration during the programmes’ creation, therefore, the ‘education’ provided to Indians means a new type of acculturation.181 The 2011 budget contemplated specific programmes to stimulate the Indian communities’ culture and education, so this may hopefully change to guarantee their customs and traditions’ preservation.

175 176 177 178 179 180 181

(0.0467%); 2010: 795.7 million (0.0451%); 2011:766.4 million (0.0390%); 2012: 792.6 million (0.0369%); 2013: 1.05 billion (0.0485%); 2014:1.19 billion (0.0503%); 2015: 1.54 billion (0.0537%); 2016: 1.54 billion (0.0531%); 2017: 1.49 billion (0.0437%); 2018:1.51 billion (0.0431%). Senado Federal LOA 2002 a 2018 – Despesa Execução: Orçamento Indigenista. Ibid., LOA 2002 a 2011 – Despesa Execução: Orçamento Indigenista. Povos indígenas no Brasil. (supra note 10). Funai. (supra note 5). Revista Exame População Brasileira passa de 207.7 milhões em 2017. 30 August 2017: https:// exame.abril.com.br/brasil/brasil-atinge-populacao-de-2077-milhoes-em-2017/. Senado Federal. LOA 2011 – Despesa Execução: Orçamento Indigenista. Mignolo, W. (supra note 78). Coelho, E. (supra note 90).

100  Narciso Leandro Xavier Baez Public budget to promote disabled people’s social inclusion Among the many difficulties disabled people face in Brazil, there are two types of obstacles to their social integration that get the attention by being the goal of affirmative action measures and receiving financial investments from the Federal Government budget: the first one concerns education, since 61.14% of disabled people in Brazil are illiterate or have not finished elementary school.182 This is twice as high as the percentage of non-disabled people (38.23%) who are illiterate or have not finished elementary school, showing the inequality of disabled people.183 The second one regards their difficulty to get access to employment and occupation or to achieve better salaries when compared to non-disabled workers.184 The Federal Government allocated an annual average of 0.66% of its total budget to social inclusion programmes to disabled people from 2000 to 2018,185 always aiming at fighting inequalities by focusing on their education and professional qualification. This annual percentage of investment represented R$ 5,417.88 per disabled person, per year.186 It must be stressed that, during the mentioned period, in three years – 2011, 2012 and 2013 – the Government destined R$ 7.6 million to the programme ‘Living Without Limitations’, money used to buy 6,000 adapted school buses; promote physical improvements in 42,000 public schools; implement 17,000 rooms and adapt 28,000 other ones with multi-functional resource rooms; hire 648,000 sign language teachers and 648,000 translators for federal institutions; create quotas of 5% in the National Programme for Access to Technical Education and Employment for disabled people, which represented 150,000 vacancies; offer scholarships in technical education (secondary school); as well as investing in feeding and teaching ­material.187 This budget allocation was essential, considering the number of disabled children studying in regular public schools was 90.9% in 2017.188 This high rate shows a strict relationship between the Government’s great budget

182 183 184 185

Censo Demografico 2010. (supra note 98). Ibid. De Barros, M. (supra note 103). History of investments on inclusion of disabled people: 2000: R$ 2.24 billion (0.22% of the budget); 2001: 2.78 billion (0.29%); 2002: 3.23 billion (0.51%); 2003: 3.75 billion (0.36%); 2004: 114.89 million (0.01%); 2005, 5.08 billion (0.32%); 2006, 6,01 billion (0,37%); 2007, 7,30 billion (0,48%); 2008, 8,30 billion (0,61%); 2009: 9.84 billion (0.62%); 2010: 11.74 billion (0.66%); 2011: 13.37 billion (0.68%);2012: 16.24 billion (0.76%); 2013: 18.39 billion (0.85%); 2014: 2.38 billion (0.83%); 2015: 22.71 billion (0.79%); 2016: 25.26 billion (0.87%); 2017: 28.19 billion (0,83%); 2018: 31.13 billion (0.89%). LOA (2000–2018): http://www.planejamento. gov.br/assuntos/orcamento-1/orcamentos-anuais. 186 The number of disabled people in the population has grown from 24.600.256 in 2000 to 45.606.048 in 2010, an annual growth of 2.100.579. 187 Presidência da República. Secretaria de Direitos Humanos da Presidência da República. Viver sem Limites: https://www.mdh.gov.br/biblioteca/pessoa-com-deficiencia/cartilha-viver-semlimite-plano-nacional-dos-direitos-da-pessoa-com-deficiencia/view. 188 Supra note 102.

Brazil  101 investment and the affirmative action measures’ high effectiveness in reducing disabled people’s inequalities concerning access to regular education. Conversely, the lack of investment is also the reason why some affirmative action measures completely fail. The inclusion of disabled people in employment and occupation is an example. The Federal Government has allocated a negligible amount to programmes focused on professional education, rights assurance and protection, and monitoring of the labour laws for disabled people, from 2000 to 2015.189 Moreover, there have been no more specific budget allocations to guarantee disabled people labour market positions since 2016.190 As a result of this omission from the budget, now only 0.91% of disabled people work in Brazil,191 despite making up 23.91% of the population.192 Therefore, nearly 24% of the population do not have the fundamental right to fair and just work conditions, due to the insurmountable barrier created by the lack of public investment. Finally, it is important to mention that disabled people do not represent a specific heading in the Federal Government budget. The programmes and public policies aimed at them are all spread among the general budget, which shows there is a minority group without the necessary attention from the Federal Government.

Public budget for LGBT people LGBT people in Brazil have been facing historical problems regarding the high level of hate crimes (homophobia)193 and difficulties to have their social and civil rights as couples recognised, because they are not a heterosexual couple.194 In contrast to women, Afro-Brazilians and Indians, who have been receiving specific budget allocations aimed at reducing discrimination and inequality, LGBT people have never been considered to warrant a separate budget allocation to assist them in their social inclusion needs. The Federal Government has only created some programmes, with scattered money from the general budget, all strictly connected to the Ministry of Justice and Citizenship and, since 2017, the new Ministry of Human Rights.195 The fact that there is no specific budget allocation for LGBT people is the first barrier to affirmative action measures to promote their social inclusion, illustrating how irrelevant the group is to the Federal Government’s public policies. The question remains why there is no allocated budget to LGBT people. The fact that the Government is silent about this 189 190 191 192 193 194 195

LOA (2000–2015): http://www.planejamento.gov.br/assuntos/orcamento-1/orcamentos-anuais. LOA (2016–2018): http://www.planejamento.gov.br/assuntos/orcamento-1/orcamentos-anuais. Supra note 109. Supra note 3. Vinhal, G. (supra note 11). Fachin, L. (supra note 115). Medida Provisória Cria Ministério de Direitos Humanos. Câmara dos Deputados, 3 February 2017: https://www2.camara.leg.br/camaranoticias/noticias/ADMINISTR ACAO-PUBLICA/ 522670-MEDIDA-PROVISOR IA-CR IA-MINISTER IO-DOS-DIR EITOS-HUMANOS. html.

102  Narciso Leandro Xavier Baez shows the depth of discrimination LGBT people have been historically facing in Brazil. It needs to be stressed that the scattered money allocation to LGBT people refers to promoting their human rights protection under programmes that focus on respect and value of diversity based on race, nationality, gender, religion, culture, sexual orientation, gender identity, age and disabilities.196 So, the money does not specifically refer to LGBT people, because it is shared with the other programmes. The specific public budget aimed at LGBT people is effectively just a small portion of that allocated to promoting human rights because the amount is divided among other diversities that deserve Government attention as well. Modicum investment for specific programmes for LGBT people have only existed between 2000 and 2018 in the Federal Government general budget.197 The Federal Government budget has included this group in the general measures to fight any kind of discrimination, from 2000 to 2006,198 however, there was no money allocated to this group in 2004, whether directly or indirectly.199 The first time the Federal Government destined money to promote the fight against homophobia was in 2007, with the creation of the Programme of Identity and Cultural Diversity: Plural Brazil.200 Actions have been increasing and research programmes about homosexual citizenship and the fight against homophobia have been created from that year on.201 There was a budget advance in 2012, when the money allocation aimed at spreading the notion of LGBT human rights, stimulating education, social participation and emerging new values, in order to: produce and implement public policies to assure LGBT people their rights; stimulate the idea of respect for the freedom of sexual orientation and gender identity; and, encourage social acknowledgment of gays, lesbians, bisexuals, cross-dressers and transgender persons.202 Therefore, the average amount the Government has invested is R$ 14 million per year203 in programmes for a group of almost 10% of the population or 20.770.000 people who have declared

196 LOA 2017: http://www.planalto.gov.br/CCIVIL_03/Projetos/PLN/2016/Anexos/3.%20 PLOA%202017%20-%20Volume%20II.pdf. 197 LOA 2008–2011: http://www.planalto.gov.br/CCIVIL_03/Projetos/PLN/2016/Anexos/ 3.%20PLOA%202017%20-%20Volume%20II.pdf. 198 LOA 2000–2006: http://www.planalto.gov.br/CCIVIL_03/Projetos/PLN/2016/Anexos/ 3.%20PLOA%202017%20-%20Volume%20II.pdf. 199 LOA 2004: http://www.planalto.gov.br/CCIVIL_03/Projetos/PLN/2016/Anexos/3.%20 PLOA%202017%20-%20Volume%20II.pdf. 200 LOA 2007: https://www.camara.leg.br/internet/comissao/index/mista/orca/orcamento/ or2007/lei/070207_lei_11451.pdf. 201 Ibid. 202 LOA 2012: http://www.planalto.gov.br/CCIVIL_03/Projetos/PLN/2016/Anexos/3.%20 PLOA%202017%20-%20Volume%20II.pdf. 203 History of investments for LGBT groups: 2000: R$ 449,000 (0.00004% of the budget); 2001: 348,000 (0.00003%); 2002: 930,000 (0.0001%); 2003: 2.5 million (0.0002%); 2004: no available data; 2005: 4.5 million (0.0003%); 2006 5 million (0.0003%); 2007: 1.1 million (0.0001%); 2008: 900,000 (0,0001%); 2009, 2.51 million (0.0002%); 2010: 1.1 million (0.0001%); 2011: 17.23 million (0.0009%); 2012: 2.35 million (0.0001%); 2013: 2.5 million (0.0001%); 2014:

Brazil  103 themselves to be part of this community.204 The amount the Federal Government has invested is inadequate since it represents only R$ 0.68 (68 cents) per LGBT person. The low level of investments for LGBT people emphasises they are not a priority in terms of public policies in Brazil. Their main achievements are due to court decisions around the country, not to the Government public policies.205 The lack of civil and social rights of LGBT couples was widely discussed and solved by the Supreme Court of Justice in the 1990s since the executive and legislative branches had done nothing about the issue.206 However, there is still an urgent issue to face: extinguishing LGBT hate crimes (homophobia), a persistent and yearly-increasing problem in Brazil.207 In this sense, it is important to say that the insignificant budget allocation to LGBT people is one of the greatest barriers to fight hate crimes. More people will die because of prejudice if the Government does not treat this issue as a priority, and Brazil will shamefully remain as the top in the world ranking of LGBT murders, rating a death every 25 hours in 2018.208

Alternative models to make affirmative action measures in Brazil more effective By analysing the Brazilian Federal Government budget, it is possible to see that many affirmative action measures have not reached the expected results. One of the main reasons for this ineffectiveness is the lack of public investment. For example, measures taken to promote access to employment and occupation for disabled people, have resulted in less than 1% of disabled people 209 being employed. ­ The same failure is clear in attempts to promote gender and race equality in pay. Moreover, Indians have been witnessing the extinction of their culture, while LGBT people are still victims of hate crimes. The negligible State investment to support affirmative action measures in these areas makes it difficult to achieve full equality in Brazil. Therefore, there is a straight cause and effect relationship between the amount of money allocated to implement affirmative action measures and their effectiveness.

204

205 206 207 208

209

2.71 million (0.0001%); 2015: 1.85 million (0.0001%); 2016: 53.94 million (0.0019%); 2017: 77.2 million (0.0023%); 2018: 76.74 million (0.0022%). LOA 2000–2018. (supra note 185). 10% dos brasileiros são LGBTI, mas estão sub-representados na política. Brasil de Fato, 19 June 2017: https://www.brasildefato.com.br/2017/06/19/cerca-de-10-da-populacao-brasileirapessoas-lgbti-sao-sub-representadas-na-politica/. Ramos, S; Carrara, S. (supra note 121, P. 189). Ibid. VIinhal, G. (supra note 11). Bortoni, L. Brasil é o país onde mais se assassina homossexuais no mundo. Rádio Senado, 16 May 2018: https://www12.senado.leg.br/radio/1/noticia/brasil-e-o-pais-que-mais-matahomossexuais-no-mundo. Supra note 109.

104  Narciso Leandro Xavier Baez However, there is another complex and important barrier to the efficacy of affirmative action measures: Brazilian people’s culture. It is possible to perceive that even if affirmative action measures receive a considerable amount of the budget, they will not reach the expected efficacy level. Women’s participation in politics is an example. Even though there is a legally established minimum number of female candidates per party for elections (30% quota), and high investment by the Federal Government, these measures have not overcome the cultural barrier that impedes women of winning elections at the same rate as men do. Because of this barrier, it is essential to look for alternative models to the ones currently applied in Brazil. Comparative law shows there are other ways to ensure that affirmative action measures are effective in reducing social inequalities of women, Afro-Brazilians, Indians, disabled people and LGBT people. There are plenty of good practice examples in other countries, which may guide the achievement of full equality among all in Brazil.

Alternative models to reduce gender inequalities Women’s difficulties in receiving gender-responsive budgets to fight gender inequalities in Brazil show the need to find alternative solutions so that policy implementation does not depend exclusively on Federal Government money. In this sense, other countries successful experiences may provide possible solutions. With regard to politics, the Interdisciplinary Centre for Economic Science, George Mason University, and the Department of Economics, Virginia Tech University have done a recent study with 150 countries, which concludes that corruption levels are lower in countries where there are more women in parliament.210 This shows the importance of seeking gender equality in elections. Mexico changed its constitution in 2014, aiming at gender parity in the federal and State legislatures, which compelled political parties to publicise their objective criteria.211 The measure is highly effective, because, as a result, Mexican women now make up 49% of the lower house and 49.3% of the Senate.212 Iceland, the number one country in the world ranking of gender equality, where almost half of members of Parliament are women, approved a law in 2017 (in force in January 2018) to oblige private companies and governmental agencies to obtain a specific government certification about gender equality in terms of payment.213 Therefore, it has become the first country in the world to require

210 Jha, C; SarangiI, S. Women and corruption: What positions must they hold to make a difference? 151 Journal of Economic Behavior & Organization (2018) PP. 219–233. 211 Mexico. Constitución Política de los Estados Unidos Mexicanos. Artícle 41: https://www.juridicas. unam.mx/legislacion/ordenamiento/constitucion-politica-de-los-estados-unidos-mexicanos. 212 Nueva legislatura en México: Parlamento igualitario, ¿sociedad igualitária? Deutsche Welle, 31 July 2018: https://www.dw.com/es/nueva-legislatura-en-m%C3%A9xico-parlamentoigualitario-sociedad-igualitaria/a-44898030. 213 Iceland to enshrine equal pay for women and men in law. The Guardian, 5 April 2017: https:// www.theguardian.com/world/2017/apr/05/iceland-equal-pay-women-men-law.

Brazil  105 that private companies and government agencies prove pay is fair or face fines.214 Iceland aims at eradicating gender-based wage inequality by 2020, 215 a much shorter deadline when compared to the expectation in Brazil that it will take to 2047 to extinguish the pay gap.216 With regard to violence against women in Brazil, criminal law and genderresponsive budgeting from the Federal Government have not been enough to fight this.217 However, statistics show this is not an exclusively Brazilian situation, as, in the world, at least one woman in every three has either suffered physical violence or been coerced into sex or other abuse in their lives, and the abuser is usually a family member. Hence, violence against women has been long established as one of the greatest causes of human rights violations.218 The truth is that violence against women derives from the aggressor’s psychological disorder, stimulated by the sexism in current society.219 Therefore, one of the innovative solutions to the issue is going beyond the punishment of the aggressors and imposing on them a rehabilitative psychological treatment to avoid recidivism of aggressive behaviour.220 Bill 9/2016 in the Brazilian Parliament, suggested by the country’s Human Rights Commission, establishes the creation of rehabilitation programmes for men who assault women.221 The bill’s innovation consists of enrolling the aggressors in these rehabilitation programmes during the police investigation phase, even before the prosecution, in order to prevent other assaults during that time. However, this will not be effective, unless there is financial support from the Federal Government for these specific measures.

Alternative models to reduce racial discrimination Racism is a pervasive problem in Brazil, which spreads itself in every part of daily life of society. The greatest issue currently is denying racism, since only 1.3% of Brazilians consider themselves racist, even though 92% of the country’s population confirm that they live in a country where people are discriminated

214 Tuttle, B. One country Is making sure all employers offer equal pay to women. Time, 9 March 2017: http://time.com/money/4696591/equal-pay-gender-gap-iceland-women/. 215 Ibid. 216 OXFAM. (supra note 46). 217 Supra note 52. 218 Heise, L; Ellsberg, M; Gottemoeller, M. Ending violence against women. Population Reports, December 1999. P. 1. 219 Bueseo-Izquierdoa, N; Hidalgo-Ruzzanteb, N; Burneo-Garcesa, C; Perez-Garcia, M. Procesamiento emocional en maltratadores de género mediante el test de expresiones faciales de ekman y la tarea stroop mmocional. 47, 2 Revista Latinoamericana de Psicologia, Colômbia (2015) PP. 102–110. 220 Tratar o agressor, solução inovadora. Senado Federal (Em Discussão): https://www12. senado.leg.br/emdiscussao/edicoes/saneamento-basico/violencia-contra-a-mulher/tratar-oagressor-solucao-inovadora. 221 Projeto de Lei do Senado n. 9, 2016: https://www25.senado.leg.br/web/atividade/materias/-/ materia/124675.

106  Narciso Leandro Xavier Baez against because of their skin colour.222 It is difficult to believe that only 1.3% of Brazilians consider themselves racist when Afro-descendants still make up only 17.4% of the richest people; and, 76% of the poorest ones in Brazil 223 have lower pay than white people.224 Their university intake is still below 50%, 225 although they make up more than half of the country’s population.226 Afro-Brazilians’ social exclusion is so evident, that even the Federal Government’s specific budget allocations show this since the Government spent only 37.67% of the total amount allocated to affirmative action measures on aiming to reduce racial exclusion from 2008 to 2016.227 Among the groups that receive specifically allocated budgets in Brazil, Afro-descendants are the only ones who have not been able to use more than half of the amount. The most successful public policies to reduce racial discrimination focus on education, based on the belief that Afro-descendants who study have real opportunities of social climbing and achieving better employment conditions.228 It is indeed true that the lack of qualification keeps Afro-Brazilians among the 76% of the poorest people in Brazil, as a result of historical discrimination in terms of access to education. Therefore, Afro-Brazilians who could not study to gain professional qualifications get less complex and menial jobs.229 For those reasons, the Institute for Applied Economic Research (under the Brazilian Ministry of Planning, Budget and Management) has suggested creating affirmative action policies to establish quotas for Afro-Brazilians in education and employment.230 The quota system in education was implemented in Brazil in 2002, in the State of Rio de Janeiro, 231 when the university intake of Afro-Brazilians was only 4%.232 The system spread to all public universities in 2012233 and represented a significant result, considering that the number of Afro-Brazilians in the country’s universities rose to 34% in 2015.234 Regarding inequality in employment of Afro-Brazilians, a quota system has been created only in the public sphere and in some Federal Government

222 Pompeu, A. Brasileiros acham que há racismo, mas somente 1.3% se consideram racistas. Correio Braziliense. Brasília, 25 March 2014: https://www.ceert.org.br/noticias/outros/4473/ brasileiros-acham-que-ha-racismo-mas-somente-13-se-consideram-racistas. 223 Supra note 2. 224 Supra note 73. 225 Supra note 165. 226 Supra note 70. 227 Senado Federal. (supra note 157). 228 Meier, K; Steward Jr, J; England, R. Race, class and education: the politics of second-generation discrimination. Madison: The University of Wisconsin Press, 1989. P. 10. 229 Soares, S. O perfil da discriminação no mercado de trabalho – homens negros, mulheres brancas e mulheres negras. Brasília: Instituto de Pesquisa Econômica Aplicada, 2000. P. 24. 230 Ibid. 231 Moehlecke, S. (supra note 31, P. 209). 232 Supra note 64. 233 Lobo, B. (supra note 62). 234 Supra note 64.

Brazil  107 agencies, 235 and there are no legally established quotas in the private sphere. Therefore, establishing temporary quotas for Afro-Brazilians in private companies, mainly for higher positions, would be an impact measure, able to promote significant change in the economic and social reality of this historically discriminated group that does not depend on budget allocation for its implementation.

Alternative models to preserve Indians’ culture and land demarcation Indian communities are a Brazilian minority nation, remaining from the colonialist process in the fifteenth and sixteenth centuries. Throughout the country’s history, they have become invisible in terms of social relevance and, consequently, they have inherited discrimination and stigma from their ancestors. As a result, they have lost all of their traditionally occupied lands besides currently enduring a lot of difficulties in keeping their cultural, social and linguistic identities alive.236 Brazilian Indians represent almost 1% of Brazil’s population, and their situation changed profoundly when the 1988 Federal Constitution was enacted. The first step is the demarcation of lands their ancestors had already occupied, a legal determination able to guarantee them to recover their lands, which make up 13.8% of the country’s territorial extension.237 As was mentioned, there are almost 131 ha to each Indian nowadays, 238 while the rest of the population has 3.55 ha per person.239 It is possible to see that the first affirmative action measures have been effective, although there are other needs to be fulfilled, mainly concerning Brazilian Indians’ cultural preservation. It is important to point out that, although Brazilian infra-constitutional norms guarantee Indians’ cultural autonomy, they have paradoxically established the goal of progressively integrating Indians into national society; 240 and, they aim at educating them to understand the values of the national society.241 These contradictory objectives lead to an acculturation process which results in Brazilian Indians progressively losing their cultural values. The situation has been gradually worsening because the Supreme Court has not acknowledged Indians as ‘Indigenous peoples’ considering it could threaten national sovereignty.242 In this sense, the Supreme Constitutional Court has

235 236 237 238 239 240 241 242

Gomes, J. (supra note 59). Ribiero, D. (supra note 79). Povos indígenas no Brasil. (supra note 10). Funai. (supra note 5). Supra note 178. Law 6001/1973, Article 1: http://www.planalto.gov.br/ccivil_03/Leis/L6001.htm. Ibid., Article 50. Supremo Tribunal Federal. Petição nº 3.388 – RR. Requerente: Augusto Affonso Botelho Neto e outros. Requerido: União e outros. Relator Min. Carlos Britto. Julgamento: 19 March

108  Narciso Leandro Xavier Baez made it clear that Indian communities shall integrate into national society, which means, in other words, the extinction of their original culture since they must adapt to the surrounding culture. Regarding alternative models and collective solutions to face Indians’ culture extinction, education has a special role in terms of historical feelings of belonging. Indians’ education covers a complex demand of over 305 ethnic groups who are seeking self-determination. Policies to provide better qualifications for Indigenous teachers and professors are the tools to fight the challenges in this field, as the example of regular graduation and intercultural teaching degrees shows. These courses aim at preparing teachers and professors to produce teaching material and supplementary materials that are specific to the ethnicities they teach; to spread the intake in Indigenous’ schools; and, to give them basic and complementary qualifications, so that they may strengthen the institutionalised and informed dialogue between Indigenous’ representatives, principals, and managers at Brazil’s Ministry of Education and Culture, and the teaching systems. These, among other movements, fit in with affirmative action measures and policies. This alternative idea of qualifying Indigenous’ teachers and professors has arisen due to the low qualification levels of the 8,431 professionals.243 The 1999 Indigenous School Census showed that many of the professionals did not have a complete secondary education.244 Additionally, the 2005 School Census showed a low and asymmetrical general qualification: 9.95% of the teachers in Indigenous’ schools did not finish Key Stage 3; 12.05% of them completed Key Stage 3; 64.83% finished secondary education, and only 13.17% of them had a higher education degree. Those numbers indicate that many Indigenous teachers and professors must broaden their basic education levels in order to maintain each ethnic culture in their lessons and teaching methods.245 Another matter is creating teaching material specifically catering to the needs of each Indigenous community. In the Northern part of the country, there are more than half of the country’s Indigenous schools, but only 33.02% of them use specific teaching material.246 The numbers are higher in other regions: the Southern region registers 63.89%; the Central-West, 60.71%; the Northeast, 49.89% and the Southeast, 79.59%.247 However, the numbers are low in some of the country’s states, e.g. im Rondônia, Pará, Alagoas and Bahia, where less than 20% of the schools confirmed that they use any kind of specific teaching aid, adapted to the ethnic group.248 Since the differentiated teaching material may

243 244 245 246 247 248

2009, publication 25 September 2009: http://redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=AC&docID=630133. Ministério da Educação. Estatísticas sobre educação escolar indígena no Brasil. Brasília: Instituto Nacional de Estudos e Pesquisas Educacionais, 2007. P. 49. Ministério da Educação. Secretaria de Educação Fundamental. Censo escolar indígena: 1999. Brasília: Instituto Nacional de Estudos e Pesquisas Educacionais, 2001. Ministério da Educação. (supra note 243, P. 59). Ibid., P. 36. Ibid. Ibid.

Brazil  109 consist of only one booklet, a reading book or even a dictionary, the worry is that this is not enough to provide intercultural education, nor teach the communities appreciation of their own knowledge. In light of the above, preservation of Indian’s culture will only happen if Brazil qualifies the Indian communities’ teachers and professors, preparing them to develop specific teaching aids for each ethnicity they teach. In this way, the country may preserve each culture’s basic values and the historical evolution shall happen within the communities’ specific parameters.

Alternative models to promote disabled people’s social inclusion Disabled people in Brazil have been facing historical discrimination, mainly in access to education 249 and in employment and occupation.250 As far as educational access is concerned, the Federal Government measures to guarantee inclusive and universal access in schools, which started in 2014, have been extraordinarily effective and in 2017, 90.9% of the disabled children were studying in mainstream schools.251 It is an undoubtedly decisive step to promote social inclusion for this group, since their effective and constant presence in everyday school life, among the rest of the population, breaks the taboo and broadens the comprehension of their effective possibilities and capabilities. However, concerning their inclusion in employment and occupation, the ­affirmative action measures so far implemented have not achieved a satisfactory result.252 The measures’ lack of effectiveness can be deduced from the fact that less than 1% of disabled people are in work in Brazil, 253 even though there is a right to employment as civil servants, with a 20% quota system, 254 and the 2%–5% quotas in private companies with over a hundred employees.255 The severity of the issue is clear when it is considered in the context that disabled people make up 23.91% of the country’s population, which means that almost 45 million people are unemployed.256 It is also important to highlight that, as long as disabled people do not work, the public purse is the only income source for a huge amount of them, with the ‘Continuous Cash Benefit Programme’ giving them a minimum wage per month, 257 when they are unable to take care of themselves or of being taken care of by their families. Incidentally, this benefit programme in favour of elderly and unemployed disabled people cost the Government R$ 39 billion in 2015. This shows how urgent the problem is. 49 Supra note 97. 2 250 De Barros, M. (supra note 103). 251 Supra note 102. 252 De Barros, M. (supra note 103). 253 Supra note 109. 254 Supra note 105. 255 Article 93, Law 8.213 of 24 July 1991: http://www.planalto.gov.br/ccivil_03/leis/l8213 cons.htm. 256 Supra note 3. 257 Article 203 FC 1988.

110  Narciso Leandro Xavier Baez Brazilian companies do not usually fulfil their quota duties regarding disabled people, claiming there is a high cost to adapt their facilities to disabled people, who are usually not professionally qualified.258 Therefore, most companies prefer paying the fees to fulfilling the quota system. Moreover, the Labour Public Prosecution has found that a great number of disabled people prefer not to work to keep receiving the minimum wage under the Continuous Cash Benefit Programme.259 There are many difficulties in including disabled people in the Brazilian labour market, so innovative measures are necessary. One possibility is observing other countries that are facing the problem too and evaluate how their experience may apply in Brazil. The World Health Organization published the World Report on Disability, in 2011, ranking the countries in rates of employment of disabled people: on the top is Switzerland, where the rate of employed disabled people is 62%; Norway: 61.7%; Canada: 56.3%; Mexico: 47.2% and Germany: 46.1%.260 After analysing those countries’ affirmative action measures and public policies to include disabled people in employment and occupation, there are two approaches to be noted: the first one focuses on graduation, professional qualification, advice and job placements to enable disabled people to enter the labour market; the second one consists of mandatory quotas in companies, offering compensation to the companies that fulfil them, money that comes from a fund of the fines paid by the companies that do not follow the quota rules. Countries that have prioritised professional qualification as the solution to the inclusion of disabled people in the labour market get extraordinary results; however, they allocate a significant amount of money to that. This is what happens in Switzerland, 261 Canada 262 and Mexico.263 Conversely, there are countries where the companies and the Government are obliged to save a percentage of

258 Supra note 12. 259 Senado Federal. Reunião Extraordinánria Da SubcomissãoPermanente De Assuntos Sociais Das Pessoas Com Deficiência. Audiência pública realizada em 28 April 2010. Manifestação da Subprocuradora-Geral do Ministério Público do Trabalho, Dra. Maria Aparecida Gurgel: https://www.senado.gov.br/comissoes/cas/ap/ano-de-2010/AP20100428_1_Reuniao_ CASDEF_BPC.pdf. 260 Relatório Mundial sobre a Deficiência. World Health Organization, The World Bank. Tradução Lexicus Serviços Lingüísticos. São Paulo: SEDPcD, 2011. P. 246: https://apps.who.int/iris/ bitstream/handle/10665/44575/9788564047020_por.pdf?sequence=4. 261 Switzerland - Rehabilitation measures provided under the invalidity insurance. European Commission. Employment, Social Affairs and Inclusion: http://ec.europa.eu/social/main. jsp?catId=1131&langId=en&intPageId=4825. 262 Governement of Canada. Relatório nacional do Canada sobre a implementação dos compromissos emanados da V Cúpula das Américas: https://www.international.gc.ca/americas-ameriques/ assets/pdfs/FINAL_WEB_National_report_POR.pdf. 263 Santos, W. Pessoas com deficiência e inclusão no trabalho na América Latina: desafios à universalização dos direitos. 25, 4 Caderno Brasileiro de Terapia Ocupacional (2017) PP. 839–854: http://www.cadernosdeterapiaocupacional.ufscar.br/index.php/cadernos/article/viewFile/ 1668/919.

Brazil  111 their vacancies for disabled people, offering them benefits that vary from support to their business projects, as in Germany, 264 Japan and Austria, to tax incentives, as in Spain, Panama, Peru, Argentina and Colombia.265 Additionally, many of these countries charge companies that do not follow the quotas for disabled people a monthly fine. The money goes to a fund that supports professional qualification programmes for this group and finances the fulfilling of companies’ projects. This happens in Germany, 266 Austria and Japan.267 The latter alternative is objective, effective and self-sustainable because it encourages companies to integrate disabled people in employment and occupation, by tax or financial benefits and does not financially impact the Government. Furthermore, it stimulates companies to follow quotas by imposing a monthly fine on companies that do not do so, creating a fund which pays for disabled people to get professional qualifications and for the investment in this by compliant companies.

Alternative models to promote LGBT inclusion In Brazil, LGBT people have gained a number of civil rights due to initiatives of civil rights movements and their significant judicial activism, but the executive and legislative branches have been inert and silent regarding these minorities’ social and civil rights so that the judiciary branch is their only support.268 For example, LGBT people are the only discriminated group in Brazil that does not receive an allocation in the budget from the Federal Government which is exclusive to their own needs.269 Moreover, the few affirmative action measures and public policies favouring them are derisory and spread over the general budget.270 As was mentioned, this has resulted in Brazil being the first country in the world ranking of the highest incidence of hate crimes.271 And, as was also already mentioned, the issue has been complicated by the fact that, until recently, LGBT people were considered by the World Health Organization to suffer from mental disorders.272 Some countries have been successful at reducing hate crimes by investing in general education and awareness-raising. Others focus on imposing specific criminal penalties for crimes motivated by the victim’s sexual orientation. Australia, Canada, Slovenia and Norway, for instance, have been fighting homophobia

264 Deficientes têm igualdade de direitos assegurada por lei. Deutsche Welle, 3 May 2002: https:// w w w.dw.com/pt-br/def icientes-t%C3%A A m-igualdade-de-direitos-assegurada-por-lei/ a-512369. 265 Legislação de cotas de outros países: https://www.camarainclusao.com.br/noticias/ 27diaspelainclusao-02-cotas-do-mundo-legislacao-de-cotas-de-outros-paises/. 266 Supra note 264. 267 Supra note 265. 268 Ramos, S; Carrara, S. (supra note 121, P. 189). 269 LOA 1988–2018: https://www2.camara.leg.br/orcamento-da-uniao/leis-orcamentarias/loa. 270 Supra note 195. 271 Vinhal, G. (supra note 11). 272 Matias, D. (supra note 112).

112  Narciso Leandro Xavier Baez by creating a non-discriminatory moral census in schools and universities, to prevent the growth of homophobic acts.273 Chile, Denmark, France, Italy and Finland, among other Nordic countries, have criminalised homophobic offences with specific types of penalties, or even raised the punishment for conventional crimes committed due to the victims’ sexual orientation, aiming at abolishing violence towards LGBT people.274 Hungary has done even more by developing a particular type of criminal court to analyse hate crimes, known as the Equal Treatment Authority, to assure free and fast procedures.275 These measures, which involve education and criminalisation of hate crimes, help reduce violence motivated by the victim’s sexual orientation. Therefore, they are an effective and important mechanism to guarantee LGBT people the right to freedom of sexual orientation, their physical integrity, and even their lives.

Final considerations The analysis of Brazil’s challenges to promote affirmative action measures for women, Afro-descendants, Indians, disabled people and LGBT people shows the country has been effectively involved in achieving full equality within its territory. The main advances in the area started after the enactment of the 1988 Federal Constitution, which included the idea of full equality and implemented a number of affirmative action measures to prohibit any type of discrimination in the country’s territory. The Government has privileged some of the five most discriminated groups in Brazil, by creating specific budget allocations to financially support measures in their favour. This has been done for women, Indians and Afro-Brazilians. However, disabled people and LGBT people do not have a budget specific to their needs, which indicates they are low priority for the Government, since the budget to promote affirmative action measures for them is scarce and spread over the general budget. It is important to stress that establishing the budget itself does not guarantee the Government’s attention to the issue. This is the case for Afro-descendants who had a specific budget allocation from 2008 to 2016 but only 37.67% of the amount allocated was used. From the five groups analysed, this has happened only to Afro-Brazilians. Although there are difficulties and asymmetry, the affirmative /action measures are important instruments to fight discrimination in Brazil. They have raised the number of Afro-Brazilians in universities, have provided a higher number of women in politics and in the labour market, and have promoted the social integration of disabled people. Despite the advances in guaranteeing substantive equality among all, there is a long way to go until Brazil can effectively 273 Ministério das Relações Exteriores. Mundo Afora: Políticas de combate à violência e à discriminação contra pessoas LGBT. Brasília, 2015. 274 Ibid. 275 Ibid., P. 251.

Brazil  113 extinguish inequalities. As was mentioned, the current forecast is that gender equality in the labour market will not be reached until 2047, and equality in the labour market for Afro-Brazilians not until 2089. Therefore, seeking alternative models to increase the effectiveness of affirmative action measures is essential. Analysing other countries’ experiences in achieving better levels of social justice through reducing inequalities for historically discriminated against groups, indicates that the greatest challenge is changing the culture by social awareness-raising. Hence, affirmative action measures alone are not able to transform the society in which they are implemented. Real change actually comes from the evolution of social values, which must be based on tolerance and respect for diversity, the important pillars to a free and just society.

6

The implementation process of affirmative action in Argentina, Chile, Colombia and Peru Iván Obando-Camino, Gustavo Rayo-Urrutia, Alberto Olivares-Gallardo and Rodrigo Hernández-Fernandez

Introduction This chapter deals with the implementation process of affirmative action measures in Argentina, Chile, Colombia and Peru. Specific policies on special measures have been introduced in all the countries under analysis, although only the Constitutions of Argentina and Colombia foresee them. Despite their liberal jurisprudence tradition, constitutional interpreters (e.g. judges, lawyers, scholars) and policy-makers have made room for affirmative actions by constructing the right to equality before the law in terms other than formal equality. Consequently, a literal approach to some of these countries´ constitutions is an unreliable method to figure out how their legal communities make sense of those policies, as will be discussed further. This chapter begins by examining the origins and evolution of affirmative action in the countries under analysis. It reviews their constitutions and judicial decisions to determine the legal foundations of these policies, their challenges before national courts and the role of judges in determining their legal foundations. The analysis then turns into issues of design, implementation and efficacy by focusing on specific recipients of affirmative action policies in the four countries and whether their constitution identifies them as vulnerable groups. Most of the analysis focuses on women, indigenous people and persons with disabilities, except for Colombia where, given the protracted internal armed conflict between the Government and the guerrillas within this territory, the implementation of affirmative actions will be analysed through the lenses of the special constitutional status conferred to persons displaced from their original residence. Finally, the chapter explores the impact of cultural and budgetary implications of affirmative actions as determinants of the implementation process in the chosen countries.

Argentina, Chile, Colombia and Peru  115

The origins and evolution of affirmative action Argentina The Constitution of Argentina recognises equal rights for all inhabitants in article 16. This clause guarantees formal equality before the law,1 although a constitutional amendment passed in 1957 introduced new labour and social security rights in article 14bis. Constitutional scholars construed this amendment to indicate that the Government should remove obstacles to equal opportunities and personal development.2 The guarantee of formal equality means that the Government cannot recognise unreasonable privileges for specific groups, persons or classes,3 but it may treat people differently if it provides reasonable justifications for a differential treatment. These justifications ought to ‘keep a relation of “functionality” or “instrumentality” between the goal pursued by the norm and the criterion or category chosen to justify that different treatment’.4 In 1994 an amendment incorporated the most relevant human rights treaties into the Constitution. It also created a procedure to do likewise with similar treaties (article 75.22).5 Since then, their provisions prevail over domestic legislation. The reform guaranteed equality of opportunity between men and women in accessing both elected and party offices, through positive actions (article 37.2). This reform also authorised Congress to recognise and guarantee the ethnic cultural preexistence and identity of indigenous peoples (article 75.17) as well as to pass legislation and to promote measures of positive action that guarantee real equal opportunities and treatment, and the full enjoyment and exercise of the rights recognised by the Constitution and valid international human right treaties, particularly regarding children, women, elders, and persons with disabilities (article 75.23).6

1 Dalla, A. Constitución Nacional de 1853. In: Monti, N. (coord.) Constituciones Argentinas. Compilación histórica y análisis doctrinario (Buenos Aires, Argentina: Dirección Nacional del Sistema Jurídico de Información Jurídica, 2015). P. 129: http://www.saij.gob.ar/docs-f/ ediciones/libros/Constituciones_argentinas.pdf (accessed 14 January 2020). 2 Loianno, A. Reforma Constitucional de 1957. In: Monti, N. (supra note 1, P. 232). 3 Badeni, G. Derecho Constitucional. Libertades y garantías. Buenos Aires: Ad-Hoc S.R.L., 1993. PP. 242–243. 4 Saba, R. (Des)igualdad Estructural. 11 Revista de Derecho y Humanidades, Santiago (2005) P. 130. In the following all translations from Spanish by authors. 5 Barcesat, E. A veinte años de la Reforma Constitucional. Examen y perspectiva. In: Monti, N. (supra note 1, P. 267). 6 Argentina. Constitución of 1852, sanctioned in 1994.

116  Iván Obando-Camino et al. Thus, these provisions clarified the scope of the right to equality, especially regarding affirmative action policies.7 Nonetheless, their impact on how the judiciary constructed the right to equality is a moot point.8 Saba has suggested that article 75.23 swayed Judge Petracchi´s concurring opinion in the Ruling González (2000), which dealt with gender discrimination in accessing university-affiliated high schools. In this case Judge Petracchi constructed the right to equality under a structural inequality approach,9 as follows: The stringent standard of review that applies to classifications based on sex does not turn those in a category totally forbidden; though, it means that categories based on sex should not be used to create or perpetuate the legal, social, and economic inferiority of women. In any case, classifications based on gender may be used to compensate women for the incapacities that they have suffered throughout history.10 Saba has maintained that Judge Petracchi based his opinion on the principles of disadvantaged group and of equality as no submission was made relating to other groups, which was congruent with the objective of this right.11 In addition, Saba has highlighted that the Supreme Court also took a similar approach to deal with gender discrimination in the hiring practices of public transportation companies in the Ruling Sisnero (2014),12 where it expressed that the unequal treatment ‘was an expression of a generalised practice of […] not hiring women based on specific and subordinated roles in the stratified society of Salta’.13 Nonetheless, Saba concludes that the Supreme Court considers that suspected categories come

7 Saba R. Desigualdad estructural y acciones afirmativas. In: Varas, A; Díaz-Romero, P. (Eds.) Acción Afirmativa. Política para una democracia efectiva. Santiago: RIL Editores/Fundación Equalitas, 2013. PP. 119–121; Agdoconsultora. El principio de igualdad y la discriminación positiva del art. 75 inc. 23 de la Constitución Argentina. s.d.: http://underconstitucional.blogspot. cl/2014/08/el-principio-de-igualdad-y-la.html; Clérico, L; Aldao, M. La igualdad en la reforma de 1994. La igualdad “des-enmarcada”. In: Bernal, M; Pizzolo, C; Rosseti, A. (coord.) ¡Qué veinte años no es nada! Un análisis crítico a veinte años de la reforma constitucional de 1994 en Argentina. Buenos Aires: Eudeba, 2015. PP. 180 and 188–189; Bidart, G. Compendio de Derecho Constitucional. Buenos Aires: Sociedad Anónima Editora, Comercial, Industrial y Financiera Ediar, 2004. P. 77. 8 Saba, R. Más allá de la igualdad ante la ley. Buenos Aires: Siglo Veintiuno Editores, 2016, P. 98. 9 Saba, R. (supra note 4, PP. 126, 138 and 143). 10 [Authors’ translation] Argentina. Sentencia de la Corte Suprema de Justicia González Delgado y otros c/ Universidad Nacional de Córdoba s/Recurso de Hecho. 19 September 2000. Voto del doctor Petracchi: http://www.saij.gob.ar/corte-suprema-justicia-nacion-federal-ciudad-autonomabuenos-aires-gonzalez-delgado-cristina-otros-universidad-nacional-cordoba-recurso-hechofa00000224-2000-09-19/123456789-422-0000-0ots-eupmocsollaf. 11 Saba, R. (supra note 4, P. 139). 12 Saba, R. (supra note 8, P. 220). 13 Ibid., P. 221.

Argentina, Chile, Colombia and Peru  117 mostly from the principle of non-discrimination, which makes for an ambiguous jurisprudence.14

Chile The Constitution embraces a formal approach regarding the right to equality before the law in article 19.2. This provision requires that the same laws should apply to all persons that are in the same circumstances.15 However, article 19.2 also establishes that ‘Neither the law nor any authority may establish arbitrary differences’.16 Based on the concept of non-arbitrariness, laws and regulations may introduce distinctions among people for reasons that are functional, objective and/or reasonable for the goals of a public policy.17 This interpretation has been confirmed by a string of decisions of the Constitutional Tribunal (e.g. Rulings Nos. 53, 755–2007, 757–2007, 787, 698–2006, 783–2007, 790, 1170–2008, 1254–2008, and 1710–2010) and the Supreme Court (e.g. Rulings Nos. 621–1993, 140–2008, 1552–2010, 1996–2006, and 1879–2006).18 Since 1990, the Constitutional Tribunal has also determined the extent of the right to equality in several cases on the basis of transversal duties imposed on the State in articles 1 and 5 of the Constitution. Those duties include: to be at the service of persons; to promote the common good; to promote the harmonious integration of all sectors of the nation; to guarantee the right of every person to participate on an equal opportunities basis in national life; and, to respect and promote human rights, among others. Despite no specific constitutional reference to affirmative action measures, several democratic governments implemented these policies in the 1990s as their validity depended on how the notion of arbitrary discrimination was ­constructed.19 In this regard, Peña maintained that the constitution prohibited only differentiations unsupported by a value that is germane for the community.20 The Constitutional Tribunal has dwelled on the constitutionality of affirmative actions in a couple of majority decisions through obiter dicta, as well as through minority votes in a few rulings.21 On the one hand, it has maintained that these actions constitute a ‘way to comply with the principle of equality’22

14 15 16 17 18 19 20 21 22

Ibid., P. 98. Evans, E. Los Derechos Constitucionales. v. 2. Santiago: Editorial Jurídica de Chile, 1999. P. 125. [Authors’ translation] Chile. Constitución of 1980. Evans, E. (supra note 15). Verdugo, M. (Ed.) Constitución Política de la República de Chile. Sistematizado con Jurisprudencia. Santiago: Abeledo Perrot, 2011. PP. 67–71. Claro, M. Acción afirmativa: hacia democracias inclusivas. In: Varas, A; Díaz-Romero, P. (supra note 7, PP. 43–44 and 50–51). Ibid., PP. 50–51. Figueroa, R. Acción afirmativa en la jurisprudencia del Tribunal Constitucional. 43, 2 Revista Chilena of Derecho, Santiago (2016) PP. 405–413. [Authors’ translation] Ibid., P. 412.

118  Iván Obando-Camino et al. (Ruling No. 2387-12-CPT/2388-12-CPT), and, on the other hand, it has asserted that gender quotas guarantee effective equality before the law, equal opportunities, and social inclusion, besides favouring historically subjugated groups (Ruling No. 2777-15-CPT).23 Nonetheless, it is a moot point whether this interpretation becomes consolidated jurisprudence.

Colombia The Constitution of Colombia guarantees the right to equality before the law in article 13. This provision also prohibits discriminating against people ‘based on sex, race, national or family origin, language, religion, or political or philosophical opinion’.24 A structural projection of this principle is gender equality. Article 43 recognises equal rights and opportunities for men and women, besides prohibiting the subjection of women to any type of discrimination. It also guarantees special support for women heads of household. Article 13 demands active State involvement in addressing inequality, according to which: The State shall promote the conditions for real and effective equality, and shall adopt measures in favour of discriminated or outcast groups. The State shall protect especially those people that are under conditions of manifest weakness due to their economic, physical, and mental condition, and shall punish the abuses or mistreatments committed against them.25 The role of the State is congruent with essential purposes that the Constitution bestows upon it in article 2.1. This provision suggests that the State should become actively involved in turning human rights into a living reality, for which purpose it has a duty ‘to serve the community, […] and to guarantee the effectiveness of principles, rights and duties proclaimed in the Constitution; to facilitate the participation of everyone in the economic, political, administrative, and cultural life of the Nation; […]’.26 Also, human rights treaties to which Colombia is party prevail over domestic law (article 93), a provision that has stimulated the development of public policies for vulnerable groups. Regarding affirmative action, the Constitution purports to build an inclusive pluralist society, listing the main social groups that require attention because

23 Chile. Sentencia del Tribunal Constitucional Rol N° 2777-15-CPT. 30 March 2015. Considerando 28: http://www.tribunalconstitucional.cl/expediente. The Constitutional Tribunal repeated this doctrine in Ruling No. 2776-15-CPR: Chile. Sentencia del Tribunal Constitucional Rol N° 2776-15-CPR. 21 April 2015. Considerando 31: http://www.tribunalconstitucional.cl/ expediente. 24 [Authors’ translation] Colombia. Constitución de 1991. 25 [Authors’ translation] Ibid. 26 [Authors’ translation] Ibid.

Argentina, Chile, Colombia and Peru  119 of long-standing practices of historical discrimination against them. Thus, it promotes special protection for ethnic and cultural groups; children and adolescents; women; elderly people; persons with physical, sensory, and psychic disabilities; and agrarian workers or peasants. According to Ruling C-293/10 (2019), the Constitutional Court considers actions of ‘positive discrimination´ as a kind of affirmative action, as follows: Actions of positive discrimination […] are a kind of the latter [affirmative action]. Actions of positive discrimination take place in a context of distribution and provision of scant public goods, […] the implementation of an affirmative action implies costs or charges that should be reasonable and are frequently both disseminated and taken over by the society as a whole. However, it must be highlighted that in the case of actions of positive discrimination the cost or charge may fall exclusively on specific persons.27 Nevertheless, the fact that the Constitution allows some form of affirmative action stands out beyond contestation, regardless of the ambiguous terminology used by the Court.

Peru The Constitution of Peru recognises the formal right to equality before the law through a general clause that prohibits also any type of discrimination (article 2.2.), but it does not guarantee other manifestations of this right, like gender equality. Likewise, it no longer mentions a State duty to address issues of material inequality, while it also omits any reference to the hierarchy of human rights treaties in the legal system, contrary to the previous constitution.28 The Constitution did not recognise any form of affirmative action at its inception and the legislature repeatedly failed to pass constitutional amendments to include it as a policy instrument.29 The passage of Act No. 26,859, in 1997, lessened the impact of this omission because it established a gender quota of 25% in the composition of electoral lists for congressional elections, which Act No. 27,387 increased to 30% in 2000. Eventually, a constitutional amendment, passed in 2002, suggested that the legislature may create specific affirmative action measures, after it authorised gender quotas and quotas of indigenous people for subnational elections in article 191. However, this is the sole provision that touches upon some minimal form of affirmative action at present.

27 [Authors’ translation] Colombia. Sentencia de la Corte Constitucional C-293/10. 21 April 2010. Capítulo V.3.3.: http://www.corteconstitucional.gov.co/RELATORIA/2010/C-293-10.htm. 28 Huerta, L. El derecho a la igualdad. 11, 1 Revista Pensamiento Constitucional, Lima (2005) P. 309. 29 Ibid., PP. 309–310; Eguiguren, F. Principio de Igualdad y derecho a la no discriminación. 15 Ius et Veritas, Lima (1997) PP. 68–69.

120  Iván Obando-Camino et al. The Constitutional Tribunal set out some agreed-upon criteria to justify differential treatment in Ruling No. 00261–2003-AA, such as, reasonableness, rationality, proportionality, relevance of the differentiation and a specific objective.30 It clarified also that the constitutional proscription of special laws due to differences among people could not be construed in such a way as to block the State’s responsibility to bring people into equal positions through positive or affirmative action in the Ruling No. 00003–2003-AI.31 Likewise, it admitted that the right to equality includes both a negative aspect – to refrain from discrimination – and a positive aspect – to make unequal situations equal – in the Ruling No. 00606–2004-AA.32 Finally, it used a structural perspective to analyse this right in the Ruling No. 0048–2004-AI, according to which affirmative actions are a way of complying with the principle of equality.33 Regardless of these rulings, the minimal constitutional recognition of affirmative action makes it difficult to determine whether or not a political consensus exists about an extensive use of this instrument for policy purposes.

Challenges before national courts Argentina The constitutional amendment passed in 1994 precluded any major challenge to affirmative action by strengthening equality rights. Likewise, the Consultative Opinion 18, issued by the Inter-American Court of Human Rights (2003), impacted the Supreme Court´s jurisprudence. According to the Inter-American Court, governments bear an obligation to respect and guarantee human rights beyond negative obligations regarding discrimination, because they: […] are obliged to take affirmative action to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of persons. This implies the special obligation to protect that the State must exercise with regard to acts and practices of third parties who, with its tolerance or acquiescence, create, maintain or promote discriminatory situations. […].34

30 Peru. Sentencia del Tribunal Constitucional 00261-2003-AA. 26 March 2003. Fundamentos 3.2. y 3.3: https://tc.gob.pe/jurisprudencia/2003/00261-2003-AA.pdf. 31 Huerta, L. (supra note 28, P. 316). 32 Peru. Sentencia del Tribunal Constitucional 0606-2004-AA. 28 June 2004. Fundamentos 8–12: https://tc.gob.pe/jurisprudencia/2005/00606-2004-AA.pdf. 33 Peru. Sentencia del Tribunal Constitucional 0048-2004-AI. 1 April 2005. Fundamento §7.63: https://tc.gob.pe/jurisprudencia/2005/00048-2004-AI.pdf. 34 Advisory Opinion OC-18/03 of 17 September 2003, Requested by The United Mexican States Juridical Condition and Rights of Undocumented Migrants¸Inter-American Court of Human Rights. Para. 104: https://www.corteidh.or.cr/docs/opiniones/seriea_18_ing.pdf.

Argentina, Chile, Colombia and Peru  121 This opinion clarified that equality implied also a positive obligation to address situations of inequality – a point made by Saba earlier35 – so governments could be held accountable for failing to pass positive measures to reverse discriminatory situations that affect some social groups, including deeply ingrained social practices carried out by third parties. In doing so, the Inter-American Court addressed the horizontal effect of fundamental rights – a thorny issue in Argentina back then – which prompted it to assert that: In an employment relationship regulated by private law, the obligation to respect human rights between individuals should be taken into consideration. That is, the positive obligation of the State to ensure the effectiveness of the protected human rights gives rise to effects in relation to third parties (erga omnes). This obligation has been developed in legal writings, and particularly by the Drittwirkung theory, according to which fundamental rights must be respected by both the public authorities and by individuals with regard to other individuals.36 The Argentine Supreme Court adopted this doctrine later through some rulings that enhanced the ius cogens status of the principle of equality, the prohibition of discrimination and the erga omnes obligations generated by this principle,37 especially in employment law cases about arbitrary termination of contracts. These rulings were Alvarez (2010),38 Pellicori (2011)39 and Sisnero (2014).40

Chile There have been very few legal challenges to affirmative action measures in Chile, but the Constitutional Tribunal grasped the opportunity to confirm their validity through some majority decisions and through some minority votes, in half-a-dozen rulings.41 Figueroa has concluded that the Tribunal does not 35 36 37 38

Saba, R. (supra note 8, PP. 167, 196 and 228–229). Inter-American Court of Huaman Rights (supra note 34, para. 140). Agdoconsultora. (supra note 7). Argentina. Sentencia Álvarez, Maximiliano y otros c/ Cencosud S.A. s/ acción de amparo. 7 December 2010: http://www.saij.gob.ar/corte-suprema-justicia-nacion-federal-ciudad-autonoma-buenosaires-alvarez-maximiliano-otros-cencosud-sa-accion-amparo-fa10000047-2010-12-07/ 123456789-740-0000-1ots-eupmocsollaf. 39 Argentina. Sentencia de la Corte Suprema de Justicia Pellicori, Liliana Silvia c/ Colegio Público de Abogados de la Capital Federal s/ Amparo. 15 November 2011: http://www.saij. gob.ar/corte-suprema-justicia-nacion-federal-ciudad-autonoma-buenos-aires-pellicorililiana-silvia-colegio-publico-abogados-capital-federal-amparo-fa11000149-2011-11-15/12345 6789-941-0001-1ots-eupmocsollaf. 40 Argentina. Sentencia de la Corte Suprema de Justicia Sisnero, Mirtha Graciela y otros c/ Taldelva SRL y otros s/ Amparo. 20 May 2014: http://www.saij.gob.ar/corte-suprema-justicianacion-federal-ciudad-autonoma-buenos-aires-sisnero-mirtha-graciela-otros-taldelva-srl-otros­ amparo-fa14000071-2014-05-20/123456789-170-0004-1ots-eupmocsollaf. 41 Figueroa, R. (supra note 21).

122  Iván Obando-Camino et al. ­

Argentina, Chile, Colombia and Peru  123 handicap. Affirmative action supposes a benefit for that collective which, without it, would remain in a situation of subjugation.46 Finally, it connected these actions with equal opportunities, as follows: These measures seek to provide people with the same opportunities at the starting point […] they promote systems of social inclusion that the State should contribute to create […]. In this particular case, such quotas are based on the postulate of article 19.2. of the Fundamental Charter, that establishes that men and women are equal before the law. It is a fact that women do not have adequate representation in politics […].47 The Constitutional Tribunal repeated this doctrine later in Ruling No. 277615-CPR, where it dismissed a legal challenge against the effects of a gender quota for primary elections, as follows: That, in the Ruling No. 2777-15-CPT, this Tribunal, likewise, analysed this matter, concluding that the norms of the bill mentioned previously are in conformity with the Constitution, after considering that the mechanism of gender quotas was not challenged, except the limitation of 40% […] for primary elections, in circumstances that the legislator may, legitimately, establish this limitation, because it restricts temporarily and partially the primary system, while the mechanism of gender quotas guarantees equal opportunities and equality before the law […].48

Colombia There have been no major challenges to affirmative action before Colombian courts given the explicit language of the Constitution. However, the Constitutional Court has addressed the subject of affirmative action both to highlight its relationship with the right to equality and the constitutionality of affirmative actions, passed before 1991. Regarding the relationship between the right to equality and affirmative action, a judicial interpretation of the right to equality favourable to human beings (pro homine) persuaded the Court about the constitutionality of affirmative action, including political decisions or public decisions, which bring into effect advantageous treatment that is in and of itself formally unequal, but it favours certain persons or human groups that are

46 [Authors’ translation] Ibid. 47 [Authors’ translation] Ibid. 48 [Authors’ translation] Chile. Sentencia del Tribunal Constitucional Rol N° 2776-15-CPR. 21 April 2015, Considerando 28 (supra note 23).

124  Iván Obando-Camino et al. traditionally marginalised or discriminated against, for the sole purpose of advancing towards substantive equality of the whole social conglomerate.49 The Court also confirmed the constitutionality of measures that amounted to affirmative action measures enacted before the 1991 Constitution.50

Peru The minimalist constitutional approach to affirmative action in Peru led the Constitutional Tribunal to rule about the validity of these policies for some vulnerable groups in writs of amparo51 or actions of unconstitutionality in the early twenty-first century. Based on a formal approach to the right to equality, the Tribunal laid down basic conditions for the constitutionality of differentiating norms. According to Ruling No. 00261–2003-AA, they should meet the criteria of reasonableness, rationality, proportionality, relevance of the differentiation and a specific objective.52 Likewise, the Tribunal set out two fundamental requisites for their implementation in Ruling No. 00018–2003-AI (based on article 2.2.), as follows: (a) Parity, uniformity, and accuracy of bestowal or recognition of rights for similar facts or events, and (b) Parity, uniformity, and accuracy of treatment or relationship for persons under identical circumstances and conditions.53 Ruling No. 00606–2004-AA referred to the validity of some form of affirmative action based on the limitations of equality understood exclusively as nondiscrimination. This judicial decision asserted that the right to equality also implies a positive requirement for the State for ‘equating situations that are, per se, unequal’.54 Moreover, in Ruling No. 00003–2003, the Tribunal ruled out legal challenges to laws that aimed at equalising people´s dignity and rights, even under conditions of inequality, because the State has the right and obligation to promote substantial equality among people through positive actions or

49 [Authors’ translation] Colombia. Sentencia de la Corte Constitucional C-293/10. 21 April 2010: http://www.corteconstitucional.gov.co/RELATORIA/2010/C-293-10.htm. 50 Ibid. 51 In Latin-American legal systems the writs of amparo refer to judicial actions that provide persons access to courts to challenge State actions contrary to fundamental rights recognised in the Constitution. 52 Peru. Sentencia del Tribunal Constitucional 00261-2003-AA. 26 March 2003. Fundamentos 3.2. y 3.3 (supra note 30). 53 [Authors’ translation] Peru. Sentencia del Tribunal Constitucional 00018-2003-AI. 26 April 2004. Fundamento 2b: https://tc.gob.pe/jurisprudencia/2004/00018-2003-AI.pdf. 54 [Authors’ translation] Peru. Sentencia del Tribunal Constitucional 0606-2004-AA. 28 June 2004. Fundamento 11 (supra note 32).

Argentina, Chile, Colombia and Peru  125 reverse discrimination.55 Finally, in Ruling No. 0048–2004-AI, the Tribunal also discarded the charge that affirmative action implied a new form of discrimination, while it pointed out that it is a form of discrimination that aims to comply with the right to equality in favour of ‘some groups that are marginalised in an economic, social, or cultural way in order that these groups may overcome the position of real inferiority in which they find themselves’.56

Design, implementation and efficacy Argentina Regarding women, the Argentine Government founded an agency in 1992, called the National Council on Women, that became key for the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (ratified by Argentina in 1985) and, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (ratified by Argentina in 1996). The latter allowed the development of a policy agenda on women’s issues that is still being enforced. One of the outputs was a gender quota law for congressional elections adopted in 1991. This law prescribed that parties had to include at least 30% of women candidates in their lists for national and provincial elections. Thus, the gender composition of both Houses of Congress changed immediately thereafter, partly induced by the electoral system, so that today’s Senate includes 42% women members, while the House includes 39% women members. The new Bill on Gender Parity, passed in late 2017, increased this quota to 50% of all candidates in parties´ electoral lists, including candidacies for the Mercosur Parliament, which became effective for the congressional elections of 2019. Finally, the same bill set out a gender quota of 50% for all party offices.57 The Bill on Gender Parity in Aspects of Political Representation was passed shortly after requiring parties to intersperse women candidates in all electoral lists, to guarantee gender continuity in House or Mercosur Parliament offices in case of vacancy, and to introduce a legal cause for party dissolution if the party violated the gender parity requirements.58 These amendments aimed to increase

55 Huerta, L. (supra note 28, PP. 316 and 333). 56 [Authors’ translation] Peru. Sentencia del Tribunal Constitucional 0048-2004-AI. 1 April 2005. Fundamento §7.63: https://tc.gob.pe/jurisprudencia/2005/00048-2004-AI.pdf. 57 Infobae. Diputados aprobó la ley de paridad de género en listas electorales. 2017: https://www. infobae.com/politica/2017/11/23/diputados-aprobo-la-ley-de-paridad-de-genero-en-listas­ electorales/; Parliamentario.com. Qué dice la ley de paridad de género. 2017: http://www. parlamentario.com/noticia-105912.html. 58 Tu Espacio Juridico. Se promulgó la Ley 27.412 de paridad de género en ámbitos de representación política modificando el Código Electoral Nacional. 2017: http://tuespaciojuridico.com.ar/ ­tudoctrina/2017/12/15/se-promulgo-la-ley-27-412-paridad-genero-ambitos-representacionpolitica-modificando-codigo-electoral-nacional/.

126  Iván Obando-Camino et al. the effectiveness of gender quotas based on studies that suggested that their effectiveness depends on their legal design.59 The implementation of the congressional gender quota has been relatively successful, because it is used on a nationwide scale (except in single-member districts of five provinces), including congressional elections for 22 provincial legislatures. Likewise, the blending of women candidates on electoral lists became widespread in 20 out of 22 provinces. However, there are still gender disparities in representation that are unrelated to the legal design of the quota.60 Notwithstanding the achievements, it is a moot point whether the implementation of congressional quotas altered the policy agenda and the power structure of the legislature because a study about their long-term impact under the previous institutional arrangements found that there was no such modification, especially in connection with committees and budget priorities.61 The latter may change eventually in the medium term following the entry into force of the new congressional quota in 2019. Another gender quota law for union elections was adopted in 2002. This law requires proportional participation of women delegates in negotiations of contracts by trade unions, according to the number of workers involved in each branch of economic activity. It also requires a representation of a minimum of 30% of women in elective and representative offices of trade union associations if their number reached that percentage in the number of workers. Like congressional quotas, the impact of this law on trade union offices and agendas is debatable. On the one hand, it has improved the participation of women in the trade union movement and increased the possibilities for women representation in those offices. On the other hand, data reveals that 72% of trade unions had amended their by-laws to comply with this quota by 2006, but women participation only increased in second-rank offices, besides gender issues receiving a weak reception by the mostly male-dominated unions.62 Regarding indigenous peoples, the Constitution authorises Congress to recognise them as rights holders, besides the recognition afforded to them by the

59 Martelotte, L. 25 years of quota laws in Latin America. 13, 24 Sur Revista Internacional de Derechos Humanos, Sao Paulo (2016) PP. 94–96: http://sur.conectas.org/wp-content/uploads/ 2017/02/8-sur-24-ing-lucia-martelotte.pdf; Caminotti, M; Freidenberg, F. Federalismo electoral, Fortaleza de las cuotas de género y representación política de las mujeres en los ámbitos subnacionales de Argentina y México. 228, Revista Mexicana de Ciencias Políticas y Sociales, México (2016) PP. 123–125: http://www.revistas.unam.mx/index.php/rmcpys/article/ view/49291/50855. 60 Caminotti, M; Freidenberg, F. (supra note 59, PP. 125–127 and 130). 61 Aldrey S. Ley de cuotas y distribución de poder en las comisiones legislativas de América Latina. Madrid: Universidad Complutense de Madrid, Doctoral Thesis, 2017. PP. 220–227: http:// eprints.ucm.es/42672/1/T38769.pdf. 62 Aspiazu, E. La inclusión de la perspectiva de género en el ámbito sindical: avances y limitaciones actuales. Una aproximación desde la literatura nacional e internacional. Buenos Aires: Grupo de Estudios del Trabajo FCEyS y UNMdP, 2013. PP. 7 and 10–11: http://nulan.mdp.edu. ar/1834/1/01451.pdf.

Argentina, Chile, Colombia and Peru  127 ILO Convention No. 169 (ratified in 2000). However, the 1994 constitutional amendment did not change the idea of an assimilationist national State, while it assumed that the demands of indigenous peoples consisted mostly of rights issues.63 In this context, Radovich has maintained that recognising their identity and providing them ownership and authority onto their territories is key to implement affirmative actions.64 The founding of the National Institute of Indigenous Affairs in 1985 became the starting point for some affirmative action policies in favour of indigenous peoples. This agency purported to guarantee their full participation in national life, including access to land ownership. In 2014, Congress authorised indigenous communities to exert community possession and ownership of lands traditionally occupied by them, as well as of those others that are suitable and sufficient for human development. Thus, in order to provide some remedy for the historical confiscation of lands by successive governments, the Argentine Government has resorted to tax-exempted land grants for indigenous peoples.65 In 2006, the Government funded a programme to determine the legal status of the lands occupied by indigenous communities, while it suspended in the meantime the eviction of these communities.66 This programme was extended three times (in 2009, 2013 and 2017) after the agency was unable to finish it on time. The slow pace of execution was criticised for both implementation disparities at the provincial level and mismanagements by previous administrations. Regarding persons with disabilities, the Government ratified the International Convention on the Rights of People with Disabilities in 2008. This Convention expressly regulates the obligations of States regarding affirmative actions. Argentina is also a party of the International Covenant on Economic, Social and Cultural Rights, which it ratified in 1986. The Committee monitoring that Convention has interpreted its provisions as compatible with affirmative action policies addressing persons with disabilities, in General Comment No. 5.67 The Argentine normative framework addressing persons with disabilities predates the international regulations mentioned above. In 1981, it created a System for the Integral Protection of Persons with Disabilities with the goal of providing access to health care, education, social security and opportunities. This legislation also introduced some affirmative action measures that public agencies and private utility companies had to implement, such as hiring persons with 63 Ramírez, S. Reforma constitucional y pueblos indígenas. In: Bernal, M: Pizzolo, C; Rosseti, A. (coord.) ¡Qué veinte años no es nada! Un análisis crítico a veinte años de la reforma constitucional de 1994 en Argentina. Buenos Aires: Eudeba, 2015. P. 323. 64 Radovich, J. Política indígena y movimientos etnopolíticos en la Argentina contemporánea. Una aproximación desde la antropología social. 1 Revista Antropologías del Sur (2014) P. 140. 65 Claro, M; Seone, V. Acción afirmativa: hacia democracias inclusivas, Chile. Santiago: Fundación Equitas, 2005. PP. 80–81: http://www.upla.cl/inclusion/wp-content/uploads/2014/ 07/2014_0731_inclusion_documentos_interes_accion_afirmativa.pdf. 66 Ramírez, S. (supra note 63, P. 319). 67 CESCR. General Comment N° 5: Persons with Disabilities. 1994: http://www.refworld.org/ docid/4538838f0.html.

128  Iván Obando-Camino et al. disabilities for no less than 4% of the payroll, besides reserving exclusive positions for them.68 Nevertheless, the implementation of this goal fell short of fulfilling expectations because administrative agencies did not hire more than 0.88% of the total payroll as of December 2015, and only 9 out 186 organisations reached the minimal quota of 4%.69 Further regulations, passed in 1994, aimed at improving accessibility to physical spaces for persons with reduced mobility. Nevertheless, there are still important deficits in accessibility at the national and provincial levels, as well as a lack of attention to the needs of visually disabled persons.70 A new system of basic social security benefits for the integral protection of persons with disabilities came into being in 1997. These programmes are implemented both by private health care providers and the Government as a subsidiary guarantor.71 Their funding came, at first, from special sources until the budget law began allocating funds in 2001. Finally, the Government created the National Agency for Disability in 2017 to carry out policies, programmes and actions that promote the exercise of rights by persons with disabilities as part of the National Plan for Disability. In 2019, the agency activities included programmes that touched upon accessibility, training, housing, labour inclusion and monitoring the quality of services provided to them, all of which was funded by the budget law.

Chile Both the Convention on Political Rights of Women (ratified by Chile in 1967) and CEDAW (ratified by Chile in 1989) led to policy initiatives, which have included a gender dimension since 1990 In 1990, the National Service for Women (SERNAM) was created as a State agency whose goals included the development of mechanisms of positive action to increase ‘the effective participation of women in popular public offices’.72 This agency formulated a gender indicator in the budgetary evaluation of public agencies in 2001, while it developed positive actions – called quotas – to favour women’s access to credits, training, formal studies, and property ownership. A newly created Ministry for Women and Gender Equality (MMEG) took over these issues in 2015, and SERNAM became an agency with a focus on gender equality. This agency took the Objectives for Sustainable Development of the 68 Decree No. 498/83 regulated the percentage of reserved positions for persons with disabilities, clarified that companies and agencies must implement this action in regards to new positions, and they must give a preference to visually impaired persons for 1% of those new positions. 69 Comité sobre los Derechos de las Personas con Discapacidad. Informe alternativo. Situación de la discapacidad en Argentina 2013–2017. Buenos Aires, 2017. P. 26: http://www.redi.org.ar/ Documentos/Informes/Informe-alternativo-al-comite-sobre-los-derechos-de-las-personas.pdf. 70 Ibid., PP. 8–9. 71 Fuentes, P. Discapacidad en la República Argentina. Aspectos Normativos. s.l.: Instituto Universitario de Ciencias de la Salud, 2014. PP. 42–44 and 46–52. 72 Claro, M. (supra note 19, P. 59).

Argentina, Chile, Colombia and Peru  129 United Nations as the basis for the Fourth National Plan of Gender Equality 2018–2030.73 Governmental efforts to increase women’s participation in popular public offices through gender quotas met resistance until 2015,74 when Congress created a gender quota for congressional elections that limited the total of candidacies of any gender to 60% in each house. To prevent a transgression through a voluntary primary election, Congress limited the number of candidacies that a party may submit to primary elections to 40% of the total number of candidacies from 2017 through 2029. This gender quota went unchallenged before the Constitutional Tribunal. Parties comply with this gender quota in election times, but they determine the place of women candidates in their electoral lists, which may impair women’s chances of being elected. The impact of these provisions became apparent after the 2017 congressional election.75 The general results showed an increase in women’s access to congressional offices in both Houses as their percentage of House members went up from 15.8% in 2013 to 22.5% in 2017, whereas their percentage of Senate members increased from 15.8% in 2013 to 23.2% in 2017. This election took place under uncommon circumstances, some of which had a positive impact on some women candidacies, such as the fragmentation of the party system, a new proportional representation system and a redrawing of all electoral districts, although there were also party differences regarding campaign financing.76 The consolidation of greater access for women to Congress is thus a moot point for the time being in Chilean politics. There are also a couple of additional gender quotas in the legislation. There is a gender quota for collegiate organs of political parties since 2016, according to which none of the genders may exceed 60% of total positions, but its effects are unclear as of today. Also, there is a gender quota for governing boards of trade unions according to which one third (at least) of a board ought to consist of women, but there is no penalty in case of a breach of the law by the trade unions.77 The latter persuaded the Labour Bureau to inform union leaders that

73 Ministerio de Desarrollo Social Informe de diagnóstico e implementación de la Agenda 2030 y los  objetivos de desarrollo sostenible en Chile, 2017. PP. 26 and 30: http://www.ministeriode sarrollosocial.gob.cl/pdf/upload/Informe_ODS_Chile_ante_NU_Septiembre2017.pdf. 74 Claro, M. (supra note 19, PP. 54–57 and 62–68). 75 Núñez, M. Ley de cuotas: El salto de las mujeres al Congreso. 2017: http://www.t13.cl/noticia/ politica/ley-cuotas-mujeres-congreso. 76 El Mostrador Braga. Tras la implementación de cuotas de género, equidad en el financiamiento de campañas surge como nuevo desafío. 2018: http://www.elmostrador.cl/braga/2018/03/21/ tras-implementacion-de-cuotas-de-genero-equidad-en-el-financiamiento-de-campanas-surgecomo-nuevo-desafio/. 77 Marzi, A. La tangente de género en la Reforma Laboral: comentarios al dictamen sobre cuotas en las directivas sindicales. 2017: https://prosindical.wordpress.com/2017/04/24/la-tangentede-genero-en-la-reforma-laboral-comentarios-al-dictamen-sobre-cuotas-en-las-directivassindicales/.

130  Iván Obando-Camino et al. breaches shall bring about an extension of the timetable to reform their by-laws and a lack of official recognition of union leaders.78 Regarding indigenous peoples, they lack any type of constitutional recognition, but this circumstance did not deter the Government to pass the 1993 Indigenous Act. This law represented a political decision both to respect and to promote the culture and lands of indigenous people, which led to positive and affirmative actions based on three objectives: ‘land, development, and culture’.79 Likewise, this law created the National Corporation for Indigenous Development (CONADI), which is a State agency that promotes, coordinates and implements policies for indigenous peoples. CONADI funds several programmes, including programmes to preserve indigenous lands and to purchase lands for indigenous persons and communities. Their financial impact is not negligible, but these programmes have not been able to surmount the historical exclusion of indigenous peoples, especially regarding their access to lands and water.80 Three decades after the passage of the Indigenous Act there is a mixed record about its accomplishments. Although positive actions improved access to education and indigenous culture, there is a bleak record regarding the preservation and expansion of their ancestral lands and waters, not to mention the delayed approval of the ILO Convention No. 169 by Congress in 2008. Indeed, the current conservative government made no secret of its intent of withdrawing from this convention.81 Regarding persons with disabilities, their plight became a policy priority after the return of democracy. In 1994, Congress passed legislation to promote their social inclusion and to consider them as rights holders. The law created the National Fund for Disability (FONADIS) to oversee the implementation of new legislation and policy measures. FONADIS developed initiatives to promote social inclusion of persons with disabilities, as well as it proposed legislation to set a 3% quota for persons with disabilities in all state agencies, but this proposal stalled in Congress.82 In 2010, Congress created the National Service for Disability (SENADIS) to implement new legislation on disability. The agency by-laws expressed that equal opportunities implied ‘the adoption of positive actions geared at avoiding or compensating the disadvantages of a person with a disability in order for them to fully participate in political, educational, labour, economic, cultural, and social 78 Prosindical. Dictamen impide renovar directiva a sindicatos que no incorporen cuota de género en Estatutos. 2018: https://www.prosindical.cl/dictamen-impide-renovar-directiva-a-sindicatosque-no-incorporen-cuota-de-genero-en-estatutos/ (accessed 17 July 2019). 79 Claro, M. (supra note 19, P. 69). 80 Aylwin, J. Igualdad, inclusión y pueblos indígenas: entre el discurso y la política pública. In: Muñoz, F. (Ed.) Igualdad, inclusión y derecho. Lo político, lo social y lo jurídico en clave igualitaria. Santiago: LOM Editores, 2013. P. 136. 81 Bertin, X. Eventual retiro de Chile del Convenio 169 inquieta a pueblos originarios. 2018: http://www2. latercera.com/noticia/eventual-retiro-chile-del-convenio-169-inquieta-pueblos-originarios/. 82 Claro, M; Seone, V. (supra note 65, PP. 87–88).

Argentina, Chile, Colombia and Peru  131 life’. Likewise, the law stated that the Government is obliged to ‘boost and implement positive actions to encourage the elimination of architectural barriers and to promote universal accessibility’. Following this law, the Government established a timetable to guarantee accessibility in educational facilities, libraries, television networks, public facilities and public transportation vehicles and terminals, among others. Furthermore, this law authorised preferential access of persons with disabilities to positions in the bureaucracy under equal conditions of merit. An active government role both to make this issue visible and to oversee overall implementation shortened the time-span to implement this law in public facilities, though there still remain important deficits due to a decaying urban and school infrastructure, besides negative perceptions about the accessibility of the public transportation system.83 However, the impact of these programmes on labour inclusion was small. The Ministry of Social Development reported that the participation rate of persons with disabilities in employment reached 42.8% only by 2016; moreover, this participation was smaller for women and for persons with severe disability.84 These figures persuaded the Ministry to ask for more inclusive actions,85 so a new Act on Labor Inclusion came into effect in April 2018, establishing a disability quota of 1% of the total annual payroll in all Government agencies with 100 or more employees, while offering alternative means to comply with this quota for private companies. This quota will be reviewed every four years based on the development of the labour market, but it is going to take time to have a thorough assessment of its implementation.

Colombia Regarding persons with disabilities, the Colombian Constitution singles out persons with disabilities as a specially protected collective group in article 47, which determines that: ‘The State shall put forward a social security, rehabilitation and social integration policy for people who face physical, sensory and psychic impairment, all of which shall lead to specialised attention for their needs’.86 In Ruling T-823/99, 87 the Constitutional Court expressed that this issue touches upon subjects like ‘access to public spaces, to the labour market and to the services of education, transportation or communications under equal conditions’. This generated a legislative programme for disabled people.

83 Ministerio de Desarrollo Social (supra note 73, P. 59). 84 Ibid., P. 58. 85 Ministerio de Desarrollo Social. Informe de Desarrollo Social. 2016: http://www.minister iodesarrollosocial.gob.cl/pdf/upload/Informe_de_Desarrollo_Social_2016.pdf. 86 Colombia. Constitución de 1991. 87 [Authors’ translation] León, M; Holguin, J. Acción afirmativa: hacia democracias inclusivas, Colombia. Santiago: Equitas, 2005. P. 47 onwards.

132  Iván Obando-Camino et al. The Constitutional Court addressed the importance of affirmative actions to ensure the full exercise of rights by persons with disabilities in Ruling C-293/10 of 2010, when it reviewed the constitutionality of the International Convention on the Rights of People with Disabilities.88 Moreover, this ruling emphasised that affirmative action measures should take into account the principles of reasonableness and proportionality ‘[…] because it would not be constitutionally admissible that they gave way to situations that essentially discriminate against persons with disabilities, nor that their implementation generates excessive or disproportionate costs. […]’.89 In this regard, Congress passed legislation to address the situation of several ‘specially protected subjects’ 90 as identified in Ruling T-270/07.91 In 1996 and 1997 Congress passed legislation to attend the communicational and educational needs of hearing-impaired persons and, in 2002, Colombia ratified the Inter-American Covenant for the Elimination of all Forms of Discrimination against Persons with Disabilities. In 2004, persons with disabilities received preferential access to civil service positions under conditions of equal opportunities, which evolved into a disability quota in 2013. Thus, all Government agencies must gradually comply with a quota for persons with disabilities that spans from 0.5% to 4% of the annual payroll positions until 2029.92 Regarding persons displaced by the internal armed conflict in Colombia, the Constitutional Court singled these persons out as a vulnerable group in 1997,93 after considering the consequences suffered because of their involuntary removal. In Ruling T-025, the Court ruled that the Government impaired their exercise of rights by not implementing a number of decisions on different rights issued since 1997.94 The latter persuaded the Court to call upon the Government to design different types of actions, to the extent of declaring their lack of implementation as unconstitutional.95 In Ruling T-239/13, the Court listed duties of immediate implementation by the Government and stated that this special protection ‘[…] is in harmony with the obligations of all State authorities to undertake affirmative actions in favour of the population that is in a circumstance

88 Colombia. Sentencia de la Corte Constitucional C-293/10. 21 April 2010: http://www.corte constitucional.gov.co/RELATORIA/2010/C-293-10.htm. 89 [Authors’ translation] Ibid. 90 León, M; Holguin, J. (supra note 87, P. 47 onwards). 91 Colombia. Sentencia de la Corte Constitucional t-270/07: https://www.corteconstitucional.gov. co/relatoria/2007/T-270-07.htm. 92 Colombia. Decreto 2011 of 2017: http://www.suin-juriscol.gov.co/viewDocument.asp?ruta= Decretos/30034338. 93 Colombia. Sentencia de la Corte Constitucional T-227. 5 May 1997: http://www.corte constitucional.gov.co/relatoria/1997/t-227-97.htm. 94 Colombia. Sentencia de la Corte Constitucional T-025-04. 22 January 2004: http://www.corte constitucional.gov.co/relatoria/2004/t-025-04.htm. 95 Ibid.

Argentina, Chile, Colombia and Peru  133 of manifest weakness […].’ 96 These rulings also highlighted the lack of State capability to guarantee fundamental rights for these persons.97

Peru Regarding women, the ratification of CEDAW (in 1982) led Congress to create gender quotas for public offices, as well as a Ministry for the Promotion of Women and Development in 1996. Thus, in 1997, a gender quota for congressional elections was created according to which women had to make up 25% of the parties´ electoral lists, which was increased to 30% in 2000. Women’s access to Congress increased thereafter from 18.33% in 2001 to 27.7% in 2016, even though parties controlled the placement of women candidates on their electoral lists. However, this quota did not guarantee substantive representation of women in committees and caucus chairmanships,98 which led to new proposals to increase it to 50% of the parties’ electoral lists, but Congress has not passed these proposals yet. Likewise, a gender quota of 30% for women candidates became mandatory for elections to party, mayoral, municipal and regional offices in 2003, 1997 and 2002, and to elections to the Andean Parliament. Again, the placement of women candidates in the parties´ electoral lists blocked the full implementation of this quota.99 On the other hand, the Law on Equal Opportunities among men and women of 2007 obliged the Government to implement ‘temporary measures of affirmative action that aim to accelerate factual equality of women and men that shall not be deemed discriminatory’.100 Consequently, the National Plan for Gender Equality 2012–2017 established a gender quota of 50% in decision making positions in both national public agencies and regional Governments by 2017. Regarding indigenous people, the Government implemented programmes of positive action in their favour; however, there is, since 2002, also an indigenous quota for regional council elections, according to which the parties´ electoral lists ought to include 15% of indigenous people. Like previous quotas, parties

96 [Authors’ translation] Colombia. Sentencia de la Corte Constitucional T-239/13. 19 April 2013. Consideración y Fundamento 4: http://www.corteconstitucional.gov.co/relatoria/2013/ t-239-13.htm. 97 León, M; Holguin, J. (supra note 87, P. 47 onwards). 98 The percentage of women in Congress was 18% in 2001, 29% in 2006, 22% in 2011, and 28% in 2016. Miro, J; Villarroel, A. Género y poder: La presencia de las mujeres en el Congreso. 2018: https://elcomercio.pe/politica/genero-presencia-mujeres-congreso-noticia-546164. 99 Blog de la Defensoria del Pueblo. Cuota electoral de género en el Perú: Participación de mujeres en el espacio político. 2018: http://www.defensoria.gob.pe/blog/cuota-electoralde-genero-en-el-peru-participacion-de-las-mujeres-en-el-espacio-politico/; RPP NOTICIAS ONPE: partidos deben respetar cuota de género para candidatos al Congreso. 2016: https:// rpp.pe/politica/elecciones/onpe-partidos-deben-respetar-cuota-de-genero-para-candidatosal-congreso-noticia-927723. 100 [Authors’ translation] Peru. Ley sobre Igualdad de Oportunidades entre Hombres y Mujeres.

134  Iván Obando-Camino et al. determine the placement of these candidates on their electoral lists which may affect their chances of being elected.101 Regarding persons with disabilities, the General Law on the Person with Disability of 2012 established that positive and affirmative actions in favour of these persons shall not be deemed discriminatory. It also established a minimum employment quota of 5% in public agencies and 3% in some private companies, as a way of providing for their labour inclusion. Unfortunately, it is difficult to draw definite conclusions about the efficacy of these programmes because of governmental difficulties in collecting data and a lack of enforcement.102 The latter has negative impacts on the eradication of exclusionary and discriminatory practices.

Special focus: cultural and/or budgetary implications Argentina The success of a congressional gender quota implied litigation campaigns against party elites to have women candidates in relevant positions on electoral lists, but there are disparities in women´s representation in the House of Deputies that are unrelated to the legal design of quotas or districts demographics, e.g. Santiago del Estero and Salta. The latter suggests that cultural issues may overlap with the technicalities of quotas to affect election results, such as name recognition, traditions, etc. Funding for affirmative action programmes that aim at indigenous peoples is provided through the Budget Act, particularly through the National Institute of Indigenous Affairs, but a reduction of this agency´s budget and personnel began in 2018 due to the budget deficit of the federal Government. This agency funds the programme to determine the legal status of lands occupied by indigenous communities, but the share of this programme in the agency’s annual budget diminished regularly since 2016 as computed from data provided by the National Budget Office (i.e. 2016: 25.5%; 2017: 15.6%; 2018: 14.7%; 10.8%).103 Finally, funding for both positive and affirmative action measures in favour of persons with disabilities is apparently on the rise, but their exact amount is difficult to determine because their social integration and inclusion is a cross-cutting objective that involves different ministries.

101 SERVINDI. Perú: cuota electoral indígena no resuelve el problema de la representación. 2015: https://www.servindi.org/actualidad/129829. 102 Ku, L. Acciones afirmativas en el ámbito laboral: una respuesta a la necesidad de tutela de las minorías en democracia. 37 Revista Derecho y Sociedad (2011) PP. 191–192: http://revistas. pucp.edu.pe/index.php/derechoysociedad/article/view/13171/13784. 103 Ministerio de Hacienda. Oficina Nacional de Presupuesto. 2018: https://www.minhacienda. gob.ar/onp/.

Argentina, Chile, Colombia and Peru  135 Chile Congressional gender quotas stalled in Congress due to opposition from several quarters until 2015. Congress members opposed quotas for the following reasons: elite-oriented policy; lack of citizen support; insufficient evidence about their results; lack of legal limitations for women’s competition; introduction of an arbitrary means to favour women; etc.104 Although their passage caused a surge in women representation in Congress, it was found that party elites tightly controlled the placement of women candidates on their electoral lists which meant that many female candidates were placed in unelectable districts. The implementation of party and union quotas has become a thorny issue. Parties have been slow to abide by the law, except for the left-wing parties, whereas trade unions have been mostly unable to implement the quota. Issues of legal design (i.e. unclear effect of breaches), economic changes (i.e. historical weakness of unions) and cultural changes (i.e. a more individualistic society), may account for their failure, but it is still too early to make any inference about their effectiveness. Funding for affirmative action measures in favour of indigenous peoples comes from the Budget Act and CONADI´s budget has remained steady in the last years. Notwithstanding fiscal austerity, Congress increased the funding for some programmes for the fiscal year 2019, such as the Fund for Indigenous Lands and Waters,105 although this fund has been traditionally insufficient to deal with the demands from indigenous communities.106 Likewise, funding for affirmative action for persons with disabilities comes from the Budget Act, particularly from SENADI´s budget ($22,798,344,000 Chilean pesos as of 2019). The budget of this agency experienced modest increases in the the period 2016–2019, which implies a commitment to this issue. Nonetheless, the social inclusion of persons with disabilities is still an issue due to cultural stereotypes and bureaucratic bottlenecks; in fact, the Government recognises that only 30% out of 3,000 enterprises fulfilled their obligations under the Labor Inclusion Act,107 whereas the Government record on this matter is unclear.

104 Claro, M. (supra note 19, PP. 54–57 and 62–68). 105 Biblioteca del Congresso Nacional de Chile. Presupuesto Ministerio Desarrollo Social. Variaciones 2017–2016: https://www.bcn.cl/obtienearchivo?id=repositorio/10221/23613/1/ BCN%20Comparaci%C3%B3n%20presupuesto%20Min_Des_Social_2016%202017_Final.pdf. 106 Aylwin. J. (supra note 80, PP. 135–137). 107 Prevención Integral. Chile: Ministro del Trabajo por balance de la Ley de Inclusión: “Un 30% de las empresas se ha inscrito y queremos sobrepasar el límite del 1%”. 2018: https://www. prevencionintegral.com/en/actualidad/noticias/2018/10/04/chile-ministro-trabajopor-balance-ley-inclusion-30-empresas-se-han-inscrito-queremos-sobrepasar.

136  Iván Obando-Camino et al. Colombia Funding for affirmative actions in favour of persons with disabilities comes from the Budget Act, but disability is a transversal issue that involves several agencies whose budgets fund specific programmes; in fact, planned expenditures amount to $377,562,035,390 Colombian pesos until 2022.108 However, the record on policy implementation is meager because of weak oversight and bureaucratic mismanagement. The latter impairs the exercise of fundamental rights by thousands of people; in fact, the implementation of quota for labour inclusion led to less than 1% of the total payroll both in public agencies and private companies in late 2017.109 Regarding persons displaced by the internal armed conflict, the Constitutional Tribunal´s jurisprudence obliged the Government to appropriate funding in support of displaced persons. The latter determined increasing funding for these programmes over time until the passage of Act No. 1,448, in 2011, whose full implementation by 2021 shall cost $54 billion Colombian pesos.110 Nonetheless, the record on policy implementation is mixed at best because of bureaucratic mismanagement, the length of the conflict, the emergence of new armed challenges and inattention to gender issues, even after the peace agreements signed by the Government and the FARC in mid-2016.

Peru Funding for the implementation of affirmative action measures comes mostly from the Budget Act. In this regard, Congress introduced a gender factor in the evaluation of the budget implementation process carried out by State agencies in 2007, in accordance with a law on gender parity. Also, it appears that there is a weakening of policy commitments regarding indigenous people, after it became public that funding for their bilingual education decreased from 73,272,638 (2017) to 12,573,762 (2018) Peruvian soles in 2018 according to the Budget Act.111

108 Conpes Social 166. Política pública nacional de discapacidad e inclusión social. 2013: https://discapacidadcolombia.com/index.php/legislacion/177-politica-publica-nacional-dediscapacidad-e-inclusion-social. 109 Garcia, M. La discapacidad en Colombia: entre la corrupción política y la indiferencia social (I). 2017: https://www.las2orillas.co/la-discapacidad-en-colombia-entre-la-corrupcion-politica-yla-indiferencia-social/. 110 Conpes 3712. Plan de financiación para la sostenibilidad de la ley 1448 de 2011. 2011: https:// www.ictj.org/sites/default/files/subsites/ictj/docs/Ley1448/Conpes-3712-ley-de-victimas.pdf. 111 El Comercio. Defensoría alerta: presupuesto para educación de pueblos indígenas disminuyó. 2018: https://elcomercio.pe/peru/defensoria-alerta-presupuesto-educacion-pueblos-indigenasdisminuyo-noticia-514250.

Argentina, Chile, Colombia and Peru  137

Conclusions The four countries analysed in this chapter were exposed to the influence of political liberalism that left a permanent legacy in their constitutional development, such as their formal interpretation of the right to equality before the law. The persistence of this interpretation may account for the fact that the judiciary accommodates issues of structural inequality under its purview (e.g. Argentina), even in the absence of explicit constitutional language (e.g. Chile and Peru), through constructing some undetermined concepts, like reasonableness, rationality or proportionality. The influence of international human rights law is clear in most of these cases, as it has impacted positively both the policy-making process and the implementation process of affirmative action measures. It has also become clear that a constitutional authorisation of affirmative actions provides constitutional certainty to policy-makers and social groups. It also prevents their contestation before national courts, as it has been the case in Argentina and Colombia. In this regard, both legal design and bureaucratic capabilities are of utmost importance for the implementation of affirmative actions. The different efficacy of congressional gender quotas in Argentina, Chile and Peru suggests that policy-makers should reduce the elites´ discretionary implementation authority. Likewise, the implementation strategies carried out in these countries suggest that it is advisable to create national agencies to design and oversee the implementation process of affirmative action measures, because they bring together professional staff committed to the agencies´ goals, like in Argentina and Chile, without diluting executive responsibility. The latter does not guarantee getting rid of mismanagement issues, but transparency laws and both parliamentary and administrative oversight may help to keep bureaucrats at arm´s length. The cases of Argentina and Colombia also suggest that a constitutional recognition of vulnerable groups as recipients of special protection is important. The latter makes it easier to justify affirmative actions in public opinion, courts and parliaments. Finally, financial soundness may make a difference regarding the efficacy of affirmative actions, especially when they involve Government transfers for vulnerable groups, like indigenous peoples and persons with disabilities. In this context, fiscal austerity may have a negative impact on their implementation process by compromising the achievement of policy goals, as suggested by the programme to determine the legal status of lands occupied by indigenous communities in Argentina.

7

Affirmative action in Central America Influence of the international legislation and jurisprudence of the Inter-American system Amalia Patricia Cobos Campos

Introduction Affirmative action measures are quite controversial because they reflect different versions of the right to equality, taking as a premise equal treatment of people in the same situation and unequal treatment of people who are not in a situation of legal social balance. The latter is the principle that gives rise to affirmative action. Based on this premise, these measures, aimed at achieving a better balance within a global environment marked by inequality, have been implemented as public policies, through legislation and even through case law. Affirmative action tends to focus on groups identified by gender, disability and ethnicity (the groups affected by historic inequality). Figueroa Gutarra1 considers that affirmative action measures shed light on the problem they intend to solve from the perspective of the principle of equality, as they underline the situation of the targeted groups, thus bringing them closer to the ideal equation of equality. Durango Alvarez, who considers affirmative action measures as restorative and remedial mechanisms, includes among them: all the actions of public authorities and those coming from inputs that individuals exert in the public sphere seeking to achieve public policies, as well as equalizing practice and ‘measures to restore fundamental rights of excluded and discriminated groups such as African-Americans, women, indigenous people, persons with disabilities.2

1 Figueroa Gutarra, E. Acciones afirmativas: origen, normatividad y jurisprudencia: Ipso Jure, Year 10, Num. 40, February 2018, Superior Court of Justice of Lambayeque. PP. 6–14: https:// www.pj.gob.pe/wps/wcm/connect/7d46d8804543e689b42db44df21c54fc/IPSO+JUR E+ 4 0+V E R SI % C3%93N+F I N A L .pd f ?MOD =AJ PE R E S& C AC H E I D =7d4 6 d880 45 43e 689b42db44df21c54fc (accessed 16 January 2020). All translations by author. 2 [Author’s translation] Durango Álvarez, G. Las acciones afirmativas como mecanismos reivindicadores de la paridad de género en la participación política inclusiva: Ecuador, Bolivia, Costa Rica y Colombia. 45 Revista de Derecho (January to June 2016) PP. 137–168,.

Central America  139 Affirmative action is based on the uniform value of every life – the ethical basis from the impersonal point of view. This represents the epistemic foundation.3 Within these parameters, this chapter examines affirmative action in Central America and analyses the public policies, legislation and jurisprudence at regional and national level with a specific focus on their success and failures. The analysis will include the obstacles to the implementation and development of these measures in the chosen countries, using a comparative perspective in order to reach an overall assessment about the effectiveness of these actions in realising equality through mechanisms that seek to break the cultural patterns that harm and impede the advancement of specific groups. Affirmative action measures are often criticised on the basis that they do not pass the so-called equality test.4 In relation to quotas, which remain the main form of affirmative action, Rosenfield5 argues that the quotas themselves, like the objectives and the preferential treatment they introduce, are not intrinsically good or bad, desirable or undesirable. The qualification of the quota system will depend on the specific measures introduced and the historical context and objectives sought with their implementation.6 We consider that the suitability of affirmative action measures and their justification depends largely on the aforementioned equality test and its repercussions on society itself, particularly on vulnerable groups whose protection is the intended aim of affirmative action. Lopez Vela writes that affirmative action incorporates the idea of justice between generations, a remedy for failures in the justice system, which has limited the exercise of freedoms of certain social groups. However, she adds that the paradox of affirmative action is that it insists on conditions of disadvantage of citizens to achieve equal opportunities, on the basis of the equal worth of every human being.7

Overview of the origin and evolution of affirmative action in Central-America Affirmative action was established as an instrument of public policy application aimed at combating poverty and inequality. Their origin can be found in the interracial policies implemented in schools in the United States of America.8 In Latin America, affirmative action’s origin is associated with the ‛trilogy of 3 Rosenfeld, M. Conceptos clave y delimitación del ámbito de análisis de las acciones afirmativas. In: Juarez, M.S. (Coord.) Acciones afirmativas, Consejo Nacional para Prevenir la Discriminación. México, 2011. PP. 11–64: http://www.conapred.org.mx/documentos_cedoc/AA_MSJ.pdf. 4 Figueroa Gutarra, E. (supra note 1, P. 10). 5 Rosenfeld, M. (supra note 3, P. 64). 6 Figueroa Gutarra, E. (supra note 1, P. 59). 7 Lopez Vela, V. Affirmative action and equity: an analysis from Thomas Nagel’s proposal. 7, 12 Revista de Filosofía (Open Insight [on-line]) (July to December 2016) PP. 49–75: http://www. scielo.org.mx/scielo.php?script=sci_arttext&pid=S2007-24062016000200049#B23. 8 See on this: Anderson, T.H. The pursuit of fairness: a history of affirmative action. New York: Oxford University Press, 2004; U.S. Commission on Civil Rights. Affirmative action in American

140  Amalia Patricia Cobos Campos ­

9

10

11

12

law schools. Washington: Briefing Report, 2007: https://www.usccr.gov/pubs/docs/AALSreport. pdf. United Nations, Economic Commission for Latin America and the Caribbean (ECLAC). Horizons 2030: Equality at the centre of sustainable development. Santiago, Chile, 2016; and, UN, World Survey on the role of women in development 2014, gender equality and sustainable development 2014: https://www.cepal.org/en/publications/40160-horizons-2030-equalitycentre-sustainable-development. Cited by Cecchini, S. Reducing poverty amidst high levels of inequality: lessons from Latin America and the Caribbean. Social Development Division, ECLAC, 2017: https://www.un. org/development/desa/dspd/wp-content/uploads/sites/22/2017/04/Simone-CecchiniReducing-poverty-amidst-high-levels-of-inequality.pdf. Estrategia de Montevideo para la Implementación de la Agenda Regional de Género en el Marco del Desarrollo Sostenible hacia 2030: https://repositorio.cepal.org/bitstream/handle/ 11362/41011/1/S1700035_es.pdf. See on this: UNESCO, Pertinencia de las acciones afirmativas y las competencias interculturales para el efectivo ejercicio de los derechos humanos en Centroamérica, June 2016: memoria del encuentro, 2016: https://unesdoc.unesco.org/ark:/48223/pf0000245928.

Central America  141 The United Nations Educational Scientific and Cultural Organisation (UNESCO) has played a key role in the implementation of affirmative action in this region, especially the programme analysed for the report ‘Relevance of affirmative action and intercultural skills for the effective exercise of human rights in Central America’.13 That programme was implemented in 2016 in San José de Costa Rica, in cooperation with experts, politicians and society persons, concluding that: Despite the marginalization and historical discrimination, Afro-descendant peoples and communities as well as indigenous people of America, have preserved and developed cultural elements that enrich the nation they have contributed to create with their work and blood. It is therefore necessary to recognize this cultural diversity as a comparative advantage, with strong potential for boosting the economy and all the facets of cultural life.14 While affirmative action can be used in a variety of contexts and for a wide range of beneficiaries, Central American countries have focused on gender, political rights and indigenous people and have ignored other important aspects such as Afro-descendants, migration or unemployment aspects related to structural discrimination. Another significant initiative targeting women was established in 2009 through ‘The Gender Equity Regional Program of the Swedish Cooperative Center for Latin America (Today We Effect)’, with the purpose of solving the problems identified by each country in an analysis of its internal economic and social problems. A tangible result of this programme, aimed at strengthening national processes of gender equality was the creation of the Regional Project of Woman Cooperatives. It consists of a cooperative specialised in an integral training model for gender equality and a model of advocacy work to effect changes in the cooperative legislation from a gender perspective.15 In 2009, the United Nations Food and Agriculture Organisation (FAO), ECLAC and the Inter-American Institute for Cooperation on Agriculture (IICA), brought out a joint report about the situation and impact of agriculture not only in the regional context, but in the world. The report concluded that Latin America and the Caribbean (LAC) had great potential in helping to solve the food crisis at a global level because the efforts in the region were based on

13 UNESCO. Relevance of affirmative action and intercultural skills for the effective exercise of human rights in Central America. 2016: http://unesdoc.unesco.org/images/0024/ 002459/245928S.pdf. 14 [Authors’ tranlsation] Ibid. 15 Ramirez, Z. Desafíos jurídicos para el fomento de la participación femenina en los espacios cooperativos: caso Centroamericano. Encuentro Equidad de Género, Consejo Nacional de la Mujer Cooperativista de Honduras: https://www.aciamericas.coop/IMG/pdf/encuentro_equidad_ genero_ramirez_texto.pdf.

142  Amalia Patricia Cobos Campos technology and innovation in the rural spaces.16 It is essential to note that affirmative action measures were also boosted at least in terms of rural gender with PADEMUR, the Gender Equity and Rural Women’s Development Programme. We can conclude that the Regional Gender Agenda includes the commitments of the Governments of Latin America and the Caribbean to the rights and autonomy of women, and to gender equality, which were approved in the meetings of the Regional Conference on Women in Latin America and the Caribbean, from the first Regional Conference on the Integration of Women into the Economic and Social Development of Latin America held in Havana in 1977. Therefore, in the terms in which the governments of the region joined these initiatives, there has been a Regional Gender Agenda for 40 years, according to the current legislation of these countries.17 But, what about the other areas? The following pages address the introduction of affirmative action in Guatemala, Belize, Honduras, El Salvador, Nicaragua, Costa Rica and Panama. While it is true that there are affirmative action measures of a regional nature, it is also true that each country had its particularities in relation to these actions and their implementation.

Analysis of affirmative action at national level Guatemala In Guatemala, affirmative action did become a public policy between 2004 and 2007, when the government sought to comply with the agreements made with ECLAC.18 The most important advances, according to the 2007 report, were: a

b

Inclusion in the State budget of the fulfilment of the goals established in the National Policy for the Promotion and Development of Guatemalan Women (PNPDMG).19 The budget previously assigned to the Presidential Secretariat for Women was increased by 367.8% and the budget to the Ombudsman for Indigenous Women (DEMI) was also increased.20

16 2009 Annual Report IICA’s Contribution to the development of agriculture and rural communities in the Americas, 40th Regular Session of the General Assembly of the Organization of American States (OAS). March 2010: http://scm.oas.org/pdfs/2010/IICA/CP23857E.pdf. 17 UN/CEPAL, XIII Regional Conference about Women of Latin America and Caribbean. UN, Santiago de Chile, 2017. P. 5: https://www.cepal.org/en/subsidiary-bodies/regionalconference-women-latin-america-and-caribbean. 18 See: Report of Guatemala presented at the X Regional Conference on Women of Latin A merica and Caribbean. 5 August 2007: https://www.cepal.org/mujer/noticias/paginas/4/29404/ InformeGuatemala.pdf. 19 See: Ruano, S; Zambrano, A. Final report: Guatamala: Country gender profile. December 2006: https://www.jica.go.jp/english/our_work/thematic_issues/gender/background/pdf/e06gua.pdf. 20 Report of Guatemala presented at the X Regional Conference on Women of Latin America and Caribbean. (supra note 18, PP. 3–4).

Central America  143 c

d

Legislation in the criminal sphere was amended to eliminate discriminatory content against women, girls and teenagers. For instance, article 194, which currently regulates other types of trafficking and visualises women in conformity to international standards, thus strengthening the protection.21 Amendment to article 194 of the Criminal Code. This article regulates other types of trafficking modalities and visualises women as subject of law in accordance with international standards, thus strengthening protection for the legal status of women, boys and girls.22

Belize In Belize, the first experiences in the matter of affirmative action measures were in 2002, when the National Committee of Belize and the Agriculture Ministry gave support to CIDER (Organisation created to achieve sustainable rural development) with the intention of implementing affirmative action in favour of rural women.23 The government considered that the principal focus of these actions had to be national policies on gender and technical support for rural women.24

Honduras In Honduras, el Consejo Nacional de la Mujer Cooperativista de Honduras (CONAMUCOPHL)25 represents the first relevant effort with impact regarding affirmative action. It ran from 2008 until August 2013 and aimed to achieve reforms in the cooperative legal framework to include gender equity and to legislate in favour of the rights of women cooperatives. They represent 52% of the Honduran cooperative sector. These actions with a focus on the development of rural women emerged from society, particularly from women, but not from the government. The government initiated the II Equality and Gender Equity Plan of Honduras 2010–2022 by a decree published in the Official Gazette of the Republic of Honduras on 28 July 2010. That decree contains public policies aimed at the creation of affirmative action on gender, poverty reduction and equality. Since 2000, there is a law on equal opportunities for women established by decree number 34–2000. This law imposes an obligation on the State to guarantee equality and equity between men and women through their public

21 Ibid. 22 Ibíd., P. 8. 23 Cobos Campos, A.P. Effectiveness of affirmative actions for the safeguard of human rights in Central America. In: Baez, N; Dominguez-Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018. PP. 159–184. 24 PADEMUR, Informe 1999–2000. Programme of equity of gender and development of rural women, Hemispheric Programme, P. 16: http://agris.fao.org/agris-search/search.do?recordID= XL2012000787 (accessed 20 July 2019). 25 Translated as: National Council of the Cooperative Women in Honduras.

144  Amalia Patricia Cobos Campos policies, programmes and projects, including public employment management, and this has been reflected in affirmative action in relation to gender and matters of poverty.

El Salvador In El Salvador, the affirmative action measures are focused on gender, and the main actions are implemented through the Salvadoran Institute for the Development of Women. In December 2019, there was a call for proposals to establish affirmative action for the application of Gender Equality and the Promotion of the Women’s Rights in municipal public management. The same Institute developed the ‘SOS programme 126’, an online programme whose affirmative action measures are aimed at assisting in preventing and punishing violence against women. The essential aim of this programme was to create an easy access line to help women; however, their web pages are inaccessible in practice. Therefore, the programme is not successful in solving gender problems. Since the 1980s, the Women’s Movement (Movimiento Salvadoreo de Mujeres) has fought for the approval of laws in several States, such as the Special Comprehensive Law for a Life Free from Violence for Women (LEIV) and the Law on Equality and Eradication of Discrimination against Women (LIE), adopted on 17 April 2011. At the same time, the legislative assembly reformed the law on family violence. In this context, the Export and Investment Promotion Agency of El Salvador (PROESA) issued general guidelines for the incorporation of affirmative action to eliminate all forms of discrimination without distinction, exclusion or restriction. In these guidelines it states: These processes lead to progress in generating various mechanisms to institutionalise the mainstreaming of women issues, as well as the creation of more than 40 gender units, that energise and promote the gender perspective as cross-cutting in all spheres as well as the prevention of gender-based violence for women.26

Nicaragua In Nicaragua, the United Nations Development Programme (UNPD) established gender equality strategies to be achieved by this country between 2014 and 2017, but this document does not establish affirmative action as such and, although public policies are implemented that promote these, they do not refer to these measures with the name ‘affirmative action’.27 However, these are 26 [Author’s translation] General guidelines for the incorporation of affirmative action to eliminate discrimination, Export and Investment Promotion Organisation of El Salvador. P. 7: https:// www.transparencia.gob.sv/institutions/proesa/documents/212208/download. 27 Gender equality strategies. UNDP, Nicaragua 2014–2017: http://procurement-notices.undp. Org/view_file.cfm?doc_id=51929.

Central America  145 ­

In 2015, the Nicaraguan government published the Methodology to Incorporate Gender Practices in the General Budget of the Republic and the Institutional Expenditure Framework of Medium Term (MGIMP).29 Again, while the public policies adopted to promote the goals of this policy constitute affirmative action in practice, they are not referred to with this terminology. Nicaragua has also legislated to promote these measures through the same Law 648, approved in 2008.30

Costa Rica Costa Rica has established affirmative action with a focus on gender, and for that purpose it has established gender quotas in Law 8.765 of 2009 of the Electoral Code of Costa Rica, which in article 2 prescribes: The political participation of men and women is a human right recognised in a representative, participatory and inclusive democratic society, under the protection of the principles of equality and non-discrimination. Participation will be governed by the principle of parity, which implies that all delegations must consist of fifty percent (50%) of women and fifty percent (50%) of men, and in delegations, the difference between the total of men and women cannot be greater than one. All the positions of choice will use the mechanism of alternation by sex (woman-man or man-woman), in such a way that two people of the same sex cannot be consecutively in a same position.31 In relation to equality and inclusion, Costa Rica created, in 2015, the Office of the Presidential Commissioner for Affairs of African Descendants. The central objective of this institution is to implement affirmative action measures that translate into a real improvement of their human rights.32 The aforementioned plan contains a series of events with as main objective to improve intercultural communication and to restore the balance which was ruptured due to racism and inequality. 28 29 30 31

Ibid., P. 10. Gender equality strategies. UNDP, Nicaragua 2014–2017. (supra note 27). Ibid., P. 10. Electoral Code Law No. 8765, Legislative Assembly of Costa Rica, published in Scope 37 to La Gaceta no. 171. 2 September 2009: https://www.legal-atlas.net/sites/default/files/law/3175SPA_0.pdf (accessed 20 July 2019). 32 UNESCO. Relevance of affirmative actions and intercultural competences for the effective exercise of human rights in Central America. Conference in San José. Costa Rica. February 2016: https://en.unesco.org/events/relevance-affirmative-actions-and-intercultural-competenceseffective-exercise-human-rights?language=en (accessed 20 July 2019).

146  Amalia Patricia Cobos Campos Panama In the case of Panama, the affirmative action measures implemented are, similar to the other countries of Central America, mainly in terms of gender equity. For example, PIOM II is a comprehensive plan based on a cohesive approach, cooperation and coordination between the government and civil society. It aims at creating a ‘cross-cutting strategy designed to boost the impact of measures promoting gender equality and equity, ensure constructive participation, involve all stakeholders – men and women – in the process and identify and develop affirmative action to reduce discrimination and inequality’.33 The Social Policy Support Group of the Republic of Panama represents the efforts of the government to establish affirmative action, particularly in the field of education, which is an area of important public investment. In order to  implement the report’s recommendation, Act No. 6 of 4 May 2000 was adopted. This Act provides for the compulsory use of gender-sensitive language, content and illustrations in school textbooks and publications. Executive Decree No. 443 of 5 November 2001 guarantees that pregnant minors may continue and complete their studies in all education centres. Resolution No. 872 establishes activities planned in written and spoken communication media as part of the education equality week.34 There are also other actions in the pursuit of gender equality such as training in business, lectures with a special focus on indigenous women and on violence against women. Additionally, there are actions in health matters such as anti-cancer campaigns and campaigns in relation to women in armed conflicts.

Design, implementation and efficacy: relevance of the regional framework in jurisprudence and international instruments in relation to affirmative action The Inter-American System of Human Rights and its mechanisms play a central role in the design and implementation of affirmative action in Central America. The first treaty in our analysis is the American Convention on Human Rights, an important regional document which, in Chapter 1, article 1, establishes the obligation of the States Parties to: […] undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race,

33 Panama. National Report major achievements and obstacles in the implementation of the Beijing platform for action ninth Regional Conference on Women in Latin America and the Caribbean (ECLAC), México, 10–12 June 2004. P. 10: http://www.un.org/womenwatch/daw/Review/ responses/PANAMA-English.pdf. 34 Ibid., P. 25.

Central America  147 color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. By way of introduction, we need to explain the Inter-American Human Rights System briefly. This Regional System of Human Rights covers the whole of Latin America and focuses on the protection of the rights contained in the American Convention on Human Rights. This Convention is essentially interpreted by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Court was founded in 1979 and is comprised of seven judges, nominated and elected by States Parties to the Convention. Only the Court creates jurisprudence in contentious cases which must first be processed by the Commission. The competence of the Court is obligatory for the States Parties to the American Convention on Human Rights and it is these States that are the subject of any judgment by the Court, while individuals cannot bring actions before the Court. Before we examine the jurisprudence, it is necessary to mention the document issued by the Inter-American Commission on Human Rights entitled ‘Considerations regarding the compatibility of affirmative action measures designed to promote the political participation of women with the principles of equality and non-discrimination’.35 The reality in the countries of Central America is the same as in many other parts of the world: women do not have full exercise of the political rights and have never enjoyed equity in electoral positions. This document concludes that the minority representation of women in government in all the countries of the Americas demonstrates the need for additional actions by the State, together with civil society initiatives, to achieve true respect for women’s right to participate in political life, in compliance with international standards. As recognised by the regional and international communities, the achievement of free and full participation of women in all spheres of public life is an obligation that could well require the adoption of special measures of affirmative action designed to make equality of opportunities a reality for women and men.36 This is the starting point for the establishment of affirmative action to foster equality and non-discrimination, but we consider the legal foundation to be in article 24 of the American Convention on Human Rights which enshrines equality before the law or formal equality. However, in relation to affirmative action measures, as was mentioned, their basis can be found in the concept of equity rather than equality. These two concepts can be clearly differentiated in legal and sociological doctrines.

35 Inter-American Commission on Human Rights, Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the principles of Equality and Non-discrimination, 1999 Annual Report (OEA/Ser.l./V/II/II.106, Doc. 6 rev., 13 April 2000)http://www.cidh.oas.org/women/Chapter6.htm . 36 Ibid.

148  Amalia Patricia Cobos Campos As Bronfenbrenner37 considers, The terms equality and equity are widely confused. Despite their phonetic similarity and philological connections, they are quite distinct. The equality of a distribution of income or wealth is a matter of fact and is, therefore, objective. The equity of the same distribution is a matter of ethical judgment and is, therefore, subjective. The Inter-American Commission on Human Rights considers it necessary that affirmative action measures are created through mechanisms that eliminate current schemes that impede equality. Villegas Arenas and Toro Gaviria ponder the differences between both concepts and conclude that equity is not essential to life, thus political will is required to make it essential. In this sense, fairness is an attachment, which is considered as an element from which to generate action once it determines the possibility of considering overcoming some situations of injustice. There cannot be affirmative action without political will, but many see equity as a gift of the State, which in our view, is obviously not true. These actions must be articulated as an obligation and not a gracious concession of the State, since solving inequalities is not a matter of desire but a matter of responsibility.38 According to Rodriguez Zepeda,39 liberalism defines equality as ‘the equal right of every person to enjoy the fundamental freedoms of a democratic citizenship and the protections of the rule of law’. However, this definition has problems when we try to introduce, under the value of equality, issues such as the recognition of ethnocultural differences or the demands of differentiated treatment by virtue of group disadvantages and other claims of justice.40 In addition, for this scholar, the concept of affirmative action as an integral part of the concept of non-discrimination comes from the fact that the concept has acquired its formal status in the language of the law not in political sciences.41 We can conclude that equality and equity are different concepts and that the solution for the first does not solve the problems caused by inequity. The American Convention on Human Rights protects the first – equality – but not the second – equity – and affirmative action measures are not found explicitly, or even implicitly, in the obligations it imposes on the States Parties. 37 Bronfenbrenner, M. Equality and equity. 408 The Annals of the American Academy of Political and Social Science (July 1973) PP. 9–23: https://journals.sagepub.com/doi/pdf/10.1177/0002 71627340900102. 38 Villegas Arenas, G; Toro Gaviria, J.A. La igualdad y la equidad: Dos conceptos clave en la agenda de trabajo de los profesionales de la familia. 2 Revista Latinoamericana de Estudios de Familia (January to December 2010) PP. 98–116: http://revlatinofamilia.ucaldas.edu.co/downloads/ Rlef2_5.pdf. 39 Rodriguez Zepeda, J. Un marco teórico para la discriminación, Consejo Nacional para Prevenir la Discriminación (CONAPRED), México, 2006. P. 33. 40 Ibid., P. 35. 41 Ibid., P 49.

Central America  149 Another pillar of the Inter-American System of promotion and protection of human rights is the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights also known as the Protocol of San Salvador, which was adopted in 1998.42 In article 3 the obligation of non-discrimination is established in the following wording: The States Parties to this Protocol undertake to guarantee the exercise of the rights set forth herein without discrimination of any kind for reasons related to race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition. This article is very similar to article 1 of the previously analysed Treaty, but article 7 of the Protocol of El Salvador clearly mentions equity in labour conditions: The States Parties to this Protocol recognize that the right to work to which the foregoing article refers presupposes that everyone shall enjoy that right under just, equitable, and satisfactory conditions, which the States Parties undertake to guarantee in their internal legislation […] Although this is the only mention of equity, the Protocol focuses on many aspects relating to this and therefore represents a step forward in this regard. For example, article 18 about the protection of disabled people states that States Parties shall adopt such measures as are necessary to: a. Undertake programs specifically aimed at providing the handicapped with the resources and environment needed for attaining this goal, including work programs consistent with their possibilities and freely accepted by them or their legal representatives, as the case may be. We consider that the most important regional treaty in relation to equality is the Inter-American Convention Against all Forms of Discrimination and ­Intolerance,43 which in the first chapter, in article 1(4), under ‘Definitions’, clearly determines: Special measures or affirmative action adopted for the purpose of ensuring equal enjoyment or exercise of one or more human rights and fundamental freedoms of groups requiring such protection shall not be deemed

42 Additional Protocol to the American Convention on Human Rights in the area of economic, social and cultural rights ‘Protocol of San Salvador’, adopted in the eighteenth regular session of the General Assembly San Salvador, El Salvador. 17 November 1988: http://www.oas.org/ juridico/english/sigs/a-52.html. 43 Inter-American Convention Against all Forms of Discrimination and Intolerance, adopted in the forty-third regular session of the General Assembly, La Antigua, Guatemala. 5 June 2013: http://www.oas.org/en/sla/dil/inter_american_treaties_A-69_discrimination_intolerance.asp.

150  Amalia Patricia Cobos Campos discrimination provided that such measures do not lead to the maintenance of separate rights for different groups and are not continued once their objectives have been achieved. Article 5 of this Convention has special relevance for our topic, as it states: The States Parties undertake to adopt the special policies and affirmative actions needed to ensure the enjoyment or exercise of rights and fundamental freedoms of persons or groups that are subject to discrimination or intolerance for the purpose of promoting equitable conditions for equal opportunity, inclusion, and progress for such persons or groups. Such measures or policies shall not be considered discriminatory or incompatible with the purpose or intent of this Convention, shall not lead to maintaining separate rights for different groups, and shall not be continued beyond a reasonable period or after their objective has been achieved. The adoption of this Convention has generated, since 2013, important advancements in the achievement of equity in the region, generating greater proclivity of States in Central America to develop these actions more effectively. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)44 establishes, in the first article, the definition of discrimination against women in the following way: For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. In addition, article 2 calls on States Parties to actively seek to eliminate discrimination against women, while article 4(1) allows for affirmative action measures in the following words: Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

44 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 1979: https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx.

Central America  151 Article 7 is also relevant because it determines that: States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: a To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; b To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; c To participate in non-governmental organisations and associations concerned with the public and political life of the country. The principal actions taken to date by governments are based on the establishment of the so-called quotas in political participation, in education or in labour spaces.45 There is also the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará).46 Article 7 of this Convention establishes an obligation on States Parties as follows: ‘The States Parties condemn all forms of violence against women and agree to pursue, by all appropriate means and immediately, policies to prevent, punish and eradicate such violence’. Affirmative action measures in the States of Central America have been implemented in the area of gender-based violence, but this does not seem to decrease the incidence of such violence. Romany and Chu say that: Affirmative action constitutes the implementation of special temporary measures which address the structural and individual realities of discrimination while simultaneously recognizing the legal/political space for differences in multicultural societies. The resilience of a formalistic conceptualization of equality in the international human rights arena represents one of the major stumbling blocks in the effective implementation

45 See: Gobierno de Nicaragua, Ministerio de Hacienda Y Crédito Público Unidad Técnica de Género, Metodología para Incorporar Prácticas de Género en el Presupuesto General de la República (PGR) y el Marco de Gasto Institucional de Mediano Plazo (MGIMP), 2011. P. 32 onwards: http://www.mdgfund.org/sites/default/files/GEN_MANUAL_Nica_metodologia%20 incorporar%20genero%20en%20presupuesto.pdf; UN, CEPAL, Observatorio de igualdad de género en América Latina y el Caribe, Planes de igualdad de género en América Latina y el Caribe. Mapas de ruta para el desarrollo, 2019. P. 17 onwards: https://repositorio.cepal.org/ bitstream/handle/11362/41014/6/S1801212_es.pdf. 46 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará), adopted 9 June 1994, Belen Do Para, Brazil: https:// www.oas.org/en/mesecvi/docs/BelemDoPara-ENGLISH.pdf.

152  Amalia Patricia Cobos Campos of equality and in the legal and social battle against racial and gender inequality.47 From this we can infer that the literature has clarified and properly separated the concepts of equity and equality and that formal equality can never lead to equity, as shown above. In its jurisprudence, the Inter-American Court of Human Rights emphasises gender equity. In this regard, Abramovich48 writes that the consequences of the assumption of the implementation of the equality idea in the Inter-American system have repercussions in several areas. Firstly, affirmative action implemented by the States Parties cannot be invalidated by a notion of formal equality. Therefore, challenges to affirmative action ‘must be based on concrete critiques of its reasonableness in light of the beneficiary group’s status in a given historical moment’.49 Secondly, states have the obligation not to discriminate and to accept affirmative action measures to alleviate inequality. States can violate the principle of equality with practices and policies that appear neutral but that have a discriminatory impact on certain disadvantaged groups.50 The Court has issued judgments in cases in the region about the political rights of women, such as Case Yatama v. Nicaragua.51 This case concerned the international responsibility of the State for the exclusion of the indigenous organisation Yatama from participating in elections. The Court considered that this was an undue restriction on the exercise of a political right, which implies an unnecessary limit to the right to be elected. The Inter-American Court of Human Rights concluded that equal political participation rights had been violated including the right to become a member of a political party. Therefore, it held that the electoral law of Nicaragua violated the human rights in question. Another relevant judgment is the case of Gutiérrez Hernández and others v. Guatemala.52 In this case, the Inter-American Court of Human Rights declared Guatemala responsible for the violation of the rights to equal protection and non-discrimination, as well as the right to a fair trial and judicial protection. The Court considered the following:

47 Romany, C; Chu, J.B. Affirmative action in international human rights law: a critical perspective of its normative assumptions. 36 Connecticut Law Review (2004) P. 833: http://www.u.arizona. edu/~jchu/RomanyChu2004.pdf. 48 Abramovich, V. From massive violations to structural patterns: new approaches and classic tensions in the Inter-American human rights system. 6, 11 SUR-International Journal of Human Rights (December 2009) PP. 7–37: http://www.scielo.br/pdf/sur/v6n11/en_02.pdf. 49 Ibid., P.18. 50 Ibid. 51 Inter-American Court of Human Rights. Case Yatama v. Nicaragua, Judgment 23 June 2005 (Preliminary Exceptions, Fund, Reparations and Costs), in Spanish: http://www.corteidh.or.cr/ docs/casos/articulos/seriec_127_esp.pdf. 52 Inter-American Court of Human Rights. Case Gutierrez Hernandez and others v. Guatemala, Judgment 22 August 2018,: http://www.corteidh.or.cr/docs/casos/articulos/seriec_339_esp. pdf.

Central America  153 […] in this case, it is clear that during the first year of Mayra Gutiérrez’s disappearance, state agents who investigated the facts made reports using a degrading language that emphasized the social and sexual behavior of the alleged victim. In particular, they reported suspicion that Mrs. Gutierrez would be in the place where she ‘had love affairs with her lovers’. That she was ‘sexually insatiable’, that [two men] ‘would carry out a fight or call war, possibly out of jealousy or other motive, and that Mrs. Gutiérrez would have lacked ‘the pact of loyalty stipulated within the free relationship she held [with one of them]’.53 The Court determined: [...] despite the denunciation of a presumed enforced disappearance within the framework of three personal exhibitions, in the criminal investigation of the Public Ministry and the special procedure of investigation of the Office of the Human Rights Procurator, there has not been a strategy of diligent, serious and conducted research taking into account the complexity of this type of acts. More than 17 years after the disappearance of Mayra Gutiérrez, it has not been possible to clarify what happened nor have her whereabouts been located. Therefore, the Court considers that the State is internationally responsible for the violation of Articles 8.1 and 25 of the American Convention, in relation to article 1.1 of the treaty, to the detriment of Mayra Angelina Gutiérrez Hernández and her family.54 This resolution, focused on an enforced disappearance, emphasises the demeaning treatment that the victim is given by virtue of being a woman, and it is evident that this affects affirmative action in relation to gender matters in the future. In the same sense, Torres55 writes that it is widely known that women participate actively and increasingly in the political parties and electoral processes, but we also know they are not fairly represented in positions of hierarchy. Another resolution of the Inter-American Court of Human Rights is the case of the Serrano-Cruz Sisters v. El Salvador.56 In this case, the Inter-American Commission on Human Rights considered the forced disappearances of two children in 1982, who were caputed by soldiers of the Salvadoran Army.57 The Commission referred the case to the Court on 14 June 2003. The Court considered that articles 8(1) and 25 of the Convention were violated because the

53 Ibid. Para. 161 54 Ibid., Para. 183 55 Torres, I. Derechos políticos de las mujeres, acciones afirmativas y paridad. 47 Journal IIDH (2008) PP. 225–240: http://www.corteidh.or.cr/tablas/r23830.pdf. 56 Inter-American Court of Human Rights. Case Serrano-Cruz Sisters v. El Salvador, Judgment 1 March 2005. Para. 2: http://www.corteidh.or.cr/docs/casos/articulos/seriec_120_ing.pdf. 57 Ibid.

154  Amalia Patricia Cobos Campos Salvadoran State never really set out to clarify the facts surrounding the forced disappearance of said minors thus failing to comply with its duty to carry out an investigation with due diligence and to adopt all necessary measures to try to obtain results. In addition, the Court noted that: […] the delays in the criminal proceedings examined in this case have not occurred because of the complexity of the case, but rather owing to the inaction of the judicial body, which is inexplicable. On several occasions during the investigation stage, long periods elapsed when the prosecutor did not ask the judge to take any measures and when the judge did not order any measures de officio [italics in original]. Likewise, both the prosecutor and the judge have let months, and even more than a year, elapse before requesting and ordering the execution of a measure that had not been taken at the first procedural opportunity.58 The inaction of El Salvador in the investigation of the case is clear, even though there was an evident participation of the armed forces of the same State in the disappearance of the minors. Anyway, although it is certain that when condemning the State, the Commission and the Court do not allude to affirmative action, the conclusions regarding to gender and impunity in these cases may affect the public policies of the State in this sense, such as legal reforms and new public programmes with affirmative action included in them. It would be impossible to analyse all the resolutions of the Inter-American Court of Human Rights related to issues that affect affirmative action, but we consider that the cases examined above exemplify the impact that these resolutions have in the determination of such actions by the States.

Efficacy of affirmative action in Central America Looking at the efficacy of affirmative action in the relevant countries, a UNICEF report, published in 2010, noted the advances made in Honduras in eliminating gender inequalities in education, but that these were, as yet, insufficient. Despite this, we cannot ignore that the promotion of equality and gender equity is a broad objective, encompassing many areas of action inherent to the empowerment of women. However, in 2018, the World Bank considered that Honduras had very high indices of inequity and inequality and that this was caused by poverty and violence.59 Therefore, this State needs to actually implement suitable affirmative action in order to reduce these indices and to guarantee a level playing field for women.

58 Ibid., Para. 65. 59 Banco Mundial. Honduras panorama general: https://www.bancomundial.org/es/country/ honduras/overview.

Central America  155 The suitability of the implementation of affirmative action in the Central American Region was analysed at a Conference in San Jose, Costa Rica, on 18 and 19 February 2016, organised by UNESCO and the Commissioner for Affairs of African Descendants.60 At this Conference, the UN system in Costa Rica generated a work plan for ‘gender approaches, multiculturalism and human rights, with the aim of achieving recognition, justice and development of this population’.61 Durango Alvarez considers that affirmative action measures, despite being regulated in the law, do not demonstrate due progress in the integration of women and other vulnerable groups in the legislatures in countries like Panama; that is to say that there is a de iure reality and another de facto reality, especially when we speak of indigenous people or Afro-descendants. 62 He adds that in the case of indigenous people, in 2014, only 12.2% of the members of the legislature in Panama were indigenous. In the countries of Central America, there exist many programmes that include affirmative action. However, they have not been sufficiently successful to overcome the atavism which anchors the inequalities in society, as they have apparently not been enforced enough, in each one of these countries, to eradicate the inequality particularly in the case of women, indigenous people and Afro-descendants. We need to ask what the impact of the regional framework is on these actions. The governments of the countries analysed participate in the Conferences, subscribe to the documents and, in their countries, make efforts to implement the agreements made by encouraging their legislators, but to date none of the countries has demonstrated real efficacy through significant advances in the field of our investigation. However, we recognise the efforts and the advances made in these countries, which although they do not live up to expectations, they have opened the path to improvements. We cannot forget that affirmative action measures are necessary while inequality exists. As Hernández writes, ‘notably, part of the growing Latin American discussion about income inequality has been the observation that the social exclusion of persons of African and indigenous ancestry has inextricably linked race and class in ways that impede economic growth’.63 She recognises the importance of affirmative action in the fight against poverty in any country. So, in the case of the Central American countries, whose economies are in a

60 UNESCO. Pertinencia de las acciones afirmativas y las competencias interculturales para el efectivo ejercicio de los derechos humanos en Centroamérica: http://www.unesco.org/ new/es/natural-sciences/about-us/single-view/news/relevance_of_aff irmative_action_ and_intercultural_skills_for/. 61 Ibid. 62 Durango Alvarez, G. (supra note 2, P. 146). 63 Hernandez, T.K. We need Latin American style affirmative action for economic growth. New York Times, 24 October 2012: https://www.nytimes.com/roomfordebate/2012/10/18/ shrink-inequality-to-grow-the-economy/we-need-latin-american-style-aff irmative-actionfor-economic-growth.

156  Amalia Patricia Cobos Campos difficult situation, there is undeniably a need to establish these affirmative action measures. In analysing this problem, we find scholars such as Hammill,64 who conclude that ‘over half the population of Central America live in poverty and across the region more than one in every two of those who are poor live in situations of extreme poverty’. In addition, he writes that the fragile recovery of the Central American economies in the new millennium has failed to significantly increase the performance of the region in achieving stronger poverty reduction in this period. 52.7% of Central Americans were living in poverty in 2004, down only 1.3% from the 2000 average, but an improvement of 6% from the level in 1990. There was also a decrease in extreme poverty over the period, reducing extreme poverty in the region from 34.3% to 30.5% between 1990 and 2000.65 We agree with Hammill that inequality and poverty in the region have been diminishing since 1990, but that the complete solution is still far off. As Hamill writes, the problem with inequality in Central America is extremely high and worsened between 1990 and 2004. In 2017, Guatemala, Honduras and El Salvador had higher indicators of femicides, with 221, 264 and 345, respectively; figures that do not contribute to eliminate gender violence or gender inequality.66 In conclusion, although it is true that there are palpable efforts in the implementation of affirmative action measures, it is also true that one of the characteristics of these is their temporality in achieving their objectives, but in Central America they seem to be eternalised without reaching their ultimate goal. Apparently, many actions are only used to alleviate the problems and, in many cases, as measures that gloss over the evident inequality and inequity that exist.

Obstacles to implementation In the context of affirmative action, the obstacles are particularly in the political sphere, in their efficiency and in the economic cost. The political factor is evident in the implementation of affirmative action measures without the necessary studies to determine their need, impact and follow-up processes. These measures seem to follow fashions or international pressures, but they lack an adequate structure to guarantee their success. Another important obstacle is the pressure of foreign economies and the pressure that globalisation imposes by

64 Hammill, M. Growth, poverty and inequality in Central America. CEPAL, Studies and Perspectives Series, México, September 2007. P. 16: http://citeseerx.ist.psu.edu/viewdoc/ download?doi=10.1.1.632.1406&rep=rep1&type=pdf. 65 Ibid. 66 CEPAL. Gender Equality Observatory, Femicide, Latin America, the Caribbean and Spain: https://oig.cepal.org/es/indicadores/feminicidio.

Central America  157 labelling resources according to the interests of the most developed countries. The economic problems in the region clearly show the difficulties that the States face when trying to establish affirmative action. The costs are reflected in human resources, in budget allocations to affirmative action measures and their impact. Orozco and Yansura write, in respect of the efficacy of affirmative action in matters of migration that: Many programs spoke openly about the challenges they face. ‘We’re trying, but it’s not an easy task’, said one representative. ‘The entire topic of return migration is a challenge’, a government official mentioned, noting that, despite their best efforts, attention to return migrants is simply ‘insufficient’.67 Many programmes noted that a lack of resources has been a major challenge. Both government and NGO initiatives have struggled to find adequate funding. ‘There’s no funding,’ commented another programme in Guatemala. ‘We have had to limit our services due to lack of funding,’ noted a religious organisation working with deported migrants in Honduras.68 The economic crisis in the region is not a sufficient excuse for the inefficacy of affirmative action measures. Mismanagement of resources and corruption are important factors that impede effective public administration and consequently reduce the possibilities of implementing effective actions to alleviate inequality and inequity. This is evidenced by the corruption perception figures in 2017, which show that corruption within public insititions increased in all the countries of the region, with the exception of Guatemala and Nicaragua, where it remained the same as in 2016, and in Costa Rica, where it decreased slightly.69

Special focus: budget analysis and decision-making priorities The Central American States have implemented innumerable affirmative action measures, especially in relation to gender, and more particularly to eliminate violence against women, but this implementation is not necessarily adequate to solve the problems. They must consider the many different factors that cause that class of violence. Gasman and Alvarez ponder that: The underlying concept of the new legislation is that violence is a multidimensional problem, with multiple manifestations at the domestic level and

67 Orozco, M; Yansura, J. Removed, returned and resettled: challenges of Central American migrants back home. Inter-American Dialogue, August 2015. P. 12: https://www.thedialogue. org/wp-content/uploads/2015/10/Central-America-return-migration_Final_Formatted.pdf. 68 Ibid. 69 Transparency International. Corruption perception index 2017: https://www.transparency.org/ news/feature/corruption_perceptions_index_2017.

158  Amalia Patricia Cobos Campos in the public sphere. It has shifted the traditional concept of intra-family violence toward a broader understanding that women are victims of violence in the workplace, in the streets, in conflict situations, and in public transportation. Nevertheless, the incremental advances have been mainly linked to the judiciary, the provision of services to victims of violence, capacity building of police, and improvement of services in the health sector.70 The countries in the Central America region have many problems and the efforts made through affirmative action have, in some facets, brought few improvements as evidenced by Prat and Lopez, who consider that: The foreseen gains in poverty reduction and income distribution have not materialized, however, with the indicators stalling or even backsliding in some countries. This poses serious challenges for the region, especially considering that the growth prospects for the next three years have been adjusted downward, due to the risks associated with key variables such as international interest rates, commodity prices – particularly oil – and U.S. trade policy.71 These authors add that the projects with regional vision should be examined under that premise and should clearly establish priorities. We consider that the priorities to be established for well-structured affirmative action measures are the integration of approaches to poverty, gender, indigenous people and disabled persons, employment, health and emigration problems. The priorities should not be established under political expediency schemes or in search of giving the appearance of working to solve inequalities; on the contrary, they should be based on solid actions clearly supported on the ground and really focused on resolving the tremendous inequalities that still exist in the region. Unfortunately, the reality so far is reflected in actions that allow little progress in the priority areas and the establishment of affirmative action has focused on satisfying international and non-regional or social interests.

Conclusions We have analysed affirmative action measures in the Central American Region from several perspectives, including their definition and the priority agreements in the region for their implementation. On this basis we can conclude that affirmative action measures are factually necessary now and for a long time in the

70 Gasman, N; Alvarez, G. Gender: violence against women. American Quarterly (21 October 2010) https://www.americasquarterly.org/node/1930. 71 Prat, J; Lopez, A. (Coord.) Inclusive growth: challenges and opportunities for Central America and the Dominican Republic. Inter-American Development Bank, 2018. P. VII: https://publications. iadb.org/bitstream/handle/11319/8779/Inclusive-Growth-Challenges-and-Opportunitiesfor-Central-America-and-the-Dominican-Republic.PDF?sequence=2&isAllowed=y.

Central America  159 future. This conclusion is based on the number of people living in poverty which is strongly related to inequality. Nevertheless, the principal aspect to improve the effects of affirmative action measures is their proper planning. We consider that there is a lot of duplication of efforts for the same problem under different schemes, as it is the case with gender policies, for example, and this translates into a loss of efficiency. It would be desirable that there is adequate control of existing actions, combining efforts instead of duplicating them. Planning, effectiveness and adequate supervision in the administration of resources, will leave populism behind and focus seriously on the problems of inequality that afflict Central America. This will be the only way to have real progress that consolidates an egalitarian society in which all its members can prosper without unjustified differences which are based on ancestral prejudices and which impede an integral development of the peoples of the region. We do not share the opinion that affirmative action lacks effectiveness; it is not the actions themselves that are responsible for the failures, but the way in which they are implemented and interpreted concerning the real needs of the people. There is no perfect model for affirmative action, each country needs to learn about its reality and should not copy other States. That is not the way forward, as each one has different problems, a different history and culture and different geographic locations. The implementation of public policies of affirmative action needs genuine solutions, taking into account each society’s requirements, without being unaware that there are regional solutions that can be successful for all. In addition, the control and elimination of corruption is essential to tangibly advance equality, because we must remember that corruption causes poverty and poverty is one of the most important forms of inequality.

Part III

Case studies

8

Women on corporate boards of public listed companies – a UK and EU gender diversity conundrum Hamiisi Junior Nsubuga

Introduction Gender equality between men and women is a fundamental principle of European Union (EU) law and United Kingdom (UK) law. At EU level, gender equality is enshrined in treaties,1 directives2 and other protocols and declarations, such as the Charter of Fundamental Rights of the EU.3 In the UK, gender equality is mainly embedded in the Equality Act 2010 (EA 2010)4 as a key principle of UK social policy. For example, the EA 2010 contains provisions on positive action as a means to protect people with certain characteristics that are disadvantaged or proportionately under-represented in various categories.5 The representation of women on corporate boards of public listed companies as a form of gender equality is one such category that positive action measures undertaken by both the UK and the EU seek to address. For decades, the boards of large public listed corporations in the EU and the UK have been predominantly occupied by white, middle-class, middle-aged male directors with none or fewer female directors.6 The UK and the EU have 1 See for example, European Union, Treaty on European Union, (Consolidated version), (1992), OJ C 325/5, Articles 2 and 3(3); European Union, Treaty on the Functioning of the European Union (Consolidated Version), (2008), OJ C 115/47, Article 157 (3) and (4). (Hereafter TFEU). 2 Such as Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L 373/37; Directive 2006/54/ EC of the European Parliament and the Council of 5 July 2006 on the implementation of the principles of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L 204/23 (Equal Treatment Directive). 3 European Union, Charter of Fundamental Rights of the European Union, 18 December 2000, OJ C 364/1, Articles 21(1) and 23 (Hereafter CFR). 4 Equality Act 2010: http://www.legislation.gov.uk/ukpga/2010/15/contents (accessed 2 April 2020) 5 Sections 158 and 159 EA 2010 on positive action measures. See on this: Howard, E. Affirmative action in the UK and South Africa. In: Baez, N; Dominguez-Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba; Editora UNOESC, 2018. PP.185–214; and Chapter 4 by Howard in this book. 6 Norburn, D. The CEO: a breed apart. 10 Strategic Management Journal (1989) PP. 1–15; Westpal, J; Zajac, E. Who shall govern? CEO power, demographic similarities and director selection. 40 Administrative Science Quarterly (1995) PP. 60–83.

164  Hamiisi Junior Nsubuga both acknowledged that women are under-represented in higher executives and director roles on the boards of public listed companies.7 This level of homogeneity has created a degree of imbalance on corporate boards that has, arguably, contributed to boardroom stagnation, especially, in the expression of new ideas on the board that would enhance corporate performance.8 The two major factors influencing the best performance on corporate boards have been identified as boardroom composition and power balance.9 It has been argued that the presence of female directors on corporate boards improves corporate performance as women employees exhibit excellent ethical and well-informed market knowledge and views.10 Women tend to pay greater attention to matters such as preparing for meetings more conscientiously, and they are willing to ask awkward questions where needed rather than having decisions nodded through.11 Therefore, having female directors on corporate boards presents an additional voice in the boardroom debates and decision-making.12 By having a broad range of directors from different backgrounds and experiences, better decision-making on corporate issues is achieved.13 However, the presence of female directors on corporate boards of publicly listed companies in the UK and the EU has recently been seen as an opportunity to boost corporate reputation rather than as a policy towards gender equality and diversity. Corporate investors have shown preference to invest in gender-diverse corporations rather than in male-dominated corporations.14 In essence, the presence of women in higher positions in a company has been seen as a tool to convince other women in lower positions that their employer is conforming to equality and diversity recruitment practices rather than a corporate governance route to equality and diversity.15 Nevertheless, the motive is less important as long as it leads to gender diversity. Despite the benefits or advantages of gender diversity on corporate boards in the UK and the EU, recruitment of female directors onto corporate boards

7 Van Hoot, F. Key developments at national level in legislation, case law, and policy. 1 European Equality Law Review (2018) PP. 60–107. 8 Ragins, B.R; Townsend, B; Mattis, M. Gender gap in the executive suite: CEOs and female executive report on breaking the glass ceiling. 12, 1 Academy of Management Executives (1998) PP. 28–42. 9 Penrose, E. The theory of the growth of the firm. Oxford: Basil Blackwell, 1959. 10 Fondas, N; Sassalos, S. A different voice in the boardroom: how the presence of women directors affects board influence over management. 12 Global Focus (2000) PP. 13–22. 11 Huse, M; Solberg, A.G. Gender-related boardroom dynamics: how Scandinavian women make and can make contributions on corporate boards. 21, 2 Women in Management Review (2006) PP. 113–130. 12 Zelechowski, D; Bilimona, D. Characteristics of women and men corporate inside directors in the US. 12, 3 Corporate Governance: An International Review (2004) PP. 337 and 342. 13 Huse, M; Solberg, A.G. (supra note 11). 14 Maznevski, M.L. Understanding our differences: performance in decision-making groups with diverse members. 47, 5 Human Relations (1994) PP. 531–552. 15 Charan, R. Boards at work: how corporate boards create competitive advantage. San Francisco, CA: Wiley, 1998.

Women on corporate boards: UK and EU   165 has lacked pace for years. This has mainly been caused by orthodox recruitment practices by senior directors due to lack of confidence in female employees to fully execute the roles of board directors.16 Very often, these approaches would infer that there are not enough female employees to meet the criteria for promotion to senior executive and director roles.17 This in turn constricts female employees’ opportunities to acquire corporate and boardroom skills and experience in preparation for promotion to a senior executive or nonexecutive director roles. Nevertheless, both the EU and the UK have taken initiatives to address gender diversity concerns, especially on the boards of publicly listed companies. This chapter analyses the current state of affairs in relation to gender diversity on the boards of public listed companies in the UK and the EU. It analyses the proposed EU Directive on Women on Company Boards and the key conceptual underpinnings that may have contributed to the procedural paralysis for its adoption. The position and current state of affairs on women on corporate boards of FTSE listed companies in the UK are examined, as well as initiatives taken by the UK government and institutional players to address this concern. The chapter analyses why the UK and the EU recommendation for FTSE listed companies to achieve a 40% representation of women on FTSE boards by 2020 has not been achieved and offers a suggestive solution.

Initiatives taken to improve gender diversity The European Union normative framework On 14 November 2012, the EU Commission tabled a proposal for a Directive on improving gender balance among non-executive directors of companies listed on stock exchanges and related measures.18 The EU Commission is empowered by the TFEU to adopt measures to ensure the application of the principles of equal opportunities and equal treatment of men and women on matters of employment and occupation.19 The proposed Directive provides that: Member States shall ensure that listed companies in whose boards members of the under-represented sex holds less than 40 percent of non-executive director positions make the appointments to those positions on the basis of a comparative analysis of the qualifications of each candidate, by applying

16 Ragins, B.R; Townsend, B; Mattis, M. (supra note 8). 17 Burke, R.J. Women on corporate boards: a needed resource. 16, 9 Journal of Business Ethics (1997) PP. 909–915. 18 European Commission, Proposal of 14 November 2012 for a directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and other related measures. COM (2012) 614 final. (Hereafter Proposed Directive). 19 Article 157(3) TFEU.

166  Hamiisi Junior Nsubuga pre-established, clear, neutrally formulated and unambiguous criteria, in order to attain the said percentage at the latest by 1 January 2020…20 To ensure that the recommendation in article 4(1) is implemented smoothly in Member States, the proposed Directive further mandates Member States to give priority, in the selection of non-executive directors, to candidates of the under-represented sex if that candidate is ‘equally qualified’ as the candidate of the other sex in terms of suitability, competence and professional performance.21 In addition, the proposed Directive provides that companies within Member States that fail to achieve the 40% objective by 2020 must provide satisfactory explanation for the failure or non-compliance with demonstrable measures put in place to ensure compliance in the future.22 Failure to do so would lead to sanctions.23 The proposed Directive attained support of the European Parliament via a resolution issued on 20 November 2014 with minor amendment which was to ensure that appointments of non-executive directors were made from a gender diverse selection pool.24 However, following this resolution, not much progress was achieved in relation to the adoption of the proposed Directive as there was no consensus reached within Member States on approaches on how to transpose the binding nature of the Directive within Member States. On 18 and 19 June 2015, the proposed Directive was the subject of a debate by the Council of the EU under the theme of employment and social policy and the Council took note of the progress reports on women on company boards across the EU.25 The Council further reiterated the need for Member States to oblige companies to introduce procedural rules on selection and appointment of non-executive board members to meet the 40% target by 2020. Following this debate, the proposed Directive was amended during the Luxembourg presidency between 1 July 2015 and 31 December 2015.26 The rationale for the amendment was the need to incorporate a ‘flexibility’ clause which would allow Member States to choose their preferred measures for implementing the proposed Directive. However, despite these amendments, the proposed Directive did not progress to the next stage as the Council was unable to reach a consensus on the way forward.

20 21 22 23 24

Proposed Directive (supra note 18) article 4(1). Ibid., article 4(3). Ibid., article 5(3). Ibid., article 6. European Parliament, Legislative Resolution of 20 November 2013 on the proposal for a directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and other related measures, 2012/0299(COD). 25 European Commission, Press release, Outcome of the Council Meeting on 18 and 19 June 2015, 10088/15: https://www.consilium.europa.eu/en/meetings/epsco/2015/06/18. 26 Council of the European Union, Presidency report from 30 November 2015, 14343/15: http:// data.consilium.europa.eu/doc/document/ST-14343-2015-INIT/en/pdf.

Women on corporate boards: UK and EU   167 The Council further discussed the proposed Directive on 7 December 2015 and again, compromise could not be reached.27 Nevertheless, the Commission continued to keep the subject of gender diversity and the proposed Directive on its agenda. At the Employment, Social policy, Health and Consumer Affairs Council (EPSCO) meeting on 15 June 2017, the then Commissioner for Employment, Social Affairs, Skills and Labour Mobility, Marianne Thyssen, further reiterated her support for the proposed Directive. She said that it was a good example of subsidiarity-friendly legislation capable of bridging the gender gap within Member States and she hoped that there would be a break-through with the Directive.28 On 31 January 2019, the European Parliament held a debate on the proposed Directive during the plenary session and called again for it to be adopted.29 At the time of writing, these debates and numerous calls for adoption have not yielded fruit.

The United Kingdom As the EU was struggling to find consensus within its Member States for the adoption of the proposed Directive, the UK was also taking initiatives to improve gender diversity on the Financial Trading Stock Exchange (FTSE) listed companies. For example, through legislation, the UK government enacted the Equality Act 2010 as a legislative strategy to curb all forms of discrimination on the grounds of gender or sex among other grounds.30 The UK government has also taken initiatives to commission independent enquiries through the appointment of professional personnel and agencies to undertake reviews of operational government policies and strategies in relation to gender diversity and to make recommendations for improvement where needed. The Davies Review,31 the Higgs Review,32 the Hampton–Alexander Review33 and the Charlotte Sweeney Review are some of these independent reviews commissioned by the UK government to this effect. These are briefly analysed below.

27 Council of the European Union, Outcome of the Council Meeting on 7 December 2015, 14968/15: https://www.consilium.europa.eu/en/meetings/epsco/2015/12/07/. 28 Council of the European Union, Outcome of the Council Meeting 15 and 16 2017, 10376/17: https://www.consilium.europa.eu/media/22163/st10376en17.pdf. 29 European Parliament, Council and the Commission, Debate on gender on company boards, Plenary session, 30–31 January 2019: https://multimedia.europarl.europa.eu/en/genderbalance-joint-debate_I167193-V_v. 30 Particularly, see EA 2010. (supra note 4) and Howard, E. (supra note 5). 31 Lord Davies. Women on boards – the Davies report (2011): https://ftsewomenleaders.com/ wp-content/uploads/2015/08/women-on-boards-review.pdf (Davies Report, 2011). 32 Higgs, D. Review of the role and effectiveness of non-executive directors, CMND 809438, (London, DTI 2003): https://web.archive.org/web/20080726222758/http://www.berr.gov. uk/files/file23012.pdf. (Higgs Review). 33 Hampton–Alexander review. FTSE women leaders – improving gender balance in FTSE leadership, 2016: https://ftsewomenleaders.com/ (Hampton–Alexander Review 2016).

168  Hamiisi Junior Nsubuga The Davies Review 2011 In its attempt to make UK listed companies improve gender diversity on their boards, the UK government appointed Lord Mervyn Davies in 2011 to review its agenda on improving the appointment of women on corporate boards and to make recommendations for improvements, and this became known as the Davies Review.34 Following the review, Lord Davies and his team produced a report which identified and presented 10 business-led recommendations to improve gender diversity on the boards of FTSE 35035 companies.36 The recommendations sought to improve the balance of perspectives in corporate recruitment by ensuring that corporate recruitment practices were based on skills, experience and performance which would encourage women to play a role at the very top of corporate management. Supported by the Department for Business, Energy and Industrial Strategy and, partly, by Cranfield University, the Davies Review team tracked progress on the recommendations of the original report through annual reviews highlighting improvements and setting key targets for subsequent years. For example, in the 2015 Review, the report identified that the percentage of women appointed to the boards of FTSE 100 companies had improved from 12% in 2011 to 25% in 2015. FTSE 250 boards had witnessed an increase from 9% in 2011 to 22% in 2015.37 However, although some improvement in the appointment of female directors on corporate boards had been witnessed, the rate of appointment and progress was relatively slow and the conclusion was that it could take the UK longer than the originally anticipated 70 years to achieve gender diversity on corporate boards.38

The Higgs Review Alongside the Davies Review, the UK government appointed Derek Higgs in April 2002 to undertake an independent review of the role and effectiveness of non-executive directors in the UK.39 The Review made several recommendations, one of which was the need for tighter corporate governance (including the review of the combined corporate governance code) as a gateway to enhancing gender diversity on UK corporate boards.40



Women on corporate boards: UK and EU   169 One of the key recommendations was the establishment of nomination committees on corporate boards to improve the nomination and recruitment processes.41 This committee should be chaired by an independent nonexecutive director and companies should establish a wider pool of talent from which non-executive directors are appointed.42 The nomination committee would evaluate the balance of skills, knowledge and experiences on the board or prepare the description of the role and competences required for a particular ­appointment.43 That would lead to greater gender diversity on corporate boards.

The Charlotte Sweeney Review In 2014, the Department for Business, Innovation and Skills (BIS) made a strategic response to the recommendations made by the Davies Report in 2011 to improve recruitment processes of UK listed companies. It appointed Charlotte Sweeney, a Human Resources expert on equality and diversity, to conduct a review of the Voluntary Code of Conduct drawn up by executive search firms in 2011 as a strategy for supporting FTSE 350 companies in promoting good recruitment and selection practices.44 The Sweeney Review looked into the Voluntary Code of Conduct, its impact on diversity and ways to strengthen it. The Review concluded that while some executive search firms had taken the commitment to the provisions of the code very seriously, other search firms used the code as a profiling opportunity.45 Only 25% of the voluntary signatories to the code were actively following and promoting the code and only 12% shared their impact information on the representation of women on the boards and their lists for securing an appointment.46

The Hampton–Alexander Review In 2016, the UK government appointed Sir Philip Hampton and Dame Helen Alexander to chair an independent review into women on company boards and leadership positions below the board. This review became known as the ‘Hampton–Alexander Review’.47 The main aim of the Review was to ensure that talented women in UK FTSE listed companies’ top management were recognised and promoted to top board positions. The Review also sought to increase female representation on FTSE boards, especially, women in senior executive

41 42 43 44

Ibid., Summary of recommendations, para.10.9 and Annex F. Ibid. Ibid., P. 40, para,10.9. BIS. Women on boards: voluntary code for executive search firms – taking the next steps, (BIS/ 14/640): https://www.gov.uk/government/publications/women-on-boards-voluntary-codefor-executive-search-firms (Sweeney Review). 45 Ibid., P. 4. 46 Ibid., PP. 4–5. 47 Hampton–Alexander Review 2016. (supra note 33).

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Women on corporate boards: UK and EU   171 In its latest report released in November 2019, the Hampton–Alexander Review 201957 reported that FTSE 350 companies have not made significant improvement in the appointment of women on their executive committees to achieve the recommended 33% target by 2020. According to this report, around 65% of executive committee appointments within FTSE 100 companies went to men, while 73% was recorded for FTSE 250 companies.58 In addition, 44 executive committees of FTSE 350 companies are still occupied by men. Overall, 175 companies are well short of the 33% target.59

Gender diversity – policy and procedural stagnation Although the subject of gender diversity on corporate boards has been on the EU’s agenda for years, the proposed Directive remains on the discussion table. Member States across the EU have yet to find consensus on the binding nature of the Directive and its implementation. Some of the factors that are inhibiting the adoption of the proposed Directive are analysed below.

The principle of subsidiarity The aim of the proposed Directive is clear. It seeks to ensure a balanced representation of men and women on corporate boards of listed companies across the EU as a model of its commitment to gender diversity. However, some Member States do not consider the proposed Directive as the best tool for solving gender diversity concerns on corporate boards in their national jurisdictions. Some Member States do not support the idea that the proposed Directive should be adopted with binding measures at EU level. Some Member States prefer their national measures for advancing gender diversity imperatives on corporate boards rather than legislation at EU level.60 For example, the UK, the Netherlands, Poland and Sweden, in their opinions to the EU Commission’s proposal for this Directive reasoned that the proposed Directive may infringe the principle of subsidiarity.61 This principle provides that the EU cannot take actions or interfere with Member States’ implementation of EU law measures or policies unless such action or interference, if taken, is more

57 Hampton–Alexander. FTSE women leaders – improving gender balance in FTSE leadership, 20 November 2019: https://ftsewomenleaders.com/wp-content/uploads/2019/11/HA-ReviewReport-2019.pdf. 58 Ibid., Executive Summary. P. 8. 59 Ibid., Appendix D. 60 Leszczynska, M. Mandatory quotas for women on boards of directors in the European Union: harmful or good for company performance? 19 European Business Organizations Law Review (2018) PP. 35–61. 61 Teasdale, N; Fagan, C; Shepherd, C. Women’s representation on the boards of UK listed companies. In: Fagan, C; Gonzalez Menendez, M; Gomez Anson, M. (Eds.) Women on corporate boards and in top management. Basingstoke: Palgrave MacMillan, 2012. PP. 128–149.

172  Hamiisi Junior Nsubuga effective than those adopted by the Member States at national or local level.62 The UK has on several occasions been in favour of a self-regulatory approach as the best way to mandating FTSE listed companies to disclose the gender composition on their boards.63 It is envisaged that through the principle of subsidiarity, Member States would be able to devise and implement measures at national level to deal with the issue of gender balance on corporate boards rather than being bound by the 40% target proposed in the Directive. For example, France, Italy and Germany have recently adopted measures at national level for imposing mandatory quotas to be attained by publicly listed companies with corresponding sanctions.64 Therefore, the issue of subsidiarity is still a major concern amongst EU Member States and affects their stance on the adoption of the proposed Directive.

The principle of proportionality Another concern within EU Member States in relation to the proposed Directive lies in the principle of proportionality within the functioning framework of the EU. The principle of proportionality requires that any policy measure proposed or passed needs to be suitable or necessary to achieve its objectives without infringing other EU treaties or any rule of law already established.65 Because the proposed Directive is recommending a mandatory quota of 40% on corporate boards, compliance with, or implementation of this recommendation may infringe shareholders or companies’ rights and interests already established by the rule of law in respective Member States. The proportionality principle stricto sensu applicable under EU law requires assessment of burdens that may impact individual or stakeholder interests in the furtherance of the policy measures.66 The concern might be that, trying to implement the 40% quota on corporate boards of EU listed companies might adversely impact the functioning or running of these companies, yet one of the objectives of the proposed Directive is to improve corporate governance. From this perspective, the proportionality test would require weighing up of competing stakeholder interests (including the companies’ interests) against those that the proposed Directive is trying to achieve. If the proposed Directive presents excessive burdens to the parties disproportionate to those of the proposed Directive, it may be challenged.67 62 63 64 65

Article 5 TFEU. Teasdale, N; Fagan, C; Shepherd, C. (supra note 61, PP. 128–149). Van Hoot, F. (supra note 7). Rose-Ackerman, S; Egidy, S; Fowkes, J. Due process of law making: the United States, South Africa, Germany and the European Union. 1st ed. New York: Cambridge University Press, 2015. P. 220. 66 Craig, P. EU administrative Law. 2nd ed. Oxford: Oxford University Press, 2012. PP. 591–592. 67 See further on this point, Protocol (No. 2) on the application of the principles of subsidiarity and proportionality, Article 5: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX: 12016E/PRO/02.

Women on corporate boards: UK and EU   173 Corporate theory debates Corporate theory dictates that one of the key factors that drive a company’s substratum68 is the ability to operate successfully, make profits and produce a positive return to shareholders.69 This is arguably the main concern to the corporate board rather than its composition or whether, or not, there is a degree of diversity on its board. A company is seen as ‘nexus of contracts’ amongst shareholders and extant stakeholders such as suppliers, employees, the State, etc.70 This is the contractual theory of corporation which is premised on the notion that a corporation is founded on private contractual undertakings between stakeholders.71 From this perspective, the role of the State is limited as a company has its own constitution that dictates and directs the company’s object clause or substratum, board composition and how internal and external disputes are handled. Moreover, freedom of contract culture dictates that parties to the contract must be allowed to structure and manage their relationships as they desire.72 The State may retain supervisory and regulatory powers, and the ability to intervene where necessary as it grants corporations licences to operate. However, corporate decision-making on who to employ and how and where to invest remains a choice of the corporation.73 Therefore, when a State passes legislation, directive or regulation that interferes with the company’s corporate structure such as the composition of the board, this could be seen as interfering with a company’s freedom of contract as the company as a whole is best suited to decide on who to appoint to the board based on qualification, experience and essential skill set.

Positive discrimination or affirmative action Gender diversity is a societal concern within the EU and any endeavours to address this concern are highly welcome. However, the proposed Directive ought to ensure that it coheres to and respects established fundamental rights within the EU. Member States that have to implement the proposed Directive upon adoption are also bound by other EU and national legislative obligations, such as rights established under the CFR of the EU under article 51.74 Article 51(1) requires institutions and bodies of the EU and Member States to give due

68 A Company’s substratum refers to the reasons, the objectives or the foundation upon which the company was formed. 69 Baysinger, B; Butler, H. The role of corporate law in the theory of the firm. 28 Journal of Law and Economics (1985) P. 179. 70 Bratton, W. The ‘nexus of contracts’ corporation. 74 Cornell Law Review (1989) P. 407. 71 Cheung, S. The contractual nature of the firm. 26 Journal of Law and Economics (1983) P. 1. 72 Bratton, W. (supra note 70). 73 Campbell, D. The role of monitoring and morality in company law. 7 Australian Journal of Corporate Law (1997) P. 343. 74 CFR (supra note 3).

174  Hamiisi Junior Nsubuga regard to the principle of subsidiarity and to observe and respect rights and principles while implementing EU law. There are concerns of potential infringement of the rights such as freedom to conduct a business75 and the right to property76 which have been recognised and upheld by the EU legal system and courts.77 The legal obligation requiring listed companies within the EU to give priority to a candidate of the underrepresented sex, although equally qualified, during selection and recruitment of non-executive directors on their boards may be seen as an interference with the rights of the male candidate who is not selected and with the rights of the employer company itself. This may be seen as some form of positive discrimination. Although the EU may support positive discrimination in the form of positive action, a male candidate who is not selected in favour of a female candidate has a right not to be discriminated against on the ground of gender guaranteed under the CFR of the EU.78 Therefore, to justify this potential form of positive discrimination, Member States and their listed companies have to ensure that priority given to a candidate of the under-represented sex is based on a legitimate objective and is proportionate.79 Although the proposed Directive recommends that priority should only be given to ‘equally qualified’ female candidates, this recommendation is indispensable for the balancing of competing objectives, otherwise it may be deemed a form of positive discrimination.

Implementation methodology – ‘comply or explain’ model The UK and the EU have both taken various initiatives to improve gender diversity on corporate boards of listed companies. However, it may be argued that the approaches through which these initiatives have been implemented across both jurisdictions may not have been rigorous enough to achieve the intended outcomes. Both the UK and the EU employ a voluntary approach to enforcing policy and legislative compliance by institutions. This voluntary approach can be seen as a ‘comply or explain’ approach without the coercive element of regulatory enforcement. This approach may be persuasive but not compelling to institutions or companies to adopt recommended initiatives. Therefore, whenever recommended initiatives or targets are not met, these institutions are afforded opportunities to explain their inabilities to achieve the recommended targets. They are then given more opportunities to try again. The concern is that without the coercive element of the law, a company or an institution may fail to comply with recommended initiatives and this may lead

75 76 77 78 79

Article 16 CFR. Article 17 CFR. For example see, Case C-236/09 Test-Achats v Council of Ministers [2011] ECLI:EU:C:2011:100. Articles 21 and 23 CFR. See for example, European Court of Human Rights (Grand Chamber), Konstantin Markin v Russia. App. No. 30078/06. Judgment 22 March 2012. Para. 127.

Women on corporate boards: UK and EU   175 to procedural paralysis in the State’s intended policies which renders the soft-law voluntary approach a weaker approach. The UK’s recommendatory approach to achieving gender diversity on corporate boards is based on the soft-law voluntary approach.80 This approach is premised on institutionalism based on the institution theory81 were initiatives are set as authoritative guidelines by the State to be adopted by institutions or organisations over a period of time.82 These initiatives are either normative, coercive or voluntary and can be adopted by institutions or organisations and evolve with other institutional practices, eventually getting institutionalised.83 For example, in the UK, Lord Davies’ first report recommended that FTSE 100 listed companies voluntarily aim to achieve 25% female directors on their boards by 2015.84 This recommendation was swiftly adopted by FTSE 100 companies and the target was met. However, in its third annual review in 2014, the Davies Review had recommended that FTSE 350 companies aim for a voluntarily target of 40% female directors on their boards by 2020. This target was not achieved as the lowest appointment rate of female directors on corporate boards was reported since 2011.85 Therefore, with the uncertainty within this approach, questions are asked whether the voluntary soft-law approach employed by the UK and the EU is the best approach to remedying gender homogeneity on corporate boards to achieve the gender balance needed.86

Conclusions – remedying gender homogeneity The soft-law approach has led to some improvement in gender diversity on corporate boards in the UK and the EU. For example, in the UK, in the years before 2015, FTSE 100 companies embraced this approach by implementing the recommended target of 33% female representation on boards. However, the soft-law voluntary approach has witnessed slow progress towards the attainment of the government recommended 40% female representation on boards of FTSE 80 Goyal, R; Kakabadse, N; Kakabadse, A. Achieving gender balance on British boards with the soft-law approach: directors’ perspective. 18, 1 Journal of Business Diversity (2018) PP. 29–39. 81 Meyer, J; Rowen, B. Institutionalized organizations: formal structures as myth and ceremony. American Journal of Sociology (1977) PP. 340–363; Meyer, J. Reflections on institutional theories of organizations. In: Greenwood, R; Oliver, C; Lawrence, T.B; Meyer, R.E. (Eds.) The Sage handbook of organizational institutionalism. 2nd ed. London: Sage Publications, 2017. PP. 790–811. 82 Scott, R.W. Institutional theory. 11 Encyclopaedia of Social Theory (2004) PP. 408–414. 83 Terjesen, S; Aguilera, R.V; Lorenz, R. Legislating a woman’s seat on the board: institutional factors driving gender quotas for boards of directors. 128, 2 Journal of Business Ethics (2015) PP. 233–251. 84 Davies Report. (supra note 31) Recommendation 1. 85 Vinnicombe, S; Sealy, R; Humbert, A.L. The female FTSE board report 2017: women on boards – back on track? Cranfield University Report 2017: https://www.cranfield.ac.uk/-/ media/f iles/som-ftse-reports/cranf ield-female-ftse-report-2017.ashx?la=en&hash=1A42B 0379649C0A05203E54BF7754037DA3988A7. . 86 Terjesen, S; Aguilera, R.V; Lorenz, R. (supra note 83).

176  Hamiisi Junior Nsubuga 350 companies to be achieved by 2020.87 This slow progress has meant that viable chances of achieving the 40% target by 2020 are relatively low. It is therefore contented that to boost corporate compliance, the UK government and the EU at large ought to review their implementation approaches and adopt a more regulatory or statutory approach. A country’s institutional policies and processes are interlinked and influenced by path-dependent initiatives such as statutes and regulations. As law is the most important component of governance, society and its institutions are more influenced by it than by recommendations.88 Therefore, institutional factors that may, for example, influence gender diversity on corporate boards, such as improving the gender pay gap,89 objective recruitment practices, etc., ought to be approached in a more statutory and mandatory approach rather than being voluntary. In its first report, the Davies Report in 2011 deliberated on the possibility of introducing regulatory quotas for UK listed companies to achieve within a certain timeframe as a strategy to improve gender diversity on corporate boards.90 However, this possibility was abandoned as only 11% of the 2,654 professionals consulted showed interest in the subject of regulatory quotas. Lord Davies and his committee, therefore, concluded that the introduction of regulatory quotas was not the preferred option as it would lead to tokenism.91 Other researchers on this topic are of the view that regulatory quotas would render women less competitive in achieving progression on merit.92 However, the mandatory regulatory quota model is the preferred model favoured by the EU through the proposed Directive although with a binding effect. It should be noted that the strategy of mandatory regulatory quotas has been instrumental in achieving gender diversity on corporate boards in some EU Member States. For example, in Norway, the government introduced a system of quotas in 2002 for private listed companies to achieve 40% female representation on their boards by 2005. While companies were struggling to achieve this target voluntarily, the government passed legislation in 2006 mandating all listed

87 Cadman, E. Female UK board appointments hit a five-year low. Financial Times, 7 July 2016: https://www.ft.com/content/4a903bb4-4364-11e6-b22f-79eb4891c97d. 88 Peters, B.G. Institutional theory, the new institutionalism. New York, NY: Bloomsbury Publishing, 2011. 89 According to the Fawcett Society’s Gender Pay Gap and Causes briefing for 2019 released in October 2019, the gender pay gap in England, Scotland and Wales has increased. The mean gender pay gap for women in fulltime employment was recorded at 13.1% and 16.2% for women in part time employment. See: https://www.fawcettsociety.org.uk/genderpay-gap-and-causes-briefing-2019. 90 Davies Report. (supra note 31, P. 18). 91 Ibid., Foreword. P. 2. 92 Kakabadse, N; Figueira, C; Nicolopoulou, K; Hong Yang, J; Kakabadse, A; Ozgilbin, M. Gender diversity and board performance: women’s experiences and perspectives. 54, 2 Human Resource Management (2015) PP. 265–281; Adams, M; Borsellino, G. The unspoken reality of diversity on boards. 67, 2 Governance Directions (2015) PP. 78–81.

Women on corporate boards: UK and EU   177 companies to comply and meet the target by 2008. Failure to do so would result in fines or closures, and full compliance was attained by 2009.93 Other countries such as Spain, Finland and Iceland have all followed suit by introducing mandatory regulatory quotas. In 2010, Iceland enacted a law that required all publicly owned companies with more than 50 employees to have 40% representation of gender diversity on their boards by 2013.94 The actions taken by these countries and the success achieved so far is an indication that a move away from the voluntary ‘comply or explain’ model to a ‘mandatory regulatory quotas model’ may remedy gender imbalance on the boards of public companies in the UK and the EU and may lead to consensus on the adoption of the proposed Directive. To this effect, the EU ought to consider revising the binding nature of the mandatory quotas in the proposed Directive and perhaps opt for Member States to employ their preferred measures on introducing mandatory quotas to attain the 40% prescribed by the Directive. Member States such as Norway, Spain, Finland and Iceland have witnessed some compliance based on national mandatory measures without the binding effect of the EU Directive. The proposed Directive does not provide for harmonisation of the laws of the Member States on selection, recruitment, and qualification thresholds. It provides that measures employed by Member States to achieve the 40% target by 2020 should be ‘pre-established, clear, neutrally formulated and unambiguous’,95 which is still a major concern to Member States. Therefore, Member States should have mandatory measures, but they can decide for themselves what these are or what form they are going to take. Another approach to improving gender diversity on the boards of public companies in the EU and the UK may be in the form of periodic non-financial board disclosures. For example, in the UK, FTSE 350 listed companies should be required to submit annual non-financial reporting on issues such as diversity on board composition, recruitment and selection processes and how female employees/executives have been nurtured into a diverse talent pool from which senior executives and director positions may be filled. This process may improve transparency in corporate governance imperatives which also promotes openness.96 It is also envisaged that adopting non-financial period disclosures would remedy the ‘comply or explain’ inefficiencies by ensuring that attained progress, or lack of it, is openly accessible by regulatory bodies, extant stakeholders, investors, policy makers and lobbyists who would, in return, push for better approaches to gender diversity on corporate boards. Besides transparency and

93 Matsa, D; Miller, A. A female style in corporate leadership: evidence from quotas. 5, 3 American Economic Journal: Applied Economics (2013) PP. 136–169. 94 Terjesen, S; Sealey, R. Board gender quotas: exploring ethical tensions from a multi-theoretical perspective. 26, 1 Business Ethics Quarterly (2016) PP. 23–65. 95 Proposed Directive. (supra note 18) at 5 and 19, para. 22. 96 Goyal, R; Kakabadse, N; Kakabadse, A. (supra note 80).

178  Hamiisi Junior Nsubuga openness, non-financial periodic disclosures would improve the nomination and recruitment processes within UK/EU listed companies. In the UK, one of the key factors inhibiting gender heterogeneity on corporate boards has been the lack of objectivity in the nomination and recruitment practices employed by UK listed companies which has in turn led to institutional discrimination against women, a position that can be improved through openness.97

97 Ibid.

9

Persons with disabilities and access to higher education in Brazil Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet

Introduction Education consists of a process that, cognitively, may bring about profound changes in the human person, considering its potential to substantially alter the contours of subjectivity and, to that extent, provide new possibilities and developments for personality. It is undeniable that it is instrumental for a person’s emancipation,1 above all for the social groups rendered vulnerable by various forms of negative discrimination. It is without doubt, a crucial task for society, the State and the family to provide education to all without distinction and in agreement with the objectives of the Federative Republic of Brazil established in article 3 of the Federal Constitution of 1988 (FC). As a cognitive process, education in another sense means a set of technical, material, spatial, emotional and temporal conditions that are directly related to the nature of the knowing subjects themselves, their material and emotional conditions that should thus be considered from the perspective of their uniqueness. However, the uniqueness of the person cannot be expressed in acts of direct or indirect discrimination, save for the positive ones. The subject of this chapter, the problem of access to education by persons with disabilities, must be placed in this context. Because of limited space, we will focus on access to higher education only. Furthermore, this is a task of an urgent nature, if one takes into account the high percentage of persons with disabilities in Brazil and the very low level of their inclusion in the sphere of higher education, which is crucial to enable their inclusion in the labour market and in social life. Despite some advances over time, the available data reveal that less than 1% of persons with disabilities are in fact in the formal labour market in the private sphere.2 In order to adequately address the topic and considering the legal perspective of this chapter, we chose to start from the constitutional and legal framework in Brazil, structured around the FC, which puts a special emphasis on material equality and anti-discrimination law, including the duty to create affirmative 1 Freire, P. Pedagogia do oprimido. 17th ed. Rio de Janeiro: Paz e Terra, 1987. P. 15. 2 For more complete data, see the Chapter 5 by N. Baez in this publication.

180  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet actions, aiming at the inclusion of persons belonging to the most vulnerable social groups. In this context, it is of utmost importance to examine the content and impact of the International Convention on the Rights of Persons with Disabilities of 2006 (henceforth CRPD),3 ratified by Brazil and approved by the Brazilian Congress in 2008, through Legislative Decree no. 186, of July 9, 2008, which led to the enactment of the Federal Statute of July 6, 2015, better known as the Brazilian Law of Inclusion of Persons with Disabilities (Persons with Disabilities Act – PDA).4 This Decree incorporates the principles and rules of the Convention and establishes a normative microsystem with a high potential to protect and promote the rights of persons with disabilities, including the right to education. It should be noted that the CRPD has become part of Brazilian Constitutional law, as has the Optional Protocol to the CRPD, which was approved by the same Act of the Brazilian Congress and the Marrakesh Treaty (which also concerns disabled people).5 They were approved by the National House of Representatives through the procedures provided in article 5, paragraph 3 of the FC6 and thus have a legal value equivalent to that of constitutional amendments. In the light of the aforementioned legal–constitutional architecture, but also taking into account, besides other contributions, programmes created by the government (especially through other laws and enactments) and the case law of the higher courts, we carry out an in-depth analysis of the nature and effectiveness of the normative instruments that concern the protection of persons with disabilities at the domestic level, focusing on the promotion of access to inclusive and emancipatory education. Before discussing our central topic, affirmative actions for persons with disabilities as regards access to higher education, it is necessary to present a few notes on the right to education as a fundamental right and duty in the FC. After all, affirmative actions are precisely one of the most powerful means to render this right effective in a universal and egalitarian manner, and, without these actions, access to education will increasingly be a privilege of certain social groups rather than a guarantee for full and inclusive citizenship.

3 Convention on the Rights of Persons with Disabilities and Optional Protocol, adopted in New York, 13 December 2006: https://www.un.org/development/desa/disabilities/convention-onthe-rights-of-persons-with-disabilities.html (accessed 2 April 2020). Regarding human rights treaties ratified by Brazil see also Chapter 2 by Dominguez-Redondo. 4 Persons with Disabilities Act: http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/ Lei/L13146.htm. 5 Treaty of Marrakesh to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, June 27, 2013, approved by National Congress in Legislative Decree no. 261, November 25, 2015. Portuguese version: http://www.planalto.gov.br/ ccivil_03/_Ato2015-2018/2018/Decreto/D9522.htm. 6 According to article 5, paragraph 3 FC, ‘International human rights treaties and conventions which are approved in each House of the National Congress, in two rounds of voting, by three fifths of the votes of the respective members shall be equivalent to constitutional amendments’.

Disability in higher education in Brazil  181

Education as a fundamental right and duty in the Brazilian constitutional architecture General aspects The fundamental right to education was expressly acknowledged in article 6 of the FC.7 Thus it is part of the catalogue of fundamental rights and subject to the strengthened legal regime that was assigned to it by the framers of the Constitution, in particular, first the duty of immediate applicability of the rules of fundamental rights; second, the fact that it is directly binding on State actors and, depending on the circumstances, even on private actors, as established by article 5, paragraph 1; and, third, the reinforced protection of the fundamental rights as material limits to the power of constitutional reform (article 60, paragraph 4, IV).8 Besides its provision as a basic and general fundamental right in article 6 of the FC, education (as a complex of duties and rights) is the object of a more detailed regulation in articles 205 to 214, under the title of the constitutional social order. Indeed, articles 209 to 211 establish the conditions, the organisation and structure of the public and private institutions within the sphere of the national system of education. Article 212 regulates the participation of the different federal entities in funding the system of education. The same article 212 and article 213 establish goals, priorities and guidelines for the application and distribution of public funds in the sphere of education, while article 214 provides for the institution of the national plan of education and its objectives. Article 6 of the FC categorises the right to education, as well as other basic social rights listed in the same provision, as a social fundamental right and it adds nothing more that could explain the content and extent of this right. This requires an interface with what is provided especially in articles 205 to 208, which establish the essential contours of this right. However, it suffices to briefly look at these provisions in order to perceive the strong distinctions as

7 About the right to education in the 1988 Constitution, see, among others, Maliska, M.A. O direito à educação e a Constituição. Porto Alegre: Fabris, 2001; De Brito Lima, M.C. A educação como direito fundamental, Rio de Janeiro: Lumen Juris, 2003; Garcia, E. O direito à educação e suas perspectivas de efetividade, A efetividade dos direitos sociais, Rio de Janeiro: Lumen Juris, 2004. PP. 149–198; Gomes Ribiero, L.L. Direito educacional. Educação básica e federalismo Ribeiro, São Paulo: Quartier Latin, 2009; De Barcellos, A.P.O direito à educação e o STF. In: Sarmento, D; Sarlet, I.W. (Eds.) Os direitos fundamentais no Supremo Tribunal Federal: balanço e crítica. Rio de Janeiro: Lumen Juris, 2011. PP. 609–634; Souza Costa, D. Direito fundamental à educação, democracia e desenvolvimento sustentável, Belo Horizonte: Fórum, 2011; Trindade. A. (Ed.) Direito universitário e educação contemporânea, Porto Alegre: Livraria do Advogado, 2009; Duarte, C.S. Direito público subjetivo e políticas educacionais. In: BucciI, M.P.D. (Ed.) Políticas públicas – reflexões sobre o conceito jurídico, São Paulo: Saraiva, 2006. P. 267ff, emphasising the relevance of also highlighting a right to educational policies. 8 For more information see: Sarlet, I.W. Eficácia dos direitos fundamentais, 13th ed. Porto Alegre: Livraria do Advogado, 2018.

182  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet regards their technique of affirmation, their function as fundamental rights and, consequently, their effectiveness. When article 205 provides that ‘education, which is the right of all and duty of the State and of the family, shall be promoted and fostered with the cooperation of society,’ it directly takes on a double dimension, since it both recognises and defines a (fundamental) universal right and, at the same time, has the character of an imposition. The latter is because it is a rule that imposes duties, which, given its characteristics (and without prejudice to the fact that education is primarily a fundamental right that can be demanded as such), depends on complementary action because it establishes the generic goals to be achieved and the guidelines to be obeyed by the State and by the community in implementing the right to education, to achieve ‘the full development of a person, their preparation to exercise citizenship and their qualification for work’.9 On the other hand, these parameters may serve as criteria to define the content of the right to education as a subjective right, demonstrating that the subjective and objective dimensions support each other. Article 206 proclaims the principles that underlie education, with some of its provisions directly applicable and fully effective. This is, for instance, the case of the guarantee of equal conditions for access to and the right to remain in school (article 206, I), which constitutes the implementation of the principle of equal opportunity. Although, one may – even without this rule – accept a derived social right to equal access to educational institutions or to the system of education, deduced on the basis of the general right of equality (article 5, head),10 it is crucial to infer, in synergy with other constitutional and legal rights and principles, a duty to create affirmative action policies that will really ensure this access, as is the case, among others, of the measures for the inclusion of persons with disabilities. There is, therefore, a close link with the affirmative action policies which, as occurred in other countries (especially in the USA), have been implemented in Brazil and have been the subject of heated controversies, including in the judicial sphere, resulting in decisions by the Brazilian Supreme Court acknowledging the constitutional legitimacy of policies of affirmative action aimed at including persons with a low income, African–Brazilians, indigenous people and persons with disabilities in higher education, in particular the ‘University for All Programme’ (PROUNI)11 and the quota policies created at public universities.12 It should also be underscored that this general obligation of the family, society and the State regarding education is again expressed in the head of article 227 of the FC and, further on, in its paragraph 3, items I and III, in the sphere of the (fundamental) right to special protection of children and adolescents, as well as 9 Ibid. 10 Ibid. 11 See ADI no. 3,330/DF and ADI no. 3,314/DF; judge-rapporteur: Carlos Ayres Britto, 3 May 2012. 12 See ADPF no. 186-2/DF; judge-rapporteur: Ricardo Lewandowski, 26 April 2012.

Disability in higher education in Brazil  183 in article 229 (parents’ duty to raise and educate under-age children). Thus, this obligation imposed on the State and the family (and the parents) is given special attention by the FC. For our purpose, it is also relevant to mention the fact that the FC gave a certain preference, in the broader context of the right to education, to basic or primary public education. Thus, article 211, paragraphs 2 and 3, provides that the municipalities and states should both prioritise basic education (and the states also secondary education). In brief, the competencies in the sphere of education, the origin and allocation of funds, as well as the priorities and aims of the education policy have already been essentially defined on a constitutional level. Therefore, these aspects cannot be invoked as objections to acknowledging a subjective right to basic education, including a right to access to daycare centres maintained by the government for children up to the age of six years, which has been widely recognised by the judiciary power in Brazil, especially the Federal Supreme Court.13

The specific problem of a fundamental right of access to higher education in Brazil Differently from what happens with access to basic education, the FC provides, in article 208, II, the guarantee of ‘progressive universalization of the highschool education’, and ‘access to higher levels of education, research and artistic creation according to individual capacity’. Therefore it does not – at least not expressly – provide for a subjective right to a place in free secondary education at a public school, much less the right to a place at an institution of higher education. However, it is certain and widely acknowledged that there is a subjective right to equal access to the public secondary and higher education system, although affirmative actions, while necessary and constitutionally legitimate, evidently limit the range of places that are available to those who do fit into the respective criteria to fill the places set aside for quotas. Regarding basic and high school education, it has been acknowledged that there is a duty of the government to ensure effective conditions of accessibility of the respective users to the educational facilities (schools) by providing guaranteed public transport.14 In tune with the duty to progressively realise social, economic and cultural rights, among other arguments, it is possible to affirm, besides a subjective right of equal access to the places already available, a constitutional duty to progressively create courses, places or other means of access to higher education. Although this is the first step, the right to education does not comprise only the right of access to education at different levels. It also includes a right 13 See ADPF no. 292/DF; judge-rapporteur: Luiz Fux, 1 August 2018. 14 See as an illustration of the Federal Supreme Court’s case law Recurso Extraordinário – RE (Extraordinary Appeal) no. 990,934 AgR/PB; judge-rapporteur: Ricardo Lewandowski, 24 March 2017.

184  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet (and a corresponding duty) to education of a quality that will ensure sufficient preparation for an effective and productive insertion into professional, political, social, economic and cultural life, for an active citizenship of good quality. In other words, the right to education should always be (or seek to be) a right to inclusive and quality education. Additionally, it is (from an objective perspective) a duty of the State, of the family and society to provide policies and institutional and organisational arrangements, including the provision of financial and human resources, for this purpose.15 Below we shall see how this reflects on the environment of persons with disabilities and the corresponding affirmative actions.

Persons with disabilities and access to higher education in Brazil The social model as a premise and key point for the understanding and solution of the problem — the role of the FC and the PDA Especially as regards the protection and promotion of the rights of persons with disabilities, the adoption, in Brazil, of the so-called social model of disability represented a real Copernican turn. This model is based on the change in the concept of disability, formerly rooted in a biomedical and individual perspective, which was an extremely excluding and stigmatising approach,16 towards a social perspective in which there is a clear search for inclusion and for adaptation of daily activities to everyone’s needs, especially those of persons with disabilities.17 Furthermore, this is not only a perception of disability based on a sociological perspective but equally the expression of an eminently political concept.18 The central idea of the social model is thus based predominantly on two points: first, the disability itself cannot justify inequality and the continuous exclusion of persons with disabilities. In this sense, it separates the concepts of injury and disability. Second, since it is a sociological and at the same time a political concept, the approach is no longer based on the individual’s personalised and biomedical characteristics in the sense of a personal tragedy or divine punishment; instead it is conceived as an object for the creation of public policies that aim at transforming all kinds of exclusionary social standards, transferring the responsibility for inclusion to the State in partnership with civil society.19

15 For more information see, among others: Pae Kim, R; Miguel Ferreira, L.A. (Eds.) Justiça pela qualidade na educação. São Paulo: Saraiva, 2013. 16 SandelL, M.J. Contra a perfeição. Ética na era da engenharia genética. (Translation by Mesquita, A.C.) Rio de Janeiro: Civilização Brasileira, 2013. PP. 64–65. 17 Diniz, D. O que é deficiência? São Paulo: Brasiliense, 2007. PP. 27–28. 18 Raupp Rios, R. Direito da antidiscriminação e discriminação por deficiência. In: Diniz, D; Santos, W. (Eds.) Deficiência e discriminação. Brasília: Letras Livres/Edunb, 2010. PP. 73–96. 19 Diniz, D. Modelo social da deficiência: a crítica feminista. SérieAnis (Brasília: Letras Livres), 28, 2003. P. 2.

Disability in higher education in Brazil  185 The so-called social model ultimately consists of a view that has full citizenship as its final objective and, in this sense, it is directly related to the theory and practice of human and fundamental rights. Thus, the new perspective on disability implies concrete equality and dignity for all without distinction, and promotes, as far as necessary, the appropriate affirmative actions to counteract the still prevailing discriminatory context by a standard based on solidarity and inclusiveness. Indeed, one of the most important legacies of this social model is the contemporary understanding of disability in a collective approach that is oriented towards plurality, equality, tolerance and diversity. The other legacy is the awareness that everyone is, in solidarity, responsible for the removal of social, intellectual, cultural, behavioural and architectural barriers that separate disabled people from those without disabilities. In this sense, it is possible to say that there has been a neutralisation of the stigmatising aspect associated with persons with disabilities in such a way that access to education, notably to higher education, operates as a portal to implement this model from an inclusive perspective. In Brazil, as already mentioned, the social model was received and gradually implanted and developed, since the enactment of the FC, through a series of legislative and administrative measures, particularly the already mentioned CRPD and the PDA. An initial aspect to be emphasised is that article 2 of the CRPD establishes a broad concept of discrimination by defining the discrimination suffered by persons with disabilities as any differentiation, exclusion or restriction based on a disability whose result is any kind of limitation of access to rights and guarantees, as well as to the various forms of policies of acknowledgment of their uniqueness, and to the distribution of goods and resources. In the case of people with disabilities, besides the specific constitutional provision establishing a policy of quotas and, therefore, of inclusion, the CRPD has strengthened this demand, which was done also by reformulating the very notion of disability, which resulted in a more open and more inclusive reading that must be respected and implementedin the Brazilian legislation. The CRPD, strictly speaking, introduced a new paradigm for the applicability and concrete nature of the rights of persons with disabilities insofar as it expressed the social model as a touchstone and thus reoriented the different ways of rendering society and the State responsible in the sense of demanding the establishment of structures that enable broad and full accessibility, thus ensuring the exercise of full citizenship. The Marrakesh Treaty, 20 signed by Brazil in June 2013, was approved by the National Congress through Legislative Decree no. 261/2015 on the basis of principles such as non-discrimination, equal opportunities, accessibility, participation and full and effective inclusion in society. The treaty marked a further significant point in the itinerary of the affirmation of the rights of persons with

20 Supra note 5.

186  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet visual disabilities and should, in the context of the search for the effectiveness of the right to education, be considered one of the shining lights in the Brazilian normative system and in the international sphere. Recently, Decree no. 9,522 of 2018 incorporated the treaty into the Brazilian domestic sphere with the same rank as a constitutional amendment. Article 3 of the treaty states that: A beneficiary person is a person who: (a) is blind; (b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or (c): is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading. Starting from the definition of an artistic or literary work in the form of text or notations, with or without illustrations, published or made available by any means, the Marrakesh Treaty included those works in the form of audios. Thus, it links the accessibility standard to the demand of their reproduction in an alternative format in order to make it useable for the beneficiary persons in response to their needs. In this sense, it is essential to stress that the signatory States must provide for rules on copyright that make it easier to have works in accessible formats, although this may be a ‘limitation’ or ‘exception’. Thus, the States can alter its legislation to allow the authorised entities: without the authorization of the copyright holder, to make an accessible format copy of a work, obtain from another authorized entity an accessible format copy, and supply those copies to beneficiary persons by any means, including by non-commercial lending or by electronic communication. 21 Some requirements, however, must be observed, insofar as: the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work; the work is converted to an accessible format copy, […] but does not introduce changes other than those needed to make the work accessible to the beneficiary person; such accessible format copies are supplied exclusively to be used by beneficiary persons; and, the activity is undertaken on a non-profit basis.22

21 Article 4 (2)(a) Marrakesh Treaty. 22 Ibid.

Disability in higher education in Brazil  187 The Marrakesh Treaty allows ‘a beneficiary person, or someone acting on his or her behalf … to make and use accessible format copies where the beneficiary person has lawful access to that work’.23 The Marrakesh Treaty followed what was enshrined in the Berne Convention 24 as regards the right to translation, particularly with reference to people with a visual disability or with other difficulties in accessing printed text. It should be explicitly stated that in the implementation of the limitations and exceptions provided in the Treaty, States must protect the privacy of the beneficiary persons and thus ensure equal conditions with other people. Notwithstanding the influence of the Marrakesh Treaty, the most transformative legal rule introduced in Brazilian national law, directly based on the CRPD, is the PDA.25 Complying with the CRPD, article 2 of the PDA defines persons with disabilities as those who have a long-term impairment that may obstruct their actual and full participation in society on an equal footing with other people, thus aligning the legal perspective with the social model of disability. In the same article, it adopts a broad concept of impairment comprising all kinds of impairments, from physical, intellectual, sensory to mental ones, and points out the importance of multi-professional and interdisciplinary care both to evaluate the disability and to provide care for the person with a disability. According to the PDA, which is founded on the principles of autonomy and dignity of the human person, and accessibility – using all possibilities in terms of technological resources – States must fully promote the active participation of persons with disabilities by enabling them to overcome all kinds of barriers and hindrances on the basis of the rights to equality and non-discrimination (articles  4 ff). It also emphasises the application of the principle of solidarity along the same lines as the FC, involving the State, society and families in assigning duties for care and protection of persons with disabilities. In the light of the principle of the dignity of the human person and aiming at the promotion of autonomy of persons with disabilities, the PDA broadened and valued the different forms of manifestation of will, which implies overcoming the current regime of incapacities. Thus, despite the pecuniary or proprietary aspect, it reinforced the enhancement of the value of existential autonomy from a perspective in which the autonomous person is, above all, someone who can reinvent their life story at any time. This legislation was innovative in considering the distinction between disability and civil capacity (article 6), guiding the promotion of the free development of the person and leading to proportional responsibility in degrees of discernment and vulnerability. Since autonomy is not limited to a mere competence for decision-making which follows the prevailing social standard, what this act emphasises is the search for a perception of the human person as a protagonist insofar as the grasping of the 23 Ibid., Article 4 (2)(b). 24 Ibid., Articles 11 and 12. For the Berne Convention (art. 9) see: http://www.planalto.gov.br/ ccivil_03/decreto/1970-1979/d75699.htm. 25 Persons with Disabilities Act. (supra note 4).

188  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet fruit of their discernment will express, as faithfully as possible, the uniqueness and subjectivity peculiar to each person on the basis of the principle of presumption of capacity and autonomy. The PDA also instituted (in article 92) the national registry of inclusion of people with disabilities in the form of an electronic public record that tries to succinctly map the information about these people, their lives and the hindrances to their active participation in society, which is designed especially to provide a basis for the production and implementation of public policies in this field.

Persons with disabilities and the affirmative action policies ensuring access to education in Brazil — some general remarks Although the exclusion of persons with disabilities is not limited to the field of the Brazilian system of education (public and private), in this domain the data are particularly striking. However, it must be noted that the exclusion from education affects other domains, such as, for instance, access of disabled people to the labour market. As regards access to education for people with disabilities, it should be underscored that, in basic education, 57.8% of the Brazilian schools have students with disabilities or high abilities included in mainstream classes. In 2008, this percentage was only 31%.26 Regional inequalities are also conspicuous because the Northeast and North regions presented the highest percentages of students with disabilities, global development disorders, or high abilities included in mainstream classes, with 94.3% and 90.7%, respectively.27 It should also be emphasised that in the State of Paraná, in the South Region, 18.2% of the municipalities have less than 50% of the students from 4 to 17 years with disabilities, global development disorders or high abilities included in mainstream classes.28 The number of students with disabilities, global development disorders or high abilities enrolled in basic education is going up and the number of these students in special classes is going down, with more students attending mainstream classes with specialised care. In 2013, it was 639,888, with 14.5% in special classes, 50.3% in mainstream classes without specialised educational care and 35.2% in classes with specialised care; in 2014, the total number was 676,898, with 12.9% in special classes, 50% in mainstream classes without specialised care and 37.1% in common classes with specialised care; in 2015, it was 716,243, with 12.6% in special classes, 51% in mainstream classes without specialised care and 37.4% in mainstream classes with specialised care; in 2016, the number was 751,065, with 10.5% in special classes, 50.2% in mainstream classes without specialised care and 39.3% in mainstream classes with specialised care; in 2017, it 26 Censo Escolar INEP, MEC, 2016. P. 4: http://download.inep.gov.br/educacao_basica/censo_ escolar/notas_estatisticas/2017/notas_estatisticas_censo_escolar_da_educacao_basica_2016. pdf. 27 Ibid., P. 11. 28 Ibid.

Disability in higher education in Brazil  189 was 827,243, with 9.1% of whom in special classes, 50.8% in mainstream classes without specialised care, 40.1% in mainstream classes with specialised care.29 The percentage of students with disabilities, global development disorders or high abilities included in mainstream classes in infant education rose from 71.7% of the total of 59,959 students with special needs in 2013 to 86.8% of the total of 79,749 students with special needs in 2017. The number of enrolments in this category of students in basic education rose from 623,826 in 2013 to 768,360 in 2017. In 2013, 81% of them attended mainstream classes; in 2017, this was 87% of the total of students with special needs. In secondary education, it increased from 48.589 in 2013 to 94,274 in 2017. The percentage of students attending mainstream classes rose from 97.5 in 2013 to 98.9 in 2017.30 In conclusion, there is a significant increase in the number of persons with disabilities enrolled in basic education. The absolute majority already attends schools in mainstream classes, together with other students, complying with the requirements of the social model and of the PDA. However, whereas in the sphere of basic and high school education there have been major advances  – which does not mean that one is near fully satisfactory levels – in higher education progress has been slower.

Affirmative actions and access of persons with disabilities to higher education Some data on the Brazilian higher education system Before beginning to discuss affirmative action, it should be explained that the system of higher education in Brazil is structured around the axes of teaching, research and other activities. The Institutions of Higher Education (IHEs), in turn, are classified by the Law of Guidelines and Bases of National Education, especially articles 16 and 20. According to this law, the federal system comprises: (a) educational institutions maintained by the Union; (b) institutions of higher education created by private enterprises; and, (c) federal agencies of education. Article 20 classifies the private IHEs as: (a) private, strictly speaking; (b) community; (c) denominational; and, (d) philanthropic. The same law also offers a classification according to the nature and degree of administrative dependency as universities, community colleges, isolated colleges and integrated colleges.31 Universities are multi-disciplinary institutions, with institutionalised production and research, composed of a minimum percentage of faculty with academic titles and a disciplined workload. The community colleges, although not defined in this law, follow similar rules to universities, and are only different due to 29 INEP. Censo Escolar 2017: notas estatísticas. Brasília, 2018. P. 10: http://download.inep. gov.br/educacao_basica/censo_escolar/notas_estatisticas/2018/notas_estatisticas_Censo_ Escolar_2017.pdf. 30 Ibid., PP. 10–13. 31 See: http://www.planalto.gov.br/ccivil_03/leis/L9394.htm.

190  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet the lack of an explicit obligation to perform institutionalised research. On the other hand, colleges are institutions that are not accredited to confer titles and diplomas, whereas the configuration of technical education is simpler and aims at more immediate action on the labour market. From the quantitative standpoint, according to the Census of Higher Education 2017, there are 2,448 IHEs in Brazil, which, together, offer 35,380 diversified courses in all regions of the country, 2,152 of them private and 296 public. Of these institutions, 165 are in the North region, 517 in the Northeast region, 1,121 in the Southeast region, 405 in the South region and 240 in the Mid-West region.32 The number of students enrolled was 8,286,663 in 2017.33 Just to show the progress in this field, in 2007, the number was 4,880,381 for students in face-to-face courses34 and 369,766 for students in distance-learning undergraduate courses.35

Main affirmative actions created and implemented to ensure access of persons with disabilities to higher education As already mentioned, with the enactment of the FC, affirmative action began to be more important for the purpose of promoting equality in substantial terms and especially to ensure the inclusion of groups of vulnerable persons. In the field of access to education, especially to the higher level, there are different laws that deal with the guarantee of access as well as the protection and promotion of rights of persons with disabilities. They include: (a) Statute 10,436, recognising Brazilian Sign Language; (b) Decree no. 3,956/2001, ratifying the Inter-American Convention to eliminate all forms of discrimination against persons with disabilities; (c) Administrative Resolution no. 3,284/2003, on requirements of accessibility as regards the processes of authorisation, recognition and accreditation of institutions; (d) Statute 10,098/2000, regulated by Decree no. 5,296/2004, establishing the general rules and basic criteria for priority attention and accessibility for persons with disabilities or reduced mobility; (e) Decree no. 5,625/2005, governing the use and dissemination of Brazilian

32 Instituto Nacional de Estudos e Pesquisas Educacionais Anísio Teixeira, Sinopse Estatística da Educação Superior 2017 (Brasília: INEP, 2018), Tables 1.1 and 1.2: http://portal.inep.gov.br/ basica-censo-escolar-sinopse-sinopse (accessed 6 December 2018). 33 Ibid., Table 1.2: Número de Cursos, Matrículas, Concluintes, Vagas Oferecidas, Candidatos Inscritos e Ingressos em Cursos de Graduação - Presenciais e a Distância, por Organização Acadêmica e Grau. 34 Instituto Nacional de Estudos e Pesquisas Educacionais Anísio Teixeira, Sinopse Estatística da Educação Superior 2007 (Brasília: INEP, 2008). Table 5.4 - Matrículas em Cursos de Graduação Presenciais, em 30/6, por Organização Acadêmica e Sexo dos Matriculados, segundo a Unidade da Federação e a Categoria Administrativa das IES – 2007: http://portal.inep.gov.br/ sinopses-estatisticas-da-educacao-superior. 35 Ibid., Table 7.1: Número de Cursos, Vagas Oferecidas, Candidatos Inscritos, Ingressos por Vestibular e Outros Processos Seletivos (*), Matrículas em 30/06 e Concluintes nos Cursos de Graduação a Distância, segundo as Instituições – Brasil – 2007.

Disability in higher education in Brazil  191 Sign Language, making it mandatory in all undergraduate courses in Brazil; (f)  Decree no. 5,773/2006, containing the regulation, evaluation and supervision process of IHEs throughout the federal system of education; (g) Decree no. 7,234/2010, establishing the National Programme for Student Assistance; (h) Decree no. 7,611/2011, implementing the specialised educational care and provided for the structuring of centres of accessibility at federal IHEs; and, (i) the technical rules of ABNT NBR 9,050, defining the criteria of accessibility to and in buildings. More recently, Administrative Resolution no. 243 of the Ministry of Education, from 15 April 2016, determined that the public and private, community, denominational and philanthropic institutions should offer resources and develop activities of specialised educational care, according to the needs of each student, such as teaching Brazilian sign language; teaching Portuguese as a second language; providing access to computer science, to the Braille system, and, to techniques for orientation and increasing mobility; teaching augmentative and alternative communication; teaching the uses of assisted technology and also the development of the cognitive functions. Concerning quotas in higher education facilities, major measures were also taken that promoted the inclusion of persons with disabilities, especially in recent years. The already mentioned Statute 11,096/2005 which instituted the University for All Programme (PROUNI) provides scholarships at private institutions of higher education (article 1). In the institutions that join the programme, a proportional number of places are reserved for student scholarships. For profit or non-profit and non-beneficent institutions, for instance, one full scholarship must be provided for the equivalent of 10.7 paying students (see article 5), or one full scholarship for every 22 paying students, as long as this is compensated with the provision of partial scholarships of 50% or 25% at a proportion determined by article 5, paragraph 4. In practice, private institutions of higher education, as beneficent entities of social assistance, are obliged to participate in the Programme, for they can only maintain their status if they grant at least one full scholarship for every nine paying students (article 10).36 The first major criterion to grant scholarships is family income per capita of up to one and a half times minimum wage for the full scholarship and up to three times minimum wage for the partial scholarships (article 1, paragraphs 1 and 2). Article 2, items I to III, then identifies three groups to whom the scholarships should be directed: persons with disabilities; students who have attended State school all through high school or were in a private school on a full scholarship; and, teachers in the State system for the courses designed to train them as teachers in basic education.37 Article 7 contains affirmative actions, not only for persons with disabilities but also for blacks and indigenous persons, with a percentage of

36 Brazil, Law 11.096, of 13 January 2005: http://www.planalto.gov.br/ccivil_03/_Ato20042006/2005/Lei/L11096.htm. 37 In this case it is not necessary to observe the limits of income.

192  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet places established according to the most current census of the Brazilian Institute of Geography and Statistics (article 7, item II and paragraph 1).38 Although at the level of the States of the Federation39 some affirmative action policies of this kind exist, which cover many different areas and levels of education,40 it was only in 2016, through Law 13,409/2016, that quotas were established for persons with disabilities for federal institutions of higher education. Indeed, Law 13,409/2016 altered article 3 of Law 12.711/2012 to include persons with disabilities on the list of beneficiaries of quotas.41 Statute 12,711/2012 reserves 50% of the places at universities and federal institutions for students who attend state high schools, and half these places are reserved for students from families with an income up to 1.5 times the minimum wage per person (article 1). Within the sphere of this quota, places must be ensured for self-declared black, pardos 42 and indigenous persons and for persons with disabilities, according to the respective representation in the corresponding state of the Federation, according to the most current census of the Brazilian Institute of Geography and Statistics (article 3). Finally, according to article 7, the programme must be reviewed after 10 years.43 Articles 27, 28 and 30 of the PDA contain detailed provisions about the fundamental right to education. As regards the selection process and the experience of studies at public and private institutions of higher education, there are regulations concerning preferential treatment, the availability of a form for the candidate with a disability to inform the institution about the resources they need to support them, the adaptation of exams, the de facto availability of the previously requested resources, and the need for extended time to complete activities, among others (article 30 I-VII).44 38 Law 11.096. (supra note 36). 39 In the State of Rio de Janeiro, for instance, Law 5,346/2008 already determined that 5% of the places at the universities of the state must be reserved for persons with disabilities among other categories, Article 1, IV with article 2, III. Estado do Rio de Janeiro, Law 5346, of 11 December 2008: http://alerjln1.alerj.rj.gov.br/contlei.nsf/c8aa0900025feef6032564ec0060dfff/1b96527 e90c0548083257520005c15df?OpenDocument. 40 For more information see the following programmes: the programme for accessible schools (Programa Escola Acessível), the programme on accessibility in higher education (Programa de Acessibilidade na Educação Superior), the Living without Limits Plan (Plano Viver Sem Limite) 2018. 41 See article 1. Brazil, Law 13.409, of 28 December 2016: https://presrepublica.jusbrasil.com.br/ legislacao/417320813/lei-13409-16 (accessed 2 April 2020). Articles 5 and 7 of Law 12,711/ 2012 were also altered. 42 Differently from other countries, the expression Negros is the official terminology, comprising black people and the so called pardos, that are – as it used to be in other systems – coloured, a classification related to Afro-descendants situated between white persons and black persons. It is in fact a broad concept in order to include as many people as possible from this already strongly discriminated group in Brazilian society. 43 Brazil, Law 12.711, of 29 August 2012: http://www.planalto.gov.br/ccivil_03/_ato2011-2014/ 2012/lei/l12711.htm. 44 Brazil, Law 13.146, of 6 July 2015. Lei Brasileira de Inclusão da Pessoa com Deficiência (Estatuto da Pessoa com Deficiência) [EPD]: http://www.planalto.gov.br/ccivil_03/_Ato20152018/2015/Lei/L13146.htm.

Disability in higher education in Brazil  193 Article 28 establishes a number of tasks that are the competence of the government for which implementation may involve the appropriation of resources from the private institutions. Most of this is, according to paragraph 1, also applicable to the private realm, with the exception of items IV and VI, related to the obligation to offer bilingual sign language and to conduct research in the field of persons with disabilities.45 Specifically for higher education, it determines access to higher education with equal opportunities and conditions compared to other persons, inclusion in the syllabus of topics related to persons with disabilities and building accessibility.46 This includes, for instance: the objective of establishing an inclusive system of education and lifelong learning; the offer of services and accessibility resources that eliminate hindrances and promote full inclusion; a pedagogical project that will institutionalise specialised educational care; measures of support for linguistic, cultural, vocational and professional development, taking into account the students’ skills and interests; training programmes for teachers who adopt pedagogical practices for inclusion; training in specialised educational care for teachers; translators and interpreters of Brazilian sign language; interpreter guides and support professionals; the offer of instruction in Brazilian sign language, the Braille system, and the use of assistive technology resources; and, intersectoral articulation in the implementation of public policies.47

Effectiveness of affirmative actions for access to higher education by persons with disabilities Taking into account the broad set of affirmative actions described above, we will now look at their effectiveness. Although the lack of sufficient data does not allow a comprehensive and systematic overview and evaluation, there is, nevertheless, enough information to gain a general idea as to the extent to which a positive evolution can be registered. In 2017, the number of students with special needs enrolled in undergraduate courses at universities was 38,272.48 In 2013, this number was 29,034,49 while

45 IV - oferta de educação bilíngue, em Libras como primeira língua e na modalidade escrita da língua portuguesa como segunda língua, em escolas e classes bilíngues e em escolas inclusivas. VI - pesquisas voltadas para o desenvolvimento de novos métodos e técnicas pedagógicas, de materiais didáticos, de equipamentos e de recursos de tecnologia assistiva’. 46 Law 13.146. (supra note 44, article 28). 47 Brief presentation of other highlights of article 28, I–XVIII, ibid. 48 Instituto Nacional de Estudos e Pesquisas Educacionais Anísio Teixeira, Sinopse Estatística da Educação Superior 2017 (Brasília: INEP, 2018): Table 1.9 - Matrículas de Alunos Portadores de Necessidades Especiais nos Cursos de Graduação Presenciais e a Distância, por Tipo de Necessidade Especial, segundo a Unidade da Federação e a Categoria Administrativa das IES – 2017: http://portal.inep.gov.br/sinopses-estatisticas-da-educacao-superior. 49 Instituto Nacional de Estudos e Pesquisas Educacionais Anísio Teixeira, Sinopse Estatística da Educação Superior 2013, Table 1.9 - Matrículas de Alunos Portadores de Necessidades Especiais

194  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet in 2009, it was 19,869.50 A note in the press indicates that, according to the Anísio Teixeira National Institute of Educational Studies and Research (INEP), in 2018 7,828,013 students enrolled in courses in higher education in the country, which meant an 85.35% growth in relation to 2004. As to the students with special educational needs, the increase was much greater in the same comparison: 518.66%, reaching 33.377 enrolments.51 The latest information about the percentage of persons with disabilities who finished higher education is from the Census of 2010, which indicated that it is 6.66% of all persons in Brazil that are over 15 years old.52 This information has not been disseminated in the Statistical Synopses published by INEP.53 ­Conspicuous is also the lack of efforts to publicise more detailed data concerning PROUNI. The latest information, available at the website of the programme, dates from 2015, presenting only the sum total of scholarship holders with disabilities from the second semester of 2005 to the year of 2014, a total of only 10,340 persons with disabilities who benefitted from the programme, which means 1% compared to the almost 1.5 million in total who benefited from it.54 Any attempt to show the evolution over this time is thus frustrated by lack of data. In addition to the fact that this information is already six years old and there has been no follow-up, we also found, for instance, that, as regards the axis of education and work, in the topics corresponding to ‘implemented actions’, relatively often the information is about future plans, which shows lack of clarity in the presentation of the data.55 On the one hand, there is a lack of clarity and transparency in the presentation of data and a lack of publication of data; on the other hand, the latest legislative

50

51

52 53

54

55

nos Cursos de Graduação Presenciais e a Distância, por Tipo de Necessidade Especial: http:// portal.inep.gov.br/sinopses-estatisticas-da-educacao-superior. MEC/INEP, Censo da Educação Superior 2017: divulgação dos principais resultados (Brasília: 2018), slide 48: http://portal.mec.gov.br/docman/setembro-2018-pdf/97041-apresentac-a-ocenso-superior-u-ltimo/file. G1, Cresce o acesso da pessoa com deficiência ao ensino superior no país: http://g1.globo.com/ mato-grosso-do-sul/noticia/2016/06/cresce-o-acesso-da-pessoa-com-deficiencia-ao-ensinosuperior-no-pais.html. Ibid. Instituto Nacional de Estudos e Pesquisas Educacionais Anísio Teixeira, Sinopses Estatísticas da Educação Superior – Graduação: http://portal.inep.gov.br/sinopses-estatisticas-da-educacaosuperior. Programa Universidade para Todos (PROUNI), Bolsistas – pessoas com deficiência: http:// prouniportal.mec.gov.br/images/pdf/Representacoes_graficas/bolsistas_pessoas_deficiencia. pdf. See for instance on page 57: ‘Due to the need to train a greater number of professionals, teachers and interpreters-translators of the Brazilian Sign Language, the Plan Living without Limits plans the creation of 27 courses of the Brazilian Sign Language/Portuguese Language, 12 Pedagogy courses from a bilingual perspective. During the first stage of implementation in 2013, it is planned … ‘. Secretaria Nacional de Promoção dos Direitos da Pessoa com Deficiência, Avanços das Políticas Públicas para as Pessoas com Deficiência (Brasília, 2012): https://www. pessoacomdef iciencia.gov.br/app/sites/default/f iles/publicacoes/livro-avancos-politicaspublicas-pcd.pdf (accessed 7 December 2018).

Disability in higher education in Brazil  195 developments represent an opportunity for improvement in the analysis and presentation of such data. As already shown, in the 2000s relevant legislation was adopted, with relevant laws dating from the years 2010, 2011, 2012. We have also emphasised the incorporation into domestic law, with the status of constitutional amendment, of the CRPD, as well as its Optional Protocol from 2015, and the introduction of quotas for persons with disabilities in the sphere of federal institutions of higher education. As regards the effectiveness of affirmative actions concerning access to higher education for persons with disabilities, it is also relevant to look at the case law of the higher courts on this topic. In this sense, the Special Appeal 1,607,472, judged by the Superior Court of Justice on 15 September 2016, was based on a civil suit brought by the Federal Prosecution Office against a federal university. The suit aimed to compel the university to finish accessibility works in its facilities, because the Prosecution Office had been requesting these measures for over a decade and had even started a civil investigation. In this case what was at play was the compliance with Law 10,098/2000 and also Decree 5,296/2004, previously mentioned. The Court’s decision considered that the right that was being discussed had been classified by the legislator as having absolute priority by including it in the concept of existential minimum (in the sense of a right to live a life with dignity), and this would authorise the judiciary to determine the inclusion of sufficient resources in the State budget, mainly because the lack of funds was not demonstrated by the State. This case refers to article 23 of Law 10,098/2000, which determines that the direct and indirect federal Public Administration will annually provide a budget appropriation for adaptations, eliminations and suppressions of architectural barriers that may exist in buildings of public use that it owns and those that are being administered or used by it. This makes one wonder whether they did not act precipitately in using a category called ‘absolute priority’ to justify the non-incidence, in the abstract, of the ‘proviso of the possible’. The lack of proof regarding the absence of funds, the minimum existential need and the duty of article 23 already provided a sufficient foundation for this.56 The Direct Action for the Declaration of Unconstitutionality – In Portuguese Ação Direta de Inconstitucionalidade – ADI) 5.357 MC-REF-DF was filed against article 28, paragraph 1 and the head of article 30 of PDA which, as previously mentioned, clearly establish that private educational institutions are obliged to implement the PDA. The obligation for private schools to provide specialised care would be a high cost measure that would render many of the private schools unworkable. Although here the key word ‘private schools’ is being used, it should be underscored that the aforementioned legal provisions include the private entities of higher education. Keeping the possible economic proportions

56 STJ, Segunda Turma, REsp 1.607.472-PE, judge-rapporteur Herman Benjamin, unanimously, 15 September 2016, DJe 11/10/2016: https://www.jusbrasil.com.br/diarios/127799981/ stj-11-10-2016-pg-2350

196  Ingo Wolfgang Sarlet and Gabrielle Bezerra Sales Sarlet between the entities of the different levels of education in perspective, there is a thematic parallel that renders this decision equally relevant for higher education. Moreover, the entity that filed the action, the National Confederation of Educational Institutions57 has two universities affiliated to it.58 The Court’s decision implies that private actors must also comply with the constitutional regulations involving the Brazilian system of education. The Court also sees inclusive education as a permanent policy, requiring the institutions to adapt in order to receive persons with disabilities. All hindrances – which are seen in the decision as true deficiencies of society – must be eliminated. According to the Court, the PDA is a response to the ethical commitment to the welcoming and democratic plurality resulting from the Constitution, precisely to establish that the fundamental right to education, which is contained in that law, is binding on private schools. Moreover, it considers inclusive education at all levels an imperative resulting from the CRPD and from the FC itself, which is expressed by a specific rule. The ADI was considered unfounded by a majority of opinions.59

Concluding remarks In summary, the criterion of disability and the particular situation of persons with disabilities are major challenges not only for the adequate management of the right to equality and the right to education in all its dimensions, but above all for a State and society that intend to respect and promote human dignity and accomplish the principle of solidarity through the effective integration of vulnerable groups and the necessary intolerance towards discrimination. Through its incorporation into domestic law, with the force of a constitutional amendment, the CRPD already meant a growth in terms of national measures to promote the protection against acts of discrimination, and the recognition and improvement – through affirmative actions – of equal opportunities. However, the social efficacy of the legal framework for persons with disabilities is still far from the standard that might be considered satisfactory and appropriate according to the national and international normative parameters. As regards the problem of material equality in terms of equal opportunities and of overcoming factual inequalities, it has been shown that the implementation of the right to higher education of disabled people in Brazil is still deficient, especially due to the lack of coverage of the number of persons with disabilities both in face-to-face education and in distance learning education. It was also found that, in general, higher education continues to be an almost unreachable step for most Brazilians with disabilities, notably for people with 57 Confederação Nacional dos Estabelecimentos de Ensino (CONFENEN]. Information obtained on the site of CONFENEN. Outros filiados:https://confenen.org.br/ . 58 STF, ADI 5357 MC-Ref. Judge-rapporteur: Edson Fachin, 9 September 2016: http://portal.stf. jus.br/processos/downloadPeca.asp?id=310709378&ext=.pdf. 59 Ibid.

Disability in higher education in Brazil  197 low income, above all because of the general intolerance of society in relation to those who are different, the lack of knowledge and general lack of enforcement of the laws that still prevails in Brazil and the lack of commitment by some higher education institutions with regard to complying with the law and adopting inclusive measures. It may, however, be inferred that some relevant practices can already be recognised in the shaping of a more inclusive panorama, especially as regards the normative framework that was constructed especially since the enactment of the FC, the laws that were issued by the legislative power, the positioning of legal scholarship and the production of case law that will be appropriate to make the presence of persons with disabilities mandatory in higher education. Although the current percentage of persons with disabilities enrolled in the federal system of education is still not sufficient, it has increased significantly in recent years. Nevertheless, there are still many barriers concerning how and to what extent the government, society and the families themselves, in a process of shared responsibility, as required by the constitutional and legal framework, deal with these challenges, in which the implementation of equality and the fulfilment of the human and fundamental rights of persons with disabilities are at stake.

10 Achieving substantive equality Mainstreaming duties to complement affirmative action measures Erica Howard Introduction This chapter examines mainstreaming duties as they exist in the European Union (EU) and the United Kingdom (UK). The UK is composed of England, Scotland, Wales, together referred to as Great Britain and Northern Ireland. The Equality Act 2010 is the main anti-discrimination legislation in Great Britain and applies to England, Scotland and Wales. Northern Ireland has separate anti-discrimination legislation and contains a different mainstreaming duty. Because of historical circumstances, Northern Ireland’s equality law developed differently to the rest of the UK.1 If a duty to mainstream equality is imposed on an authority or organisation, it means that they must take equality into account in everything they do, including in their decision making, policy development, service delivery and employment practices. It means that they need to consider the impact of all their actions on equality and on the groups protected by anti-discrimination legislation. A mainstreaming duty aims to prevent discrimination and ‘is a more forward-looking, pro-active and positive mechanism, which moves beyond the need to identify an individual victim and perpetrator and thus beyond a formal equality concept’.2 This chapter examines the commitment in EU law to mainstreaming equality and non-discrimination, as well as analysing the Public Sector Equality Duty contained in section 149 of the British Equality Act 2010 (EA 2010).3 This section states that a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination and other prohibited conduct, to advance equality of opportunity, and to foster good relations. A similar duty can be found in section

1 See on this: Howard, E. Affirmative action in the UK and in South Africa. In: Baez, N; DominguezRedondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018. PP. 201–202. 2 Howard, E. The EU race directive: developing the protection against racial discrimination within the EU. London/New York: Routledge/Taylor Francis Group, 2010. P. 164. 3 The Equality Act 2010: https://www.legislation.gov.uk/ukpga/2010/15/contents (accessed 16 January 2020).

Mainstreaming equality  199 75 of the Northern Ireland Act 1998. The duty can also be referred to as a duty to mainstream equality. The duty means that public authorities need to be proactive in preventing discrimination and advancing equality. It is argued that this duty can provide a clear addition to the affirmative action measures as discussed throughout this book, in order to reach substantive equality or real equality in practice for all people.

Mainstreaming duties in Europe The EU has a duty to ‘mainstream’ equality in all its activities under Article 8 and 10 of the Treaty on the Functioning of the European Union (TFEU). Article 8 determines: ‘In all its activities, the Union shall aim to eliminate inequalities and to promote equality between men and women’; while Article 10 prescribes that ‘in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. The EU mainstreaming duty thus applies to all grounds of discrimination covered by EU anti-discrimination law. Mainstreaming has been defined by the EU Commission (in relation to gender equality) as ‘mobilising all general policies and measures specifically for the purpose of achieving equality by actively and openly taking into account, at the planning stage, their possible effects on the respective situations of men and women’.4 However, these mainstreaming duties in the TFEU are imposed on the Union itself and not on the EU Member States. A gender equality mainstreaming duty is imposed on the Member States in Article 29 of Directive 2006/54/ EC, which reads ‘Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in this Directive’.5 Therefore, EU law imposes a mainstreaming duty on the Member States only with regard to gender discrimination. Whether such duties exist for other grounds of discrimination depends on whether the national law in the individual Member State provides for this.6 Bell, referring to racial and ethnic origin discrimination, writes that mainstreaming ‘entails the mobilisation of all areas of EU law and policy in order to combat racism and promote equality’.7 He explains what this implies in practical terms: ‘policy makers in all fields should ensure: (1) that any measures taken do

4 COM (96) 67, Communication from the Commission, Incorporating equal opportunities for women and men into all Community policies and activities. P. 2. 5 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Recast) [2006] OJ L 204/23. 6 For information on mainstreaming and other statutory duties in national law see: Crowley, N. Making Europe more equal: a legal duty? Brussels: Equinet, 2016: http://www.archive.equinet europe.org/Making-Europe-more-Equal-A-Legal-Duty. 7 Bell, M. Racism and equality in the European Union. Oxford: Oxford University Press, 2008, P. 2.

200  Erica Howard not discriminate on grounds of racial and ethnic origin; and (2) law and policy instruments are actively used to promote equality of all persons, irrespective of racial or ethnic origin’.8 This is the essence of the mainstreaming duty in the EU and it will be clear that this, especially in the second part, goes beyond formal equality to actively promote substantive equality for all. Apart from the EU, there is another body within Europe, the Council of Europe, which is the European Human Rights body and which adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950. The Council of Europe is not an EU body, but a separate entity specifically covering human rights, including the right to equality and non-discrimination. The Council of Europe has 47 Member States, including all 27 Member States of the EU, so the latter are covered by both the EU legislation and the 1950 Convention. The European Commission against Racism and Intolerance of the Council of Europe has recommended that legislation to combat racial discrimination should place public authorities under a duty to promote equality and to prevent discrimination in carrying out their functions.9 The Explanatory Notes make clear that the Recommendation only covers public authorities but the Commission makes clear that it would be desirable to also impose a similar obligation on the private sector.10 The European Institute for Gender Equality, a body set up by the EU, describes gender mainstreaming as involving ‘the integration of a gender perspective into the preparation, design, implementation, monitoring and evaluation of policies, regulatory measures and spending programmes, with a view to promoting equality between women and men, and combating discrimination’.11 In other words, mainstreaming equality means that the authority or organisation which is subject to the duty, must take equality into account in everything they do, including policy development, decision making, service delivery and employment. It means that they need to consider the impact of their actions on equality and on the groups protected by anti-discrimination laws in their day-to-day activities. It is clear that this can be applied to other discrimination grounds beyond gender as well. Fredman explains that (gender) mainstreaming duties are developing to achieve substantive equality. Because of the tenacity of gender inequality, other approaches are emerging which aim at institutional change through proactive measures to promote equality.12 This statement again can be applied to other discrimination grounds. The reason that gender mainstreaming has received more attention

8 Ibid. 9 European Commission against Racism and Intolerance. General Policy Recommendation No.7 on national legislation to combat racism and intolerance, adopted 13 December 2002, amended 7 December 2017. Para. 8. 10 Ibid., Para. 27. 11 European Institute for Gender Equality. What is gender mainstreaming? https://eige.europa. eu/gender-mainstreaming/what-is-gender-mainstreaming. 12 Fredman, S. Making equality effective: the Role of proactive measures. Brussels: European Network of legal Experts in the Field of Gender Equality, European Commission, 2009. P. 1.

Mainstreaming equality  201 within the EU than other forms of equality mainstreaming is that rules on equal pay between men and women have been part of the EU Treaties from the start of the EU and that EU legislation against gender discrimination has been in place since 1976, while legislation against other forms of discrimination (racial or ethnic origin, religion or belief, disability, age and sexual orientation) was not enacted within the EU until 2000. Fredman’s statement mentions a number of interesting aspects of mainstreaming duties. First, the focus is on substantive equality and institutional change. The traditional approach to discrimination relies on an individual complaints model of adjudication, where an individual challenges discrimination before a court or tribunal after discrimination has happened. The burden and expense of litigation are on the individual who needs to prove discrimination against a known perpetrator. If they are successful, they will obtain an individual remedy, which might not change the perpetrator’s behaviour or make discrimination, against the same victim or against others, less likely to occur. A mainstreaming duty can address the institutional and structural causes of inequality. Second, and related to the first point, Fredman mentions proactive measures to promote equality. The individual complaints model is reactive: it is activated after discrimination has taken place. In contrast, the mainstreaming duty is proactive: it requires an authority or organisation to prevent discrimination before it occurs and to promote equality from the start; it also puts the initiative on policymakers, decision makers, employers and service providers to be proactive on equality. In other words, the responsibility is placed on the organisation which is most able to tackle the issue rather than putting the burden on an individual to make a complaint of discrimination. Mainstreaming duties thus not only aim at institutional but also at societal change. In this sense, they can clearly be seen as going beyond formal equal treatment to advance equality in a more substantive way, to achieve full equality in practice.

Equality duties in the UK Northern Ireland A good example of a mainstreaming or equality duty is the duty that exists in Northern Ireland to have due regard to the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; between men and women generally; between persons with a disability and persons without; and, between persons with dependants and persons without. This duty was introduced by Section 75 of the Northern Ireland Act 1998. Under Section 75(2), public authorities shall also ‘have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group’.13 Allegations



202  Erica Howard that public authorities have breached substantive elements of these duties can be challenged in a civil court by way of judicial review. According to Crowley, ‘this process has rarely been used in Northern Ireland and no Court has made any findings of breach of duty against any public authority in the few challenges that have been made’.14 The Equality Commission Northern Ireland (ECNI) plays an important role in ensuring compliance and has been very successful in doing so. This success explains why challenges by way of judicial review are so rarely used. Public authorities must submit their equality schemes to the ECNI for approval, and they will only be approved if they conform to the ECNI’s guidelines. If they are not approved, the matter can be referred to the Secretary of State for Northern Ireland, who may impose a suitable equality scheme, but this has never occurred.15 The ECNI has enforcement powers to consider complaints against authorities about a failure to comply with their equality schemes and it can undertake investigations on its own initiative where it believes there is such a failure. It can then make recommendations to rectify any failure. If these recommendations are not followed, the public authority can be referred to the Secretary of State for Northern Ireland who can issue directions.16

Great Britain Another example of a mainstreaming duty is the public sector equality duty laid down in section 149 of the EA 2010, which applies to England, Scotland and Wales. Section 149(1) determines that: A public authority must, in the exercise of its functions, have due regard to the need to a b c

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The Equality and Human Rights Commission (EHRC) has published guidance on this duty which states that ‘the broad purpose of the general equality duty is to integrate considerations of equality and good relations into the day-today business of public authorities’. And, ‘if a public authority does not consider

authorities. 2010: https://www.equalityni.org/ECNI/media/ECNI/Publications/Employers %20and%20Service%20Providers/S75OutlineGuideforPAs2012.pdf. 14 Crowley, N. (supra note 6, P. 34). Judicial review proceedings will be discussed in more detail below where we discuss the public sector equality duty in Great Britain. 15 Crowley, N. (supra note 6, P. 35). 16 Ibid.

Mainstreaming equality  203 how a function can affect different groups in different ways, the function may not meet its own objectives’.17 It then states that the duty ‘requires equality to be considered in decision-making, in the design of policies and in the delivery of services, including internal policies, and for these issues to be kept under review’.18 Like the mainstreaming duties discussed above, this duty thus obliges public authorities to take equality into account in all their activities, including policy development, decision making, service delivery and employment. In other words, the duty applies to all the authority’s functions. It means that, before adopting a policy, the decision-maker must pause and consider which impact the proposed course of action could have on equality and on the different groups protected by the EA 2010. Section 149 EA 2010 explains a number of issues in more detail. First, the definition of ‘public authority’ is wide19 and includes, according to section 149(2), a person who is not a public authority but who exercises some public functions, but only in relation to these functions. Second, in relation to the part of the duty to advance equality of opportunity, section 149(3) explains that this means that public authorities must have due regard, in particular, to the need to: (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that is different from the needs of persons who do not share it; and, (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. Before the EA 2010 introduced a general public sector equality duty, there were three similar equality duties for race (since 2000), disability (since 2006) and gender (since 2007), 20 which were all formulated in similar ways. In Elias, the Court of Appeal held that the race equality duty required public bodies ‘to give advance consideration to issues of race discrimination before making any policy decision’. It was pointed out that ‘this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation’. 21 The three previous duties have

17 Equality and Human Rights Commission. The essential guide to the public sector equality duty, 2014. P. 8: https://www.equalityhumanrights.com/sites/default/files/psed_essential_guide_-_ guidance_for_english_public_bodies.pdf. 18 Ibid., P. 9. 19 See Schedule 19 EA 2010 for the definition. Limited exceptions can be found in Schedule 18 EA 2010. 20 The race equality duty was imposed on public authorities by the Race Relations (Amendment) Act 2000; the disability equality duty was imposed on public authorities by the Disability Discrimination Act 2005; and, the gender equality duty was inserted into the Sex Discrimination Act 1975 by the Equality Act 2006. All three duties have now been repealed by the EA 2010 and the general PSED has replaced them. 21 Arden, L.J. R (on the Application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293. Para. 274.

204  Erica Howard now all been replaced by the general public sector equality duty. However, the earlier duties mentioned ‘promoting’ rather than ‘advancing’ equality of opportunity. According to Hepple, this change in wording is significant and ‘indicates a more proactive approach that focuses on making progress in outcomes’. 22 This, again, indicates that the duty clearly aims at substantive equality. Third, according to section 149(5) EA 2010, ‘having due regard to the need to foster good relations’ involves having due regard, in particular, to the need to tackle prejudice and promote understanding. Fourth, section 149(6) makes clear that compliance with the duties ‘may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act’. So the duty could include taking affirmative action measures within what is allowed in sections 158 and 159 EA 2010.23 And, although affirmative action measures might thus be part of the duty imposed on public authorities, it will be clear from the above that the duty goes beyond affirmative action measures to include other measures promoting equality and non-discrimination. However, the duty is to ‘pay due regard to’ the need to eliminate discrimination, advance equality of opportunity and foster good relations. Case law has explained what ‘due regard’ means in relation to the previous race equality duty. In Baker, Dyson LJ said: What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.24 In Brown, 25 a case regarding the previous disability equality duty, the High Court considered what a public authority has to do to fulfil its obligation to have due regard to the aims set out in the equality duty. This case established six principles which are now referred to as the six Brown principles. These Brown principles have been used by courts to assess whether the public sector equality duty has been fulfilled. These six principles are: 1 Decision makers must be made aware of their duty to have ‘due regard’ to the identified goals. The public authority must consciously think about

22 Hepple, B. Equality: the legal framework. 2nd ed. Oxford/Portland Oregon: Hart Publishing, 2014. P. 164. 23 See on this my earlier chapter (Chapter 4) in this book. 24 Dyson, L.J. R (on the application of Baker & Others) v Secretary of State for Communities and Local Government, London Borough of Bromley [2008] EWCA Civ 141. Para. 31. 25 R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158.

Mainstreaming equality  205

2

3

4

5

6

the need to follow the objectives set out in the general equality duty as an integral part of the decision-making process. The due regard duty must be fulfilled before and at the time that a particular policy is being considered by the public authority in question, not after the decision on the policy has been taken. And, the duty must be taken into account not only when a policy is developed and decided upon, but when it is being implemented as well. The duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of ‘ticking boxes’. The latter is a reaction to the accusation that the implementation of the race equality duty was limited in practice, particularly because it had led to a focus on compliance rather than on achieving substantive equality outcomes. In other words, it had led to the development of a ‘tick box’ mentality.26 The duty is non-delegable. Responsibility for the general equality duty cannot be delegated to external organisations that are carrying out functions on the public authority’s behalf. The duty is a continuing one. So, public authorities may need to review policies or decisions in light of the general equality duty, for example, if the make-up of service users changes. It is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their duties and pondered relevant questions. Although the public authority is not legally required to keep records of its consideration of the aims of the general equality duty in making decisions, it is good practice to do so and it encourages transparency. If a body is challenged it will be difficult to demonstrate that it has had due regard to the aims of the general equality duty if it has not kept records.

These Brown principles are also applied in Northern Ireland and have been communicated to public authorities in guidance from the ECNI. All the above suggests that equality needs to be taken into account and weighed off against other priorities and interests, and, so long as the public authority carefully does this, it will comply with its equality duty. There is thus an implicit recognition that public authorities have other interests that they also need to consider. This was expressly mentioned in R (on the application of W) v Birmingham City Council, where the court held that local authorities have a duty to seek value for money and to balance the interests of local taxpayers with those of service recipients.27

26 See, for example: Vickers, L. Promoting equality or fostering resentment? The public sector equality duty and religion and belief. 31, 1 Legal Studies (2011) P. 137; House of Lords Select Committee on the Equality Act 2010 and disability. The Equality Act 2010, the impact on disabled people. Report of Session 2015–2016, HL paper 117. 2016. Para. 341: https://publications. parliament.uk/pa/ld201516/ldselect/ldeqact/117/11702.htm. 27 R (on the application of W) v Birmingham City Council [2011] EWHC 1147. Para. 182.

206  Erica Howard The duty, according to section 156 EA 2010, does not give rise to any enforceable private law rights. This means that an individual cannot sue the authority for failing in its equality duty and claim compensation. The Explanatory Notes to the EA 2010 give the following example which illustrates this: A local council fails to give due regard to the requirements of the public sector equality duty when deciding to stop funding a local women’s refuge. An individual would not be able to sue the local council as a result and claim compensation. She would need to consider whether to pursue judicial review proceedings. This already indicates that the public sector equality duty is enforceable through judicial review proceedings. In relation to the duties which existed before the EA 2010 came into force, it was held that these were enforceable by way of judicial review proceedings, either brought by the EHRC or by any section of the public which can demonstrate sufficient interest to have legal standing for this purpose. However, judicial review, even if successful, might not lead to a different decision. Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, it challenges the way in which a decision is made, not the rights and wrongs of the decision. This means that the court will not look at the contents of the decision, but that it will only assess whether the public body has fulfilled its duty and taken equality considerations into account. If the court finds that the public authority has not done so, it can quash the decision. This overturns the decision and means that the public authority must reassess the decision, considering its duties under section 149 EA 2010. The authority could, however, make the same decision again after a proper assessment of its impact on equality and non-discrimination. Therefore, a successful challenge under judicial review might not lead to a change in the decision. Apart from being able to bring judicial review proceedings, the EHRC has been given an important role in the enforcement of the public sector equality duty because it has a number of statutory powers. The powers and competences of the EHRC can be found in the Equality Act 2006. Under section 31 EA 2006, the EHRC can assess whether a public authority has complied with the equality duty and, if it has not, the EHRC can, according to section 32 EA 2006, issue a compliance notice, requiring specific action. In practice, the EHRC will always first try to promote and encourage compliance, before it takes formal enforcement action. The compliance notice can require public authorities to provide information about how they will comply. It will also give the authority a specific period of time, for example three months, to comply with its public sector equality duty. If the authority has not complied with the notice within the time given, the EHRC can seek a court order requiring compliance. The EHRC can also enter into a formal agreement with a public authority under section 23 EA 2006, which usually include implementing an action plan to address the

Mainstreaming equality  207 breach of the equality duty and to prevent future breaches. Additionally, the EHRC can intervene in legal proceedings related to section 149 duty or related to other equality issues by providing the court with expert advice to help it reach its decision. In 2013, the government established a review of the public sector equality duty to examine whether it is operating as intended.28 The Steering Group which undertook the review reported that, ‘in far too many cases, we have uncovered useless bureaucratic practices which do nothing for equality. No-one seems to ask, “Could I do less and have the same beneficial effect?”’.29 The Steering Group found that, although there was broad support for the principles behind the duty, the main challenges were in implementing it. It did not recommend any changes to the EA 2010 but made recommendations for the government, the EHRC and for public authorities on how to deal with these challenges. The Steering Group believed it was too early to make a final judgement about the impact of the public sector equality duty because it had only been in force for two years and the evidence of its impact was inconclusive. The Steering Group also commented that the nature of a ‘due regard’ duty is open to interpretation and this means that public authorities often adopt an overly risk-averse approach to managing legal risk in order to rule out every conceivable possibility.30 There is thus no recommendation to repeal the duty in the report, but a number of recommendations are made regarding its implementation. The Steering Group also recommended a full review in 2016. The Government’s response agreed to hold a review in 2016, once the duty had been in force for five years.31 The EHRC also responded to the Steering Group’s review and regretted that the Group had not looked at the EHRC’s extensive guidance. However, there is, at the time of writing of this chapter, no indication as to whether and when this review will take place. The 2018 Parliamentary Briefing Paper on the public sector equality duty does not refer to any planned review either.32

28 Review of the public sector equality duty: Report of the Independent Steering Group (September 2013): http://webarchive.nationalarchives.gov.uk/20141207035155/https:/www.gov.uk/ government/uploads/system/uploads/attachment_data/file/237194/Review_of_the_Public_ ­ Sector_Equality_Duty_by_the_Independent_Steering_Group.pdf; For the report that informed this review, see: Arthur, S; Mitchell, M; Graham, J; Beninger, K. (for NatCen) Views and experiences of the public sector equality duty (PSED). Qualitative research to inform the Review, September 2013: https://www.gov.uk/government/uploads/system/uploads/attachment_ data/file/237200/PSED_Revised_Report_Final_030913_-_FINAL.PDF. 29 Review. (supra note 28, P. 6). 30 Ibid., PP. 6–7 and 10–11. 31 Pyper, D. The public sector equality duty and equality impact assessments. Briefing paper 6591, March 2018, P. 20: https://researchbriefings.parliament.uk/ResearchBriefing/Summary/ SN06591. 32 Ibid.

208  Erica Howard

Assessment of the public sector equality duty in Great Britain The technical guidance from the EHRC explains that the duty ‘is intended to accelerate progress towards equality for all, by placing a responsibility on bodies subject to the duty to consider how they can work to tackle systemic discrimination and disadvantage affecting people with particular protected characteristics’.33 From this it will be clear that the duty aims to go beyond formal equality and to work towards a more substantive form of equality. But has the duty led to more substantive equality, to more equality in practice? As mentioned above, the previous equality duties often led to a ‘tick box’ mentality, where a public authority was focused more on compliance than on outcomes. However, research found, in relation to the new duty in section 149 EA 2010, that ‘the general principles of the equality duty were felt to be simpler and easier to grasp than previous equality requirements, particularly the application of the same duty to the nine protected groups. This made it easier to promote understanding across organisations’.34 Therefore, a general duty covering all grounds of discrimination in the EA 2010 might be more effective in this regard. On the other hand, one point of criticism has been the vagueness of the term ‘due regard’. The House of Lords Select Committee reported, in 2016, that most of the evidence they heard concerned the reliance on the concept of ‘due regard’, which was too non-specific, caused confusion about what the duty means in practice and what the legal requirements are.35 The Committee went on that ‘the problem was not, however, only one of understanding’; another problem was its weakness.36 According to Fredman and Spencer, the weakness of the duty is that the authority is only required ‘to give proper consideration to the need to act, rather than to act. “Due regard” leaves the authority to decide, having taken that need into account along with its other priorities, whether to take any action at all’.37 Fredman and Spencer, writing in 2006 and thus before the general duty was introduced, suggested that a stronger duty to promote equality for public bodies in Europe should be imposed in the following words: ‘a public authority shall, in carrying out its functions, take such steps as are necessary and proportionate to eliminate discrimination and to achieve the progressive realisation of equality’.38 When the Bill, which was to become the EA 2010, went through Parliament, it was proposed to add an 33 Equality and Human Rights Commission. Technical guidance on the public sector equality duty: England. 2014. Para. 2.10: https://www.equalityhumanrights.com/sites/default/files/ technical_guidance_on_the_psed_england.pdf. 34 Arthur, S; Mitchell, M; Graham, J; Beninger, K. (supra note 28, P. 4). 35 House of Lords Select Committee (supra note 26, Para. 333). 36 Ibid., Para. 334. 37 Fredman, S; Spencer, S. Beyond discrimination: it’s time for enforceable duties on public bodies to promote equality outcomes. 6 European Human Rights Law Review (2006) PP. 600–602. 38 Ibid., P. 604.

Mainstreaming equality  209 extra subsection to section 149(1) which read: ‘to comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1)’.39 This amendment was considered necessary because ‘if the duty is to achieve its full potential, it is crucial that the Bill should make clear that the obligation to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations includes a requirement to take proportionate steps towards the achievement of those aims’; and, an authority would only be compliant ‘through taking appropriate and proportionate steps towards equality’.40 The amendment was developed with and supported by a number of stakeholders who wanted ‘to see public authorities instituting effective changes to policies and practices to achieve real progress towards equality’.41 However, the Government rejected this amendment, claiming that ‘it would disturb the balance achieved by the current wording of the equality duty’ and create further confusion.42 The government argued that the courts had made clear that public authorities needed ‘to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality’ and that this requires that ‘the equality impact to be considered rigorously and with an open mind’.43 The Government thus argued that the amendment was not necessary because the courts had already clarified what the equality duty required. Whether this was the case is questionable: in 2016, the House of Lords Select Committee on the Equality Act 2010 and Disability found it necessary to recommend the same amendment because of the weakness of the ‘due regard’ test.44 On the other hand, the stronger formulation suggested by Fredman and Spencer, the proposed amendment when the Bill went through Parliament and the amendment suggested by the House of Lords in 2016, all suggest that a public authority should apply a proportionality assessment. In the discussion on the House of Lords amendment, it was stated that ‘proportionality is central to the meaning of the equality duty’ and that ‘proportionate steps in relation to a particular function of an authority will be steps that are proportionate to the relevance of equality to that function, taking account of the other obligations on the authority, its size and resources’.45 This is also what the Government was saying in their reply. In 2015, the UK Supreme Court confirmed that the regard which must be had is what is ‘appropriate in the circumstances’ and that

39 Hansard HL volume 717. Column 1398: https://publications.parliament.uk/pa/ld200910/ ldhansrd/text/100302-0012.htm. 40 Ibid. 41 Ibid., Column 1399. 42 Ibid., Column 1401. 43 Ibid. 44 House of Lords Select Committee. (supra note 26, para. 346). 45 Hansard HL volume 717. (supra note 39, Columns 1398 and 1399).

210  Erica Howard it is not ‘possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment’.46 All this strongly suggests that a proportionality test, a balancing of all interests involved needs to be done by the public authority to fulfil the public sector equality duty. As mentioned above, the impact of decisions and policies of public authorities on equality and non-discrimination of people with protected characteristics needs to be taken into account, but it needs to be balanced against other interests pursued by the authority. And, as the Supreme Court stated, this very much depends on the facts of each individual case. Because this test is factsensitive, the assessment is made on a case-by-case basis which makes it difficult to put down general rules. As the government put it ‘if public bodies had to take appropriate steps in relation to all protected characteristics this would spread their finite resources more thinly and some persons with more pressing needs would end up with less’.47 All this suggests that fulfilment of the duty includes a proportionality test, even if this is not specifically mentioned in section 149 of the EA 2010. What is also important is the way the duty is enforced. The enforcement of the equality duty in Northern Ireland by the ECNI is very successful and this could be seen as an example of good practice. In relation to the public sector equality duty in Great Britain, we have seen that the use of judicial review proceedings has its own drawbacks, although it can be and has been successful in a number of cases. Another way of enforcing the duty is through the EHRC, which has been given several powers to enforce the duty. However, as a 2018 research report commissioned by the EHRC highlights, the Commission needs adequate financial support and authority from government in order to fulfil its compliance role.48 Concerns were expressed about the effect of the UK government’s funding cuts on the ability of the EHRC to play its compliance role in full.49 The report points to research that shows that under-compliance with the public sector equality duty can be attributed in part to a perception among public authorities that the duty will not be sufficiently enforced.50 Adequate arrangements for enforcing equality or mainstreaming duties are therefore crucial. Another way of enforcing the equality duty might be through indirect discrimination provisions. As Hepple points out, it might be that a failure to discharge the duty provides evidence of discrimination or can be used to rebut a justification defence against an indirect discrimination claim brought by individuals.51 46 Hotak v London Borough of Southwark, Kanu v London Borough of Southwark, Johnson v Solihull Metropolitan Borough Council [2015] UKSC 30. Para. 74. 47 Ibid., Column 1402. 48 Kotecha, M; Bury, J; Lakey, J; Barnard, M. (for NatCen) Reviewing the aims and effectiveness of the public sector equality duty (PSED) in Great Britain. Equality and Human Rights Commission. Research report 116. 2018. P. 29: https://www.equalityhumanrights.com/sites/default/ files/review-of-public-sector-equality-duty-psed-effectiveness.pdf. 49 Ibid. 50 Ibid., For the research see the references in this report. 51 Hepple, B. (supra note 22, P. 173).

Mainstreaming equality  211 In other words, a failure to discharge the equality duty would make indirect discrimination more difficult to justify. This is supported by the considerations of Mummery LJ, in the Court of Appeal in Elias, that the Secretary of State ‘has to justify an act of discrimination committed in the carrying out his functions when, in breach of an express duty, he failed even to have due regard to the elimination of that form of unlawful race discrimination’; and, that, ‘in these circumstances the court should consider with great care the ex post facto justifications advanced at the hearing’.52

Conclusions In this chapter, we examined equality mainstreaming in the EU, the equality duty in Northern Ireland and, specifically, the public sector equality duty as laid down in Section 149 of the EA 2010, which applies to Great Britain. This section imposes on public authorities, in the exercise of their functions, a duty to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations. The advantage of a mainstreaming duty or a duty to promote or advance equality is that it is a proactive way to achieve substantive equality; and, that the responsibility to achieve this lies with the organisation which is most able to tackle the issue rather than putting the burden on an individual to make a complaint of discrimination. The 2018 research report mentioned above explains the conceptual and normative contours of the duty as well as its strength and weaknesses.53 In reply to the question ‘how central the duty should be in the functioning of the public authority’, the report writes: ‘a positive duty should require equality to be a core responsibility for public authorities. An equality duty should integrate considerations around equality and good relations into the day-to-day business of public authorities’.54 The report continues that ‘the evidence suggests that a statutory requirement to mainstream equality considerations in daily functions is a key driver to promote a culture within public authorities of proactively addressing equality issues as part of their business-as-usual’.55 It is submitted that this is what a mainstreaming duty like the public sector equality duty should do: create a different culture within a public authority so that equality considerations become woven into all its functions and equality is taken into account automatically and at all times. Both the public sector equality duty and the affirmative action measures, as examined in my earlier chapter in this book, can be found in Part 11 EA 2010 under the heading ‘advancing equality’. Therefore, both aim at going beyond formal equal treatment to advance substantive equality. The public sector 52 Mummery, L.J. R (on the Application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293. Para. 133. 53 Kotecha, M; Bury, J; Lakey, J; Barnard, M. (supra note 48). 54 Ibid., P. 23. 55 Ibid.

212  Erica Howard equality duty includes taking affirmative action measures where necessary, as section 149(6), mentioned above, makes clear that compliance with the duties may involve treating some persons more favourably than others. However, the duty goes beyond this and includes all measures which would eliminate discrimination, advance equality of opportunity and foster good relations. Therefore, in this sense, the equality duty goes beyond the provisions for affirmative action in sections 158 and 159 EA 2010. On the other hand, the latter provisions can be used by all authorities, including employers, whether public or private. In this, the affirmative action provisions can be said to be applicable in a wider context. It must be noted that there is no reason why the equality duty could not be extended to private actors as well.56 It is submitted that equality mainstreaming duties and affirmative action measures are, and should be, complimentary ways of achieving substantive and real equality in practice for all people, whatever their characteristics. As Hinds and O’Kelly write, affirmative action and equality mainstreaming ‘are neither opposed to each other, nor entirely discrete’ but that they ‘lie in a continuous relationship to each other, differing in emphasis and degree rather than being categorically distinctive’.57 Equality mainstreaming duties are, therefore, a useful addition to affirmative action measures in the quest for substantive equality and both must be combined with and supported by economic and social policies as well as measures in the field of education and awareness-raising campaigns, as we concluded in our earlier chapter in this book.

56 See European Commission against Racism and Intolerance (supra note 9, para. 27); Hepple criticises the British Government for not proposing to extend the duty to the private sector, see: Hepple, B. The aims of equality law. 61 Current Legal problems (2008) P. 18; Fredman also finds it regrettable that private bodies are not covered by the equality duty, see: Fredman, S. Public sector equality duty. 40, 4 Industrial Law Journal (2011) P. 415. 57 Hinds, B; O’Kelly, C. Affirmative Action in Northern Ireland. In: Kenedy-Dubourdieu, E. (Ed.) Race and Inequality. London/New York: Routledge/Taylor & Francis Group, 2006. P. 105.

11 Conclusions Elvira Dominguez-Redondo and Erica Howard

The affirmative action measures analysed in this book are very varied in a number of ways, including their legislative basis, the approach adopted, the forms of implementation and the groups that are targeted by these measures. All measures aim at a more substantive form of equality, at equality in practice or de facto equality, for members of groups that have been discriminated against in the past and are often still the subject of less favourable treatment at the present time. All affirmative action measures are based on the realisation that formal equality, equality before the law, is not enough to make society more equal. Chapter 1 explains that adopting legislation that everyone is equal before the law and is entitled to equal protection of the law is the first step in adopting equality legislation. However, such legislation does not address the existing inequalities and social disadvantages in which certain groups in society find themselves because of historical and ongoing discrimination. To remedy these inequalities, a more substantive concept of equality as an additional basis for anti-discrimination law was developed which encompasses affirmative action. In Chapter 1, it was argued that laws allowing for affirmative action could aim at different conceptions of de facto equality: equality of opportunity or equality of results. Laws aiming at a concept of equality of opportunity concentrate on equalising the starting point for everybody, on reaching the point where everyone is alike and thus can be treated alike. Laws aiming at equality of results concentrate on the end result. Such laws aim to correct unequal distribution of goods and resources in society and to achieve a more representative participation of all groups in public life. However, affirmative action measures, whether they aim at equality of opportunity or at equality of results, most often mean that some groups will receive preferential or more favourable treatment than other groups. They often mean unequal or less favourable treatment of the groups that are not covered by the measures and this creates resentment and hostility against the targeted groups and leads to the view that those measures are ‘unfair’, as is clear in the different contributions in this book. In Chapter 2, Dominguez-Redondo examines the jurisprudence of treaty bodies in relation to affirmative action relevant to Belize, Brazil, Chile, China, Colombia, Costa Rica, Guatemala, Honduras, India, Mexico, Nicaragua, Panama, Peru, El Salvador, South Africa and the United Kingdom (UK). All these States

214  Elvira Dominguez-Redondo and Erica Howard have ratified most core human rights treaties including explicit equality provisions. In particular, they are all State parties of the Convention on the Elimination of All Forms of Discrimination against Women, the Convention  on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of Persons with Disabilities, which all contain specific provisions on affirmative action measures. In recent years, the international human rights machinery has been under intense criticism for failing to deliver its promises, especially, the promise of a more equal world.1 However, the analysis of the recommendations issued by treaty bodies as the result of their evaluation of periodic reports suggests that human rights bodies are focused on adopting an approach that prioritises attention to structural factors affecting the enjoyment of human rights, in particular, those with an impact on de facto equality. Still, treaty bodies have not harmonised their interpretations of equality and their recommendations remain more useful as a compilation of data than as a benchmark against which to measure the effectiveness of special measures in any given country. After the two introductory chapters, Part II examines the efficacy of affirmative action measures in a number of countries: China and India (Chapter 3), the UK and South Africa (Chapter 4), Brazil (Chapter 5), Argentina, Chile, Columbia, Peru (Chapter 6) and Central America (Guatemala, Belize, Honduras, El Salvador, Nicaragua, Costa Rica and Panama), including the inter-American system of human rights (Chapter 7). In Chapter 3, Castellino and Sen analyse the way in which politics in India and China is undermining the legal provision of affirmative action measures and diversity protection and the emerging existential threats in these two countries. Following an overview of the evolution of affirmative action measures in the world’s two most populous States, the authors argue that the two countries appear poised at a similar existential moment in their respective histories. They address the growing trend towards homogenisation, and the need to create a mechanism that provides equal rights and dignity to all, especially when significant parts of the population may not belong to the dominant ethnoreligious or social milieu that is in power, as the key battleground in both countries. Castellino and Sen conclude that the two incumbent governments, of Xi Jinping in China and Narendra Modi in India, and their advisors appear to be taking a U-turn from the policies of their predecessors, when it would be more in line with the pragmatism that characterises both States to celebrate their diverse cultures and to view their diversity as a means to engage wider markets and generate even greater opportunity and wealth. Although there are significant and valid critiques of affirmative action measures, these measures have served to placate and convince very diverse populations that their future lies within the State. Dismantling or undermining these for narrow political interests may not have as salutary an effect on the maintenance of the territorial integrity and unity of these States. 1 See especially, Samuel Moyn, S. Not enough human rights in an unequal world. Cambridge, MA: Harvard University Press, 2018.

Conclusions  215 Chapter 4 moves to the UK and South Africa. Howard provides an overview of the legislation as well as an examination of the implementation and efficacy of the measures and the obstacles to this. She concludes that a rather mixed picture emerges and that, despite the difference in approach between the UK and South Africa, the aim of affirmative action – to create a more equitable and representative work force and society – has not been achieved yet in either country. The reasons brought forward for this lack of efficacy were similar in the UK, the European Union (EU) and South Africa. One of the reasons was the importance of the merit principle – the principle that people should be selected for employment or promotion because of merit and not because they are part of a (historically) disadvantaged group. This is the reason why people often see affirmative action measures as unfair. Howard examines the duty to make reasonable accommodation for disabled people in the UK and South Africa as a specific form of affirmative action and argues that this form has generally been subject to less criticism. Northern Ireland has, according to Howard, the most successful affirmative action measures and these can be used as examples of good practice, but she cautions that it must be kept in mind that these were very much based on the specific situation there. This indicates that affirmative action measures are often very situation-specific. Howard concludes that affirmative action measures need to be used more widely and that they must be combined with and supported by economic and social policies as well as measures in the field of education and awareness-raising campaigns. She also suggests that a duty to mainstream equality could be an alternative but complementary way of achieving substantive equality. In Chapter 10, Howard then examines this duty in more detail. In Chapter 5, Baez looks at affirmative action measures in Brazil for five historically disadvantaged groups: women, Afro-Brazilians, Indians, disabled people and LGBT people. Especially since the enactment of the present Federal Constitution of 1988, which is based on the dignity and worth of the human person and the pursuit of full equality, affirmative action measures have been established for these groups which seek to achieve equality between them and the rest of the country’s population. Baez sets out for each of these five groups what affirmative action measures exist and looks at the allocation of the Federal Government’s budget for this. Each group has its own specific areas where problems occur. For example, regarding women he examines their representation in politics, their situation in employment and issues of violence against women. In relation to Indians, the main issue is the preservation of their culture and maintaining of their ancestral lands. Baez notes that Afro-Brazilians and disabled people suffer social exclusion and that education has been most successful in dealing with this issue. On the other hand, there are still big problems for these groups in employment. LGBT people have gained a number of civil rights, like the right to a recognised legal partnership, but are still the most discriminated minority social group in Brazil today. They are also often the target of hate crimes. They are the only minority group that does not have a specific allocation in the Federal budget exclusively set aside for them. Baez concludes that,

216  Elvira Dominguez-Redondo and Erica Howard for all five groups, lack of allocation of money from the Federal Government of Brazil’s budget has been the main reason why affirmative action measures were not successful. However, he also points to another contributing factor: the general attitude in society towards these groups, which can only be changed by awareness-raising campaigns. In Chapter 6, Obando Camino, Rayo-Urrutia, Olivares-Gallardo and HernándezFernandez analyse the efficacy of affirmative action measures in Argentina, Chile, Colombia and Peru. All four countries have adopted different affirmative action measures for historically excluded groups. In Argentina and Colombia, the constitution provides for these measures, while in Peru and Chile this is done by constructing the right to equality before the law in terms other than formal equality. The authors examine the vulnerable groups targeted by the affirmative action measures, which are in these four countries women, indigenous people and persons with disabilities. In Colombia, given the protracted internal armed conflict between the Government and the guerrillas within this territory, special constitutional status is given to persons displaced from their residence. Obando Camino et al. write that affirmative action measures have been constructed by the judiciary through the accommodation of issues of structural inequality and through constructing concepts, like reasonableness, rationality or proportionality. The influence of international human rights law is clear in many cases and has impacted positively both in the policy-making and the implementation process of affirmative action measures. The authors point out that both legal design and bureaucratic capabilities are of utmost importance for the implementation of affirmative action measures; and, that it is advisable to create national agencies to design and oversee their implementation process. Obando Camino et al. comment that the cases of Argentina and Colombia suggest that a constitutional recognition of vulnerable groups as recipients of special protection is important because this makes it easier to justify affirmative actions in public opinion, courts and parliaments. What is also seen as important is sufficient financial resources, and authors express the fear that fiscal austerity may have a negative impact. The overall analysis of the effectiveness of such measures reveals mixed results in the medium term, especially in their implementation. Cobos Campos examines, in Chapter 7, the successes and failures of affirmative action measures in Central America, analysing public policies, legislation and case law at both national, regional and international level. Central American countries have focused on gender, political rights and indigenous people and have ignored other important aspects such as Afro-descendants. She discusses affirmative action measures in Guatemala, Belize, Honduras, El Salvador, Nicaragua, Costa Rica and Panama and writes that each of these countries has its own particularities in relation to these measures and their implementation. The Inter-American system of Human Rights and its mechanisms and case law play a central role in the design and implementation of affirmative action measures in Central America. The case law does not refer to affirmative action measures as such, but it is clear that such action is supported. Cobos Campos concludes that there are many programmes which include affirmative action measures in the

Conclusions  217 countries of Central America, but that these have not had sufficient success to overcome the attitudes which anchor the inequalities in society, mainly because of lack of enforcement. Although the regional framework provides for affirmative action measures, none of the countries analysed has shown any real efficacy in this area. However, all countries have made efforts, and this has opened up ways for improvements to affirmative action measures in the future. The main obstacles can be found in the political sphere, as these measures are often designed without adequate research or without a clear structure, and without budget a llocations. Hence, Cobos Campos concludes that proper planning, adequate supervision and full implementation are the most important steps to improve the effects of affirmative action measures. After this overview of the efficacy of affirmative action measures and the obstacles that these measures face in the countries under scrutiny in this book, Part III contains two case studies of specific forms of affirmative action measures as well as a chapter on a complementary alternative to such measures in the form of equality mainstreaming duties. In Chapter 8, Nsubuga analyses gender diversity on corporate boards and the measures taken within the UK and the EU to improve this. Both the UK and the EU recognise the gender imbalance on boards of large public listed corporations and the negative effects of this on corporate performance. There has been some move to change this gender imbalance, but this is driven more because it is seen as an opportunity to boost corporate reputation rather than as a policy towards gender equality and diversity. Nsubuga examines the proposed EU Directive on Women on Company Boards from 2012, which sets a target of 40% female directors in each large company by 2020. This proposal has not been adopted to date and progress has stalled because there is no consensus between the EU Member States on how to transpose the binding nature of the Directive at national level. Nsubuga also analyses the current situation and several initiatives on women on corporate boards of FTSE listed companies in the UK, where the Government also recommended a 40% representation of women on those boards by 2020. Nsubuga concludes that there has been some progress towards this 40% target, but that it has not been fully achieved. He suggests that, to boost corporate compliance, the UK government and the EU at large ought to review their implementation approaches and adopt a more regulatory or statutory approach. This should include mandatory quotas and a mandatory form of periodic non-financial board disclosures on issues such as diversity on board composition, recruitment and selection processes and how female employees/executives have been nurtured into a diverse talent pool from which senior executives and director positions may be filled. The latter would improve transparency and openness as well as the nomination and recruitment processes within UK/EU listed companies. Chapter 9 presents the second case study, by Sarlet and Sarlet, examining access to higher education for disabled people in Brazil. The inclusion of disabled people in higher education in Brazil is low, and it is crucial to raise this level in order to increase their inclusion in the labour market and in social life. The authors discuss the issues within the framework of the 1988 Federal Constitution

218  Elvira Dominguez-Redondo and Erica Howard of Brazil, which puts a special emphasis in substantive or de facto equality and contains a right to education, the anti-discrimination law, which includes a duty to create affirmative action measures for vulnerable groups, and the International Convention on the Rights of Persons with Disabilities of 2006, which has been incorporated in domestic law and has the force of a constitutional amendment. According to the authors, there is a significant increase in the number of persons with disabilities enrolled in basic and secondary education, but in higher education progress has been slower. Despite a general lack of clarity and transparency of data, there are signs that the number of students with special needs in higher education has increased significantly in recent years. However, the social efficacy of the legal framework for persons with disabilities is still far from the standard that might be considered satisfactory and appropriate according to the national and international normative parameters. Salet and Bezerra Sales Sarlet also found that, in general, higher education continues to be an almost unreachable step for most Brazilians with disabilities, notably for people with low income, above all because of the general intolerance of society in relation to those who are different, the lack of knowledge and general lack of enforcement of the laws as well as lack of commitment by some higher education institutions with regard to complying with the law and adopting inclusive measures. The final chapter in Part III contains an exploration by Howard of a possible complementary alternative to affirmative action measures which could assist in achieving de facto equality, namely duties to mainstream equality. Mainstreaming equality means that an organisation must consider the impact of all their actions on the groups protected by anti-discrimination law. Howard gives a brief overview of the duty to mainstream equality imposed by the EU normative framework and the equality duty which exists in Northern Ireland, but her main focus is on the public sector equality duty laid down in the British Equality Act 2010. This duty means that, in the exercise of their functions, public authorities must have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. Therefore, authorities need to be proactive towards promoting equality and combating discrimination and need to address the structural causes of discrimination. The responsibility lies with the organisation which is most able to tackle the issue rather than putting the burden on an individual to make a complaint of discrimination after this has happened. The public sector equality duty includes taking affirmative action measures where necessary, but it goes beyond this. On the other hand, the duty only applies to public authorities, while the provisions on affirmative action in the Equality Act 2010 apply to all authorities, including employers, whether public or private. Howard argues that mainstreaming duties share features with affirmative action measures as tools to achieve de facto equality, and, therefore, they complement and reinforce the efficacy of affirmative action measures in achieving real equality in practice for all groups that are vulnerable to discrimination. Both must, however, be combined with and supported by economic and social policies as well as measures in the field of education and awareness-raising campaigns.

Conclusions  219 The chapters in this book have described a number of different ways in which affirmative action measures can be laid down in legislation and policy and how such measures are implemented and applied. What has become clear is that, despite both global and regional treaties and policy initiatives and national legislation and policies providing for such measures, nearly all of the measures in the many countries described in this book have not reached their ultimate goal: substantive or de facto equality for vulnerable groups, for groups who are disadvantaged in society. These measures aim to create a more equal society by helping those who have suffered discrimination in the past and are often still subjected to this, to be able to participate fully and on an equal level with everyone else in their society. Although in most countries analysed in this book, progress has been made towards this ultimate goal, there have also been obstacles and barriers to the affirmative action measures fulfilling their full potential. There are a number of overlapping and interrelated reasons for this, and these appear to be applicable to affirmative action measures in most of the countries examined in this book. First, the way legislation is formulated and interpreted can be an obstacle: legislation on affirmative action must be clear on what measures can and should be taken, for which groups and under what circumstances. For example, if an employer is not clear about what affirmative action measures they can take and when and for whom they can do so, and, if they run the risk of being found to have discriminated if they do it wrong, they will opt for a risk-averse approach and would not use affirmative action unless it is mandatory. And, even then, the following obstacles might lead them to desist from taking these measures. A second and clearly related obstacle is that legislation is not always implemented properly and this is exacerbated if there is no inspection of whether it is and no enforcement action when it is not. Moreover, affirmative action measures in the form of, for example, mandatory quotas, take time to implement. The legislation imposing the quota might set a time scale or deadline, but in practice this might still present problems. For example, if there is a 5% quota for disabled students – in other words, the student body of every university should have at least 5% disabled students – a number of problems can arise: what if not enough disabled students have the required education and skills to go to university? Or what are the alternatives if there are not enough disabled students who actually want to apply? The first question can be answered by starting with better access for disabled pupils to primary and secondary education so they are equipped to go to university, but this will not improve the situation immediately. Disabled students can also be encouraged to apply, but such measures all take time. However, even if there are enough students and they have the required education and skills, if there is no inspection and no enforcement against universities who do not comply, there might be little incentive to work towards fulfilling the quota. The third obstacle to full efficacy of affirmative action measures is the still existing discriminatory attitudes in society towards many of the vulnerable groups protected by anti-discrimination law. Discrimination exists everywhere and, although law in the countries examined in this book prohibits such discrimination,

220  Elvira Dominguez-Redondo and Erica Howard it has not been eradicated. Moreover, law does little to change the feelings behind discriminatory actions, so even if anti-discrimination law stops people from acting in a discriminatory way, this might not change what they think, certainly not in the short term. If law contributes to changing discriminatory attitudes, it can only do so over a long period of time. A related issue to this is that affirmative action measures, which mean giving preferential treatment to people from certain vulnerable groups, give rise to a feeling of unfairness among those people who are not eligible for this preferential treatment: they feel they are treated unequally, or less favourably, and they see this as unfair. They feel that they have become the new victims. For example, if female or ethnic minority candidates for election are given the better positions on electoral lists, white male candidates feel that they are disadvantaged. The argument that they were the group who have been advantaged in the past might not take away this feeling of unfairness. Budgetary constraints have also been shown to be a big obstacle to the efficacy of affirmative action measures. Many of these types of measures require financial investment not only to implement them, but also to continue them, to inspect whether they are implemented and to enforce them where necessary. This is, of course, linked to the political situation in each country: after all budget allocations are political decisions and affirmative action measures do not always receive high priority in budgets as has become very clear in this book. However, it has also been shown that the political situation in each country and at regional and global level plays a broader role in the efficacy of these measures. For example, the global economic crisis has clearly influenced the adoption and implementation of these measures. A last obstacle to the efficacy of affirmative action measures is the lack of awareness of their existence and implementation. This lack exists not only amongst the general public, but often, and more worryingly, amongst those who can or should implement the measures. For example, if a service provider is not clear on what they should do in relation to a protected group, they might not do anything. An exception to this lack of awareness appears to be the duty to make reasonable accommodation for disabled people, as the general public, employers and service providers are often more aware of their duty in this regard. The duty can be seen as a specific form of affirmative action and feelings of this being unfair generally appear less present here. The case studies in Part III show two examples of specific affirmative action measures which have had some effect, but they also show many of the difficulties and obstacles to their full efficacy mentioned here. To improve the efficacy of affirmative action measures a number of suggestions can be made. First, we need, on a global, regional and national level, legislation guaranteeing equality for all before the law and prohibiting discrimination. Such legislation needs to be based firmly in a human rights framework and needs to emphasise the right to equal dignity and respect for every human being irrespective of their race, colour, gender, religion, disability, age and other characteristics. Second, we need legislation at all three levels that prohibits both

Conclusions  221 direct discrimination – less favourable treatment because of having (or appearing to have) a certain characteristic – as indirect discrimination – where a provision, criterion or practice applies to everyone in the same way but where some people cannot comply with this because of possessing a certain characteristic. Third, legislation at all levels should provide for affirmative action measures in a number of different forms. Fourth, such legislation should contain an approach of mainstreaming equality and non-discrimination. These are all measures which can be laid down in legislation, but there should also be supporting policies and measures in the economic, social and wider field. A better understanding of good practices and their effectiveness worldwide would provide concrete guidance to policymakers. To this end, more research is required to produce reliable data and statistics supporting the adoption of affirmative action measures, identifying the beneficiary groups and providing relevant benchmarks to assess the effectiveness of these measures in the short, medium and long-term. Education should also play a major role in teaching human rights, tolerance and respect for human dignity and the equality of every person. There should be awareness-raising in education but also in a more general form targeting everyone in society. Only when the legislation described here is fully implemented and supported by all these other measures can we hope to achieve de facto equality, practical equality for all. Affirmative action measures are, thus, one of many tools that can help us achieving this.

Index

Note: Page numbers followed by “n” denote endnotes. Abramovich, V. 152 Act on Labor Inclusion 131 Adejumo, O. 69, 73, 76 advancing equality 16, 211; de facto equality 16; States Parties of special measures 16 (see also equality) affirmative action measures: Afro-Brazilians 85–87; analysis of special temporary measures 4; Argentina 10; budgetary constraints 220; Central America 10; Chile 10; China 3, 13–35; Columbia 10; comparison 63; concept and practice of 17n8; in concrete areas 4; de facto equality 5, 7, 10–12; definition of 17; designated group, privileged persons 73; disabled people 89–91; efficacy of 220–221; England, Scotland and Wales 59–60; existence of affirmative action measures 8; Indians 3, 13–35, 87–89; inferior qualities 73; lack of awareness of existence and implementation 220; lack of popularity 7; Latin-America 3, 13–35; legal obligation 73–74; LGBT people 91–93; merit principle 71–72, 215; Northern Ireland 61–62; opposition and criticisms 7–9; Peru 10; potential beneficiaries of 21; soft or hard approach 4, 7, 8; South Africa 3, 9–10, 13–35, 62–63; in state practice 6–7; undeserving beneficiaries 72; United Kingdom 3, 9–10, 13–35; universal beneficiaries 25; women 82–85 affirmative fairness 6–7 affirmative mobilisation 6–7 affirmative preference 6, 7 Afro-Brazilians: Brazilian Human Rights Bureau 85; Federal Constitution, 1988

85; Golden Law in 1888 85; mixedrace people in universities 86; National Household Sample Survey 87; ‘National Programme of Affirmative Action Measures’ 86 Afro-Descendants 86, 106, 112, 141, 155, 192n42, 216 Agenda for Sustainable Development, 2030 31 Alvarez, D. 55, 138 Alvarez, S. 121 Ambedkar, B.R. 51n67 American Convention on Human Rights 11, 146, 147, 148 anti-discrimination law 213, 218–220; EU 199, 200; South Africa 62 Archibong, U. 69, 73, 76 Arenas, V. 148 Argentina: cultural and/or budgetary implications 134; design, implementation and efficacy 125–128; implementation process of affirmative action 115–117; national courts, challenges before 120–121; National Plan Against Discrimination 32 armed conflict 39 autonomy, principles of 187 Beijing: Fourth World Conference on Women 83 Belize 3, 142, 143, 213, 214, 216 Bell, M. 199n7 Bengalis 53 Bill on Gender Parity in Aspects of Political Representation 125 “Black, Asian and Minority Ethnic” women 26

224 Index Bossuyt, Marc 16, 17 brain drain 73 Brazil: affirmative action measures 80–93, 94–103, 103–112; alternative models 103–112; Brazilian Constitutional law 180; Brazilian Federal Constitution, 1988 11; Brazilian Federal Government 83; Brazilian Sign Language 190; Brazilian Statute for Persons with Disabilities 11; budget allocations to affirmative action 10; Federal Government budget 94–103; financial costs and priority levels 94–103; Quota law, adoption of 22; structural discrimination affecting women 33; Working Group on People of African Descent 34 British colonial experience, aftermath of 42 British Equality Act 2010 (EA 2010) 70, 74, 77, 198, 206–207, 218 Broad Based Black Economic Empowerment Act 2003 73 Bronfenbrenner, M. 148 budget analysis: Argentina 128, 134; Brazilian government 10, 79, 87, 112, 195, 216; Budget Act 134, 135, 136; Central America 11, 157–158, 217; Chile 128, 135; Colombia 136; Guatemala 142; for LGBT people 101–103; Nicaragua 145; Peru 136; to preserve Indians’ culture and lands’ demarcation 98–99; to promote disabled people’s social inclusion 100–101; to reduce gender inequality 94–96; to reduce racial discrimination 96–98 bureaucratic capabilities 137, 216 Caribbean: Economic Commission for Latin America and the Caribbean (ECLAC) 140, 141; Regional Conference on Women 140, 142 Central America: Belize 143; budget analysis and decision-making priorities 157–158; Costa Rica 145; design, implementation and efficacy 146–154; efficacy of affirmative action 154–156; El Salvador 144; equality test 139; fight against poverty 155–156; Guatemala 142–143; Honduras 143–144; Nicaragua 144–145; obstacles to implementation 156–157; origin and evolution 139–142; Panama 146; poverty and inequality 139; problems of inequality 159; restorative and

remedial mechanisms 138; Strategy of Montevideo 140 Charlotte Sweeney Review 169 Chile: Anti-Discrimination Act, 2012 32–33; cultural and/or budgetary implications 135; design, implementation and efficacy 128–131; implementation process of affirmative action 117–118; national courts, challenges before 121–123 China: affirmative action 47; approach towards minorities 27; ascendance of Xi Jinping 50; building world’s longest railway lines 49–50; de jure and de facto equality 43; denouncing ‘splittism’ 50; East Asian tigers 48; economic pragmatism 48; effective equality 47–48; Go West Development policy 46, 48, 49; ‘Han chauvinism’ 45, 49, 56; identity-based equality 47; intolerance towards minorities 43; ‘minority nationalities’ 46; ‘nationbuilding’ imperative 43; One Belt One Road initiative 50; One China and the Communist Party 47; One Country Two Systems 48; Peoples’ Republic of China 46, 48–49; ‘pragmatic communism’ 45; secondary education 27; state creation process 42; ‘Strike Hard, Strike Harder’ 49; Xi Jinping, rise of 48, 56, 214 Chinese Belt and Road Initiative (One Belt One Road) 39 Chu, J. B. 151 CIDER 143 Colombia: cultural and/or budgetary implications 136; design, implementation and efficacy 131–133; eliminating structural discrimination 33; implementation process of affirmative action 118–119; national courts, challenges before 123–124 Committee on Economic and Social Rights (CESCR) 18–19 Committee on Migrant Workers (CMW): Concluding observations 28n69 Committee on the Rights of the Child 20, 31 Community Party 41 Company’s substratum 173n68 compensatory actions 4 ‘comply or explain’ model 174–175 ‘Comprehensive Services and Inclusion of Persons with Disabilities Act’ 29

Index  225 CONADI 135 congressional election, 2017 129 congressional quotas 126 Congress Party: Indian independence movement 41 Constitutional Tribunal, Chile 117 Constitution of the Federative Republic of Brazil 1988 78 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment 26 Convention for the Protection of All Persons from Enforced Disappearances 25, 34 Convention of Belém do Pará 151 Convention on Enforced Disappearances 28 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 14, 15, 16, 18, 19, 82, 125, 128, 133, 150, 214; adoption of a bill on harassment 29; concluding observations 32; electoral gender quotas 33; enforcement of laws on gender equality 29; freedom from violence and discrimination in political and public life 29; participation of women in decision-making for society 29; political violence towards women 29; quotas, introduction of 30; secondary and tertiary education 28; softer measures 29; special measures 22, 27; women’s participation in political and public life 27 Convention on the Prevention and Punishment of the Crime of Genocide 80 Convention on the Rights of Persons with Disabilities (CRPD) 14, 15, 16, 20, 26, 74–75, 127, 132, 180, 214, 218; concluding observations 27; promote employment of persons with disability 31 Convention on the Rights of the Child 26 corporate theory debates 173 Costa Rica 28, 145; in relation to gender equality 31 Covenant on Civil and Political Rights 18 Covenant on Economic, Social and Cultural Rights 19 cultural and/or budgetary implications: Argentina 134; Chile 135; Colombia 136; Peru 136 ‘curb Han chauvinism’ 40

Davies, C. 65, 70, 71 Davies Review 2011 168 de facto equality 5, 10–11–12, 20, 23, 213–214, 218, 219, 221 de facto reality 155 de iure reality 155 Deng Xiaoping 45 disabled people, Brazil: affirmative action policies 188–196; Declaration on the Rights of Disabled Persons, 1982 89; disabled students 219; duties of reasonable accommodation 58; education, 1989 90; equal opportunities 196; Federal Government budget 100–101; inclusion in labour market and social life 179; lack of investment 101; legal–constitutional architecture 180; ‘Living Without Limitations’ 100; National Plan for the Rights of Persons with Disabilities 90–91; National Programme for Access to Technical Education and Employment 100; person’s emancipation 179; problem of fundamental right 183–184; quota system 91; right to education 181–183; social inclusion 100–101, 109–111; social model, role of FC and PDA 184–188; United Nations 1971 Declaration on the Rights of Mentally Retarded Persons 89; ‘University for All Programme’ (PROUNI) 182 discrimination 24; Anti-Discrimination Act, 2012 32–33; Argentina 32; Brazil 33, 82, 105–107; Colombia 33; European Union (EU) 173–174; Great Britain 210; Indigenous People 24, 30, 33; LGBT people 101; South Africa 62; against women, definition of 150 distributive justice 4 ‘Divide and Rule’ policies 41 ‘Double burden’ 81n24 Drittwirkung theory 121 Dupper, O. 68, 73 Durban Conference, 2001 17 education (higher) system, Brazilian: absolute priority 195; Anísio Teixeira National Institute of Educational Studies and Research (INEP) 194; CRPD 195; data on 189–190; Direct Action for the Declaration of Unconstitutionality 195–196; effectiveness of affirmative actions 193–196; federal institutions 192, 197; implemented actions 194; for

226 Index people with disabilities 188–189, 195; private institutions 193; problem of fundamental right 183–184; PROUNI 191, 194; quotas in higher education facilities 191–192; scholarships 191; universities 189–190 effective equality 5, 7 effectiveness of affirmative action: alternative models to reach substantive equality 76–77; derogation approach 63; disability 74–76; implementation and efficacy 64–70; obstacles to implementation 70–74; in UK and South Africa 59–64 El Salvador 144; concluding observation 30; Export and Investment Promotion Agency of El Salvador (PROESA) 144; Law on Equality and Eradication of Discrimination against Women (LIE) 144; Life Free from Violence for Women (LEIV) 144; Women’s Movement (Movimiento Salvadoreo de Mujeres) 144 Employment Equity Act 1998 (EEA 1998) 62, 75 England: Crime and Courts Act 2013 65; Equality Act 2010 (EA 2010) 59, 64–65, 66; Equality Bill 64; positive action measures 59–60; ‘tie break’ situation 59, 63 equality 5, 81; advancing 16; Central America 139; China 47–48; Costa Rica 31; El Salvador 144; Europe 199–201; factual 5; Great Britain 208–211; of opportunity 5–7, 58, 213; in practice 5, 5n4, 213; of results 5, 7, 213; UK 163, 201–207; women on corporate boards, EU and UK 163 Equality Act 2006 206 Equality Act 2010 (EA 2010) 64–65, 66, 70, 74, 75, 77, 210, 211–212 European Union (EU): affirmative action measures 212; anti-discrimination directives 59; anti-discrimination law 199; Article 157(4) Treaty on the Functioning of the European Union 59–60; Charter of Fundamental Rights 163; ‘comply or explain’ model 174–175; corporate theory debates 173; Court of Justice of the European Union (CJEU) 60; Employment, Social policy, Health and Consumer Affairs Council (EPSCO) 167; European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950

200; European Human Rights body 200; European Institute for Gender Equality 200; gender diversity 165–167; gender mainstreaming duties 200–201; law and policy 199; mainstreaming duties 11; periodic non-financial board disclosures 177; positive discrimination or affirmative action 173–174; principle of equal opportunities 165–166; proportionality, principle of 172; proposed Directive 166; subsidiarity, principle of 171–172; Treaty on the Functioning of the European Union 199 Fair Employment (Northern Ireland) Act 61 Fair Employment (Northern Ireland) Order 1998 (FETO 1998) 61, 67, 76 Federal Constitution, 1988 81 Federal Government Annual Budget Laws 94–95 Federal Government budget 79 Finland 112, 177 formal equality/equality in law 5, 63, 114–115, 147, 152, 198, 200–201, 208, 211, 216 Fourth National Plan of Gender Equality 2018–2030 129 Fredman, S. 70, 200, 201, 208 funding 157; Argentina 128, 134; Brazil 96, 181; Chile 135; Colombia 136; Guatemala 157; Peru 136; UK 210 Gani, A. 72 Gasman, N. 157 Gaviria, T. 148 gender diversity: Charlotte Sweeney Review 169; ‘comply or explain’ model 174–175; corporate theory debates 173; Davies Review 2011 168; European Union normative framework 165–167; Hampton–Alexander Review 169–171; Higgs Review 168–169; positive discrimination or affirmative action 173–174; principle of proportionality 172; principle of subsidiarity 171–172; United Kingdom 167 ‘The Gender Equality and Equity Plan for 2010–2022’ 28 Gender Equity and Rural Women’s Development Programme 142 ‘The Gender Equity Regional Program of the Swedish Cooperative Center for Latin America (Today We Effect)’ 141 gender homogeneity 175–178

Index  227 gender quota law 126 General Assembly Resolution 80 General Law on the Person with Disability of 2012 134 girls: with disabilities 30, 34; education 28; Guatemala 143; South Africa 34 ‘goal-directed programs’ 23 Goldschmidt, J. 72 Great Britain: Baker 204; Brown principles 204–205; definition of ‘public authority’ 203; ‘due regard’ 208; Equality and Human Rights Commission (EHRC) 202, 207, 210; equality duties 202–207; indirect discrimination 210; mainstreaming duties 203; policy on equality 209; public sector equality duty 203–204, 208–211; ‘tick box’ mentality 204, 208 Guatemala 142–143; eliminating structural discrimination 29–30 Gulf Cooperation Countries of the Middle East 55 Gutarra, F. 138 Gutiérrez Hernández and others v. Guatemala 152–153 Hammill, M. 156 Hammond, P. 8 Hampton–Alexander Review 169–171 Hepple, B. 210 Hernández, T.K. 155 Higgs Review 168–169 Hinds, B. 67, 77, 212 ‘The Honduran Sign Language Act’ 29 Honduras 28, 143–144; el Consejo Nacional de la Mujer Cooperativista de Honduras (CONAMUCOPHL) 143; Gender Equity Plan of Honduras 2010–2022 143; women, law on equal opportunities for 143–144 Houses of Congress 125 Hui 46 Human Rights Committee 18, 26; eliminating gender gap in decisionmaking positions 31; General Comment, 1994 21; Guatemala 30; presence of women in political and public life 29 Human Rights Council 15 Iceland: gender diversity 177; mandatory regulatory quotas 177 ILO Convention No. 169 127, 130 implementation process of affirmative action: Argentina 115–117; Chile 117–118; Colombia 118–119; England,

Scotland and Wales 64–66; Northern Ireland 67–68; Peru 119–120; South Africa 68–70 India: affirmative action policies, lowlevel criticism 52; Assam Accord in 1985 54; Bharatiya Janata Party 53; British colonial rule 42; Citizenship Amendment Act (2019) 54–55; Constitutional Amendment 52; culture and land demarcation 107–109; culture preservation, puiblic budget 98–99; de jure and de facto equality 43; five religious communities 44; intolerance towards minorities 43; Kashmir, protection for 51; ‘minority rights’ package 52; Muslim minority 44, 53; Narendra Modi, rise of 51, 53, 54, 56, 214; ‘national minority’ populations 45; national narrative 43; ‘National Register of Citizens’ 54; nation-building imperative 43; regime of reservations 44, 52; reorganisation of the map 44; rich in tea plantations 53; ‘SC/ST and OBC’ 45, 52, 53; self-determination, principle of 51; State creation process 42 Indians, Brazilians: arbitrary and colonialist integration 87–88; 1988 Constitution 88; cultural characteristics 88; 1934 Federal Constitution 88; ‘Guidelines to a National Policy for Indigenous Education’ 89; Indian Communities 88n80, 89; ‘National Guidelines for Indigenous Schools’ 89 Indigenous People: Argentina 134; Chile 135; demands of 127; discrimination against 24, 30, 33; Indians as 107; Peru 133–134, 136; rights holders 23, 122, 126, 216; special measures 35 inequality, gender 24, 79; Brazil 104–105; exercise of citizenship and women’s rights 95; gender-based violence 96; gender equality 95n145; National Plan of Politics for Women 94; public budget to reduce 94–96; Special Secretariat of Politics for Women 94; women’s inclusion in employment 95n150; women’s participation in politics 96 ‘innocent victims’ 6, 71 Institutions of Higher Education (IHEs) 189 Inter-American Commission on Human Rights 147, 148, 153–154 Inter-American Convention Against all Forms of Discrimination and Intolerance 149

228 Index Inter-American Convention on Forced Disappearance of People 11 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women 125, 151 Inter-American Convention to Prevent and Punish Torture 11 Inter-American Court of Human Rights 120–121, 147, 152 Inter-American Human Rights System 10, 146, 147 Inter-American Institute for Cooperation on Agriculture (IICA) 141 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 14, 15, 18, 19, 26, 214; adoption of urgent special measures 22; eliminating structural discrimination 33 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 25, 34 International Covenant on Economic, Social and Cultural Rights 26, 127 International Labour Organisation Convention C111 - Discrimination (Employment and Occupation) 81 Johns, N. 65, 70 Judicial activism 80 Judicial Appointments Commission (JAC) 65–66 Kazaks 47 Kennedy-Dubourdieum, E. 58 Labor Inclusion Act 135 Latin America: affirmative action’s origin 139–140; Regional Conference on Women 142; XIII Regional Conference on Women 140 Latin America and the Caribbean (LAC) 141 Law of Guidelines and Bases of National Education 189 Law on Equal Opportunities 133 LGBT: inclusion 111–112 LGBT people 78n4, 215; Brazilian General Social Welfare Policy 92; ‘Brazil without homophobia’ 93; civil rights movements 92, 93; discrimination and inequality 101; Federal Government budget 102; hate crimes (homophobia)

93, 101; lack of civil and social rights 103; money allocation 102–103; National Human Rights Programme 93; person’s gender or age 92–93; Programme of Identity and Cultural Diversity: Plural Brazil 102; public budget for 101–103; same-sex relationships 91–92; World Health Organization 91 liberalism: equality, definition 148; political 137 Lopez, A. 158 Marrakesh Treaty 180, 185–187 McColgan, A. 61 McCrudden, C. 67 McHarg, A. 71, 72 Mercosur Parliament 125 Ministry for the Promotion of Women and Development in 1996 133 Ministry for Women and Gender Equality (MMEG) 128 Ministry of Social Development 131 minorities: Brazil 7, 91, 101, 107, 111, 215; Chile 117, 121; China 27, 40, 41, 45–48; India 43–45, 52–53; UN 21–22, 24; see also Indigenous People Muslim League, establishment of 41 National Agency for Disability in 2017 128 National Corporation for Indigenous Development (CONADI) 130 National Council on Women 125 national courts, challenges: Argentina 120–121; Chile 121–123; Colombia 123–124; Peru 124–125 National Fund for Disability (FONADIS) 130 National Household Sample Survey 84 National House of Representatives 180 National Institute of Indigenous Affairs 127, 134 National Policy for the Promotion and Development of Guatemalan Women (PNPDMG) 142 National Service for Disability (SENADIS) 130 National Service for Women (SERNAM) 128 Ngcobo, S. 68 Nicaragua: human rights in 31; Law 648 on Equality of Rights and Opportunities 145; MGIMP 145; United Nations Development Programme (UNPD) 144

Index  229 Nicolson, D. 71, 72 non-discrimination 20; Argentina 117; Brazil 81, 185, 187; Central America 147–149; Costa Rica 145; EU 12; Peru 124; UN 13 Northern Ireland 67–68, 201–202; Catholics and Protestants 67; Equality Commission Northern Ireland (ECNI) 202, 210; equality laws 61; Fair Employment (Northern Ireland) Order 1998 (FETO 1998) 61, 67, 76; implementation of Security Council Resolution 1325 (2000) 23; Northern Ireland Act 1998 12, 198, 201; Police (Northern Ireland) Act 2000 61–62, 67–68, 76

Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA 2000) 62 proportionality, principle of 172 Protocol of San Salvador 11, 149 Protocol to the American Convention on Rights Human Rights on Economic, Social and Cultural Rights 11 ‘Public Policy against Racism and Racial Discrimination for the Comprehensive Development of Indigenous and AfroHonduran Peoples 2016–2022’ 29 ‘The Public Policy on the Rights and Social Inclusion of Persons with Disabilities in Honduras’ 28–29 Public Sector Equality Duty 12, 198

O’Cinneide, C. 71 O’Kelly, C. 67, 77, 212 Ombudsman for Indigenous Women (DEMI) 142 Orozco, M. 157 ‘Other Backward Castes’ (OBC) 45

‘Quilombos’ 81 quotas 128; Argentina 125–126, 128, 134; Brazil 83, 85–86, 89, 91, 96–98, 100, 104, 106–107, 109–111, 182–183, 185, 191–192, 195; Central America 28, 139; Chile 122–123, 128–131, 135; Colombia 132, 136; Costa Rica 145; and equality 122; EU 172; genderbased 3, 7, 8; Guatemala 30; India 44; Northern Ireland 61, 67; Peru 119, 133–134; in political participation 151; qualification of 139; Quota law, Brazil 22; South Africa 34, 62; UK 176–177; UN 23, 25–28, 30–33

PADEMUR 142 Pakistan 41, 44, 53–55 Panama 28, 31, 111, 142, 146, 155, 213, 214, 216; Social Policy Support Group of the Republic of Panama 146 2018 Parliamentary Briefing Paper 207 Pellicori (2011) 121 Persons with Disabilities see individual entries Peru: cultural and/or budgetary implications 136; design, implementation and efficacy 133–134; implementation process of affirmative action 119–120; national courts, challenges before 124–125 Police (Northern Ireland) Act 2000 61–62, 67–68, 76 politics: China and India 42–48; origins and evolution of affirmative action measures 42–48; rise of politics over law 48–55; territorial integrity and unity of States 57 positive action measures: Argentina 115; Chile 124–125, 128, 130–131; EU 4, 58, 70, 74, 163, 174; Peru 124–125, 133; UK 59–60, 64–65 positive discrimination: Chile 122; Colombia 119; EU 173–174; Northern Ireland 61; UK 64; see also affirmative action measures Prat, J. 158

Radovich, J. 127 Regional Conference on the Integration of Women into the Economic and Social Development of Latin America 142 Regional Gender Agenda in the Framework of Sustainable Development, 2030 140, 142 Regional Project of Woman Cooperatives, creation of 141 remedial measures 4, 30 reservations 4, 44, 51–53, 82 reverse discrimination 23, 71, 125 Rio de Janeiro 86 Robison, M. 65, 70, 71 Romany, C 151 Rosenfeld, M. 139 Salvadoran Institute for the Development of Women 144 Scheduled Castes and Scheduled Tribes (SC/ST) 45 Scotland 59–60, 64–66; Equality Act 2010 (EA 2010) 59

230 Index second class citizens: in Hindu India 41 SENADI´s budget 135 Serrano-Cruz Sisters v. El Salvador 153 Sex Discrimination (Northern Ireland) Order 1976 26 Sisnero (2014) 121 social inclusion 86, 99–101, 109, 118, 122–123, 123, 130, 135 socialist secular 52n70 social model: CRPD and PDA 185, 187; description 185; Marrakesh Treaty 185–187; role of FC and PDA 184–188 South Africa: affirmative action measures, defined 62; Annual Report for 2017–2018 of the Commission for Employment Equity 69; antidiscrimination law 62; Broad-Based Black Economic Empowerment Act 2003 35; in economy, public services and in higher education 68–69; EEA 1998 62–63; Employment Equity Act 1998 35; empowering and facilitating the full inclusion of women and girls with disabilities 34; overview of origin and evolution of affirmative action measures 59–64; principle of equality 68 Spain 111; mandatory regulatory quotas 177 special measures 4; appraisals of 23; beneficiaries of 21; in China 25–35; definition of 17–18; as distinct category 19–20; in India 25–35; in Latin America 25–35; in South Africa 25–35; Treaty bodies’ recommendations 30; treaty provisions on 15–16; in United Kingdom 25–35; United Nations 14–35 Special Rapporteur: on rights of indigenous people 23–24; on right to education 23; on violence against women 23, 24 Spencer, S. 208 States parties: Central America 147, 149–152; of special measures 15–16, 23 Sub-Commission on the Promotion and Protection of Human Rights appointed 16 subsidiarity, principle of 171–172 substantive equality/equality in practice 5, 7, 12, 20, 59, 60, 64, 77, 199, 201, 208, 212, 213, 218 Sustainable Development Goals 31 System for the Integral Protection of Persons with Disabilities 127

Thaver, B. 68 “tie-break” measures 63, 70, 71 Treaty on the Functioning of the European Union (TFEU) 5n4 United Kingdom (UK): Charlotte Sweeney Review 167, 169; ‘comply or explain’ model 174–175; Davies Review 2011 167, 168, 176; ‘disability employment gap’ 76; Equality Act 2010 (EA 2010) 163; Financial Trading Stock Exchange (FTSE) 167; FTSE 350 companies 170–171, 175–176; gender diversity 167; gender heterogeneity 178; Great Britain 202–207; Hampton–Alexander Review 167, 169–171; Higgs Review 167, 168–169; mainstreaming duties 11; Northern Ireland 201–202; overview of origin and evolution of affirmative action measures 59–64; periodic nonfinancial board disclosures 177 United Nation (UN): Argentina, Chile, Colombia and Peru 32–33; Brazil 33–34; Central America 28–31; China and India 26–28; conceptual framework 16–19; ‘concluding observations’ 25; conditions and beneficiaries 20–24; descent-based communities 22; FTSE listed companies 11; human rights bodies 9; human rights bodies approach 14–24; human rights mechanism 24; Objectives for Sustainable Development of the United Nations 128–129; South Africa 34–35; special measures 15–16, 19–20; treaty bodies and Charter bodies, human rights 24; treaty bodies approach 25–35; ‘UN Charter bodies’ 15; UNICEF 154; United Kingdom of Great Britain and Northern Ireland 25–26 United Nations Educational Scientific and Cultural Organisation (UNESCO) 141, 155 United Nations Food and Agriculture Organisation (FAO) 141 United Nations Universal Declaration of Human Rights, 1948 78, 80 ‘unity in diversity’ 42 Universalism or fragmentation: special measures 14–35; United Nations human rights bodies approach 14–24; United Nations treaty bodies approach 25–35 Universal Periodic Review mechanisms 15, 24

Index  231 University for All Programme (PROUNI) 191 Uygurs 46–47 Vela, Lopez 139 ‘Voluntary Search Code’ 25 Wales 59–60, 64–66; Equality Act 2010 (EA 2010) 59 women, Brazilian: in employment and occupation 84; 1934 Federal Constitution 82; fighting discrimination 82; in labour market 83–84; Labour Party 82; “Maria da Penha” law 84; political system 83; Unified Workers’ Central 82; violence against women 84–85 women on corporate boards, EU and UK: benefits or advantages 164–165; better decision-making 164; boardroom

composition and power balance 164; gender diversity 165–175; gender equality 163; policy and procedural stagnation 171–175; presence of women in higher positions 164; remedying gender homogeneity 175–178 Working Group of Experts on People of African Descent 22–24 World Economic Forum Global Gender Gap Report (GGI), 2017 79 World Economic Outlook 78 The World Survey on the Role of Women in Development 2014: Gender Equality and Sustainable Development’ 140 Yansura, J. 157 Yatama v. Nicaragua 152 Zhuang 46