Described
in article 4.1 as "measures aimed at accelerating de facto
equality,"[5] temporary special measures may depart from
formal equality in order to achieve "substantive equality"[6]
between men and women. While formal equality promotes equal treatment,
substantive equality recognises that the neutral, gender-blind
character of formal equality masks structural discrimination and
privilege that are embedded or built into institutions as a result
of past discrimination.[7] It is this embedded structure of discrimination
that temporary special measures aim to redress. While often misunderstood
as promoting preferential treatment, temporary special measures
are typically aimed at leveling the playing field since the field
is tilted in favor of groups that have historically benefited
from preference and privilege. Thus, temporary special measures
do not give disadvantaged groups preferences, but rather seek
to redress the fact that embedded preferences for privileged groups
are already built into a variety of institutions. A measure that
neutralises institutionalised preferences for privileged groups
attempts to create a fair baseline where everyone enjoys substantive
equality, rather than merely shifting preferences in favor of
underprivileged groups. By explicitly excluding temporary special
measures from the definition of discrimination, CEDAW's article
4.1 creates an exception to formal equality and recognises that
temporary special measures help to promote substantive equality.
To be effective,
temporary special measures must consider the situation of women
facing multiple barriers to the realisation of their human rights
and must be accompanied by, or operate in the context of, enabling
mechanisms that support the achievement of substantive equality.
These mechanisms include (a) services, such as child care; (b)
structural policies, such as maternity and paternal leave; and
(c) effective institutional remedies to overcome discrimination.
Article 3 of CEDAW places governments under an affirmative obligation
to provide such enabling conditions.
Part I of
the background paper outlines how temporary special measures are
a means to achieve substantive equality and to remedy structural
discrimination. Part I also provides rationales for temporary
special measures. Part II discusses the need for these measures
to target women who face multiple barriers. Part III offers strategies
for implementation of temporary special measures.[8]
Part I
- Making the Case for Temporary Special Measures
Temporary
special measures must be understood as a means to attain CEDAW's
goal of substantive, rather than merely formal equality among
men and women. Given the embedded, structural nature of discrimination,
substantive equality addresses equality of results as well as
equality of opportunity. Thus, the substantive equality model
differs from that of formal equality (1) by requiring that states
achieve equality of results between men and women; (2) by acknowledging
that states may need to treat men and women differently in order
to realise these aims; and (3) by recognising the need for enabling
conditions to ameliorate women's situation.
In order to
achieve substantive equality, temporary special measures aim to
end structural discrimination, a persistent obstacle that should
be the primary focus of temporary special measures. Structural
discrimination refers to social, economic or cultural background
conditions that place a particular group in a position of disadvantage
relative to other groups in society. These background conditions
are created historically through past discrimination embedded
in institutions. They are also informed by the "public/private"
dichotomy that has traditionally failed to recognise and remedy
human rights violations occurring in the private sphere, including,
for example, domestic violence and the undervaluing of domestic
labor. Once embedded, these past practices of discrimination often
become masked as part of the neutral baseline of these institutions,
when in fact the baseline is not neutral. Due to its invisibility,
its pervasiveness and its firm hold on the structures governing
economic, social and cultural life, this form of discrimination
is particularly difficult to remedy.
In light of
CEDAW's aim to secure substantive equality and end structural
discrimination, temporary special measures can be justified to
achieve the following goals: (1) compensatory justice, (2) distributive
justice, (3) social utility, and (4) access to rights.[9] Compensatory
justice seeks "to make up for past harms and disadvantages
women suffered as a group or, [can be] based on forward-looking
principles, which aim at future equality of opportunity for them
as a group."[10] Distributive justice is a forward-looking
justification, oriented toward correcting current "imbalances
between women and men with respect to their access to the elements
of a 'humane life.'"[11] The social utility justification
for temporary special measures emphasises the positive effects
of these measures in terms of (1) mobilising the economic and
social potential of women for the common good of society, and
(2) encouraging and facilitating the full social integration of
women, thus benefiting the entire community through social transformation
and the promotion of diversity.[12] A further justification for
temporary special measures, access to rights, points to the fact
that such measures allow women fully to claim equal access to
their rights. Since rights are interdependent, the adoption of
temporary special measures that facilitate women's ability to
achieve one set of rights will likely help women achieve other
fundamental rights.
Despite CEDAW's
commitment to the principle of substantive equality,[13] many
critics continue to approach discrimination from a formal equality
perspective. Assuming that the nondiscrimination principle requires
facial neutrality, the critics claim that temporary special measures
deviating from formal equality constitute discrimination.
Temporary
special measures have been, thus, misunderstood as offering "preferential
treatment" to women and as resulting in "reverse discrimination."
This misconception is based on the myth that the baseline of opportunity
is neutral and that temporary special measures provide a preference
or privilege that deviates from this foundation of equality. In
fact, the baseline is not neutral, but rather contains built-in
privileges for men due to past and continuing discrimination.
Given the obstacles of social and institutional discrimination
faced by women, temporary special measures do not give women "preferences,"
but merely ensure "the right to treatment as an equal for
the members of marginalised groups."[14] Such measures do
not discriminate against non-beneficiaries because "the only
costs to non-beneficiaries that result from affirmative policies
are the loss of these privileges, privileges that are the results
of a lack of fairness and opportunity for others."[15]
Opponents
also argue that temporary special measures are harmful to society
because such measures depart from "meritocratic" modes
of selection. However, temporary special measures broaden the
concept of merit, rather than reject merit. Conventional methods
used to evaluate "merit" often fail accurately to gauge
the applicant's "merit". First they do not account for
the fact that members of disadvantaged groups are often not provided
with the skills to succeed in conventional evaluative techniques,
such as standardised tests. Second, they may tend to stress certain
skills and de-emphasise others, despite the fact that the skills
emphasised may not correlate with the actual requirements and
needs of a job or position. Thus, while an applicant from a disadvantaged
group may be more talented than a member of an advantaged group
according to the actual requirements or needs of a particular
position, she may score lower on a standardised test. Moreover,
several recent studies show that standardised tests, a common
device for assessing "merit," do not necessarily predict
performance. Ideally, temporary special measures that shift reliance
away from traditional indicators of merit should be structured
to broaden our understanding of how to evaluate merit, while also
rectifying continued exclusion and marginalisation of women and
creating a level playing field for both men and women.[16]
Support for temporary special measures can be drawn from various
international treaty bodies and instruments. Some of these international
sources specifically authorise temporary special measures and
others embrace the goal of substantive equality inherent in temporary
special measures.
Part II
- Temporary Special Measures Must Target Especially Women Who
Face Multiple Barriers
To achieve
equality in a comprehensive manner, temporary special measures
must target women who face multiple barriers. Women experience
multiple barriers when gender discrimination intersects with other
forms of discrimination (such as discrimination based on race,
ethnicity, etc.) and/or other barriers (such as poverty, rural
residence, etc.).[17] When gender discrimination intersects with
other forms of discrimination, feminist scholars refer to this
as "intersectional" discrimination.[18] Rejecting the
idea that a combination of forms of discrimination merely has
an additive effect, these theorists point out that intersectional
discrimination multiplies and amplifies the obstacles women face
and thereby thwarts the achievement of substantive equality. The
intersection of gender discrimination with other barriers, (i.e.,
poverty, rural residence, etc.), also has this multiplicative
effect. To be effective, then, implementation of temporary special
measures must take into account the structure of subordination
by especially targeting women who face these multiple barriers.
Temporary
special measures that neglect the multiple barriers that women
face have a limited impact on the condition of women, particularly
the women most in need of these measures. Similarly, programmes
designed to benefit both male and female members of certain disadvantaged
groups (eg. minority groups) fall short in their goal when they
do not ameliorate the situation of the women concerned. Various
treaty bodies and other international sources support the need
for temporary special measures to address the multiple barriers
women face.
Part III
- Implementation of Temporary Special Measures
Temporary
special measures address various target sites of discrimination
such as employment, education, and health care thus satisfying
the area-specific mandates of provisions of CEDAW. Temporary special
measures are also aimed at designated women, or "target groups."
The target group can be either: (1) the general female population
or (2) a particular subset of women who are multiply disadvantaged.
Temporary
special measures assume three principal forms: (a) affirmative
mobilisation, (b) affirmative fairness, and (c) positive special
measures.[19] Measures of affirmative mobilisation seek to achieve
substantive equality by supporting, actively involving and building
the capacity of members of a particular disadvantaged community,
the target group of the measures, to claim educational, employment
and other rights and opportunities. Such programmes "support"
individuals by providing skills and training to make them active
citizens and competitive candidates for particular positions.[20]
Affirmative mobilisation programmes also raise women's awareness
of their rights and of available opportunities, as well as empower
and mobilise them to claim these rights and opportunities.
Measures of affirmative fairness are governance mechanisms and
complaint procedures to perceive and address allegations of discrimination.
Once in place, these governance mechanisms play an affirmative
role in that their very existence creates a disincentive against
future discriminatory action. Finally, positive special measures
provide comparative advantages to a target group composed of members
of disadvantaged communities. By granting priority in the allocation
of resources to candidates in the target group over equally qualified
candidates, such measures seek to level the playing field. By
creating equality of opportunity between members of disadvantaged
and dominant social groups, these measures ensure that the former
have access to social resources.
If programmes
of temporary special measures are to promote substantive gender
equality, they must, at the minimum, incorporate five core principles
of implementation: (a) consultation methods, (b) mechanisms
for continuous feedback, (c) monitoring strategies,
(d) enabling conditions, and (e) promotion of standards
through public education.
Consultation
methods refer to collaboration among (a) national and local
governments, (b) international bodies and institutions, (c) nongovernmental
organisations, (d) the private sector, and (e) women targeted
to benefit from the relevant measures, in the design and implementation
of temporary special measures. The interaction among these actors
can take place in a variety of configurations, levels and directions.
In this regard, in order to accurately assess the need for special
measures, data gathered on women's conditions must consider women's
actual experiences of discrimination. There must also be transparency
throughout the stages of design and operation of a specific measure.
Mechanisms
for continuous feedback encompass a multilateral exchange
of information that is on-going, and that mirror the process of
consultation in the design and implementation of the temporary
special measures. At the first level, women benefiting from the
temporary special measures provide feedback on effective implementation
and success of the measures. At a second level, national governments
should be encouraged to process this information and include it
in the periodic reports to the CEDAW Committee. Ultimately, governments
should be encouraged to set and achieve positive benchmarks that
correspond to the level of women's empowerment and advancement
in the context of a particular programme and setting.
Monitoring
strategies refer to the need to chart the progress of temporary
special measures. Data gathered to map the progress of women's
condition in various fields must be disaggregated according to
gender, race, ethnicity and other relevant characteristics. In
this way, the situation of women facing multiple barriers to the
realisation of their human rights may be assessed.
Enabling
conditions create a context in which temporary special measures
can affect real change in women's status. Women facing multiple
barriers will not be able to access opportunities provided by
temporary special measures unless services and support systems
are provided. For example, if a temporary special measures establishes
a micro-credit programme for single mothers in order to enable
them to set up businesses, unless child care programmes are set
to accompany the measures, women may not be provided with actual
opportunities to improve their own living conditions.
Programmes
for the promotion of human rights standards through public education
may enhance access to and the potential benefits of specific temporary
special measures by: (a) raising women's legal awareness of their
human rights, entitlements and benefits while providing guidance
and training on means of accessing them; (b) contributing to the
overcoming cultural and social barriers to women's empowerment
in their particular communities; and (c) promoting public awareness
of human rights issues from a gender lens so as to combat popular
stereotypes and beliefs that place limits on women's advancement.
Such educational programmes should be sensitive to the need to
reach women who face multiple barriers.
The goal of
substantive equality can be successfully advanced by temporary
special measures that (a) incorporate these five principles, (b)
target specific sites of discrimination and (c) address the situation
of multiply disadvantaged women.
NOTES
[1] International Women's Rights Action Watch Asia Pacific (IWRAW
Asia Pacific) and Human Rights Clinic-Columbia Law School, Towards
the Progressive Interpretation of Temporary Special Measures Under
CEDAW, Background Paper on the Proposed General Recommendation
on Article 4.1. (2002).
[2] CEDAW Secretariat, Committee's Approach to Article 4, Paragraph
1 of the Convention, CEDAW/C/2001/II/5, para. 46 (2001).
[3] See International Women's Rights Action Watch-Asia Pacific
(IWRAW Asia Pacific), Temporary Special Measures (Art. 4.1) as
a Means for Addressing Intersectional Discrimination under the
CEDAW Convention 3 (April 2002).
[4] See Convention on the Elimination of All Forms of Discrimination
Against Women, Dec. 18, 1979, art. 4.1, 1249 U.N.T.S. 13, 16 [hereinafter
CEDAW]. Articles 2, 3 and 5 imply an obligation to employ temporary
special measures when necessary to end discrimination.
[5] Id. at art. 4.1.
[6] See H.B. Schöpp-Schilling, Background Paper for a General
Recommendation on CEDAW Article 4.1, para. 27 CEDAW/C/2002/I/WP.1
(2001). (emphasising that substantive equality includes equality
of results); IWRAW Asia Pacific, "The Principles of Substantive
Equality, Non-Discrimination and State Obligation As Prescribed
by the Convention on the Elimination of All Forms of Discrimination
Against Women," at http://www.iwraw-ap.org/SubstantiveEquality.html.
(last visited Jan.23, 2002).
[7] IWRAW Asia Pacific, supra note 6.
[8] The background paper can be found in IWRAW Asia Pacific's
website www.iwraw-ap.org. For further information please contact
iwraw-ap@iwraw-ap.org
[9] See Schöpp-Schilling, supra note 6, at 2 (while Schöpp-Schilling
offers the first three rationales, this Executive Summary also
discusses the "access to rights" rationale).
[10] See H.B. Schöpp-Schilling, Article 4 of the CEDAW Convention
(presented Jan. 2001) 6.
[11] Id.
[12] Id.
[13] See CEDAW (defining discrimination as any "distinction,
exclusion or restriction . . . which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise
by women . . . of human rights and fundamental freedoms . . .
." ) (emphasis added). See also Schöpp-Schilling, supra
note 6, para. 27.
[14] See Luke Charles Harris and Uma Narayan, Affirmative Action
as Equalizing Opportunity: Challenging the Myth of "Preferential
Treatment," in Practical Ethics, Classical and Contemporary
Readings (Hugh LaFollette ed., 1997).
[15] Id.
[16] See Susan Sturm and Lani Guinier, The Future of Affirmative
Action, in Who's Qualified 3 (2001).
[17] See Kimberlé Williams Crenshaw, Expert Paper, "Gender-Related
Aspects of Race Discrimination," United Nations Expert Group
Meeting on Gender and Racial Discrimination 6, EGM/GRD/2000/WP.1
(2000) 7. [hereinafter "Expert Paper"] The term "axis"
is used to describe identities (such as gender, race, ethnicity,
caste, poverty, etc.).
[18] See Id., Lisa A. Crooms, Intersectionality, Human Rights,
and De-Marginalizing Black Women, in Race, Ethnicity, Gender and
Human Rights in the Americas: A New Paradigm for Activism 77 (Celina
Romany ed., 2001); Celina Romany, Themes for a Conversation on
Race and Gender in International Human Rights Law, in Global Critical
Race Feminism: An International Reader 58 (Adrien Katherine Wang
ed., 2000). For discussion in the U.S. context, see Kimberlé
Crenshaw, Demarginalizing the Intersection of Race and Sex: A
Black Feminist Critique of Antidiscrimination Doctrine, Feminist
Theory and Antiracist Politics, The University of Chicago Legal
Forum 139, 140 (1989).
[19] See Bossuyt, Special Rapporteur, Prevention of Discrimination
and Protection of Indigenous Peoples and Minorities: The Concept
and Practice of Affirmative Action 23 n.20, E/CN.4/Sub.2/2001/15
(2001) at paras. 46-56. While the Special Rapporteur describes
the three categories as affirmative mobilization, affirmative
fairness and affirmative preference, the term "positive special
measures" is used here in lieu of affirmative preference,
in light of the critique of viewing temporary special measures
as a preference.
[20] The Special Rapporteur identifies in particular "remedial
interventions such as job training, out-reach and other skill-building
or empowerment programmes . . . " Bossuyt, supra note 19,
para. 47.
