CHAPTER VI

CONSIDERATIONS REGARDING THE COMPATIBILITY OF AFFIRMATIVE
ACTION MEASURES DESIGNED TO PROMOTE THE POLITICAL
PARTICIPATION OF WOMEN WITH THE PRINCIPLES
OF EQUALITY AND NON-DISCRIMINATION

I.         INTRODUCTION 

The Inter-American Commission on Human Rights (hereinafter “Commission”) has been asked by the Inter-American Commission of Women (hereinafter “CIM”) to provide a juridical analysis of the compatibility of affirmative action measures designed to promote the political participation of women, including quota systems, with the principle of non-discrimination on the basis of gender, national legislation and the corresponding international instruments.  In view of the general terms of the question raised, and the Commission’s competence under the Charter of the Organization of American States (hereinafter “OAS”), the American Convention on Human Rights (hereinafter “American Convention”), the American Declaration of the Rights and Duties of Man (hereinafter “American Declaration”), its Statute and Regulations, the present response addresses the general compatibility of such measures with the principles of non-discrimination and the relevant provisions of the principal regional and international human rights instruments.  The international human rights obligations that member states have undertaken carry with them the duty to bring national legislation and practices into conformity with applicable norms, including the right of women to participate in the government and public affairs of their countries. 

II.        BACKGROUND 

          Obtaining the full representation and participation of all social sectors in public life is a fundamental objective of any democratic system.  Discrimination against women, in diverse and interrelated forms, has historically impeded their ability to participate in government and public life.  While important advances are being realized, women remain seriously underrepresented in this sphere in the OAS member states, and throughout the world.[1]   

In recent years, further steps have been taken to address gender discrimination, such as the modification or repeal of legal provisions which are discriminatory on their face, and the adoption of legislation and policies aimed at addressing discrimination in fact.[2]  More specifically, a number of countries in the region have responded to the insufficient representation of women in political life by adopting legislation seeking to ensure minimum representation by women in the institutional structures of the state, targeting women for appointment to public office, and implementing educational programs aimed at increasing women’s political participation, among other measures.  Such initiatives seek to promote the participation of women in public life within the larger context of enhancing and safeguarding diversity in political representation.  The implementation by several countries of the region of legislation and policies designed to increase such diversity, particularly the establishment of numerical goals or quotas based on sex for candidates for public office, has been followed by a significant rise in the proportion of women elected to such offices.  For example, in Argentina, the proportion of women holding elected office has been favorably affected by the national law on quotas, with the percentage of women serving in the Congress having increased to approximately 30%.[3]  Pursuant to the adoption of similar legislation by Bolivia in 1996, the number of women representatives in Congress rose to 22%.[4]  As of 1998, quota systems were also in place in countries including Brazil, Costa Rica, Ecuador, Peru and Venezuela, and were under consideration in others.[5]   

The overall context, however, remains one in which, notwithstanding that the constitutions of this hemisphere guarantee women the enjoyment of their rights on an equal basis with men, discrimination in law persists in certain spheres and countries, and discrimination in fact continues to restrict the ability of women to exercise a range of basic rights, including the right to fully participate in public life.   

III.      CONSIDERATIONS OF LAW 

A.        Applicable Provisions 

          The question under study -- the compatibility of affirmative action measures designed to promote the political participation of women with the principle of non-discrimination on the basis of gender and the corresponding provisions of international human rights instruments – concerns two sets of interests, the right to participate in government and public affairs on the one hand, and the rights to equality and to be free from discrimination on the other.  

1.         The Right to Participate in Government and Public Life 

          The right to participate in government is recognized as fundamental in both the regional and universal spheres.  Within the inter-American human rights system, Article 23 of the American Convention sets forth the right of every citizen “(a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected in genuine periodic elections…; and (c) to have access, under general conditions of equality, to the public service of his country.”  The Article further provides that these entitlements may only be regulated “on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in civil proceedings.”  The obligations of member states that have yet to ratify the American Convention are set forth in the American Declaration of the Rights and Duties of Man, which serves as a source of legal obligation for OAS members.[6]  The American Declaration, for its part, provides in Article XX that every person “having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections….”  As with other protected rights, these rights as set forth in either instrument must be respected and ensured in a non-discriminatory manner.  Further, in accordance with the purposes of the applicable human rights instruments and the principle of efficacy, these rights may not be maintained as mere formalities – they must be translated into material guarantees. 

Human rights instruments with universal application likewise codify the right of every citizen to participate, on equal terms, in the political life of his or her nation.[7]  This right is set forth, for example, in Article 21 of the Universal Declaration of Human Rights, and Article 25 of the International Covenant on Civil and Political Rights.   

In codifying the right of women to be free from discrimination in all spheres, the Convention on the Elimination of All Forms of Discrimination against Women makes explicit reference to the sphere of political life (Article 1).  More specifically, under Article 7, States Parties are required to “take all appropriate measures to eliminate discrimination against women in the political and public life of the country,” and must “ensure to women, on equal terms with men, the right to vote in all elections” and to be eligible for election, to participate in the formulation and implementation of government policy, and to hold public office and perform public functions at all levels.[8]   

The Article is explicit in indicating that equality in political participation involves not only the right to vote, but also the right to be elected to public office and to fully participate in the public affairs and service of one’s country.  Achieving the full enjoyment of these rights by women, “on equal terms with men,” may require states to adopt measures of affirmative action. 

2.         The Rights to Equality and to be Free from Discrimination 

The principle of non-discrimination is a pillar of any democratic system, and a fundamental basis of the OAS system.  It will be recalled that Article 3(l) of the Organization’s Charter sets forth as a core principle that: “The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex.” The principles of non-discrimination and equal protection serve in turn as fundamental bases for the principal normative instruments, the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man.  Article 1 of the American Convention sets forth the obligation of States Parties to respect and ensure all of the rights and freedoms set forth in the treaty without discrimination for reasons of, inter alia, sex.  The rights protected include the right to equal protection of and before the law set forth in Article 24.   

The American Declaration provides in Article II that “all persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to …[inter alia] sex.”  Among the other instruments of the system, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) recognizes the critical linkage between the right to be free from discrimination and the protection of other fundamental rights, most especially to be free from gender-based violence. 

          The purposes of the regional human rights system and the principle of efficacy require that these guarantees be implemented in practice.  Accordingly, under both the American Convention and Declaration, the domestic system must offer available and effective judicial recourse to persons alleging the violation of their right to be free from discrimination.  Further, where domestic remedies prove unavailable or ineffective, the inter-American system provides for the possibility of recourse through its individual case system.  Thus, the guarantees at issue are not merely hortatory or formal; the mechanisms of the regional system exist to ensure that they are implemented and made effective.  

          The rights to equality and non-discrimination are accorded concomitant priority within the United Nations system.  One of the very purposes of the United Nations, set forth in Article 1(3) of its Charter, is the promotion of respect for human rights without distinction as to race, sex, language or religion.  Articles 1 and 2 of the Universal Declaration affirm that “all human beings are born free and equal in dignity and rights,” and that every person is therefore entitled to enjoy the rights set forth “without distinction of any kind,” including sex.  The rights to be free from discrimination and to equal protection are further elaborated in that instrument (Article 7) and the International Covenant on Civil and Political Rights (Articles 2, 3 and 26), among others.   

The Convention on the Elimination of All Forms of Discrimination against Women reinforces the equality and non-discrimination provisions of the International Bill of Rights by defining discrimination against women, and requiring States Parties to adopt specific measures to combat it.  Such discrimination is defined in Article 1 as: 

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.

 The definition covers any difference in treatment on the basis of sex which intentionally or unintentionally disadvantages women; prevents recognition by society as a whole of the rights of women in the public and private spheres; or, prevents women from exercising the human rights to which they are entitled. 

B.        Evaluating the Compatibility of Special Measures of Affirmative Action with the Obligation of the State to Ensure the Rights to Equality and Non-Discrimination 

          As the Inter-American Court of Human Rights has established, in accordance with the broad commitment to recognize the fundamental rights of all persons without discrimination proclaimed in the OAS Charter (Article 3(l)), the American Convention (Article 1), and the American Declaration (Article II), treatment which in any manner discriminates with respect to the exercise of any protected right is incompatible with the inter-American legal regime.[9]  More specifically, the right to equal protection of the law, set forth in Article 24 of the American Convention and Article II of the American Declaration, requires that national legislation accord its protections without discrimination.[10]  The right to equality before the law “prohibits all discriminatory treatment originating in a legal prescription.”[11]  The prohibition of discrimination thus extends to domestic legislation, which member states must maintain free of discriminatory provisions.[12]  

          Identifying discriminatory treatment requires a showing of a difference in treatment between persons in a sufficiently analogous or comparable situation.[13]  However, as the Inter-American Court has noted, differences in treatment in circumstances which are otherwise similar are not necessarily discriminatory.[14]  A distinction which is based on “reasonable and objective criteria” may serve a legitimate state interest in conformity with the terms of Article 24.[15]  It may, in fact, be required to achieve justice or to protect persons requiring the application of special measures.[16]  “Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice….”[17i]  A distinction based on reasonable and objective criteria (1) pursues a legitimate aim and (2) employs means which are proportional to the end sought.[18]   “In other words, the law is expected to be even-handed between women and men unless just, legitimate and reasonable compelling bases have been adduced to justify a difference in treatment."[19]   

          Statutory distinctions based on status criteria, such as, for example, race or sex, necessarily give rise to heightened scrutiny.  What the European Court and Commission have stated is equally applicable for the Americas, that as “the advancement of the equality of the sexes is today a major goal,” … “very weighty reasons would have to be put forward” to justify a distinction based solely on the ground of sex.[20]  Reasons that have sufficed to justify certain distinctions in treatment in the European system have included the benefit of measures encouraging married women to work outside the home as a means of breaking down prejudices and advancing equality of the sexes,[21] as well as certain issues under family law relating to maternal and/or paternal parental rights.[22] 

          Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women provides importance guidance in understanding the legal basis for the adoption of special measures of affirmative action designed to promote the political participation of women.  It reads, in pertinent part:  

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.

This Article recognizes that, even where women are accorded equality as a matter of law, this does not equate to a guarantee of equality of opportunity or treatment.  Special measures to remedy persistent conditions of discrimination in fact are permitted as long as those conditions persist, and until equality of opportunity is achieved.  It must be emphasized that, under those circumstances, and where implemented as required, Article 4 provides as a matter of law that such measures do not constitute discrimination. 

The distinction between formal and factual equality, and the role of temporary special measures were emphasized by the Committee on the Elimination of Discrimination against Women in its general recommendation 5.  The Committee indicated that, “while significant progress has been achieved in regard to repealing or modifying discriminatory laws, there is still a need for action to be taken to implement fully the Convention by introducing measures to promote de facto equality between men and women.”  Accordingly, it recommended “that States parties make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women’s integration into education, the economy, politics and employment.”[23] 

In its general comment 25, the UN Human Rights Committee analyzed the adoption of such special measures in relation to the right of all citizens to political participation on the basis of equality set forth in Article 25 of the ICCPR.  As a general matter, the Committee noted that “[a]ny conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria.”[24]  Ensuring equality of access to public service positions in turn requires that:  

the criteria and processes for appointment, promotion, suspension and dismissal [to/from public service positions] must be objective and reasonable.  Affirmative measures may be taken in appropriate cases to ensure that there is equal access to public service for all citizens.[25]

The Committee on the Elimination of Discrimination against Women set forth a more  comprehensive analysis of the relationship between the right of women to participate in government and the need for temporary special measures in its general recommendation 23.  “The principle of equality of women and men has been affirmed in the constitutions and laws of most countries and in all international instruments.  Nonetheless, in the last 50 years, women have not achieved equality, and their inequality has been reinforced by their low level of participation in public and political life.”[26]  “While removal of de jure barriers is necessary, it is not sufficient.  Failure to achieve full and equal participation of women can be unintentional and the result of outmoded practices and procedures which inadvertently promote men.”[27]  The Convention on the Elimination of All Forms of Discrimination against Women thus encourages the adoption of temporary special measures to give effect to the right to participate in public life: 

Where countries have developed effective temporary strategies in an attempt to achieve equality of participation, a wide range of measures has been implemented, including recruiting, financially assisting and training women candidates, amending electoral procedures, developing campaigns directed at equal participation, setting numerical goals and quotas and targeting women for appointment to public positions .…  The formal removal of barriers and the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies are essential prerequisites to true equality in public life.[28] 

C.        Analysis 

          In principle, examining the compatibility of special measures of affirmative action designed to promote the political participation of women with the principles of equality and non-discrimination set forth in the American Convention and Declaration requires analyzing a series of questions.  Three questions are of central importance.  First, does the measure bring about a difference in treatment that falls within the sphere of application of the American Convention or Declaration, respectively?  Second, assuming that it does, does that difference in treatment pursue a legitimate aim?  This analysis looks to the interest the state seeks to serve and the objectives sought to be accomplished.  Third, are the means employed proportional to the end sought?  In other words, is there a reasonable balance of interests between the end sought and any restriction of rights imposed?  If there is a restriction involved, is it the least restrictive measure possible to accomplish the objective sought?  Is the treatment involved arbitrary or unfair in any case?  The evaluation of these questions must take into account that a distinction based on status, such as sex, gives rise to heightened scrutiny. 

          As a general matter, the regional and international communities have recognized that, while the existence of formal de jure equality is a fundamental prerequisite for overcoming discrimination, it does not necessarily lead to equality in practice.[29]  To the contrary, while the constitutions of our region guarantee equality between women and men, women remain severely under-represented in virtually all aspects of political life.  Nor is it the case that apparently gender-neutral legislation and policies necessarily produce gender-neutral outcomes.  Consequently, instruments and policies adopted at both the regional and universal levels require the adoption of special measures where necessary to promote the equal access of women to participation in public life.  The goal of bringing about the effective equal access of women to participation in public life is clearly, in and of itself, a legitimate and necessary goal.  As referred to above, the regional and international human rights obligations of states must be made effective at the national level through domestic legislation and practice.  Accordingly, where discrimination in law or in fact constrains women from fully exercising their right to participate in the government and public affairs of their country, that inconformity must be addressed through concrete action.  One of the concrete ways the duty to respect and ensure the rights at issue can be realized is through the adoption of measures of affirmative measures to promote the participation of women in this sphere.   

How this goal of promoting the equal access of women to political participation is pursued and implemented is, at first instance, necessarily a function of national law and policymaking, and integrally related to the specific situation and history in the country.  The considerations reviewed above provide general guidance in examining the compatibility of a particular measure of affirmative action adopted by an OAS member state with the obligations of equality and non-discrimination.  The specific measure must then be analyzed in light of those considerations, its precise characteristics, and the national context.  In particular, the regional and international dispositions calling for and/or requiring the adoption of special measures of affirmative action to promote the political participation of women contemplate that the need for and appropriateness of such measures will be evaluated in relation to the actual existence of discriminatory treatment.  They are, moreover, intended to be temporary, in the sense that, once equality of access and outcome are achieved, such measures are no longer required.  These elements of analysis are, by definition, inextricably linked to the national context. 

IV.       CONCLUSION 

In principle, affirmative measures are fully in compliance with the principle of non-discrimination and the applicable provisions of human rights law; in fact, such measures may well be required to bring about substantive equality of opportunity.  Achieving the free and full participation of women in political life is a priority for our hemisphere.  Accordingly, in seeking to encourage the adoption of further action in pursuit of this goal, this Commission has recommended to the member states that:

 … in accordance with Article… [XX] of the American Declaration and Article 23 of the American Convention, … [they] continue and expand measures to encourage participation by women in decision-making in the public sphere, including positive measures.  As well, the Commission urges that they assure that women have appropriate representation at all levels of government, at the local, provincial, state and national levels; develop strategies to increase the integration of women in political parties; and take further steps to fully incorporate the sectors of civil society, including those that represent the interests of women, in the process of developing and implementing policies and programs.[30]

The CIM, for its part, has recommended a series of measures designed to promote such participation, including, inter alia, that the member states: 

Promote the reform of electoral laws and the statutes of political parties to include mechanisms that guarantee equal participation by men and women.

Promote legislation mandating proportional representation in offices awarded by popular vote, in countries where such laws do not exist, and support the stiffening and enforcement of election laws or regulations that stipulate proportional quotas for women running for such offices.[31] 

The under-representation of women in government throughout the Americas demonstrates the need for further state action, in conjunction with initiatives of civil society, to bring about true respect for the right of women to participate in political life in compliance with international norms.  As the regional and international communities have recognized, achieving the free and full participation of women in all spheres of public life is an obligation which may well require the adoption of special measures of affirmative action designed to effectuate equality of opportunity for women and men.