REGARDING THE COMPATIBILITY OF AFFIRMATIVE
ACTION MEASURES DESIGNED TO PROMOTE THE POLITICAL
PARTICIPATION OF WOMEN WITH THE PRINCIPLES
OF EQUALITY AND NON-DISCRIMINATION
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.
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.
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.
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%.
Pursuant to the adoption of similar legislation by Bolivia in 1996, the
number of women representatives in Congress rose to 22%.
As of 1998, quota systems were also in place in countries including
Brazil, Costa Rica, Ecuador, Peru and Venezuela, and were under consideration in
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.
CONSIDERATIONS OF LAW
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
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.
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
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
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.
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.
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.
The Rights to Equality and to be Free from Discrimination
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.
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.
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.
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.
Evaluating the Compatibility of Special Measures of Affirmative Action
with the Obligation of the State to Ensure the Rights to Equality and
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.
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
The right to equality before the law “prohibits all discriminatory
treatment originating in a legal prescription.”
The prohibition of discrimination thus extends to domestic legislation,
which member states must maintain free of discriminatory provisions.
Identifying discriminatory treatment requires a showing of a difference
in treatment between persons in a sufficiently analogous or comparable
However, as the Inter-American Court has noted, differences in treatment
in circumstances which are otherwise similar are not necessarily discriminatory.
A distinction which is based on “reasonable and objective criteria”
may serve a legitimate state interest in conformity with the terms of Article
It may, in fact, be required to achieve justice or to protect persons
requiring the application of special measures.
“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.
“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."
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.
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,
as well as certain issues under family law relating to maternal and/or paternal
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:
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
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.
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
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.”
Ensuring equality of access to public service positions in turn requires
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.
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.”
“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.”
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:
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.
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.
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.
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.
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
CIM, for its part, has recommended a series of measures designed to promote such
participation, including, inter alia,
that the member states:
the reform of electoral laws and the statutes of political parties to include
mechanisms that guarantee equal participation by men and women.
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.
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
[ Table of Contents | Previous |
See generally, CIM, Equal Opportunity and Gender Equity, [Working Document of the
Inter-American Meeting of Consultation on the Participation of Women in
Power and Decision-Making Structures], OEA/Ser.L.II/2.29, CIM/doc.39/98
add.1, 25 Sept. 1998, at Section V (citing additional sources); CIM, Plan of Action of the CIM on Women’s Participation in Power and
Decision-Making Structures, CIM/Ser.L/II.8.1 (1999), at pp. 27-30;
Report of the Inter-American
Commission on Human Rights on the Status of Women in the Americas, OEA/Ser.L/V/II.100,
Doc. 17, Oct. 13, 1998, pp. 23-24.
For an accounting of developments within the regional dialogue on the
relationship between women and power, see
generally, CIM, Equal Opportunity,
supra, sections II and III.
Further, the right of women to participate in public life has been
accorded importance by the region’s Heads of State and Government during
the two Summits of the Americas. See, “Summit of
the Americas, Plan of Action,” (Miami, 1994) at II.18 (setting forth
undertaking of Governments to “[p]romote the participation of women in the
decision-making process in all spheres of political, social and economic
life”); “Plan of Action, II Summit of the Americas,” OEA/Ser.G,
CP/doc.3045/98, 4 May 1998, at section IV.
See IACHR, Report on the Status of Women in the Americas, supra, p. 23.
CIM, Equal Opportunity, supra, Section V.2.3.
By virtue of ratification of the OAS Charter, all member states undertake
certain human rights obligations. For
those member states that are Party to the American Convention on Human
Rights, that treaty sets forth the rights pledged to be upheld. For the remaining states, those rights are set forth in the
American Declaration of the Rights and Duties of Man, which is a source of
international obligation for all member states. See IACtHR,
Advisory Opinion OC-10/89 of July 14, 1989, “Interpretation of the
American Declaration of the Rights and Duties of Man within the Framework of
Article 64 of the American Convention on Human Rights,” Ser. A No. 10.
It should be noted that the organs of the inter-American human rights system
may refer to other relevant treaties in the discharge of their respective
mandates. See Art. 29, American Convention; Advisory
Opinion OC-1/82 of Sept. 24, 1982, "`Other Treaties' Subject to the
Advisory Jurisdiction of the Court (Art. 64 American Convention on Human
Rights), para. 43. “[T]he
need for the regional system to be complemented by the universal" has
found expression in the Commission's practice of invoking other treaties
concerning human rights in the Americas, both bilateral and multilateral,
“consistent with the object and purpose of the Convention, the American
Declaration and its Statute.” Id. (citing with approval Commission's practice under the
Declaration and Convention).
The participation of women in government has been accorded special
importance by the Committee on the Elimination of Discrimination against
Women (general recommendations 5, 8 and 23), and the Human Rights Committee
(general comment 25). This
right also featured prominently in the Beijing Declaration and Platform of
Action (see Declaration, para. 13; Platform, paras. 181-189) and the Vienna
Declaration and Programme of Action (see paras. 18, 43).
It may also be noted that the Convention on the Elimination of all
Forms of Discrimination against Women recognizes the right of women, on
equal terms with men, “to represent their Governments at the international
level and to participate in the work of international organizations”
(Article 8; see also, general recommendations 8 and 23, supra). The general
recommendations and comment referred to are reprinted in, “Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies,” HRI/GEN/1/Rev.3, 15 Aug. 1997.
See generally, IACtHR, Advisory
Opinion OC-4/84 of January 19, 1984,
“Proposed Amendments to the
Naturalization Provisions of the Constitution of Costa Rica,” Ser.
A No. 4, para 53 (examining compliance of measure under American
Convention). “The notion of
equality springs directly from the oneness of the human family and is linked
to the essential dignity of the individual.”
Id., para. 55.
See, e.g., Eur. Comm. H.R.,
Lindsay v. United Kingdom, Decision of 11 Nov., 1986 on admissibility, 49
D&R 181 (finding married and unmarried couples not analogously situated
in relation to distinction in taxation regime, when viewed in context of
rights and obligations pertaining to marriage).
Please note that case law of the UN and European human rights systems
is cited in the present analysis to illustrate how certain principles of law
have been applied in practice in other systems.
IACtHR, Advisory Opinion OC-4/84, supra,
para. 56, citing Eur.
Ct. H.R., Belgian Linguistics Case (Merits), Judgment of 23 July 1968, p.
generally, id.; U.N.H.R.
Committee, Broeks v. The Netherlands, Comm. No. 172/1984, para. 13, Zwaan de
Vries v. The Netherlands, Comm. No. 182/1984, para. 13.
See IACHR, Report No. 28/98, Case
11.625, María Eugenia Morales de Sierra v. Guatemala (Admissibility), in Annual
Report of the IACHR 1997, OEA/Ser.L/V/II.98, Doc. 7 rev., Apr. 13, 1998,
para. 36, citing, Van Raalte v. The Netherlands, 24 E.H.R.R. 503, para. 42.
See Lindsay, supra, at pp. 190-91 (dealing with distinction in tax allowance
which, it may be noted, affected a very small number of taxpayers (3% of
See e.g., Eur. Comm. H.R., MB v.
United Kingdom, Decision of 6 April 1994 on admissibility, 77A D&R 108
(finding distinction between natural mother and father with respect to
automatic grant of parental responsibility reasonable and justified based on
biological link with child); Eur. Ct. H.R., Rasmussen v. Denmark, Decision
of 28 Nov. 1984, Ser. A No. 87.
Emphasis added. General
recommendation 5 (7th sess., 1988), reprinted
in “Compilation,” supra.
General comment 25 (57th sess. 1996), reprinted
in, “Compilation,” supra,
at para. 4. The Committee noted
that age may be a reasonable basis for regulating the right to vote, as
established mental incapacity may be a reasonable ground for denying the
right to vote. Id.
General recommendation No. 23 (16th sess., 1997), reprinted in, “Compilation,” supra,
In this regard, the reality of inequalities developed and maintained over
history demonstrates the need for measures of affirmative action to overcome
treatment which may appear to apply equally to persons similarly situated,
but which in fact simply applies the same treatment to persons in vastly
IACHR, Report on the Status of Women
in the Americas, supra, p. 33.
See CIM, Plan of Action, supra,
paras. III.g – h.