U.N. Convention Ties U.S. to Affirmative Action
The Supreme Court this term is considering a case from Piscataway, N.J., involving a school district that -- needing to lay off someone -- chose a white teacher rather than a black teacher in order to maintain racial diversity. Both teachers were equally qualified. Some though by no means all, observers expect the court to issue a sweeping ruling against affirmative action policies.
The Piscataway case is the most current example of the deep national cleft over whether to continue racial and gender preferences in areas such as schools, housing and employment. As political efforts to undo affirmative action escalate, the tendency of American jurisprudence is to uphold such policies only when targeted to rectify specific instances of discrimination.
Given America's notorious cultural insularity, it is perhaps not surprising that few legal commentators have considered the international dimensions of this debate. But the United States is part of the world community, and our commitments under international treaties and conventions cannot simply be ignored. Put plainly, should the United States abandon its commitment to affirmative action, it would do so in defiance of international law.
The United States is infamous for disregarding international law when doing so suits its purposes. President Reagan, for example, mined the harbors of Nicaragua despite sanctions from the World Court. Especially in light of this sullied history, America cannot insist that other countries follow the law when it is unwilling to do so itself. As far as affirmative action is concerned, both statute and case law from other nations are clear that preferences based on race and gender are an appropriate remedy to the legacy of discrimination.
The United Nations in many of its major human rights covenants has urged affirmative action to undo the effects of the segregation and discrimination practiced by colonial powers for some 300 years.
In 1966 many nations newly liberated from colonial dominion persuaded the United Nations to adopt the International Convention on the Elimination of all forms of Racial discrimination. That treaty, now ratified by 137 nations -- including the United States -- makes it clear that affirmative action is not only allowed but indeed mandated. Its language states that:
"Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups ... as may be necessary ... shall not be deemed racial discrimination.
The only caveat was that such an arrangement must not lead to the "maintenance of separate rights for different racial groups."
A subsequent section of the convention clarifies and makes concrete the treaty's authorization of affirmative action. The paragraph allows nations to "take special and concrete measures to insure the adequate development of certain groups."
It is significant that in the process of ratifying the convention none of the 137 nations (out of the 184 U.N. member nations) have proposed reservations that would substantially qualify or modify the commitments they made by agreeing to implement the covenant's commitment to affirmative action.
At the United Nations, the committee that monitors compliance with the convention to eliminate racial discrimination has not had occasion to criticize any nations for creating quotas or for continuing affirmative action after it is no longer needed. …