The Special Measures Mandate of the International Convention on the Elimination of All Forms of Race Discrimination: Lessons from the United States and South Africa

Abstract:     
This article addresses the experiences of the continuing racial inequality and the experiences and results from affirmative action in the United States and South Africa, arguing that these experiences point to the need for more guidance from the Committee on the Elimination of Racial Discrimination regarding the special measures mandate of the International Convention on the Elimination of all forms of Racial Discrimination, and in particular on affirmative action.

The article first reviews the Convention's mandate of special measures, arguing that special measures are distinct from measures aimed at remedying past discrimination - that they are a separate obligation of states parties tied to the states parties' duty to develop and protect racial groups and individuals, and that they are necessary to guarantee equality in the enjoyment of rights and fundamental freedoms and to address the effects of economic structural inequality. The article asserts that special measures need not always benefit those who suffered specific discrimination or who are the most disadvantaged in the affected groups, so long as they are designed to "ensure the adequate development and protection" of those groups.

The article then focuses on the experience of the United States and South Africa - each a party to the Convention - in addressing affirmative action programs or special measures. It argues that the experiences of both countries with structural racial inequality and the ongoing existence of bias provide the greatest justification for the continued need for race-based special measures, despite the call for moving affirmative action programs to those based on class. Drawing from the experiences of both countries with efforts to address bias and inequality, the article proposes language for more comprehensive definitions and standards that might be enacted by the Committee on the Elimination of Racial Discrimination in order to provide more guidance for all countries trying to implement their obligations under the Convention.

The article proposes a new General Recommendation from the Committee that would address the following points: that the special measures obligation under article 2(2) of the Convention is mandatory; that special measures are not considered discriminatory if they are within the scope of fulfilling the obligations of the treaty; that special measures should have the goal of guaranteeing to all groups the full enjoyment of their civil, political, economic, social and cultural rights; that special measures should be taken to eliminate structural inequalities within a country; that special measures should not abrogate the rights of any group after the purposes for which they were adopted have been achieved; that special measures should benefit all groups that have not attained equal enjoyment of human rights and fundamental freedoms; and that special measures should be undertaken to address both de facto as well as de jure discrimination. A new recommendation by the Committee should also acknowledge: that while there may be other means for addressing inequality such as those based on social status or wealth, so long as racial disparities exist in education and other rights, race-based measures should continue to be used; that bias needs to be addressed, both as a reason for using race based measures as well as something that needs to be the focus of special measures; that the use of diversity as a goal might be helpful as a means for achieving equality, but it should not replace the goal of attaining equality in the enjoyment of human rights and fundamental freedoms; that it is important that the special measures enacted be carefully tailored to the specific goals being sought; and that measures such as affirmative action are only one means for addressing discrimination.

Keywords: human rights, International Convention on the Elimination of all forms of Racial Discrimination (CERD), special measures, affirmative action, equality, South Africa, United States, United Nations, Committee on the Elimination of Racial Discrimination

Working Paper Series