Affirmative action: friend or foe?

Positive discrimination, positive action or affirmative action are words combinations that reunite into one simple concept: they refer to policies and legislative measures that take into consideration factors such as gender, religion, race or color and that tend to correct certain social imbalances by promoting an underrepresented group using different tools.

In today’s literature and discussions, the concept is regarded as either a justice seeking device or a failure in the system due to the fact that “it results in reverse discrimination and lowers the qualifications of those selected under the policy”. In a search for a definition, one easily stumbles into labour law issues, since affirmative action is mainly associated with the establishment of quotas, by which a certain percentage of jobs must be allocated to women, members of a certain ethnic group, people with a certain nationality…etc. Moreover, these policies also affect education. In Romania, for example, a certain percentage of admissions to higher education is reserved for the Roma people.  These practices can be observed also in Brazil or the United States, although in the latter, the situation is obscure due to constitutional challenges that were invoked in certain cases such as Grutter v. Bollinger.

These corrective policies are partially legitimate due to the lack of limitations in the definitions that arise in different international instruments. Although they are generally regarded as temporal, the specific limitations of affirmative actions were never defined and neither were the social areas of their effective impact. In the Handbook on European Non-discrimination law it is mentioned that affirmative action should “function as a short-term and exceptional mean”.

Affirmative actions are insufficient due to:

  • The absence of a legal definition in international treaties.
  • The absence of legally determined prerequisites and conditions.
  • The inexistent clarification and limitations of the operating time-frame.
  • The lack of a prototype for measuring the results and effects of these policies.

It is my personal belief that corrective policies should not interfere with fundamental rights and Criminal law but should be characterized by socio-economical interference. It appears to me that the best interpretation that could limit States’ margin of appreciation the one linking the need for differential treatment to a scarcity of goods and rights. The prerequisites of affirmative action should then be:

  • A situation of quantitative imbalance for a certain underrepresented group determined by a disproportionate distribution of rights and goods.
  • An objective legal impossibility of accessing those goods and rights by the underrepresented group or an impractical legal machinery to help them access such goods and rights.
  • A casual link between the differential treatment to be accorded and the shortcoming of the legal system that should be corrected by the policy.
  • Sufficient proof based on sociological predictions that the policies would be effective in assuring an equal access to rights and goods.

Affirmative action brought a wide recognition of the separation between women’s work life and private life and in the employment areas, incentives and trainings helped smooth the progress of including women in the labor market.

The debate regarding the implementation of the policies and their reversed discrimination effect as well as the compatibility with the principle of equality before the law remains open on a transnational level. We can’t know for sure for how long will these actions subsist and what long-term consequence they will have on contouring a new definition of differential treatment of both domestic and international intensity.

What we do know is that affirmative action is becoming part of modern international law and unlike the classical period, this one is characterized by the international organizations’ endorsement of differential treatment. Since affirmative action is present mostly in General Comments and Recommendations that are not treaties and therefore, do not possess a legally binding character, it is questionable whether States will achieve the non-discrimination goals set in different treaties. For those States who decide to follow the guidelines contained in these non-binding documents due to their interpretative authority, it is necessary to create a strict set of rules that would determine when such measures are objectively needed and justified.

Clearly defined and lawfully implemented, corrective policies have the ability to change the discriminatory scenario of States. Maxwell  Chibundu argues in ”Affirmative action and International Law” that there is a need for the codification of affirmative action as to make it part of the international law doctrine for it possesses “pragmatism and moral strength’’ along with its traits of just logic of redistribution. He also warns us of the fact that the ability of these policies to influence change depends on the power struggles and relationships that delineate each society.

Another problem that is yet to be addressed relates to the social support and information revolving around affirmative action. There are not sufficient national surveys to reflect attitudes towards racial or gender corrective policies or the difference between those and meritocracy. In the US, a small number of studies have concluded that women and African-Americans are more likely to sustain the ideology of the State’s corrective duty but there is not enough data to predict gender-related positive action positions.

If affirmative action becomes a fair distribution tool and is properly promoted by international law not only will it shape non-discrimination but has the power to consolidate development strategies that are likely to generate economical equity and respect for social, economical and cultural rights.



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