EU Commission quota plan would violate human rights

Quotas might achieve gender or other kinds of parity by force, but they have undermined the achievements of members of every group they have been set up to assist

Another self-inflicted headache for Barroso?
Aaron Rhodes
On 1 October 2012 09:09

Nine European states, led by the United Kingdom, have signaled their opposition to a European Commission plan to mandate that private companies’ non-executive boards are at least 40 percent female by 2020, otherwise facing fines and other sanctions.

In a letter to Commission President Jose Manuel Barroso obtained by the Financial Times, European leaders objected to Justice Commissioner Viviane Reding’s plan on constitutional grounds, arguing that according to the subsidiarity principle, such measures should fall within the competencies of member states, not be imposed by the EU.  Some of the signatories have instituted national gender quotas themselves.

Business groups have also objected, saying voluntary efforts to improve female representation on corporate boards will eventually bring the desired results. Critics have objected that the mandate would “patronize” women; others say that where they have been imposed, as in Norway, gender quotas have resulted in the appointment of “trophy directors” and have not improved actual opportunities for women.

What neither governments nor private sector actors have said is that gender quotas are wrong, and in violation of fundamental human rights principles. Hiring, admissions and appointment quotas violate the principle of equality that runs through most international human rights standards, and are also an interference in the institutions of civil society by government that violate the right to freedom of association.

Such measures might be appropriate as temporary efforts to deal with the devastating effects of legal discrimination against women in societies like Iran and Saudi Arabia, but used to shoe-horn women onto the boards of private European corporations, they would create discrimination in situations where discrimination is not the main problem and perhaps not the problem at all.   

Those who have argued against gender quotas on practical grounds have the facts on their side. Quotas might achieve gender or other kinds of parity by force, but they have undermined the achievements of members of every group they have been set up to assist. In particular, they have lowered achievement standards for members of target groups, while burdening them with feelings of entitlement.  

They have also bred suspicion and resentment against successful women and minority group members with insinuations that they do not deserve their success. And they have resulted in a reactionary backlash against the long struggle for gender equality because, while cloaked in lofty principles like human rights, they themselves violate human rights principles.  

Quotas engender sexism, racism, and chauvinism. It is difficult to understand how Commissioner Reding can claim that while she does not like quotas per se, she “likes what they do.”   

In a general sense, the deeply flawed concept of a quota that discriminates against half the population and forces private institutions to obey a highly dubious social engineering scheme reflect an embrace of “legal relativism,” which allows principles to be interpreted in any way necessary in order to achieve political objectives. 

Laws, including international human rights treaties, are seen as means to ends – not ends in and of themselves, as legal scholar Jonathan Turley has observed. A fundamental principle of the Rule of Law is that legislation favoring specific groups is inherently unfair and divisive.

The twisted concept of “affirmative discrimination,” a prime example, has been around for decades, and while discredited by experience, logic, and morality, not to mention its abject failure as a technique of social transformation, lives on to deceive another day. Regrettably, it has been legitimated by international human rights treaties like the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has been ratified by virtually every country on earth except the United States and several Islamic theocracies.  

Another UN convention signed by 175 nations, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), holds that quotas may be required to address discrimination in signatory states. The UN Human Rights Committee has also endorsed quotas. 

Commissioner Reding has reportedly based her plan on the Treaty of the European Union, and thus on the European Charter of Human Rights. Article 23 of the Charter explicitly permits such measures:“The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”

Thus, treaties  “enshrining” human rights have created a moral space for coercion and discrimination.  Thirty years ago, the constitutions of European countries forbid any form of gender discrimination.  European leaders even scoffed against American  “affirmative action” policies, which in fact did not include quotas after they were declared unconstitutional in 1978.    But dragged under by the false promise of  “substantive equality” and by political correctness, qualms about the violation of human rights intrinsic in legal quotas have been swept away.

The Commission’s quota proposal is indeed indicative of how Europeans are in danger of losing democratic control over their own lives. It is also worrisome for institutionalizing sex discrimination in the name of ending it, and in the name of human rights.

Aaron Rhodes is a co-founder of the Freedom Rights Project.  He was Executive Director of the International Helsinki Federation for Human Rights from 1993-2007, and helped found the International Campaign for Human Rights in Iran in 2008

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