Legal dilemmas in anti-discrimination law Professor Niklas Bruun Helsinki and Stockholm Gothenburg 25.4.2013 Faculty of Law
Integrated approach? • Anti-discrimination law has traditionally been a tool of improving standards (for weak or disadvantaged groups) • Implicit hierarchy between differentdiscrimination grounds - integrated or non integrated approach • Risks with integrated approach - Emphasize on formality (comparator) - Loosing up justification criteria (direct discrimination) • Broad margin of appreciation
Integrated approach? 2 • Experience from Sweden, UK etc. • Compare Norway, Finland? • Fragile protection • Restricted approach to positive action and temporary special measures
Anti-discrimination law problems • Overemphasized role on one – important tool – for promoting equality • Nordic backlash – antidiscrimination law some kind of necessary EU-exercise • National backlash (especially on the labour market) • Downgraded role for equality ombudsmen – at least in media • General attacks against some fundamental rights (ethnicity, ”family values”, abortion rights)
The European challenges Gender mainstreaming and non discrimination policy alá the TROIKA • Heavy attack on public sector and welfare arrangements • Significant decrease in public sector wages (against ILO Conventions) • Pension cuts reducing pensions below povert tresholds • Health problems (prostitution/AIDS/HIV) • Female unemployment and unemployment
The European challenges 2 Gender mainstreaming and non discrimination policy alá the TROIKA • Heavy attack on public sector and welfare arrangements • Significant decrease in public sector wages (against ILO Conventions) • Pension cuts reducing pensions below povert tresholds • Health problems (prostitution/AIDS/HIV) • Female unemployment (officially 31 % women, 24 % men) • Disadvantaged groups
The European challenges 3 Gender mainstreaming and non discrimination policy alá the TROIKA • Refugees, asylum seekers and migrants – humanitarian crisis • No access to legal aid – or justice • Complaints leading to results (ILO, European Social Charter), but no policy changes in sight
Legal opportunities The pluralist ”competition” between different instruments (contradictions and inconsistency can be an opportunity, human rights set minimum standards) • European Union legal regime - significance has been declining, but it contains still important elements - conceptual framework (direct/indirect discrimination), burden of proof
Legal opportunities 2 The pluralist ”competition” between different instruments 2. European Convention on Human Rights (especially art. 14) • Accessory right • Interpretation rather week (see burden of proof, requirement of intent to discriminate etc) • Can be important in certain areas • Broad discrimination concept
Legal opportunities 3 The pluralist ”competition” between different instruments 3. ILO Conventions 100 and 111 Fundamental core Conventions under 1998 Declaration on Fundamental Rights Binding on State Parties which has not ratified them Part of Trade agreements, Fair trade labels, CSR-arrangements etc.
Legal opportunities 4 The pluralist ”competition” between different instruments • 3. The UN Conventions/example The CEDAW Convention (187 ratifications) Three State obligations: • Eliminate direct and indirect discrimination in all its forms ”without delay” • Improve de facto position of women in society • Eliminate negative forms of gender stereotypes
CEDAW-Committee´s mandate • Considers the progress made in the implementation of the CedawConventionbyexamining national reportsfrom State Parties (187 at present) to besubmittedeveryfouryears. • Requestsfollow-up-reports • Elaborates General Recommendationsbased on Article 21.1 CEDAW • Receives and considersIndividualCommunicationsunder the OptionalProtocol (OP) to the CEDAW Convention - individualcomplaints - inquiry-procedure (Article 8.1)
CEDAW-Committee´s impact • Broad definition of discrimination – State Due diligence obligation also in the private sphere • Positive action – Temporary Special Measures part of the State obligations • Model for regional arrangements – even in Europe See: Council of Europe Convention pn preventing and combating violence against women and domestic violence
Optional protocal Article 13 – obligation to inform Not very well known in the Nordic countries: Article 13 Each State Party undertakes to make widely known and to give publicity to the Convention and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party.
Why is the optional protocol underexploited by the Nordic countries? • Article 4 • The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonable prolonged or unlikely to bring effective relief. DOES NOT APPLY TO THE INQUIRY-PROCEDURE.
Potential? • Article 5 1. At any time after the receipt of a communication and before determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.