Putting the UN on the side of the law...

Gender discrimination: D.A.M.M. IT!

Xavier Campos, ONU

There are two occupational groups that seem to have a particularly hard time functioning under «extraterritorial conditions», namely human resources managers and lawyers. You may ask yourselves why. Well, here is the answer. Barring a few notable exceptions, the organization’s human resources «specialists» are, generally speaking «self taught» or «self made» (or both). These mavericks of sorts (who may have started their UN careers as translators or accountants) have, through laudable early mobility, made the «great long walk» from «administration» to «management», and then on to «human resources management». Isolated as they were from contemporary «extraterritorial interferences», they have all too often «re-invented the wheel» and come up with bicycles ...when everybody else in the outside world was already using planes (as in the case of the infamous PAS).

On the other hand, lawyers who get their salaries from the UN have undergone a similar mutation...in precisely the opposite way. They have managed to «unlearn» a substantial part of what they were taught in their college years in order to adapt to their employer’s «extraterritorial culture». How else could they be able to say, for instance, that «erga omnes human rights guarantees and universal standards, such as the right to freedom of association or the right to access to justice and due process, do not apply to UN staff...because the Organization has not ratified the relevant international instruments it is trying to promote worldwide»? Of course, they know that if they ventured such «opinio juris» in the outside world they could be sued for professional malpractice (or they would had never gotten a law degree in the first place).

The combined effect of this dual metamorphosis has been lethal for some of the most fundamental rights of staff, such as the right not to be discriminated against. Let us consider, for example, the so-called «special gender measures» (short for measures to promote the equality of women in the UN secretariat). Politically correct self-serving groupthink and self-induced juridical amnesia (together with a considerable dose of cynicism on the part of those who were supposed to know better) have produced so far almost a decade of reverted discrimination for those unfortunate staff members who happen to be (and would like to remain) males.

Just before you start calling me «male chauvinist ...patriarch», let me assure you that I am more than prepared to «go to the barricades» to oppose discrimination against women, and, most particularly, fellow female colleagues in the Secretariat. But I also oppose ANY kind of discrimination whatever the ground (gender, race, disability, sexual orientation, religious or political motivation, etc.). Discrimination, as opposed to statistical under-representation, is ALWAYS a matter of individual not collective rights (the victims have always a name and a distinct identity even if, at least one of the factors of their individuality is group membership). One cannot combat specific discrimination abuses with overall percentage increases. Actions before labor or administrative courts are a matter of corrective, not distributive justice. Distributive justice is best achieved through preventive and empowering policies in the context of national or supranational jurisdictions (such as the USA or the European Union). But, the United Nations are no such jurisdiction: staff members are not “born into in the UN” on a roughly 50 - 50 percent ratio as they are in national jurisdictions. They are recruited according to their individual qualifications. Distribute justice does not belong at the level of the United Nations internal promotion policies (it must however be insisted upon as an up-stream pre-requi- site at country member level). Corrective justice clearly does.

In designing and implementing temporary measures to enhance the status of women (or any other group) in a given jurisdiction, due care must be paid to the tension between individual and group rights. The ultimate goal must be to guarantee equal opportunity and equal treatment. This should not yield, as a result, the discrimination of others. To be deemed legal, the specific measures envisaged must pass the test of proportionality (they must be found to be the best alternative at a given time and in a given situation and for a limited period). Historically, two different approaches have been resorted to: affirmative action (in the USA) and positive action (in the EU). While affirmative action emphasizes the achievement of percentages and the establishment of fixed quotas, positive action combats discrimination through a combination of “soft” preventive and enabling legislative measures (mainly in form of Directives) and “hard” anti-discrimination adjudication and enforcement means. In Europe, the principle of equality of women and the combat of gender discrimination has been incorporated into the legal system at constitutional rank since the Treaty of Rome in 1957.

Affirmative action as such is impermissible in the European legal system (which is inter alia based on the premise that the denial to treat unequal situations differently also constitutes a form of discrimination). The relevant case law of the European Court of Justice has firmly established that preference given to anyone on the basis of gender alone is illegal. The authorities in this field are two famous ECJ cases: Kalanke (Germany, 1995) and Abrahamsson (Sweden, 2000). Interestingly enough, both cases refer to the (disproportionate) attempts to appoint women to positions in the civil service in preference to male candidates «who otherwise would have been chosen», and have therefore a very persuasive character for UN conditions, to say the least. After these landmark ECJ holdings, feminist groups demanded legislative counter-action initiatives by the European Commission and even threatened to «roll over Brussels». To no avail. Kalanke and Abrahamsson are still very much «the law of the land» in Europe (Switzerland included, since the ECJ and the European Court of Human Rights, whose jurisdiction Switzerland recognizes, share a common jurisprudence in matters dealing with human rights).

The «affirmative” measures presently implemented «intramuros» by the United Nations are at odds with the philosophy and the goals of European positive action. Based on misleading and/or irrelevant aggregate statistics, they require that a) when qualifications are substantially equal preference shall be given to women (direct discrimination and b) that department heads” “justify” recommending male candidates with superior qualifications (indirect discrimination). As such, they are incompatible with the fundamental equality and anti-discrimination constitutional guarantees afforded to European citizens. They fly in the face of European legislation and ignore European Human Rights case law. It is just a matter of time, before the ECJ or the ECHR declare themselves competent to hear the claims filed by UN-employed European «Discriminated Against Male Masochists». The result could be a so called «floodgate» of judgments against...the European Member States for lack of due care and neglect of their obligations with regard to the protection of constitutional guarantees of their nationals working for the United Nations.

What about our UN «internal» law? Are the «Special Measures» compatible with fundamental equality and anti-discrimination principles contained in the Charter and the UN rules and regulations? According to a legal opinion requested by staff representatives in 2000 “the special gender measures go well beyond what might be considered a neutral advantage and are not likely to withstand an administrative tribunal challenge [before the UNAT]”

A decade of “special measures” implemented by “bicycle inventors” with a cohort of “gender observers” and “focal points” while amnesic lawyers were “looking away” have blown away the legitimate career expectations of all those men without powerful external or internal sponsors. Men have been «slaughtered».

Adding insult to injury, a so-called «Network, the UN Women’s Newsletter” is regularly distributed to the four corners of the Secretariat. Amid the usual sectarian politically correct speech and foggy statistics politically the reality of women being discriminated occasionally comes through. In the Network issue of September 2002 a note appears, under the heading «women and peacekeeping», about the judgment by the Southampton Employment Tribunal of England ruling that a UN female police officer was unfairly dismissed from her job for reporting an alleged prostitution racket. But, who was condemned? The UN, Was it not? And who was involved in the racket? And above all: Is it not a case of discrimination? Then, Why not clearly say so and why not on page 1?

In view of the above, we respectfully request the Secretary-General to discontinue immediately the implementation of “special gender measures” and to initiate the necessary legislative action to reconcile the UN “ internal law” with the external «law of the land» (including European positive action standards and guarantees). Needless to say, this «reform process» will not bear any bearable fruit unless our human resource management gurus «discover», and UN layers «re- discover», the law. And one more thing: we also request that, while all that legislative effort is in progress, we, the «Discriminated Against Male Masochists of the United Nations” be provided the necessary means, to publish and distribute regularly our own pamphlet. Which, of course, will simply be called «D.A.M.M.»

Equality of chances and equality of treatment require it.

(The author is an interpreter and a self-taught union representative at the UN)