Article 4 paragraph 1, CEDAW

The CEDAW or the Convention, also known as the international Bill of Women's Rights, is a legally binding international treaty ratified by 187 States Parties, that entered into force in 1981.^[3] All parties to CEDAW, including the UN, are bound to honor it. The UN Doctrine of Gender Equality, and 'Special Measures for Gender Equality' are inspired by and rooted in the CEDAW, specifically in Article 4 paragraph 1, which states:

Article 4, paragraph 1 : Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. [emphasis added].^[3]

General Recommendation No. 25, on Article 4, paragraph 1 of CEDAW

The United Nations Committee on the Elimination of Discrimination against Women (CEDAW), an expert body composed of 23 experts on women's issues established in 1982 to monitor the progress of the CEDAW's implementation, in 2004, adopted General Recommendation 25, on Temporary Special Measures, on Article 4 paragraph 1 of the Convention on the Elimination of All Forms of Discrimination against Women.^[4] The general recommendation 'clarifies the nature and meaning of article 4, paragraph 1, in order to facilitate and ensure the implementation of Temporary special measures and accelerate progress in achieving gender equality in 'employment and professional fields'.^[4]

The purpose of the "special measures", which are 'temporary' is " to accelerate the improvement of the position of women to achieve their "substantive equality with men, and to effect the structural, social and cultural changes necessary to correct past and current forms and effects of discrimination against women, as well as to provide them with compensation." These are not an exception 'to the norm of non-discrimination', but rather 'part of a necessary strategy' to achieve 'substantive equality of women'.^{[4]: paragraph 18} The 'temporary special measures', includes 'preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems'.^{[4]: paragraph 22}

UN and Article 4, paragraph 1 on Special Measures

The UN Committee on CEDAW in its general recommendations number 25 commended the Secretary General on his initiative to implement 'temporary special measures', noting "The use of temporary special measures by the Secretary-General of the United Nations is a practical example in the area of women's employment, including through administrative instructions on the recruitment, promotion and placement of women in the Secretariat. These measures aim at achieving the goal of 50/50 gender distribution at all levels, but at the higher echelons in particular".^{[4]: note 3}

In 2012, the UN Secretary General drawing attention to Article 4 paragraph 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) assured the General Assembly that Special Measures were temporary, and will "be discontinued when gender parity has been achieved and sustained for a period of time".^[2]

Representation of women in decision-making positions

Women's representation in the UN secretariat, at the D1 level, in 2000, was 30.3 percent.^{[12]: p 29, Table 19} By 2009, the representation of women in the secretariat at D1 level decreased to 26.7 percent; by way comparison the representation in the entire UN system in 2009 was 29.2 percent.^{[12]: p 29, Table 19}

The representation of women in 2011 in the secretariat at D2 level was 24.4 percent.^{[2]: p 17} In December 2011, the representation of women in the Secretariat at the D1 level was 27.4 percent, an increase of .6 percent over a two-year period.^{[2]: p 50, fn 64} At the current rate of progress, according to the secretary general's report, gender parity at the D-1 to higher levels will be achieved after 102 years.^{[2]: paragraph 133}

Reasons for continuing Gender Equality

Reasons most frequently cited for failure to meet the General Assembly targets for Gender Equality, and slide in women's representation at the D1 and above level, according to the Secretary General, are: [a] failure by some "entities" in the "implementation of special measures for gender equality", and [b] tardy implementation of five year Actions Plans [para 143].^{[2][12]: Table 19, p 29} In 2010-2011 only two out of thirty departments in the UN applied the "target of gender parity"[A/67/347, p 46, paragraph 110(b)]. The UN Secretariat, the largest entity in the United Nations system, in which 38.7 percent of the staff is women, according to the report, claimed to be one of them. .^{[2]: paragraph p 46, Para B 3(b}

Goal

The Goal of the Special Measures as set by the General Assembly is to achieve a 50/50 gender distribution in the entire organization and all departments, and in all "posts in the professional category and above, including posts at the D1 level and above. This goal applies throughout the Organization, and in every department, office or regional commission, overall and at each level. It applies not only to posts subject to geographical distribution but to all categories of posts, irrespective of the type or duration of the appointment ..., the series of the Staff Rules under which the appointment is to be given ... or the source of funding. ..."^{[1]: section1.1 [13]}

Cumulative seniority

Section 1.6 of ST/AI/1999/9 mandates that "Cumulative seniority shall be taken into account when considering women candidates for promotion, except when it would adversely affect their situation. Cumulative seniority shall be calculated as the average of the years of the staff member accrued in her present Professional grade and in her immediately preceding Professional grade".^[1]

Selection appointment

Section 1.8 of ST/AI/1999/9 mandates "Vacancies in the Professional category and above shall be filled, when there are one or more women candidates, by one of those candidates" when "Her qualifications meet the requirements for the vacant post"; and "her qualifications are substantially equal (emphasis added) or superior to those of competing male candidates" (Section 1.8 (i)(ii)).^[1]

Special Measures for 'Appointments, Placement and Promotion'

The current Policies for ' appointments, placement and promotion' to obtain gender equality in the United Nations system are outlined in ST/SGB/282 (Policies to achieve Gender Equality in the United nations),^[8] and ST/AI/1999/9(Special measures for Achievement of gender Equality), which entered into force on 1 October 1999. Gender Equality A/I is listed under the heading 'Appointments, placement and promotion" in the Index to Administrative Issuance in effect as on 31 December 2013. The Gender Equality A/I is in force, and will remain in effect, as the UN secretariat has made clear, "until specifically amended or abolished".^[14]

UN women

The United Nations Entity for Gender Equality and the Empowerment of Women, known as UN-Women, the United Nations entity responsible for 'gender equality', and holding "the UN system accountable for its own commitments on gender equality" has also promulgated that the Gender Parity A/I will "remain in effect until the Secretary-General is satisfied that substantial progress towards the goal of gender balance has been made".^[16]

Judgement No. 671, Grinblat(1994)

United Nations Administrative tribunal with Judge Sumar Sen as president, in a seminal Judgment on affirmative action, held  : "that the various resolutions for Improvement of the status of women in the Secretariat which have been referred to and statements of the Secretary-General have conceded the existence of an unsatisfactory history with respect to the recruitment and promotion of women that does not accord with Article 8 of the Charter.^[21] In such circumstances, the Tribunal considers that Article 8 of the Charter must be regarded as a source of authority for reasonable efforts to improve the status of women. It would be anomalous indeed if this unsatisfactory history had to remain unremedied for an unduly long period. Unless affirmative action measures are taken towards ameliorating the effects of this past history, they will, without doubt, be perpetuated for many years. This is incompatible with the objectives of Article 8, as recognized by the General Assembly. Hence, the Tribunal concludes that Article 8 permits the adoption of reasonable affirmative action measures for improvement of the status of women."^{[17]: paragraph XVII} The Tribunal added that, "as long as affirmative action is required to redress the gender imbalance with which the Secretary-General and the General Assembly have been concerned, Article 8 of the Charter would permit, as a reasonable measure, preferential treatment to women candidates where their qualifications are substantially equal to the qualifications of competing male candidates; obviously such a preference is not needed if a woman's qualifications are superior".^[17] The Tribunal, however, cautioned that affirmative action, however laudable, did not justify any weakening of the requirements of Article 101 (3) of the Charter^[22] that officials of the Organization be of "the highest standards of efficiency, competence and integrity": "In evaluating the reasonableness of affirmative action measures, pertinent provisions of the Charter may not be ignored. The Tribunal considers that, with respect to affirmative action measures, it would be impermissible to view Article 8 of the Charter as overriding Article 101 (3) ...^[17][22] This language unequivocally establishes a standard under which less qualified persons are not entitled to preferential treatment based on gender. The fundamental principle reflected in Article 101 (3) may not be diluted by a desire, however commendable, to overcome past problems.”^{[17]: paragraph XVIII} The Tribunal concluded that, "as long as affirmative action is required to redress the gender imbalance with which the Secretary-General and the General Assembly have been concerned, Article 8 of the Charter would permit, as a reasonable measure, preferential treatment to women candidates where their qualifications are substantially equal to the qualifications of competing male candidates(emphasis added); obviously such a preference is not needed if a woman's qualifications are superior".^{[17]: paragraph XIX}

Judgement No. 765, Anderson Bieler(1996)

United Nations Administrative Tribunal, with Mr. Luis de Posadas Montero, Vice-President, Presiding, reaffirmed Grinblat(1992), and held that "the affirmative action measure establishes a right to preferential treatment for women whose qualifications 'are substantially equal to the qualifications of competing male candidates'", and ruled that "as the Applicant was the only woman short-listed for the post, and as she was equally, if not more, qualified for the post, she had a right to promotion, in the light of ST/SGB/237".^{[23] : paragraph V}

Judgement No. 1056, Katz (2002)

United Nations Administrative Tribunal (Mr. Mayer Gabay, President; Ms. Marsha A.Echols; and Mr. Omer Yousif Bireedo) in the case of an unsuccessful male candidate who challenged the promotion of a woman as unlawful and in violation of his rights of due process, citing UNAT Judgements No. 411 (1988) and No. 958 (2000), recalled its “established jurisprudence ... that appointments and promotions are within the discretionary authority of the Secretary-General”,^{[24] : p6, paragraph IV} and that "qualifications, experience, favourable performance reports and seniority are appraised freely by the Secretary-General and therefore cannot be considered by staff members as giving rise to any expectancy". The tribunal held that these "discretionary powers of the Secretary-General are not absolute. They are governed by the relevant provisions of the Charter and by General Assembly resolutions. In this context the Tribunal notes that ST/AI/412 provides that special measures for the achievement of gender equality within the Secretariat must be instituted towards achieving the goal of '50-50 parity between men and women both overall and for positions at the D-1 level and above by the year 2000. It also provides for flexibility in various promotion requirements in order to increase the number of women considered for promotions, for example flexibility regarding seniority."^{[24] : paragraph V}

The Tribunal concluded that the male candidate had received "full and fair consideration" for the post and that the Organization was not bound by the recommendation of the hiring department.^{[24]: paragraph VII} The Tribunal held that the Secretary-General "acted within his discretionary authority in deciding to promote a substantially equally qualified female candidate to the D-1 level post"^{[24]: paragraph V}

Judgement No. 1302, (2006)

United Nations Administrative Tribunal (Mr. Spyridon Flogaitis, President; Mr. Kevin Haugh; Ms. Brigitte Stern) held that ST/AI/1999/9 required that where there are both male and female candidates with substantially equal qualifications, "the female candidate should be appointed unless the qualifications of the male candidate are in some demonstrable and measurable way superior to those of the best qualified female candidate. The Tribunal has chosen to use the words 'demonstrable' and 'measurable' advisedly for, since appointment and promotion decisions are amenable to administrative review under the Organization's internal justice system and under the Statute of the Tribunal, and since the body carrying out such review ... should act on identifiable facts and on evidence, there should be evidence which can be examined and assessed by the body carrying out the review from which it can be determined if the affirmative action requirements have been fully complied with. This is an essential requirement if there is to be a meaningful review and if the policy of ST/AI/1999/9 or other affirmative action policy is to be enforced as an imperative. Otherwise, such policies become mere shibboleths or mere set pieces of lip service invoked in the pretence of achieving their objectives."^{[25] : paragraph II} The tribunal concluded that although as a general principle, the party making an allegation bears the burden of proving it, but "this general proposition must require modification where the relevant evidence is solely in the hands of the Administration and not available to an Applicant, the onus of proof in certain matters should be viewed as neutral rather than as resting on the Applicant". The Tribunal, while agreeing with the conclusions of the Joint Appeals Board (JAB) that "since there was no demonstrable or measurable evidence to support a conclusion that the successful male candidate enjoyed substantially superior qualifications when compared with those of the Applicant, a breach of ST/AI/1999/9 [had] been established" Accordingly, the Tribunal ordered the Respondent to pay the Applicant the difference between her salary at the P-3 level and the P-4 salary that she would have received had she been appointed to the post in question, from October 2002, for the lesser of either two years or until her promotion to the P-4 level, and ordered the Respondent either to place the Applicant on the "Galaxy roster" until she secures a suitable post at the P-4 level or to pay her two months' net base salary .^{[25] : paragraph II}

Appleton (2012)

In August 2012, the Organization acknowledged ST/AI/1999/9 (Special measures for achieving Gender Equality) as applicable law on gender balance, noting that "The general provisions to give women preferential treatment for appointments are found in ST/AI/1999/9" and that "selection, vacancies shall be filled by a woman if her qualifications: (a) meet the requirements for the vacant post and (b) are substantially equal or superior to those of competing male candidates (sec. 1.8)"^{[26]: paragraph 54} The Tribunal Judge Coral Shaw confirmed the mandatory character of the "rules in ST/AI/1999/9 concerning preferential treatment of women in selection processes".^{[26]: paragraph(S) 68, 70}

Farrimond (2014)

In August 2014, the UN administration conceded in a United Nations Dispute Tribunal hearing that administrative instruction ST/AI/1999/9 (Special measures for the achievement of Gender Equality), was valid in a selection process.^{[27]: paragraph 33} While examining "whether the relevant sections of that administrative instruction have been correctly applied to the case at hand", the Tribunal Judge Thomas Laker concluded that the Administration failed to respect provision of the ST/AI 1999/9^{[27]: paragraphs 36–38}and rescinded the selection decision, for this and other infractions."^{[27]: paragraph 41}

Tribunal judgments and orders related to ST/AI/1999/9 (Gender AI)

Gender A/I, as already mentioned, has often been a subject of litigation. In cases brought before the tribunal, the respondent, ie, the Secretary General, has, so far, not contested the applicability of the gender AI as applicable law. The tribunal in several cases has upheld the validity of Gender AI and cited it in its judgment. A tabulation of the salient cases in which Gender A/I has been a subject of litigation, and judgments by the tribunal, is below: