One topic that has been left largely unexplored is what life has become like for those who were already on the periphery of Ukrainian society before the war – those who were and continue to be discriminated against because of who they are – whether they have a ‘different’ sexual identity, ethnicity, religion, disability, speak a minority language, or live in an orphanage.

In August the Equal Rights Trust released its latest country report In the Crosscurrents: Addressing Discrimination and Inequality in Ukraine which, for the first time, provides a comprehensive account of discrimination and inequality experienced by the most vulnerable groups in the country. The report is based on research carried out throughout Ukraine in partnership with the Ukrainian lesbian gay bisexual and transgender (LGBT) rights organisation Nash Mir.

In the Crosscurrents finds that Ukraine’s alliance with Europe has meant it has adopted legal and policy standards which could lead to radical improvements in protection from discrimination if implemented effectively. Ukraine’s Law “On Principles of Prevention and Combating Discrimination” is in line with international best practice. But at the same time, a perception of European intrusion has fostered opposition at many levels, in both Ukrainian and pro-Russian domains, propelling the politicisation of human rights issues to an extreme.

For example, since the crisis, Russian propaganda has been trying to discredit Ukraine’s pro-European stance suggesting that the country’s historic and cultural roots are threatened by aligning with Europe and its support of LGBT rights. Consequently, discrimination against the LGBT community has augmented throughout the crisis, particularly in Crimea and separatist-held territories where there has been an increase in homophobic attacks, and where authorities have openly expressed homophobic views.  Adding fuel to the fire, Ukrainian authorities have refused to speak out for LGBT persons in an attempt to remain popular among its ‘traditional’ voting base.

Overall, support for LGBT rights has been degraded to a price that has to be paid for European integration. “We’d rather have a gay pride in the streets of Kyiv than Russian tanks”, a Ukrainian politician pronounced at the peak of the conflict.

The annexation of Crimea and the war in the east have also created an entirely new pattern of discrimination against internally displaced persons fleeing the affected zones. Suspected of being sympathetic to Russia, they have already faced discrimination in securing jobs and homes.

Disturbingly, the report confirms that there continue to be a very high number of Ukrainian children – almost one in 100 – living in institutions where they are frequently exposed to appalling violence and deprived of their basic human rights. In this regard, Ukraine is firmly aligned with Russia and not with Europe, as Russia has notoriously bad record of ill-treatment of institutionalised children.

Of all the risks which threaten stability and democracy in Ukraine, we found the greatest is posed by identity politics. The conflict itself has politicised pre-existing ethnic, linguistic and religious divisions and a new anti-Russian bias has emerged. To take language for example, in Kyiv in particular, a division has begun to emerge based on whether a person prefers to speak Russian over Ukrainian.

If the government wants to secure the country’s choice in favour of a European type of polity, it should not regard human rights as currency with which to pay for visa liberalisation and further European integration. It should genuinely guarantee equal rights for all, regardless of a person’s ethnic, linguistic, religious or sexual identities. Further, if it allows equal rights to be overrun by identity politics, and in particular if the ingrained Russian dimension of the Ukrainian nation is antagonised rather than embraced and celebrated, the Kyiv government will be handing in the victory to Mr Putin. And no amount of support from the West will be enough to change this.

It was an interim victory for equal rights when, on 1 August 2014, the Constitutional Court of Uganda struck down the Anti-Homosexuality Act 2014 as void on the procedural ground that the Parliament had violated quorum rules during its passage. But the Ugandan battle is far from over.

Having begun in 2009, five years later the story of the Ugandan anti-homosexuality law has epitomised the ideological clash between the West and the Rest. External actors have been supporting the key players inside Uganda. Through seemingly confusing moves on the surface, such as the negative reaction from many local and international LGBT activists to outspoken support from mainstream Western liberals, one can distinguish two sides militating against each other over global cultural values. On one side, LGBT rights activists and human rights groups around the world, aligned with liberal and humanist movements. On the other, American evangelicals and other conservative religionists, homophobic populists, assorted politicians from the global South, and China and Russia lurking behind the dust.

The infamous Bill envisaged the death penalty for “aggravated homosexuality” and severe punishments for broadly-defined activism in favour of sexual diversity. The global campaign against the Bill reached a volume that few local human rights scandals have achieved in the last decade: one more reminder that the ground shifts where law meets politics.

On the legal side, the Bill of course violated the Constitution of Uganda, as did the slightly milder law that entered into force in February 2014. As the Equal Rights Trust argued in a detailed legal brief in December 2009, it breached, inter alia, Articles 21 and 43 of the Ugandan Constitution, plus numerous provisions of international treaties binding on Uganda.

However, what mattered more was the dynamics of protest. Along with Ugandan campaigners, groups from around the world condemned the Bill, politicians and celebrities raised concerns, UN bodies put pressure on Uganda to change course, global leaders threatened aid conditionalities and sanctions, and US rights activists filed a law suit against the evangelical missionary Scott Lively of Abiding Truth Ministries under the Alien Torts Act. While this did not stop the new law, it may have impressed the Constitutional Court judges in Kampala.

But the political impact on the judiciary is deniable, as the honourable judges did not address the substance of the legislation and its compatibility with the Constitution. They just did their job as impartial jurists: striking down a law voted in violation of legislative procedure. We still have an occasion to raise a glass: procedure is important in a constitutional democracy, and so we celebrate a victory for the rule of law, with its side effect of reducing the risk for gay persons in Uganda exercising basic rights, for the moment.

But there are two dark clouds on the horizon. First, homosexuality remains illegal in Uganda, under Article 145 of the Penal Code, and this continues to have immediate consequences, On 23 June 2014, the High Court delivered a ruling in Jacqueline Kasha Nabagesera and others v. The Attorney General and Hon. Rev. Fr Simon Lokodo, in which the applicants, an LGBT group, lost on all grounds. They had tried to hold a training workshop on human rights, but the authorities ordered it cancelled. The applicants complained that this was a breach of a number of constitutional rights, but the High Court dismissed their complaint, apparently on the basis that the workshop would encourage people to engage in gay sex – an offence under Article 145 of the Penal code.

Second, there is a danger that the government will try to re-adopt the Anti-Homosexuality law, while in the meantime LGBT persons in Uganda continue to suffer profound discrimination and gross inequality. Uganda does not have an established legal framework protecting people from discrimination on any ground, including sexual orientation. Without such a framework, progress toward equality is not sustainable.

Even if these two clouds drift away from the Ugandan sky, the forecast for the global ideological climate remains unsettling for human rights, at least in the mid-term. In the cultural wars between the West and the Rest, the lack of clear-cut geo-political combatants cannot conceal the ground being gained by homophobic, anti-liberal, conservative religious movements.

For example, Black economic empowerment and employment equity measures have come under attack in South Africa; racial criteria in university admissions in the USA have been contested in the courts; constitutional provisions in Malaysia favouring Bumiputra are said to have outlived their legitimacy and to be creating unfair privileges; and in Britain, the public sector equality duty is said to favour some disadvantaged groups at the expense of others.

As with many expressions that dwell in both political and legal quarters, have different meanings in different contexts and whose meanings have changed over time, “affirmative action” is controversial at two levels. At the more superficial level, disagreement is due to the ambiguity of the term: once a strict definition is adopted, disagreement about the meaning of words can disappear. At a deeper level, having agreed the meaning of words, people can then truly disagree about affirmative action because they have differing notions of fairness and justice, and thus different political attitudes, whether conscious or not.

But it is safe to assume that whatever our political values, we all oppose the creation of unfair advantage: this is our common ground. From here, we will try to identify principles and criteria for the legitimate use of affirmative action. EU law allows “special measures providing for specific advantages in order to make it easier for the underrepresented [group] to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers”. But are those aims sufficient? It would be interesting to see if experts could agree an over-arching purposive principle, for example, that affirmative action is justified so long as it has significant positive results in advancing equality?

Provided we agree at this very general level, the question is how such a broad principle can be translated into specific policy guidance. When considering various “special measures”, such as quotas, reserved places, targets, preferences for a limited period, etc., how do we ensure that they are proportionate to the legitimate aim of advancing equality? Another tricky issue is how to define the ground for the preferential measure, so as to reflect the reality of inequalities? Is one characteristic, say ethnicity, or religion, taken alone, always appropriate? For example, if Suni Muslims are excluded from political participation, and their relative wealth or poverty does not matter, it may be justified to tie the positive measure to religion alone. But if poor Roma children in Eastern Europe face obstacles to accessing pre-school, and the same is true for poor non-Roma, would it be fair to base a positive measure on ethnic criteria? How much should the overlap between ethnicity and poverty matter for our affirmative action criteria? In other words, how does one ensure that justice for groups does not create injustice for individuals? Or is the lack of such a balance a part of the price?

The 2008 Declaration of Principles on Equality stated: “To be effective, the right to equality requires positive action. Positive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality.” This principle, in my view, is a game changer. It reflects a departure from the notion of formal equality, i.e. identical treatment which could be complemented by the occasional exception, in the form of affirmative action (which is tolerated rather than due, and always open to attack by aggrieved individuals). With such a departure, the destination is a right to substantive equality which requires positive action. It transforms the latter from an exception to a necessary element within the content of the right to equality.

From this perspective, our work at The Equal Rights Trust has provided abundant evidence that the bigger problem around the world today is not what is happening, but what is NOT happening: the scarcity of affirmative action. The damage done by the occasional abuse of positive action (in Malaysia, for example), is dwarfed by the damage done by the persisting abstention from positive action, which perpetuates and entrenches the power imbalance everywhere. If the growth of inequality is increasingly acknowledged as one of the biggest challenges of this century, affirmative action can no longer remain an afterthought.

This post is an abstract from the Equal Rights Trust Discussion Panel on Affirmative Action, which will take place on 19 June at UCL Faculty of Laws. For more information, please click here.

Four years after Opuz v Turkey (Application No. 33401/02, ECHR 2009), on 28 May 2013, the Strasbourg court, in the case of Eremia and Others v Moldova (Application No. 3564/11), made a step forward in recognising the gender discriminatory aspect of domestic violence against women, along with confirming the possibility of characterising domestic violence as inhuman treatment within the meaning of Article 3 ECHR.

The Eremia decision is an important milestone in domestic violence jurisprudence in several ways. First, the Court’s treatment of discrimination under Article 14 ECHR has moved forward and further away from a “formal equality” approach, and in the direction of recognising what I would call “institutional sexism”. The applicants, Ms Eremia and her two teenage daughters, claimed that the authorities’ failure to apply domestic legislation was the result of preconceived ideas concerning the role of women in the family, in violation of their Article 14 right to non-discrimination. The police and the social services had put pressure on Ms Eremia to drop the case against her abusive husband, and had made sexist and stereotypical remarks.

The European Court was persuaded by The Equal Rights Trust’s argument expressed in an amicus brief that domestic violence against women affected them differently and disproportionately and had to be treated as an issue of gender discrimination. The facts in this case meant there was a breach of Article 14 of the Convention. The Equal Rights Trust argued that failure to properly apply domestic violence legislation amounted to a failure to recognise the magnitude of the problem as well as the gendered nature of the assault on women’s dignity; and that the government had a positive obligation under Article 14 to prevent, investigate, prosecute and punish discriminatory violence.

The Court had already found previously that the State’s failure to protect women from domestic violence breaches their right to equal protection of the law and that this failure did not need to be intentional (Opuz, § 191). The Court stated that the authorities’ actions were not a simple failure or delay in dealing with the violence against Ms Eremia, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards her as a woman. It was clear from the facts of the case that the authorities did not fully appreciate the seriousness and extent of the problem of domestic violence in Moldova and its discriminatory effect on women.

The Eremia decision is important for several further reasons: (i) it has now become more firmly established that the issue of domestic violence is not necessarily confined within the box of private and family life (Article 8) and that when reaching a threshold of severity it constitutes inhuman treatment (Article 3). While the domestic violence cases of recent years (Bevacqva and S v Bulgaria, Hajduová v Slovakia, A. v Croatia, Kalucza v Hungary) were considered under Article 8, Eremia has confirmed the breakthrough which took place in 2009 with Opuz, finding an Article 3 violation in respect of a battered woman. (ii) With respect to the positive obligations of the government to protect from domestic violence, the Court applied a test of effectiveness: while in Opuz the government had been inert, in Eremia the authorities had put in place a legislative framework allowing them to take measures against persons accused of family violence, and had taken a number of steps to protect the applicants, but these steps had not been effective, thus violating Convention rights. (iii) The Court considered that Ms Eremia was “particularly vulnerable”, as her husband was a police officer: the authorities had failed to see the danger to the public of a police officer not complying with the terms of a protection order issued against him, and had suspended the criminal investigation against him. (iv) Finally, by finding a violation of Article 8 in respect of the children of Ms Eremia, the Court recognised the impact of domestic violence on children forced to witness it.

Equality advocates can now rely on some of the relevant elements of the Eremia judgment in bringing domestic violence cases. Equality jurisprudence under the ECHR has also made one small but firm step in the right direction – toward an understanding of substantive equality and the need to recognise and address institutionally entrenched prejudice.

Dr. Dimitrina Petrova is Executive Director of The Equal Rights Trust.