A/HRC/28/81
programmes that seek to improve the position of disadvantaged groups by other means. He
noted that although the CERD occasionally used these other terms, especially “affirmative
action,” its preference, for the purpose of clarity, was to apply the wording of the
Convention. He added that the one term that the Committee definitively rejected was the
term “positive discrimination.” This phrase, the Committee has said, is a contradiction in
terms, since all racial discrimination is prohibited by the Convention and therefore cannot
be “positive.” Mr. Vazquez continued that the term “reverse discrimination” is more
complicated and should be used cautiously, if at all. A measure pursued by a State party
could in theory amount to reverse discrimination – if it failed to satisfy the conditions set
forth in the Convention for using special measures. If a measure does satisfy the
Convention’s conditions, then the measure does not amount to discrimination, and hence is
not reverse discrimination.
38.
With regard to the text of the Convention, special measures are mentioned in two
provisions: article 1, section 4, and article 2, section 2. Article 1 defines racial
discrimination, which is prohibited by the Convention, and section 4 makes clear that
special measures ordinarily do not constitute prohibited racial discrimination. Specifically,
article 1, section 4 provides that “Special measures taken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals equal
enjoyment or exercise of human rights and fundamental freedoms shall not be deemed
racial discrimination, provided, however, that such measures do not, as a consequence, lead
to the maintenance of separate rights for different racial groups and that they shall not be
continued after the objectives for which they were taken have been achieved.”
39.
Article 1, section 4 should be understood as a clarification of the definition of “racial
discrimination” in article 1, section 1. Section 1 defines racial discrimination as
“distinction[s], exclusion[s], restriction[s] or preference[s] based on race, colour, descent,
or national or ethnic origin.” Because special measures sometimes take the form of
“preferences” based on race or ethnicity, they might be thought to be barred by article 1,
section 1. Section 4, however, makes it clear that such preferences are not barred if they are
adopted to secure the adequate advancement of groups requiring such protection, and if
other conditions are satisfied. One might think that section 4 is an exception to the broad
prohibition of racial discrimination. The Committee, however, views section 4 as instead a
clarification of the meaning of section 1. Article 1, section 1 does not prohibit all
preferences, but only those preferences “which ha[ve] the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field of public
life.” The Committee elaborated on this definition in its General Recommendation 14, in
which it observed that “differentiation of treatment will not constitute discrimination if the
criteria for such differentiation, judged against the objectives and purposes of the
Convention, are legitimate.” Article 1, section 4 should be understood to clarify that
preferences adopted for the purpose of securing the advancement of disadvantaged groups
serve a legitimate purpose, and, if they meet the other conditions set forth in Article 1,
section 4, they do not violate the Convention.
40.
Mr. Vasquez explained the conditions that determine the validity of special
measures. Article 1, section 4 refers to special measures taken for the “sole purpose” of
securing the advancement of disadvantaged groups. According to the Committee’s General
Recommendation 32, the “sole purpose” language “limits the scope of acceptable
motivations for special measures within the terms of the Convention.” This raises
potentially difficult questions when racial preferences are adopted for multiple purposes.
For example, in some countries, racial preferences in university admissions are justified on
the ground that it is important for the educational mission to expose students to a diverse
range of viewpoints. The achievement of diversity would appear to be a motivation distinct
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