A/HRC/28/81
from securing the advancement of disadvantaged groups. Do racial preferences adopted for
the purpose of achieving diversity run afoul of the limitations of article 1, section 4,
because they are not taken for the “sole purpose” of securing the advancement of
disadvantaged groups? The Committee’s General Recommendation does not address this
point, but the Committee’s practice does not suggest that special measures are problematic
because they serve this additional purpose. This may be an example of the Committee’s
interpretation of the Convention as a “living instrument.” As measures rarely have a single
purpose, a literal approach to the “sole purpose” criterion is therefore unrealistic.
41.
Article 1, section 4 also provides that special measures must be adopted for the
purpose of securing “adequate advancement” for disadvantaged groups. The General
Recommendation indicates that this term refers to “goal directed programmes which have
the objective of alleviating and remedying disparities in the enjoyment of human rights and
fundamental freedoms affecting particular groups and individuals, protecting them from
discrimination.” These include “persistent or structural disparities and de facto inequalities
were resulting from” historical circumstances. As there is a danger that communities
themselves may not agree that special measures are necessary to secure their advancement,
the General Recommendation provides that special measures should be designed and
implemented on the basis of prior consultation with affected communities and the active
participation of such communities. Special measures should not be imposed on
disadvantaged groups against their wishes. He also noted also that Recommendation
requires consultation with “affected communities,” not just the beneficiaries of the special
measures, representatives of races or ethnicities that would not be benefited by the special
measure.
42.
Article 1, section 4 imposes two additional conditions for the validity of special
measures: they must be temporary and not lead to the maintenance of separate rights for
different racial groups. This is in contrast to article 2(2) which provides that special
measures “shall in no case entail as a consequence the maintenance of unequal or separate
rights for different racial groups after the objectives for which they were taken have been
achieved.” Article 1(4) imposes two separate requirements – the measures must not
maintain separate rights for different racial groups and they must be temporary; article 2(2)
imposes one requirement – the wording indicates that measures may establish separate
rights for different racial groups as long as they are temporary. The General
Recommendation does not discuss the difference in language. In discussing article 1(4), the
Recommendation interprets it to impose two separate requirements (that the measures not
establish separate rights for different racial groups and that they be temporary). In
discussing article 2(2), the Recommendation says that the limitations it imposes are “in
essence the same” as those imposed by article 1(4). The General Recommendation does go
on to say, however, that the obligation not to maintain special rights for different racial
groups in “narrowly drawn” insofar as it refers only to “racial” groups, and thus and calls to
mind the practice of Apartheid in South Africa.
43.
The General Recommendation draws an important distinction between special
measures, which must be temporary, and the permanent rights to which certain minorities
might be entitled. For example, minorities have the right to enjoy their own culture, profess
and practice their own religion and use their own language, and indigenous peoples have
the right to use land traditionally occupied by them. Similarly, women have rights to nonidentical treatment based on biological differences, such as maternity leave. These
permanent rights should be distinguished from special measures, which are to be used only
temporarily. The Recommendation also makes clear that these permanent rights recognized
by international human rights law are not “special rights” within the meaning of
article 1(4).
31
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