PART I – WHAT IS ICERD? On the other hand, an action is judged contrary to the Convention, when it has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin27 (see also Article 2 (2) of ICERD). Inevitably, certain difficulties arise in the understanding of the concept of special measures. Against this backdrop, the Committee held a thematic discussion on 4 and 5 August 2008 and issued its General Recommendation No. 32 in 2009 to provide practical guidance, especially to States parties, on the meaning and scope of special measures under ICERD. It is important that States parties distinguish special measures from “unjustifiable preferences”28 and should be noted that “to treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.”29 Based on such understanding, special measures should be temporary and designed as well as implemented to secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms. At the same time, targets of temporary special measures should not be confused with permanent rights of specific groups such as: the rights of persons belonging to minorities to profess and practice their own religion and use their own language; the rights of indigenous peoples; or rights of women to non-identical treatment with men on account of biological differences from men, e.g. maternity leave, while these groups are also entitled to benefit from special measures.30 A wide range of measures are possible, including “the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture, and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments.”31 Illustration 8: Special Measures: CERD’s concluding observation on Colombia (2009)32 Despite national policies on special measures, CERD was concerned that: Afro-Colombians and indigenous peoples continue to face serious challenges to the enjoyment of their rights, de-facto discrimination and marginalisation; structural causes of discrimination and exclusion from the access to socio-economic rights and development; policies on special measures are not accompanied by adequate resource allocations, including at the departmental and municipal level; and implementation of special measures is not effectively monitored in the country. The Committee respectively gave recommendations to the State party to address these concerns. In addition, CERD underlined the importance of consultation with relevant communities in the elaboration of relevant development plans and affirmative action policies. 1.6 Multiple Discrimination Paragraph 7 of CERD’s General Recommendation No. 32 (2009) reads, “The ‘grounds’ of discrimination are extended in practice by the notion of ‘intersectionality’ whereby the Committee addresses situations of double or multiple discrimination - such as discrimination on grounds of gender or religion – when discrimination on such a ground appears to exist in combination with a ground or grounds listed in Article 1 of the Convention.” CERD pays special attention to cases where such multiple forms of discrimination are involved. Regarding the intersectionality of gender, in its General Recommendation No. 25 (2000), the Committee noted that racial discrimination does not always affect women and men equally or in the same way, and certain forms of racial 27 Ref. CERD General Recommendation No. 14 CERD General Recommendation No. 32, para. 7 29 Ibid., para. 8 30 Ibid., para. 15 31 Ibid., para. 13 32 CERD Concluding Observations on Colombia (2009), CERD/C/COL/CO/14, para. 18 28 6 ICERD & CERD: A GUIDE FOR CIVIL SOCIETY ACTORS