PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW PART TWO – I At the regional level, positive action obligations are recognized in both the African and Inter-American human rights systems. Both the Protocols to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and on the Rights of Persons with Disabilities in Africa include mandatory positive action provisions, though the Protocol on the Rights of Women limits the requirement to the areas of education and political participation.459 The Inter-American Commission on Human Rights has concluded that States “must adopt the affirmative measures needed to ensure the effective right to equal protection for all individuals”460 in order to fulfil their obligations under the American Convention on Human Rights, while the Inter-American Convention on the Elimination of All Forms of Discrimination and Intolerance provides that States “undertake to adopt the special policies and affirmative actions needed to ensure the enjoyment or exercise of rights and fundamental freedoms”.461 The Council of Europe Framework Convention for the Protection of National Minorities requires that States “undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality”.462 Both the Committee on the Elimination of Discrimination against Women and the Committee on the Elimination of Racial Discrimination have noted that, in order to give effect to their obligations, States should include provisions on special measures in their national legal systems.463 The Committee on the Elimination of Discrimination against Women has also noted that legislation “can give guidance on the type of temporary special measures that should be applied to achieve a stated goal, or goals, in given areas”.464 However, both bodies have also noted that positive action measures can be adopted or implemented through non-legislative means, such as policy directives, programmes and guidelines.465 2. Purpose and scope of positive action measures There is broad consensus among the treaty bodies that positive action includes any measures taken for the purpose of advancing equality for a group exposed to discrimination. (a) The objectives of positive action The International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities define special measures as “necessary in order to ensure … equal enjoyment or exercise” of rights,466 “aimed at accelerating de facto equality”467 and “necessary to accelerate or achieve de facto equality”,468 respectively. The Committee on the Elimination of Racial Discrimination has emphasized that “special measures are not an exception to the principle of non-discrimination but are integral to its meaning” and to the goal of advancing “effective equality”.469 The Committee on the Rights of Persons with Disabilities has defined positive action measures in similar terms, noting that they “entail adopting or maintaining certain 459 See, for instance, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), arts. 2 (d), 9 (1) and 12 (2), which mandate the adoption of positive action in respect of political participation and education; and Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, art. 5 (2) (b), which requires that State parties “take steps to ensure that specific measures, as appropriate, are provided to persons with disabilities in order to eliminate discrimination and such measures shall not be considered discrimination”. 460 Inter-American Commission on Human Rights, The Situation of People of African Descent in the Americas (OEA/Ser.L/V/II, Doc. 62) (2011), para. 232. 461 Inter-American Convention against All Forms of Discrimination and Intolerance, art. 5. 462 Council of Europe Framework Convention for the Protection of National Minorities, art. 4 (2). European Union law places slightly less stringent requirements on European Union member States (see, for example, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 7; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, art. 5; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, art. 6; and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), art. 3). 463 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 30; and Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 13. 464 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 31. 465 Ibid., para. 32; and Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 13. 466 International Convention on the Elimination of All Forms of Racial Discrimination, art. 1 (4). 467 Convention on the Elimination of All Forms of Discrimination against Women, art. 4 (1). 468 Convention on the Rights of Persons with Disabilities, art. 5 (4). 469 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 20. 59