PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation In the same case, the Committee also held that the measures adopted by France were not “necessary”432 as less restrictive means could have been implemented by the State.433 The condition of necessity can be seen as implicit within the proportionality assessment: if the same aim can be achieved through the adoption of different measures that do not involve creating a distinction between groups, or do so in a less harmful way, then the means employed are not proportionate.434 B. Positive action SUMMARY • The right to equality requires the adoption of positive action. • Positive action includes any targeted legislative, administrative or policy measures to reduce or overcome inequality and realize equality. Such measures should be time-limited, subject to regular review and proportionate to their purpose of advancing or achieving equality. • The adoption of positive action measures is required by international human rights law. Antidiscrimination law should require and provide for positive action measures in situations in which substantive inequalities are identified. It should also permit the development, adoption and implementation of positive action measures and programmes by State and private entities in situations in which a particular need is identified. • Positive action measures should pursue the purpose of advancing or achieving equality and must not be justified by reference to discriminatory criteria or stereotypes. • Positive action should not lead to the maintenance of unequal or separate standards. To this end, positive action measures adopted should be time-limited, subject to regular review and discontinued when the purposes of equality are achieved. Time-limited should not be interpreted to mean necessarily short in duration. The obligation on States to adopt and implement positive action measures is firmly established in international human rights law.435 Positive action, also referred to variously as “affirmative action”,436 “temporary special measures”437 or “specific measures”,438 is an umbrella term that refers to measures required to accelerate or 56 432 Ibid., para. 8.17. 433 Ibid., para. 8.8. 434 See, illustratively, Court of Justice of the European Union, Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang, Case C‑528/13, Judgment, 29 April 2015, para. 58; and CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia, Case C-83/14, Judgment, 16 July 2015, para. 128. 435 International Convention on the Elimination of All Forms of Racial Discrimination, arts. 1 (4) and 2 (2); Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), paras. 11 and 14; Convention on the Elimination of All Forms of Discrimination against Women, art. 4 (1); Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 24; Convention on the Rights of Persons with Disabilities, arts. 5 (4) and 27 (1) (h); Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 16; Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 9; Human Rights Committee, general comment No. 18 (1989), para. 10; and Human Rights Committee, general comment No. 28 (2000), para. 3. 436 See, for example, Human Rights Committee, general comment No. 18 (1989), para. 10. See also Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), endnote 4: “The term ‘affirmative action’ is used in the United States of America and in a number of United Nations documents”. 437 Convention on the Elimination of All Forms of Discrimination against Women, art. 4 (1). The Committee on the Elimination of Discrimination against Women has noted that: “The term ‘special’, though being in conformity with human rights discourse, also needs to be carefully explained. Its use sometimes casts women and other groups who are subject to discrimination as weak, vulnerable and in need of extra or ‘special’ measures in order to participate or compete in society. However, the real meaning of ‘special’ in the formulation of article 4, paragraph 1, is that the measures are designed to serve a specific goal.” Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 21. 438 Convention on the Rights of Persons with Disabilities, art. 5 (4).