PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation advantages in favour of an underrepresented or marginalized group” in order to achieve equality.470 A similar approach to defining the purpose of positive action has been adopted at the regional level.471 In defining and clarifying the purpose of temporary measures, the treaty bodies have highlighted the need to distinguish such measures from what has been termed the “general positive obligation … to secure human rights and fundamental freedoms on a non-discriminatory basis”.472 The Committee on the Elimination of Discrimination against Women has noted that “not all measures that potentially are, or will be, favourable to women are temporary special measures” and underlined the fact that general measures to guarantee nondiscrimination and the equal enjoyment of rights “cannot be called temporary special measures”.473 In more specific terms, the Committee on the Elimination of Racial Discrimination has noted that “specific rights pertaining to certain categories of person” – such as the rights to profess a culture, practise religion or use a language – are not special measures but “permanent rights”.474 In similar terms, the Committee on the Rights of Persons with Disabilities has underlined the need to distinguish special measures from reasonable accommodation, which it notes is a non-discrimination duty.475 Given the focus on accelerating progress towards equality for disadvantaged people and groups, positive action measures frequently have a remedial aspect, focused on correcting and compensating for the effects of past discrimination. Indeed, positive action measures can be an important element of ensuring effective remedy.476 However, the treaty bodies have been keen to stress that the positive action obligation is not only remedial in nature and that it arises “irrespective of any proof of past discrimination”.477 Thus, for example, the Committee on the Elimination of Racial Discrimination has recognized that, while temporary special measures have the purpose of “alleviating and remedying disparities”, including disparities that arise from past discrimination, it is “not necessary to prove ‘historic’ discrimination in order to validate a programme of special measures”.478 The Committee on the Elimination of Discrimination against Women has taken a similar position, noting that States have a proactive obligation “to improve the position of women to one of de facto or substantive equality”, without reference to proof of past discrimination.479 (b) Scope The treaty bodies have repeatedly emphasized the wide range of measures that could fall within the scope of special measures. The Committee on the Elimination of Racial Discrimination has noted that the term includes 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 60 470 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 28. 471 Positive action in the European equal treatment directives may be adopted “with a view to ensuring full equality in practice”. See, for instance, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 7. See also Court of Justice of the European Union, Kalanke v. Freie Hansestadt Bremen, Case C-450/93, Judgment, 17 October 1995, para. 18. In the European regional human rights order, the Framework Convention for the Protection of National Minorities has set out a more stringent standard, establishing, under article 4 (2), that: “The Parties 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 between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.” The Inter-American Commission has situated positive action within the need to “redress de facto discrimination” and to “reduce historical inequalities produced by prejudices and patterns of discrimination and exclusion”. See Inter-American Commission on Human Rights, The Situation of People of African Descent in the Americas, paras. 237– 239. Under article 5 (2) (b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, specific measures adopted by States must aim to “eliminate discrimination” against persons with disabilities. 472 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 14. See also Human Rights Committee, general comment No. 18 (1989), para. 10; Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 9; Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), paras. 19–20; and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 16–17 and 22. 473 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 19. 474 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 15. 475 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 23. 476 See further section II.D of part two of the present guide. 477 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 18: and Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 22. 478 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 22. 479 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 18.