and nationality14 has also been codified by the European Union15 and implemented
through two Directives16.
Equal treatment does not mean identical treatment. To be effective, the principle
of equality necessarily allows – and in some cases requires – different treatment of
some persons to ensure that they are able to enjoy all rights on an equal footing
with other members of society. Several instruments affirm that when necessary
and appropriate, special measures17 should be adopted to ensure full and
effective equality for disadvantaged groups due to past, systemic or persistent
discrimination. Such measures do not constitute discrimination as long as they
pursue this legitimate aim and are proportional to that aim. 18
Formal equality is often not sufficient to guarantee full and effective equality to all
members of society. As a result, States have to adopt specific and targeted policies
to remove legal, economic and/or social obstacles that may constrain effective
equality and impede the full participation of all in the political, economic, social and
cultural life of the State. Such targeted policies may go beyond simply removing
barriers to equal opportunities and aim to create substantive equality, which implies
equality of outcomes in relevant policy areas.
14
15
16
17
18
TFEU, article 18.
Amsterdam Treaty, 1997.
Directives 2000/43/EC (covering racial and ethnic origin) and 2000/78/EC (covering, inter alia, religion or
belief).
Other terms include “affirmative action”, “positive action” and, under the FCNM, “adequate measures”
(article 4.2).
See, inter alia, UN Human Rights Committee (hereinafter “HRC”, CCPR General Comment no. 18 on nondiscrimination, 10-11-1989; UN Committee on Economic, Social and Cultural Rights General Comment no.
20 on non-discrimination; ICERD, article 2(2), and CERD General recommendation no. 32 on the meaning
and scope of special measures; UN Declaration on Minorities, article 4; FCNM, article 4(2); the Copenhagen Document, paragraph 31; the 1991 Geneva CSCE Experts Meeting on National Minorities, part IV;
and EU Directive 2000/43/EC, article 5.
Guidelines on Integration of Diverse Societies
11