PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation coming from secondary public schools, with the distribution of vacancies among Afro-Brazilians and indigenous people based on the proportion of such groups in the community”.492 In its report, the Working Group of Experts on People of African Descent expressed the hope that, with the adoption of the Quota Law, “future research will be able to show more positive data on the implementation of higher education quotas; they are certainly necessary, as a first step, to change the structural institutional racism”.493 Subsequent research provided early indications of the impact of affirmative action policies in ensuring access to higher education: in its 2017 national report for the third cycle of the universal periodic review, Brazil reported that the number of vacancies allocated to Afro-Brazilians in higher education had grown from 37,100 in 2013 to 82,800 in 2015.494 3. Principles for the operation of positive action Positive action entails preferential treatment based on a protected characteristic.495 As the Committee on the Elimination of Racial Discrimination has noted, this creates a potential conflict, given that the International Convention on the Elimination of All Forms of Racial Discrimination (and, by interpretation, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) defines discrimination as “any distinction, exclusion, restriction or preference”.496 There is thus a need, as the Committee has put it, to “distinguish ‘special measures’ from unjustifiable preferences”.497 In order to distinguish special measures from unjustifiable preferences, the United Nations human rights bodies have developed criteria for the operation of positive action.498 The Committee on the Elimination of Racial Discrimination, for example, has noted that special measures should be (a) appropriate to the situation to be remedied, (b) legitimate, (c) necessary in a democratic society, (d) respectful of the principles of fairness and proportionality and (e) temporary,499 a position echoed by the Inter-American Commission on Human Rights.500 Taking the position of the different bodies together, three broad principles can be derived. First, positive action must pursue the purpose of advancing or achieving equality. Second, positive action should not lead to the “maintenance of unequal or separate standards”.501 To this end, positive action measures should be time-limited, subject to regular review and discontinued when the purposes of equality are achieved.502 Third, positive action measures should be necessary in a democratic society and proportionate to the aim pursued. 62 492 A/HRC/WG.6/27/BRA/1, para. 53; and A/HRC/27/68/Add.1, paras. 16 and 40. 493 A/HRC/27/68/Add.1, para. 43. 494 A/HRC/WG.6/27/BRA/1, para. 53. 495 See, for example, Human Rights Committee, general comment No. 18 (1989), para. 10 (“such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population”); and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 28: “specific measures … entail adopting or maintaining certain advantages in favour of an underrepresented or marginalized group” in order to achieve equality. 496 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), paras. 7–8. 497 Ibid., paras. 16–18. 498 See, for instance, Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 24; Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 16; and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 28–29. 499 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 16. 500 The Inter-American Commission has identified several minimum requirements for the adoption of “affirmative action measures” (referred to here as positive action). According to the Commission, such measures must: “i) be appropriate as regards the situation to be remedied; ii) be legitimate; iii) be necessary in a democratic society; iv) respect the principles of justice and proportionality; v) be temporary; vi) be designed and implemented in case of need; and vii) be based on a realistic assessment of the situation of the affected individuals and community.” See Inter-American Commission on Human Rights, The Situation of People of African Descent in the Americas, para. 240. 501 Convention on the Elimination of All Forms of Discrimination against Women, art. 4 (1). 502 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 20; and Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 27.