COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION DECIDES TO DRAFT GUIDANCE DOCUMENT ON STATES' OBLIGATION TO UNDERTAKE SPECIAL MEASURES

The Committee on the Elimination of Racial Discrimination this afternoon continued its open thematic debate, begun on 4 and 5 August 2008, on the obligation of States parties to undertake special measures (sometimes known as affirmative action) as set out in articles 1 and 2 of the International Convention on the Elimination of All Forms of Racial Discrimination. At the end of the meeting, it was agreed that a draft General Comment be prepared by the Committee’s Rapporteurs on this issue.

Opening the discussion, Committee Chairperson Fatimata-Binta Victoria Dah noted that, although this was called as an open meeting, unfortunately they would not be able to benefit from participation by other stakeholders.** At the previous open thematic debates various stakeholders, including representatives of States parties, NGOs and United Nations agencies had participated. Owing to a large demonstration in Geneva on Friday traffic was blocked on the right bank, preventing other stakeholders from joining the debate today. Before the Committee for discussion was a document on possible elements for a general recommendation by the Committee on this issue.

Patrick Thornberry, Committee Expert and Special Rapporteur on affirmative action, introducing possible elements for a general recommendation on special measures, noted that the document was quite general and that it still remained for the Committee to take a decision on whether it wanted to proceed with a General Recommendation on this topic. He suggested that a broad introduction might provide a statement of reasons why the Committee had decided to issue the General Comment and set out how the Committee hoped it would be used. A conceptual section could usefully clarify the understanding of special measures in light of the overall aim of the Convention. The history of the introduction of special measures could be addressed, as could such concepts as justification of special measures and why special measures did not constitute discrimination. A second section could contain an analysis of the Convention, and a specific analysis of all the relevant terms in articles 1 and 2 that had implications for the concept of special measures, including specific grounds for discrimination and intersectionality issues, including double and multiple discrimination.

A detailed account should also be given of the relevant elements in these articles such as special measures and special concrete measures; sole purpose; adequate advancement; duration of measures, etc. Mr. Thornberry said. Further concepts to be explored included positive action required by the Convention as distinguished from special measures under the Convention; race-based action and needs-based action; and proportionality of such measures. A final section might add some operational precisions such as the participation of groups in the design of special measures and models of good practice.

In the ensuing discussion, Experts raised a number of issues, including the need to clarify when special measures were called for, how they were to be drafted – i.e. that they be necessary, legitimate, and temporary – and how they were applied in practice, for example that they had to be proportionate. An Expert underscored the need to distinguish between special measures and inherent rights. Inherent rights included the right to territory, land and the use of one's own language. Enabling indigenous people to enjoy those rights, for example, could never constitute special measures. An Expert noted that there was actually quite a bit of consensus among Committee Members on this issue, including that special measures were by definition temporary – and that it appeared target groups of such measures, such as indigenous persons, the Roma and Sinti, had agreed on their temporary nature as well.

Responding to those comments, Mr. Thornberry wished to clarify that, while there was a difference between inherent rights and special measures, that did not mean that it might not be necessary to establish special measures on behalf of indigenous peoples in areas that warranted it. He also recalled the usefulness of this exercise, including the prevention of the use of so-called special measures by certain countries to the detriment of certain groups.

In additional comments, Experts debated whether to draft a General Recommendation on this topic. An Expert agreed that the Committee had a duty to identify indicators to measure the effect of special measures but said it was unclear if, in outlining those indicators for States, it was necessary to issue a General Recommendation. A number of Experts also expressed ambivalence about the need for a full-blown General Recommendation, and suggested they could issue a General Comment. Others felt that the Committee was in a position to draft a General Recommendation, and that most of the groundwork had already been laid, including through their thematic debate with stakeholders. This was particularly needed given the numerous instances in which States clearly either misapplied or misunderstood the concept of special measures, which was a central notion in the Convention.

In closing remarks, Ms. Dah said that, having listened to the afternoon's debate, it was her impression that they agreed that they should keep to their initial decision to draft a general recommendation, or a similar text with a different name but which would have the same value to the Committee, and that Mr. Thornberry and Committee Expert Linos-Alexandre Sicilianos, who served as co-rapporteur on this issue, would draft the text. With regard to content, stress had been laid on the maximum of conciseness and concreteness, without too much space devoted to theory.

In Article 1, paragraph four, the Convention on the Elimination of all Forms of Racial Discrimination sets out that: "Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved".

Article 2, paragraph two, of the Convention provides that "States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms."

Following the discussion on the draft general comment on special measures, the Committee also heard a presentation by Mr. Sicilianos on the special session of the Human Rights Council being held today on the impact of global economic and financial crises on the universal realization and effective enjoyment of human rights, which he had addressed this afternoon.


When the Committee convenes in public on Monday, 23 February, at 10 a.m. it will hear a briefing by a Committee member on the Committee's planned contribution to the Durban Review Conference.

For use of the information media; not an official record

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