The history of Positive Action is much younger than one of the formal amendments of the equality principle. The latter is stipulated, for example, in Article 3 German Basic Law, Art. 1 (1) Universal Declaration of Human rights, 14th Amendment of the Constitution of the United States, and Article 1 sentence 2 of the Constitution of the French Republic.
The fundamental principle that for achieving actual equality of groups mere equal treatment is not enough, but active measures are required instead, has its origins in the United States during the 1960s. After a long time of structural discrimination and exclusion of people of colour, active measures (Affirmative Action) were demanded for an equal participation of people of colour.
The first international agreement that included Positive Action was Art. 1(4) of the Convention on Elimination of All Forms of Racial Discrimination (CERD) of the United Nations in 1965.
During the 1970s, the understanding of equality between men and women began to change in Western Europe. Women were already formally equal, but actual equality was now focused on. In 1976, for the first time, the European Economic Community issued a Directive on the Implementation of the Principle of Equal Treatment for Men and Women as Regards to Access to Employment (Directive No. 76/207/EEC), which permitted in “measures to promote equal opportunity for men and women” in Art. 2(4).
In 1979, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Further, this Convention recognises in its Art. 4 “temporary special measures aimed at accelerating de facto equality”.
Finally, in 2000, the European Union issued further Directives that strengthened the position of disadvantaged groups. The Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, as well as the Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation, explicitly allow the Member States to introduce Positive Action in order to promote equality.
In 2006, the United Nations adopted the Convention on the Rights of Persons with Disabilities. In Art. 5, the Convention allows Positive Action (“reasonable accommodation”) in order to achieve actual equality.