The Proposal for an EU Directive on Integration

24 March 2005

Alexandra Xanthaki¹

Article 21 of the Charter of Fundamental Rights of the European Union prohibits all discrimination on the ground of, among other things, membership of a national minority and obliges the institutions of the European Union and the Member States to bear in mind the effect the initiatives may have on members of national minorities. On the basis of this provision, the 2003 report of the European Union Network of Experts on Fundamental Rights discussed the obligations that come with services of general economic interest, such as transport, towards "communities living in conditions of segregation, isolated from the rest of the community, especially when low income forms an obstacle to the use of paid transport". The report then referred to recent opinions of the Advisory Committee of the Framework Convention for the Protection of National Minorities, which highlighted the segregation of Roma in housing and education and concluded: "The most important contribution which the European Community could make to the protection of minorities, within the framework of its existing powers, would be the adoption of a Directive specifically aimed at encouraging the integration of Roma."

If adopted, the new Directive will follow Council Directive 2000/43/EC on "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" (the Race Equality Directive), an important measure to combat discrimination within the European Union. The development of standards of the European Union for the eradication of racism and racial discrimination was long overdue and was welcomed, as it has brought closer the harmonisation of European and international standards on the prohibition of discrimination. However, as the Network of Experts confirmed, Directive 2000/43/EC is inadequate to address sufficiently discrimination against Roma, as it does not explicitly refer to desegregation. It is true that segregation is a form of discrimination and may be eliminated by positive action by the state; it is also true that the Race Equality Directive imposes explicit obligations to states to eliminate discrimination and encourages positive action. Unfortunately, member States have not appreciated the link between discrimination of Roma and segregation, and thus, the Race Directive has not lead to adequate states' measures for the desegregation of Roma.

International law context

The importance of this Directive does not lie in setting new human rights standards. International instruments have long prohibited segregation: Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that "States parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction." The obligations created by the Convention are legally binding; States must report on how the provisions of the Convention are implemented at the domestic level. In General Recommendation XIX (1995) the Committee on the Elimination of Racial Discrimination (CERD) observed that segregation "may also arise as an unintended by-product of the actions of private persons." In order to satisfy Article 3, States must take measures not only to stop state policies of segregation, but also to stop individuals from encouraging or maintaining segregation. CERD has also clarified that "the obligation to eradicate all practices of this nature includes the obligation to eradicate the consequences of such practices undertaken or tolerated by previous Governments in the State or imposed by forces outside the State". Therefore, measures must also be taken to compensate Roma for the injustices suffered as a consequence of the separation policies and/or practices. CERD General Recommendation XXIX on descent-based discrimination also noted that discrimination based on descent includes discrimination based on forms of social stratification, such as caste and analogous systems of inherited status and discussed segregation.

Racial segregation is against the principles of human dignity and equal and inalienable rights, essential components of the international human rights system. It is a kind of formalised and institutionalised form of racial discrimination; therefore, as mentioned earlier, provisions prohibiting racial discrimination are also relevant. In international law, the right not to be discriminated on the basis of race constitutes jus cogens, a peremptory norm from which no derogation is permitted². Universal instruments prohibiting discrimination have been discussed in previous articles of this journal. At the universal level, they include the International Convention on the Elimination of All Forms of Racial Discrimination; Article 27 of the International Covenant on Civil and Political Rights; the Declaration on the Rights of Persons Belonging to Ethnic or National, Religious and Linguistic Minorities. At the regional level, they include Article 14 of the European Convention of Human Rights; the 1994 Framework Convention for the Protection of National Minorities; and the 1992 European Charter for Regional or Minority Languages. Combined, they create obligations to states to take all kinds of measures that will eradicate discrimination whether direct or indirect, whether in law or in practice, whether sustained by the state or by individuals.

Realising the problems of discrimination faced by Roma, international bodies have also adopted instruments specifically on Roma. The Council of Europe, a firm supporter of Roma rights, has stressed in Recommendation 1203 (1993) of the Parliamentary Assembly³ that although general resolutions and recommendations "are important (…) Gypsies need special protection." The recommendation exposed the intolerance and hatred experienced by Roma over the ages and proclaimed that "[r]espect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation"⁴. CERD General Recommendation XXVII (2000) also urged states to take measures of a general nature as well as measures in the area of education, living conditions, representation of Roma in the media and their participation in public life.

It is interesting to note the emphasis that the 2003 report of the Network of Experts pays on positive measures for Roma. The report clarifies that Roma should be able to have access to employment or to obtain services without being prevented from doing so by their traditional clothing, as has been the case in Finland. Even when there is a plausible explanation for such prohibition, the experts continue, the need to protect the Romani identity must prevail and states must make exceptions in their policies to this end. Roma should be able to lead a semi-itinerant or itinerant lifestyle, even when there are good justifications for denying stopping places for their caravans; they should be able to have flexible educational structures, such as distant education or new communications technology, even thought there are good justifications for the opposite; they should be able to have traditional practices related to health care, even when there are reasons not to; all because the preservation of the Romani identity is a higher need than any other purpose.

This line of thought is completely in accordance with current international law. The UN Declaration on the Rights of Persons Belonging to Ethnic or National, Religious and Linguistic Minorities promotes the adoption of positive measures, such that the identity of minorities is protected⁵. The declaration also requires that states adapt their legislation in order to make the protection "effective". Measures to promote "full and effective equality" are also required "where necessary" by the Framework Convention for the Protection of National Minorities⁶. Legal measures are not adequate, if not followed by implementation. The International Convention on the Elimination of All Forms of Racial Discrimination allows in Article 2 (2) for positive measures, when "circumstances so warrant"⁷. In its General Recommendation on Article 1(1) of the Convention, CERD noted that:

A differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention…

According to some, Article 27 of the ICCPR also places a positive obligation on the state to undertake positive action for the protection of minority and indigenous groups⁹. States need to take affirmative action so that the rights flowing from Article 27 can be realised¹⁰. This view has been followed by the Human Rights Committee: In its General Comment 23(50), the Committee notes that states need to take positive measures to implement Article 27, not only against the acts of the state party itself, but also against acts of other persons in the state¹¹. A Directive on Roma Integration that will use strong language on the need of positive measures will be a step forward to the somewhat cautious provisions of international law on positive measures for the protection of minorities.

Arguments for the integration of Roma

Notwithstanding general standards, specific measures and numerous projects, various bodies still paint a damning picture of the situation of Roma. The Advisory Committee on the Framework Convention commented in September 2000 that the situation of Roma in Slovakia, Hungary and Finland varied from unsatisfactory to worrying¹². The 2000 Central and Eastern European preparatory meeting for the World Conference against Racism noted that the Roma "remained the least integrated and most persecuted people in Europe"¹³. Recommendation 1557 (2002) of the Parliamentary Assembly of the Council of Europe referred to widespread discrimination in every field of personal and public life, marginalisation and segregation of Roma.

Segregation policies are often justified with spurious argumentation that they constitute policies that "protect" the distinct characteristics of Roma, which cannot be accommodated within the mainstream society. These arguments recall genuine minority claims for separation policies in certain areas in order to ensure that members of such minorities have the space to maintain and develop their distinct characteristics¹⁴ and often draw upon existing provisions that allow for such measures. Indeed, the International Convention on the Elimination of All Forms of Racial Discrimination, the United Nations Declaration on the Rights of Persons Belonging to Ethnic or National, Religious and Linguistic Minorities and the Framework Convention for the Protection of National Minorities all allow for separate measures in certain areas. Yet, these measures always have to be taken within the wider context of integration. The right to separate schools for minorities is recognised in the Framework Convention "without prejudice to measures taken in pursuance of the [states] general integration policy"¹⁵. Also, affirmative measures must aim at improving the human rights of minorities: the United Nations Declaration on Minorities allows for separate measures 'in order to promote (…) full and effective equality'. On the contrary, measures that lead to or maintain segregation aim at excluding minorities from the life of the society. No one for example can argue that policies that place Roma in substandard accommodation at the outskirts of cities are pursued for the protection of Roma rights. The 2004 Czech state report on the implementation of the Framework Convention for the Protection of National Minorities admits that remedial special schools for Romani children are "untenable", but continues to talk about "special classes for Roma children" ¹⁶. The Convention against Discrimination in Education, article 2(b) and the International Covenant on Economic, Social and Cultural rights (article 13.3) establish that separate systems or institutions for religious or linguistic reasons are permitted as long as they are established according to the wishes of the parents and they offer education of the same level. Obviously, separate schools for the Roma are not according to the wishes of the parents. In general, many studies have demonstrated¹⁷ that states' policies to separate Roma from the rest of the population are contrary to the Roma wishes for integration. Integration can be taken to cover structures and policies aimed at securing full recognition of the identity and culture of members of minority communities and their full participation as such in national and regional society and government¹⁸.

Some perceive racial segregation as an expression of "multiculturalism". For example, a proposal by a London council to build an old peoples' block just for old Asians was officially justified on the basis of multiculturalism.¹⁹ Parekh confirms that "multiculturalism is sometimes taken to mean that different cultural communities should live their own ways of life in a self-contained manner" ²⁰. The perception that policies of racial separation are in line with multiculturalism is erroneous. Multiculturalism requires that all cultures should be open and interactive in their relations with each other. Studies have shown that maintaining separate and mutually exclusive systems can contribute to the social exclusion of certain groups and the worsening of the tension and hostility between the various groups of the society²². International law does not endorse this kind of "multiculturalism". The 1966 UNESCO Declaration of the Principles of International Cultural Co-operation declares that "in their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind"²³. According to the declaration, cultural co-operation is a right and a duty for all peoples and nations. All nations must respect the distinctive character of each culture, while promoting their enrichment in an atmosphere of friendship and peace. Cultural co-operation aims at the mutual benefit of all the nations practising it and should be exercised in a spirit of broad reciprocity²⁴. The Framework Convention for the Protection of National Minorities refers to "a pluralist and genuinely democratic society" as the model to be achieved²⁵ and emphasises in the preamble that "that the creation of a climate of tolerance and dialogue is necessary to enable cultural diversity to be a source and a factor, not of division, but of enrichment of each society"²⁶. Thus, the convention urges members of both minority and majority groups to learn more about their respective histories, traditions, languages and cultures (Article 4.4.). In general, both the Framework Convention and the OSCE Copenhagen Document re-assert the spirit of tolerance and intercultural dialogue, mutual respect and understanding that should exist among the minorities and the majority²⁷. The idea of reciprocity among cultures is also emphasised in the comment of the Committee on Human Rights in relation to the protection of cultural rights:

The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. (emphasis added)

International law favours state policies, where differences are not just tolerated but celebrated, where cultures do not just co-exist but interact and learn from each other; through this interaction and dialogue cultures are evolved. All the groups understand themselves as participants in the same society, subjects to inter-action, exchange and inter-dependency. The interaction causes, sometimes, friction and conflicts that are resolved following institutions and procedures of discussion that all participants have accepted as legitimately binding. This is also explicitly recognised to Roma: Recommendation 1203 (1993) of the Parliamentary Assembly links the idea of a genuine cultural identity with the contribution of minority cultures to overall diversity and observes that the Roma greatly contribute to the cultural diversity of Europe. Segregation polices fail to recognise this; on the contrary, as the US Supreme Court said in Brown v. the Board of Education of Topeka et al., "to separate … [children] … from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."²⁹

Unfortunately, Romani cultures are still not perceived as equal to other culture(s) in the European states. Although less and less as time goes by, States have even tried to blame segregation on Roma themselves: The well-reported wall that the local council built in Usti nad Labem, the Czech Republic in 1999, in order to separate the Romani community from their non-Romani neighbours was, according to state officials, a measure prompted by social reasons, rather than a measure of racial intolerance³⁰. In a discussion on Bulgaria's 1997 report to CERD, the Bulgarian representative explained the segregation of Roma on the ground of the alleged Roma criminality and the fear of theft purportedly gripping ethnic Bulgarians in neighbourhoods where Roma live³¹. The 1999 Dutch report to CERD justified segregation in education on the basis of the "standards" of pupils from ethnic backgrounds³². These simplistic explanations and racist perceptions must be ended by state action. Multiculturalism cannot flourish without positive state measures. The otherwise conservative European Court on Human Rights has recently stated in the Sander case that "in today's multicultural European societies, the eradication of racism has become a priority goal for all Contracting States"³³. States cannot use the excuses of economic crisis or the long periods of time that supposedly need to pass before deep racial prejudices are eradicated as justifications to prolong or allow segregation policies or practices. The ending of such persistent and continuing abuse of Roma rights must be recognised as of utmost priority for European states.

The legal effect of a proposed Directive on Roma Integration

As the previous sections demonstrated, European states are legally bound by international law to eradicate patterns of segregation affecting Roma; yet, the current international legal system has not yet brought about the expected results. The directive would be the first binding instrument specifically on Roma at the international level, a natural step after several non-binding recommendations and opinions in the international level. It is exactly at this level that a new directive on Roma integration will make the greatest difference: the implementation of existing standards. Although provisions of international conventions are legally binding on the states that have signed them, failure to respect these instruments does not lead to any consequences other than international criticism. This soft nature of international instruments is in accordance with the horizontal structure of the international community, in which each state is equal to the other. However, a European Directive on Roma integration will derive from a supranational institution, the European Union, and will therefore be a much stronger instrument.

Ideally, a European directive on Roma integration would be binding as to the result to be achieved (Roma integration), but would allow States a discretion as to the form and mode of implementation. After the deadline for the implementation of a directive passes, any European citizen is able to invoke the directive in front of the national courts against the state, all organs of the administration, including municipalities (see the Fratelli case)³⁴, and private organisations that have been given special powers by the state, enjoy special status and provide a public service (see the Foster case)³⁵. In other words, any Romani person would be able to invoke the directive in front of the national courts against a wide range of organisations, such as local authorities, schools, hospitals, housing authorities, police, if the organisation has acted contrary to Roma integration, even where there is no relevant national law (direct effect). Any such authority must take Roma integration into account when legislating, when administering policies or when performing any other official act. National courts will also be under the obligation to interpret national law as far as possible in accordance with the directive (indirect effect, Von Colson³⁶, Marleasing³⁷). If the directive is not implemented, then the Commission would be able to bring an action against the Member State before the European Court of Justice for violation of Community law (Article 226) and the individual will be able to seek damages before the national courts (Francovich³⁸, Factortame III/ Brasserie du Pecheur³⁹). This is the case with all directives. For example, in July 2004, the European Commission announced that it would refer to the European Court of Justice six Member States because they have failed to take measures to transpose the Race Equality Directive into domestic law.

Therefore, a Directive on Roma integration would provide an extra level of protection to Romani European citizens. Arguably, this level of protection against discrimination was first envisaged by the Race Equality Directive. The difference is that this new Directive would be explicitly on Roma integration, which would leave no space for alternative, reductionist interpretation by states, as has been the case with the Race Equality Directive to date, when it comes to the segregation of Roma. In other words, there will be no doubt that EU Member States will have to take measures on Roma integration.

More generally, both the Race Equality Directive and the proposed Directive on Roma Integration will be important elements of a European policy on minorities. So far, the European Union has attracted severe criticism about its lack of a clear policy on minorities, while insisting on such policies for the accession candidate states⁴⁰. Although such insistence on high standards on minority-friendly policies in EU candidate countries has directly influenced domestic policy and programs on the treatment of minorities, it also entailed the application of double standards: criteria candidate countries had to fulfil were not satisfied within the territories of existing Member States. This allowed existing Member States to become complacent about their domestic minority situation. For example, although all of the countries that joined the EU in May 2004 with the exception of Latvia have ratified the European Convention for the Protection of National Minorities, Belgium, France, Greece, Luxembourg and the Netherlands have not yet ratified this convention.

In conclusion, a Directive on Roma Integration will be an important step for the protection of Roma in Europe. It would give Roma rights that they themselves as individuals can directly pursue at the domestic level and consequently make the states liable for segregationist practices as well as for omissions to act for the integration of Roma. It would clarify the standards all Member States have to respect for the protection of Roma and by using strong language, it would put an end to states resistance in accepting that they must take positive action to protect the identity of Roma. In general, such a Directive is a long needed measure that could have long-lasting positive consequences for the Roma within the European Union.

Endnotes:

1. Dr. Alexandra Xanthaki is a lecturer at Brunel University, U.K, where she teaches international human rights and European law. She has published on minority and indigenous rights, has acted as a consultant for the United Nations and several NGOs and participated in projects funded by the European Commission and other organisations.
2. Maurizio Ragazzi. The Concept of International Obligations Erga Omnes. Oxford: Clarendon Press, 1997, 124-130.
3. Text adopted by the Assembly on 2 February 1993, General Observations, 9. See also Doc. 6733, Report of the Committee on Culture and Education (Rapporteur: Josephine Verspaget).
4. Ibid.
5. According to article 1 of the UN Declaration on National or Ethnic, Religious and Linguistic Minorities, "states shall protect the existence and the ethnic, cultural, religious and linguistic identity of minorities" within their territory and "shall adopt appropriate and other measures to achieve those ends".
6. Article 4.2 of the Framework Convention.
7. Article 2, para. 2 of the Convention.
8. -
9. Among the supporters of positive measures for minorities are Capotorti, Thornberry, Sohn, Ermacora and Cholewinski. See Spiliopoulou Åkermann. Justifications of Minority Protection in International Law. The Hague: Kluwer International, 1996, 128.
10. See Special Rapporteur A. Capotorti. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities for the UN Sub-Commission on Prevention on Discrimination and Protection of Minorities. UN Doc. E/CN4/Sub2/384/Add.1-7, Add. 2., para. 132.
11. Human Rights Committee. General Comment 23(50). UN Doc. CCPR/C/21/Rev.1/Add.5, para. 6.2.
12. See Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinions on Finland, Hungary and Slovakia, adopted on 22 September 2000, see chapter 2 of the present work.
13. Report of the central and eastern European regional seminar of experts on the protection of minorities and other vulnerable groups and strengthening human rights capacity at the national level: World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. A/CONF.189/PC.2/2, 14 August 2000, paragraph 56.
14. UN Doc. E/CN.4/Sub.2/AC.5/2001/WG.6, Tom Hadden with Ciaran O Maolain, Integrative Approaches to the Accommodation of Minorities (2001).
15. Article 5.2. of the Framework Convention.
16. ACFC/SR/II(2004)007.
17. See Dimitrina Petrova. ?In Defense of Desegregation?. In Roma Rights Quarterly 2-3/2002.
18. T. Hadden. ?Integration and Separation: Legal and Political Choices in Implementing Minority Rights?. In N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples and Self-determination. The Hague: Martinus Nijhoff, 2005, p.174.
19. D. McGoldrick. ?Multiculturalism and Its Discontents?. In Minorities, Peoples and Self-determination, p. 219.
20. ?So what exactly is multiculturalism?? BBC News U.K. edition, Monday 5th April 2004.
21. -
22. T. Hadden. ?Integration and Separation: Legal and Political Choices in Implementing Minority Rights?, p. 174.
23. Article 1.2 of the Declaration.
24. Articles 5-8 of the Declaration.
25. -
26. Preamble, para. 8.
27. Council of Europe Framework Convention for the Protection of National Minorities, Article 6.1. and paragraph 36 of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE (1990).
28. -
29. See U.S. Supreme Court, Brown v. Board of Education, 347 U.S. 483 (1954) at: Brown v. Education.
30. See ?Late Night Live ? 25 October 1999: Gypsies ? The Roma Wall?, available at: The Roma Wall.
31. See CERD. ?Summary record of the 1205th meeting: Bulgaria.? 16/04/97. CERD/C/SR.1205. Summary Record, para. 16.
32. See CERD. ?Fourteenth periodic reports of States parties due in 1999: Netherlands.? 06/07/99. CERD/C/362/Add.4. (State Party Report), paras. 161-168.
33. See Sander v. The United Kingdom (34129/96) [2000] ECHR 193 (9 May 2000), para. 23, at: http://www.worldlii.org/eu/cases/ECHR/2000/193.html.
34. See Case 103/88 Fratelli Costanzo v. Milano, [1989] ECR 1839.
35. See Case C-188/89 Foster v. British Gas ([1990] ECR I-3133).
36. See Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen ([1984] ECR 1891).
37. See Case C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA, [1990] ECR I-4135).
38. See Cases C-6/90 and C-9/90. Frankovich and Bonifaci v Italy [1991] ECR I-5357.
39. See Cases 46/93 and 48/93. Brasserie du Pêcheur SA v. Germany, and R. v. Secretary of State for Transport, ex parte Factortame Ltd. and Others [1996] ECR I-1029.
40. For example, see Carol L. Kline. ?EU inconsistencies regarding human rights treatment: can the EU require Czech action as a criterion for accession?? In Boston College International and Comparative Law Review 23/1999, 35, at p. 50.