Roma Rights and Anti-Discrimination Law
10 May 2003
Claude Cahn
Alarmed at the rise of racism and xenophobia in the European Union and in particular reportedly spurred on by the electoral success of the far right in Austria, the European Council of the European Union approved in mid-summer 2000 a binding directive specifying for European Union Member States and candidate countries the required dimensions of laws banning racial discrimination. Even well before the mid-2003 deadlines for transposition into the domestic legal order have come up, Directive 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" - "The Race Directive", as we have since habitually come to call it - has already contributed greatly to improving in quality and expanding in scope the legal protections available to victims of racial discrimination in Europe.
With their focus on individual rights and individual dignity, anti-discrimination laws are inherently compatible with democracy. Such laws aim to provide individuals with the protections any person may need at one time or another while endeavoring to undertake a life with dignity. Democracy without such laws is incomplete and risks devolving into the regime of which de Tocqueville warned: "the tyranny of the majority", with weak groups exposed to the potentially bullying will - or simply the apathetic and callous neglect - of dominant groups with other priorities. Further, insofar as they do not punish opinion, such laws are not burdened by the totalitarian approaches to social change discredited by the events of 1989.
But simply to note the compatibility of anti-discrimination law with the democratic order does not do justice to the extent to which "equality" resonates with core human rights values. Equality engages our utopian ideals, indicates contours of the good, and suggests one path along which that aspiration might be realised. As one answer to the questions raised by the raw idea of equality, non-discrimination has been derived from among our most deeply rooted sentiments. It is no wonder, then, that anti-discrimination law itself, in giving substance to the non-discrimination principle, has exploded out of an original narrow preoccupation with formal equality and taken on the complex and protean shape it has today, with its procedural and substantive aspects and its various typologies of remedy. While the Race Directive proclaims a pre-occupation with "equal treatment", in its substantive provisions it aims at the utopian golden apple: equality of outcome.
All of which is to say that comprehensive anti-discrimination laws are intrinsically good, are a necessary part of the democratic legal order, and that enlightened governments should seek their adoption speedily, so as better to serve their constituencies. By late 2000, the ERRC had made adoption and implementation of comprehensive anti-discrimination law in conformity with the EU Race Directive, as well as with other relevant international standards, among the central planks of its advocacy efforts, and toward that end was party to a major joint project on the issue with the London-based Interights and the Brussels-based Migration Policy Group. We have expended significant efforts on raising awareness among lawmakers and others of the existence of the Race Directive and the many reasons for swift adoption of laws in conformity with its provisions.
It must unfortunately be noted that these efforts have to date - only months before the first deadline for implementation of the Race Directive comes up - not yet met with overwhelming success. In the EU, some governments (notably Belgium) have moved swiftly to implement the provisions of the Race Directive and others (for example the United Kingdom) are currently involved in amending legislation to meet the requirements of the Directive. However, there is resounding silence coming from countries such as Austria, Greece and Spain (to name only a few) - countries which to begin with have very weak legal regimes against discrimination. In Central and Eastern Europe, a similar legislative paralysis appears to plague many countries. As this issue of Roma Rights went to press, Bulgaria, Hungary and Slovakia were involved in drafting laws, but the Bulgarian draft bill had stalled, the Slovak bill had been rejected once by parliament, and it was still too early to tell whether Hungary would manage to adopt the bill currently under discussion. And those are the success stories; a number of other countries have given no indication whatsoever that they intend to comply with the Race Directive. The single government from among the European Union candidate countries to have managed thus far to adopt any anti-discrimination law is Romania, and there, as detailed in these pages, close to three years after its adoption, problems with implementation have rendered that law to date all but a dead letter. It is already clear that it will very soon fall to the European Union to make clear what measures it intends to bring against non-compliers.
This issue of Roma Rights brings together essays by a number of observers and experts in Eastern and Western Europe, detailing the current state of efforts to bring about new or amended anti-discrimination laws in a number of countries. Additionally, ERRC Board Member Theo Van Boven describes the work of the United Nations Committee on the Elimination of Racial Discrimination, the treaty body charged with oversight of implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. ERRC Legal Director Gloria Jean Garland provides an overview of ERRC anti-discrimination litigation efforts to date, as advocates work with existing laws to secure justice for victims of racial discrimination. It is an issue of our quarterly which, one might say, we have been working for close to three years to produce.
It is also not likely our final word on the issue. As European norms banning discrimination expand, so too do the number of Roma pressing claims for justice when they have suffered the very serious harm of racial discrimination. The question being posed with increasing frequency and urgency is whether governments can establish frameworks through which Romani victims of racial discrimination can receive due remedy. That question, newly opened, is only beginning to yield answers.
