Binding States by Law to Roma Inclusion

11 March 2005

In Slovakia (and not only), there are several hundred extremely substandard Romani slum settlements. These are characterised by extreme deprivation. They generally are missing one or many of the following: electricity, heating, provision of potable water, sewage and/or solid waste removal, street lighting, pavement, paved roads and inclusion in the public transport system. In addition they are frequently far from schools, hospitals and municipal or other public offices. Denial of postal services has in a number of instances meant that inhabitants of such settlements have missed court appearances, failed to learn of the receipt of scholarships, or failed simply to receive word from loved ones far away. Some, such as the settlement near Rudn'any called Pätoracka, are extremely dangerous; Pätoracka is located on the tailings of a former mercury mine.

The extreme conditions in some of the eastern Slovak Romani settlements, places such as Hermanovce, Letanovce, Svinia and Jarovnice, prompted – after a visit in 1999 by then-EU Commissioner for Enlargement Gunther Verheugen – the European Union to approve significant funding for infrastructure in Slovak Romani settlements within the EU funding scheme for EU candidate countries called Phare. The first major project for Romani settlements in Slovakia was included in the Phare 2001 scheme. When first adopted, Phare 2001 involved infrastructure development in Romani communities (including benefits also for surrounding non-Romani localities) in 30 municipalities in Slovakia. Phare 2001 envisaged millions of Euro in EU contributions, to be matched by a similar level of Slovak State funding. The sums – close to 20 million Euro in total – are among the largest Roma-specific allocations anywhere to date. Activities implementing Phare 2001 were slated to take place throughout 2004 (EU nomenclature is not always as clear as one might hope).

As of early December 2004, according to the EU delegation office in Bratislava, formal assessment of the impact of Phare 2001 had not yet been undertaken. However, indications are that in a number of municipalities, implementation has been problematic. One village (Svinia) refused implementation outright. A number of others have apparently implemented projects in haphazard, wasteful and/or corrupt fashion. There is a steady stream of frustrated and quasi-existential muttering coming from non-Slovak members of the EU delegation office in Bratislava, to the effect that projects are not working well.

Monitoring of Slovak Phare 2001 Infrastructure in Romani Communities and other projects raises questions as to what extent Commission and other funding, combined with anti-discrimination laws in conformity with the EU Race Equality Directive (Directive 43/2000), are alone sufficient to secure Roma inclusion in the member states. Observation of the impact of projects such as Phare 2001 have given rise to a number of calls for legal measures at the level of the EU binding the member states to ensure Roma inclusion.

There are currently a number of proposals in the field as to the further development of legal instruments at EU-level, EU laws which would either mandate positive action for Roma, or on behalf of weak groups generally. Notably:

1. In its "Report on the Situation of Fundamental Rights in the European Union for 2003", dated January 2004 but only published on May 26, 2004, the European Union Network of Experts in Fundamental Rights recommended the adoption of a "Directive specifically aimed at encouraging the integration of Roma"¹. The EU Network of Experts in Fundamental Rights is a distinguished body established by the European Commission at the request of the European Parliament, charged with monitoring fundamental rights in the Member States and in the Union. It comprises leading jurists from all of the EU Member States. In presenting the need for such a Directive, the EU Network of Experts first states: "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. [...] The urgent need to adopt a specific Directive [...] in order to encourage the integration of the Roma minority not only stems from the grave concerns that have been expressed in the evaluation reports on the situation of this minority in several Member States of the European Union, and not just in the acceding States where the question of integration of the Roma arises with particular acuteness. This urgency also stems from the inappropriateness in several respects of Directive 2000/43/EC, which was not specifically aimed at achieving the integration of groups that are traditionally excluded, such as the Roma". Detailed reasoning for such a Directive within various sectors such as employment, housing, education, health and access to personal documents follows in the report. A discussion of the proposal with the co-ordinator European Union Network of Experts in Fundamental Rights appears in the pages of this issue of Roma Rights.

2. A second mooted proposal as to EU-level law in the field of Roma integration involves a "Desegregation Directive" covering the fields of education, housing and health. This idea has been a central plank in the proposals of MEP Viktória Mohácsi, currently one of two Romani MEPs currently in Brussels (both are from Hungary). Although the ERRC has not seen a full proposal as to the dimensions of a "Desegregation Directive", its legal dimensions would presumably aim to bring into EU law a supplementary ban similar to the Article 3 ban on segregation included in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

3. Others have floated the possibility of working toward a "Positive Action Directive" which would bind EU Member States to undertaking "positive" or "affirmative" action on behalf of minorities and other weak groups, or otherwise clarify EU Member States obligations in the field of positive action. Such a "Positive Action Directive" might include a specific chapter on Roma, or otherwise make specific reference to Roma.

The EU Race Equality Directive leaves open the possibility for Member States to adopt positive action measures and makes clear that such measures are not discrimination (and therefore are not illegal under the Directive). However, unlike some international law provisions, the Directive stops short of actually requiring positive action: "With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin." Outside the EU system, a legal basis exists for establishing positive measures for weak groups. With respect to minorities, the International Convention on the Elimination All Forms of Racial Discrimination (ICERD) establish basic parameters for positive action. The Council of Europe system has in recent years significantly developed this normative basis, particularly via the Framework Convention for the Protection of National Minorities. However, the question of the EU role in pressing Member States to act upon these obligations has not yet been clarified.

One possible way forward may be to build fiscal, transparency and accountability arguments in favour of legal measures binding states to ensure Roma inclusion. The profile of such legally binding measures might include: (1) the requirement that governments adopt a Roma Inclusion programme; (2) the obligation to allocate sufficient funding for the programme's implementation; (3) requirements of clearly assigned local responsibility for implementation; (4) requirements to develop and meet Roma-specific integration targets and indicators, such as school desegregation indicators and similar; (5) the necessity of ensuring that, internal to the programme and related minority rights frameworks, fundamental human rights are upheld; (6) other. Such an approach may have possibilities for success, proceeding as it would not solely from the anti-discrimination law and social inclusion policy mandates, but also because it might build on parallel discussions concerning the necessity to ensure sound fiscal policy. Some Roma rights activists have already taken this approach in domestic-level advocacy.²

Among the many difficulties plaguing the road to positive action to ensure equality for Roma is deep-seated hostility among the public at large. A number of Central and Eastern European countries had positive action policies under Communism. For example, under Communism, Czechoslovak authorities preferentially provided housing to Roma ahead of non-Roma, amid a general housing shortage, in which married couples frequently waited for periods of many years for housing. The policy generated significant levels of anti-Romani hostility, hostility which found no expression in public debate, since it transpired under totalitarian conditions. Following 1989, anti-Romani sentiment – as well as anti-Romani violence – broke out with great intensity in Czechoslovakia, and it remains at disturbing levels today. Elsewhere, Bulgarian lawmakers have to date rejected efforts to see a law passed which would fund school desegregation efforts in that country, because of widespread views that such a law would "discriminate against non-Roma" and "establish unfair privileges to the detriment of the majority".

There is a need for any positive action measures adopted to be accompanied by significant levels of public debate and efforts at consensus. The governments of Europe must lead and foster those debates, because the longer no serious action is taken in these areas, the more likely it is that scenarios such as the rioting in Slovakia in 2004 becomes the norm, as significant parts of excluded minorities sink further and further into extreme states of degradation.

Debates on the need for positive action measures for a number of burdened groups, and/or for legal measures binding states to ensure Roma inclusion, are now open. How these will be resolved is as yet unclear. This issue of Roma Rights hopefully provides useful input to such discussions.

Endnotes:

1. European Union Network of Experts in Fundamental Rights, "Report on the Situation of Fundamental Rights in the European Union for 2003", Brussels, January 2004, p. 103. The full text of "Report on the Situation of Fundamental Rights in the European Union for 2003" is available on the Internet website of the European Commission's Directorate General of Justice and Home Affairs: http://europa.eu.int/comm/justice_home/index_en.htm. 
2. See for example Clements, Luke and Rachel Morris, At What Cost? The Economics of Gypsy and Traveller Encampments, Policy Press, 2002