THIS ARTICLE SHOWS THAT THERE ARE A WIDE SET OF STANDARDS IN PLACE TO PROMOTE THE ECONOMIC AND SOCIAL PARTICIPATION OF MINORITIES. IT IDENTIFIES THE MANY GAPS THAT NEED TO BE ADDRESSED INCLUDING THE RESPONSIBILITIES OF STATES CONCERNING THE SOCIAL AND ECONOMIC CIRCUMSTANCES OF MINORITY COMMUNITIES, IDENTIFYING THE ROMA AS ONE OF A SET OF MINORITY COMMUNITIES FACING THIS ISSUE.
ASPECTS OF THE ECONOMIC AND SOCIAL DIMENSION OF THE FULL AND EFFECTIVE PARTICIPATION OF MINORITIES.
This chapter examines the question of the effectiveness of selected international instruments and the emergence of novel mechanisms to promote the participation of members of ethnic minority groups in economic and social life within the overall framework of EU enlargement.
The concept of effective participation in public life should be viewed in two complementary modes: first, as the participation of ethnic minorities in conventional forms of political activity; and second, as the everyday direct participation and inclusion of individual members of minorities in the economic activity and social service provisions of states.
Regrettably, the issue of participation in economic and social affairs is often neglected in the analysis of the situation of specific minorities, while good quality information and analyses is often to be found on civil and political issues. These analyses may have been prompted by concerns over the prospect of violent conflict or represent a subject in which governments, politicians and civil society organizations have experience and where comparisons between states can be more readily made. As a consequence, systems of government are usually well documented and data can be analyzed by political scientists and international lawyers. The same environment does not exist for advancing to economic and social issues, despite their importance for minority communities, the recognition that high levels of unemployment and economic exclusion lead to disengagement from society and instability, and the fact that direct or indirect discrimination against minorities in economic and social spheres has been shown to be commonplace in many countries.
One obstacle is that good quality statistics, which are essential for targeted policies and programmes, are usually difficult to obtain. Furthermore, the impact of economic and social initiatives is often very difficult to measure in the short term. The economic and social conditions of minorities are thus often left unmonitored by states, necessitating ad hoc primary data collection and research of complex, inter-related issues, including language, education, training and employment, to provide evidence on the extent of economic and social exclusion.
Consequently, there is a general tendency within different EU support programmes to adopt an approach of mainstreaming economic and social provisions rather than promoting more targeted projects. While this approach can be beneficial in ensuring widespread access to available programmes and budget lines and may reduce ethnic cleavages, there is also a major risk that marginalized communities such as Roma will continue to receive limited benefits and remain socially excluded.
Additionally, there are areas where the political mandate of the EU is less developed for reasons of subsidiarity, such as health services, the environment, access to justice and, to some extent, national education. Applicant states were eligible for funding through EU external aid programmes. As these will no longer be provided beyond accession, such issues risk once again being marginalized. Minority communities may also suffer discrimination in allocations within domestic budgets.
A final obstacle is that there are few sociologists and economists engaged in the discourse on minority rights which tends to be dominated by other disciplines.
This chapter attempts to explore some of these issues and the ways in which certain organizations – local as well as international – are gradually giving economic and social issues a higher profile. In a number of cases, it shows how international bodies such as the United Nations (UN), the Organization for Security and Co-operation in Europe (OSCE), the Council of Europe (CoE) as well as the European Union (EU) itself have helped shape institutions, mechanisms and strategies within countries to strengthen minority participation in economic and social life. It will also touch upon how they have shaped their own mechanisms and structures, often as a result of pressure from civil society, to better take into account minority views and to enhance minority participation.
While the focus here is on EU applicant and accession countries, this article nevertheless includes reflections on states on the periphery of the expanded EU, as well as on developments within organizations whose membership includes the original EU–15.
Strategies and programmes for Roma are specifically explored since it is widely recognized that these groups represent the economically and socially most excluded communities in Europe. There are, however, many other examples of marginalized minorities: some ethnic Albanians in Southern Serbia, Montenegro and Macedonia, as well as many Pomaks and some ethnic Turks in Bulgaria. Conversely, other minorities, such as many of the ethnic Greeks in Albania, are more prosperous thanks to the opening up of new trading opportunities with their ‘kin’ state.
II. Standards, Instruments and Programmes on Economic and Social Rights of Minorities
The last decade of the twentieth century saw the OSCE, the UN and the Council of Europe adopt new standards to protect minorities, transforming the somewhat barren landscape that had existed until then. The culmination of these efforts was the Council of Europe Framework Convention for the Protection of National Minorities (hereafter, ‘FCNM’) (Council of Europe 1995). The EU has greatly relied on these standards as it lacks specific instruments of its own in the area of minority rights, although it has taken the lead in promoting the principle of non-discrimination in a number of areas.
A. EU Standards
The so-called ‘Copenhagen Political Criteria’ for EU membership, adopted at the meeting of the European Council in June 1993, states that membership requires “that the candidate country must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.” Neither this nor subsequent Council summits defined what was entailed by “respect for and protection of minorities.” Furthermore, the EU itself had no acquis in this area. This was complicated by the position of France, which had always stressed that it did not recognize or make provisions for minorities within its borders; a similar position was adopted by Greece. Other states inside the EU-15, such as Spain, Belgium, Denmark and Germany, also have difficulties as to whom they recognize as a minority. Consequently, it is not surprising that the EU Charter of Fundamental Rights (see below) does not refer to minority protection.
However, all EU applicant and member states have ratified the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), adopted the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereafter, ‘UN Declaration on Minorities’), and approved the conclusions of the OSCE (then CSCE) Copenhagen Document which bears many similarities to the FCNM. These standards, which will be examined below, help to define what EU members have agreed collectively in the realm of minority rights.
On 29 June 2000, the European Council (EC) adopted Directive 2000/43/EC (the so-called ‘Race Equality Directive’) which provides protection against discrimination in the field of employment and occupation, inter alia. It also prohibits direct and indirect discrimination based on religion or belief, disability, age or sexual orientation. The Directive notes that “[d]iscrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity” (para. 9).
A further Directive (2000/78/EC) elaborating on the prohibition of discrimination in employment and occupation was adopted that same year. It notes, for instance, that “[e]mployment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential” (para. 9).
Additionally, all forms of discrimination on the basis of racial or ethnic origin are prohibited by the Treaty on the European Community (1957) (Arts. 12, 13). The EC is also empowered by treaty to promote equality between women and men and to combat many other forms of discrimination.
A reinforcement of fundamental rights and non-discrimination within the EU came with the proclamation of the Charter of Fundamental Rights (hereafter, ‘EU Charter’) at the European Council in Nice in December 2000 (European Union 2000). Article 21(1) of the EU Charter prohibits discrimination “on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation, and also discrimination on the grounds of nationality.”
These recent steps have offset to a large extent the double standards that appeared when the Copenhagen Political Criteria set higher standards for candidate countries than existing practice in EU member states, many of which still do not have stable institutions guaranteeing respect for and protection of minorities.
B. International Law
There are a number of international legal instruments protecting and promoting the economic and social rights of minorities. They are often related to an earlier standard and have become a source of inspiration for a subsequent one.
The FCNM, which entered into force in 1998, is the most recent and comprehensive instrument protecting the rights of national minorities. It has been ratified by all accession and applicant states with the exception of Turkey and Latvia (despite the latter being urged to do so on several occasions by the EU and others).
Yet, the FCNM’s attention to social and economic issues is limited, even when compared to the ICERD (United Nations 1965), which entered into force in 1969 and has been ratified by all applicant states (Turkey ratified it only in 2002, after applying for EU membership). The ICERD calls for special and concrete measures in the social, economic, cultural and other fields to ensure the adequate development and protection of certain racial groups (Art. 2.2). This is in some ways mirrored by the FCNM’s Article 4(2) where, with somewhat more cautious language and with no reference to development, states are obliged to adopt adequate measures to promote full and effective equality for national minorities in all areas of economic, social, political and cultural life. The ICERD (Art. 5) also guarantees non-discrimination in the exercise of economic and social rights, in particular in the areas of the right to work; the right to free choice of employment; the right to just and favourable conditions of work; the right to protection against unemployment; the right to equal pay for equal work; the right to just and favourable remuneration; as well as in the areas of trade unions, housing, health and medical care, social security and social services, and education and training. The FCNM is less specific, referring to the effective participation of persons belonging to national minorities in cultural, social and economic life, and in public life generally (Art. 15).
Still, the language of the FCNM gives states parties a major responsibility in its implementation and consistently places duties upon them. Both the Convention and its Explanatory Report make it very clear that states parties must initiate not only legislation but also policies to implement their commitments, and that these need to be transformed into measures to ensure that the rule of law is upheld and that programmes of action are initiated. Civil society can, and does, act with governments not only to ensure that such measures are agreed but also to help in the challenge of implementation.
The implementation of instruments such as the FCNM should evolve as custom and practice develop and as environments change. The Explanatory Report as well as the Opinions of the FCNM Advisory Committee play a significant role in this process, helping to further define the often vague standards enshrined in the FCNM and further guiding states in their implementation (see Section III.B).
Finally, another Council of Europe instrument may be mentioned: the European Social Charter (Council of Europe 1961) – the counterpart of the European Convention on Human Rights (Council of Europe 1953) in the economic and social field. The European Social Charter protects fundamental social rights related to housing, health, education, employment and social protection. It should be noted that while this is not a minority-specific instrument, it has the potential to be used to address discrimination against members of national and other minorities since the principle of non-discrimination is applied to each right belonging to any of the five categories mentioned above.
C. Declarations and Other International Guidelines
1. The United Nations
The UN Declaration on Minorities (United Nations 1992) displays language similar to that of Article 15 of the FCNM, recognizing that persons belonging to minorities have the right to “participate effectively in cultural, religious, social, economic and public life” (Article 2.2). Article 4(5) of the Declaration further recommends that “States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development of their country.”
The Chairman of the UN Working Group on Minorities, Asbjørn Eide, in his Commentary on the Declaration’s Article 2(2), gives a limited interpretation to the word participation, concentrating on participation in public life generally rather than the active participation of minorities also in social and economic life. At the same time, he refers to the risk of exclusion, marginalization and neglect of minorities and the taking over of their land and resources. He also draws attention to the danger that minorities, through misguided treatment, could remain at their traditional level of development.
The UN Declaration on Minorities in its Article 5(1) challenges states to plan national policies and programmes which take properly into account the interests of minorities. Here, the Chairman observes that their interests go beyond pure economic aspects, therefore proposing that such policies and programmes include “planning of educational policy, health policy, public nutrition policy or housing and settlement policies […].”
The Declaration continues under Article 5(2) to call for “programmes of cooperation and assistance among States” to be “planned and implemented with due regard for the legitimate interests of persons belonging to minorities.” The Chairman is particularly forthright in his comments linking such programmes to development assistance as well as to other economic cooperation among states, including trade and investment agreements, noting that there have been many instances where such cooperation has neglected or directly violated the interests of minorities. He also emphasizes the need to ensure that minorities benefit as much as majorities from that cooperation, proposing, for example, that an assessment of the likely impact of inter-state cooperation and assistance programmes on affected minorities form an integral part of any feasibility study.
Article 9 is tantamount to a binding instruction to UN specialized agencies and other bodies under the UN system to ensure that they fully contribute to the implementation of the Declaration in their work. Since agencies such as the United Nations Development Program (UNDP), the United Nations Children’s Fund (UNICEF) and the United Nations High Commissioner for Refugees (UNHCR) are implementing important programmes at the periphery of the EU, this should have significant implications for that region.
2. The Organization for Security and Co-operation in Europe
A. OSCE Standards and Guidelines
At the Human Dimension Meeting in Copenhagen in June 1990 a consensus was reached by CSCE participating states on a set of human rights standards, including standards on the rights of national minorities. These were enshrined in the so-called Copenhagen Document (OSCE 1990). However, there was an absence of clarity on their interpretation. In due course, the OSCE High Commissioner on National Minorities (HCNM) put together groups of experts, including some from minority communities, to develop recommendations on education, language and participation rights.
The Lund Recommendations on the Effective Participation of National Minorities in Public Life (FIER 1999) aim to clarify the content of minority rights generally applicable in the situations in which the High Commissioner is involved. These guidelines have been interpreted in such a way as to ensure their coherent application and have influenced the work of the HCNM, the FCNM Advisory Committee and others. However, there is a notable absence of recommendations on social and economic rights, including in the key area of employment.
B. The OSCE Roma and Sinti Action Plan
In the case of the Roma, the OSCE has been more active in addressing the need to enhance participation also in the economic and social spheres. In 2003, it drew up an Action Plan on Improving the Situation of Roma and Sinti within the OSCE Area (hereafter, ‘OSCE Roma Action Plan’) (OSCE 2003) whose aims are to “reinforce the efforts of the participating States and relevant OSCE institutions and structures aimed at ensuring that Roma and Sinti people are able to play a full and equal part in our societies, and at eradicating discrimination against them” (OSCE 2003: §I, para. 1). The Action Plan relies upon the framework of international and regional human rights law, existing OSCE commitments as well as examples of best practice from throughout Europe. It also proposes special (positive) measures, as justified by the ICERD.
The guiding principle behind this initiative is that it is essential to ensure genuine participation by Roma in all decisions affecting their lives. Roma are thus also invited to contribute to the implementation of the Roma Action Plan. Thus, it recommends that each policy and implementation strategy should be elaborated and implemented with the active participation of Roma communities as equal partners to state actors, thereby sharing responsibility for the betterment of their welfare.
It was also agreed that:
Each national policy or implementation strategy should: (1) respond to the real problems, needs and priorities of Roma and Sinti communities; (2) be comprehensive; (3) introduce a balanced and sustainable approach to combining human rights goals with social policies; and (4) maximize Roma ownership of the policies that affect them. At the same time, national policies or implementation strategies should be adapted and implemented according to the specific needs of Roma and Sinti populations in particular situations in participating States. Implementation strategies should also include mechanisms to ensure that national policies are implemented at the local level (OSCE 2003: § II, para. 4).
The section on “Addressing socio-economic issues” (Section IV) stresses that what is particularly needed in order to promote the integration of Roma into social and economic life, and to combat their isolation and poverty, are measures at the grassroots level, particularly those originating from Roma themselves. Specific recommendations in this section, addressed either to participating states or to OSCE institutions, concern housing and living conditions; unemployment and economic problems; and health care.
Others sections deal with access to education (Section V), combating racism and discrimination (Section III) and “Enhancing participation in public and political life” (Section VI), which deals primarily with representation and participation in government.
3. Recommendations of the Council of Europe Specialist Group on Roma and Travellers in Europe (MG–S–ROM)
In 1995, the CoE Committee of Ministers decided to place Roma issues on an institutional footing by setting up a Specialist Group on Roma/Gypsies in Europe (MG–S–ROM). This body, composed of government experts and representatives of selected Roma NGOs, was tasked with advising member states on all Roma-related matters and encouraging international authorities to take action where needed.
MG–S–ROM has developed a number of recommendations that have been endorsed by the Committee of Ministers’ Deputies, notably the Recommendation on the education of Roma/Gypsy children in Europe (2000) and the Recommendation on improving the economic and employment situation of Roma/Gypsies and Travellers in Europe (2001) . MG–S–ROM has also addressed issues of housing as well as the development, implementation and review of strategies.
D. Domestic Policies, Strategies and Programmes
1. National Roma Integration Programmes
Many states have recognized that Roma are among the most excluded groups in society, and that the realization of their social and economic rights has progressed much too slowly. There are now twenty national strategies for the integration of Roma in Europe. The Council of Europe, with funds from the EU, has established a project to support Roma strategies locally with public administrations and Roma in Bosnia-Herzegovina, Croatia, Serbia and Montenegro, and Macedonia. It also plans to evaluate the implementation of these strategies in a participative way and to provide specific support to Bulgaria and Romania in the areas where they are facing implementation difficulties.
2. Poverty Reduction Strategy Papers (PRSPs)
In September 1999, the World Bank Group and the International Monetary Fund (IMF) agreed that nationally-owned participatory poverty reduction strategies should provide the basis of all World Bank and IMF concessional lending and for debt relief under the enhanced Heavily Indebted Poor Countries (HIPC) Initiative.
Poverty Reduction Strategy Papers (PRSPs) describe a country’s macroeconomic, structural and social policies and programmes to promote growth and reduce poverty, as well as associated external financing needs. They are prepared by governments through a participatory process involving civil society and development partners, including the World Bank and the IMF. Although PRSPs do not exist for any EU applicant or member state, they have been developed for states at the periphery such as: Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Macedonia, Moldova, Russia, and Serbia and Montenegro. A number of them refer to specific minorities, particularly the Roma.
E. Comparing Norms
Until recently, EU standards on minority protection in general, and effective participation of minorities including in economic and social life in particular, have been very weak. Even the Copenhagen Political Criteria offer a great deal of discretion in their interpretation to candidate states and to those monitoring compliance. However, the EU’s Employment and Race Equality Directives offer opportunities for a progressive strengthening of the interpretation of the Copenhagen Criteria and the prospect of resources for their effective implementation. They may thus allow in some areas for the promotion of elements of minority rights without the recognition of such rights per se. This process may be further driven by a new dynamic of nine of the ten new members having ratified the FCNM and being accustomed to minority rights standards.
OSCE norms have not tackled socio-economic issues although, as seen above, the Roma Action Plan devotes a chapter to this topic. This highlights the significance of such issues for Roma and may be the result of the fact that the document was drawn up in close cooperation with Roma NGOs. If all states in the EU were to develop poverty reduction strategies, they would be likely to find that similar action plans are needed to support a normative framework not only for Roma but also for other marginalized minorities.
While the FCNM is potentially the most comprehensive instrument for minority protection and effective participation, it pays limited attention to participation in social and economic life. Furthermore, the declarations made by some states have excluded significant minorities from its protection, while Article 15 has too often been interpreted in a limited fashion, without considering the Explanatory Report or the jurisprudence of the Advisory Committee.
It may therefore be argued that Articles 4 and 5 of the UN Declaration on Minorities offer the strongest norms regarding the economic and social rights of minorities, adding to the standards contained in ICERD Article 5 on racial discrimination. The Declaration makes valuable references to economic progress and development and programmes of cooperation and assistance among states, offering a new dimension to these standards. However, it does not have the force of international law, the resonance of European-owned standards, nor the monitoring needed to ensure its effective implementation.
Thus, it can be said that the standards on economic and social rights of minorities developed by various international organizations leave many gaps unfilled, concentrating on individual protection rather than the state’s responsibility to the collective social and economic circumstances of minority members. There are no specific references to key issues such as the ownership of, and access to, land and water, or to issues of housing, health and social benefits; nor are there detailed standards specifically protecting traditional forms of employment, seasonal or migrant labour, trading or self sufficiency. Nevertheless, this has not prevented the CoE Advisory Committee and the UN Working Group from carefully examining these issues.
The UN, to its credit, adopted a transparent process in its lengthy negotiation of the Declaration on Minorities: the first draft was in the public domain and was widely discussed before it was finalized. The OSCE and the Council of Europe, on the other hand, used quite different procedures, meeting in camera to negotiate the Copenhagen Document and the FCNM respectively. In neither case did they seek to create the conditions necessary for the effective participation of minorities in the drafting process.
A final point needs to be made on the importance of good faith in the interpretation and implementation of international human rights standards, especially in relation to ‘soft’ issues such as economic and social participation. International obligations and commitments constitute minimum international standards. It would be contrary to their spirit and intent to interpret them in a restrictive manner, or to limit existing practice that exceeds these norms. The spirit and intent of a convention is manifested in its preamble, which can also help in the interpretation of specific articles. It is also understood that, when an article of a convention is interpreted, it should be applied in good faith, in a spirit of understanding and tolerance, and in conformity with the principles of good neighbourliness, friendly relations and cooperation between states.
III. Implementation and Monitoring of Economic and Social Standards
A. The EU
1. Accession Monitoring
The European Commission has prepared annual reports on the progress of candidate countries towards EU membership every autumn since 1998. These ‘Regular Reports’, which contain sections on human and minority rights, provide the basis for decisions to be made by member states in the framework of the enlargement process. They are accompanied by a strategy paper that makes recommendations regarding these decisions.
However, these Regular Reports amount to peer group pressure rather than conditionality for entry since the Commission concluded in 1997 that in the case of most applicant countries, including those that had serious outstanding minority issues such as Latvia and the Czech Republic, the political criteria for membership had already been achievd.
Among the areas of concern pointed out by the Commission were issues concerning the economic and social rights of minorities, mostly in relation to the Roma. For example, the Regular Reports on the Czech Republic have been highly critical of its failure to protect the rights of Roma, especially in the areas of education, employment and housing, and in combating discrimination and social exclusion. The Commission has also consistently expressed serious concern over the marginalization of Russian speakers in Estonia and Latvia, pointing to obstacles to acquiring citizenship as well as “other elements” which limit the integration of non-citizens in the economic sphere (European Commission 2002b: 30-3; European Commission 2002d: 30-4). It nevertheless concluded every year that these countries continued to fulfil the political criteria. Similar criticisms of policy and practice concerning Roma in the social and economic spheres were made in the 2002 reports on Slovakia and Hungary .
The 2002 pre-accession reports were particularly significant since they enabled the Commission to finally recommend that accession negotiations be completed by the end of 2003 with ten of the candidate countries. Both Bulgaria and Romania , which have been criticized for their record on Roma, may have concluded that this will not be a decisive factor in the decision on their membership (expected in 2007).
A number of civil society initiatives have sought to monitor the fulfilment of accession criteria and the situation of minorities, ranging from informal discussions between minority groups and in-country Commission staff to a substantial project developed by the Open Society Institute (OSI). The scope for pressure by these organizations was considerably weakened, however, by the Commission concluding that most candidate countries had fulfilled the political criteria.
The EU Accession Monitoring Program (EUMAP) was initiated by OSI in 2001 to support independent monitoring of the accession process, concentrating on governmental compliance with the political criteria. It thus aims to encourage dialogue between civil society and governments on human rights and rule of law issues, emphasizing the importance of civil society monitoring as a source of critical input and impetus for the continued improvement of governmental policies. Although somewhat late on the stage to have a significant impact, in 2001 and 2002 EUMAP published reports on minority protection by independent experts from the ten candidate countries of Central and Eastern Europe (OSI/EUMAP 2001; 2002a). The 2002 reports focussed on strategies to improve the situation of Roma (in eight of the countries) and on integration programmes for Russian speakers in Estonia and in Latvia. The reports addressed the situation of these groups in a comprehensive fashion, addressing not only minority rights but primarily protection from discrimination and equal access in the areas of education, employment, health, housing and other goods and services, social protection, and criminal justice.
The EUMAP reports also offered a critique of EU support, often pointing to its failure to provide funds for social and economic issues in a helpful or timely manner.
2. EU Initiatives on Social Inclusion and Anti-discrimination towards Roma
The European Commission has commissioned a report on the “Situation of the Roma in an Enlarged European Union” with the aim to highlight the implications of enlargement for EU policy and funding for policies on social inclusion and anti-discrimination for Roma. Social and economic issues are a major focus of this report which aims to determine which EU initiatives have been successful in pursuing Roma integration and empowerment, which might be appropriate for future support, what improvements will be required, and how EU programmes might integrate with other initiatives.
In late April 2004 the EU convened a conference on “Roma in an Enlarged European Union”. In its preparatory literature, noting that the Roma community will form the largest ethnic minority group within the EU following enlargement, the EU recognized that both within current members and also accession/candidate countries, the experiences of integration policies for Roma communities are mixed, and that Roma often remain excluded from mainstream economic and social activity whilst human rights abuses still occur. The conference thus aimed to discuss issues such as the progress of the research referred to above as well as possible future directions in the EU’s Roma policy. It also intended to enable Roma and civil society actors to better understand the instruments available to help achieve integration objectives. This highly commendable initiative is a long way forward from EU initiatives in the 1990s to fund Roma integration strategies in applicant countries with very limited discourse with Roma.
3. The European Monitoring Centre on Racism and Xenophobia (EUMC)
In 1997, the European Council established a European Monitoring Centre on Racism and Xenophobia (EUMC) with the primary aim of providing objective, reliable and comparable data on racism, xenophobia, islamophobia and anti-Semitism in EU member states. Another objective of EUMC is to develop strategies to combat these phenomena and to disseminate examples of good practice in the area of integration of migrants and ethnic and religious minority groups.
EUMC also has the potential to contribute to remedying the lack of reliable statistics in the new member states, and to assist in the development of strategies to overcome economic and social exclusion.
B. Treaty Monitoring Bodies: The Case of the FCNM Advisory Committee
1. A Participative Processes of Monitoring
The Council of Europe has established for the FCNM a system of monitoring based on reports from states parties. Key to this system are the ‘Opinions’ which the FCNM Advisory Committee forms on the adequacy of measures taken by states parties to implement the Convention. The Opinion and Comment which the state in question is invited to make are then discussed by the CoE Committee of Ministers which adopts a Resolution by consensus. Resolutions are usually largely based on Opinions of the Advisory Committee.
While this may seem a bland mechanism, since 1998 the FCNM Advisory Committee has encouraged minorities to participate in promoting the effective implementation of the FCNM. Governments are thus encouraged to consult minorities and civil society organizations before submitting their State Report and efforts are made to publicize the results of the monitoring process through the Internet.
The Advisory Committee may seek further information from a variety of sources, including minorities themselves or other NGOs. It has thus received a number of valuable contributions, sometimes in the form of so-called ‘shadow’ or ‘parallel’ reports (i.e. a critique of the State Report on an article-by-article basis). However, with a few exceptions, these reports rarely address economic and social participation in detail.
Although the original rules regulating the FCNM’s monitoring mechanism do not refer to country visits, in the spirit of the Preamble of the Convention all states except Spain have invited the Advisory Committee to visit them. During these visits, which usually last a week, a Working Group of the Advisory Committee holds discussions with a range of key actors, including representatives of national minorities; at least one day is usually spent in a minority area. These visits can encourage dialogue between NGOs and government officials as well as more local minority participation.
A number of states, including Croatia and Finland who set the precedent, have also convened workshops involving government officials and minorities to consider the Opinions and Comments and to encourage further dialogue and action. Furthermore, after a Resolution has been published, the Advisory Committee seeks a follow-up meeting inside the country with relevant actors, including minority representatives, to explain its Opinion and to encourage wide participation in resolving outstanding issues.
The second round of reporting that began in February 2004 demands further information on how governments have disseminated the results of the first round, and how they have improved the participation of civil society in the process of implementing the FCNM.
2. Promoting the Economic and Social Participation of Minorities based on FCNM Article 15
There are a number of ways in which states and the Advisory Committee have considered the economic and social conditions of minorities under Article 15, although many of the Opinions interlink the concept of effective equality contained in this Article with the issue of discrimination as elaborated upon in Article 4.
The Advisory Committee considers that additional positive measures in the field of employment are key for achieving full and effective equality for persons belonging to national minorities and has supported efforts to seek financing for such measures.
For example, the Report by Serbia and Montenegro describes the measures taken to promote economic equality in regions inhabited by national minorities, specifically in three municipalities in southern of Serbia inhabited by ethnic Albanians which are underdeveloped compared to other parts of the country. A mini-donor conference has also been organized to help promote economic equality in the municipality of Dimitrovgrad which is inhabited by the Bulgarian minority.
The FCNM Advisory Committee has frequently identified members of Roma communities as highly marginalized and among the poorest of the poor. It has also commented on the economic situation of other minorities, calling in particular for attention to be paid to the situation of Albanian, Bosniac, Croatian and Muslim minorities, taking into account past discriminatory measures aimed at curtailing their numbers in various fields of employment.
It is interesting to see how the Opinions of the Advisory Committee have matured during the first round of reporting (1999–2004), and how the importance of certain issues relevant for promoting full and effective equality in the socio-economic field, such as the provision of good statistical data, has been recognized in one Opinion and then more fully in subsequent Opinions on other countries. The Advisory Committee is often told by reliable sources during country visits that there are serious, yet unquantified problems. It should therefore come as no surprise that the Committee of Ministers’ Deputies have emphasized the importance of providing relevant statistical data in the second round of reporting.
3. The Fifth Anniversary Review of FCNM Implementation
In October 2003 the Council of Europe organized a conference to mark the fifth anniversary of the entry into force of the FCNM. Representatives of governments, civil society, and minorities, as well as experts in the field, examined practice and issues identified during the first cycle of monitoring. The Conference also offered a forum for constructive criticism and proposals to strengthen implementation of this treaty.
Issues addressed at the Conference included the question of the economic participation of minorities to which a separate workshop was devoted. The need for reliable and comprehensive reporting, disaggregated data and improvements in state and NGO reporting on this issue were highlighted. The Advisory Committee offered a number of practical suggestions on how this could be accomplished, suggesting, for example, that governments show that public service staff and civil servants are equitably drawn from all communities, different age groups and both genders.
The need to explore how minority cultures can foster economic development, and in particular how they may strengthen trade with their kin states, was also pointed out. Participants also drew attention to the potentially serious impact of enlargement on border trade between states within and outside the larger EU, which could affect minority groups particularly severely. It will also be important to be alert to the ways in which the economic disadvantage of peripheral regions may grow as the ‘global economy’ attracts more people and resources to capitals.
Land use and ownership have been underlined as important in a significant number of Opinions. This may have been anticipated for indigenous communities such as the Sámi and small communities of the Russian Far North, but also concerns Roma, Travellers and the Crimean Tartars in Ukraine.
Finally, the workshop session pointed to the lack of expertise in economic issues of persons dealing with minority issues, despite the importance of employment and other economic issues for minorities. It is telling that meetings such as these attract outstanding scholars and practitioners in law and politics but very few economists or policy experts. The Advisory Committee, too, may need to consider how to strengthen its understanding of issues related to the economic exclusion of minorities (Phillips 2003).
4. The FCNM Advisory Committee and Other International Monitoring Bodies
The Advisory Committee has found that the opinions formed by other international treaty monitoring bodies are helpful in identifying some key issues that need to be examined in depth. It has thus drawn on the reporting of another important European instrument, the European Charter for Regional or Minority Languages (hereafter, ‘Language Charter’) (Council of Europe 1992). Relevant issues for the topics examined here include: the principle of non-discrimination; facilitation of the written and oral use of minority languages in public, social, and economic life; and the teaching and study of the regional or minority languages at all appropriate stages. Implementation is monitored by an independent Committee of Experts which, like the FCNM Advisory Committee, receives State Reports and undertakes country visits.
The ICERD monitoring system also produces valuable reports in the form of concluding observations. It is very wide ranging, extending to over 169 states worldwide, and can include refugees, asylum seekers and recent immigrants. However, the observations of the ICERD monitoring body, the Committee for the Elimination of Racial Discrimination (CERD), are usually brief and, due to very limited staffing and budget as well as the number of states it must monitor, CERD confines its meetings to Geneva and relies heavily on experts nominated by states and elected by the UN.
C. Some Other International Mechanisms
1. UN Working Group on Minorities
The UN possesses a wide range of mechanisms to review social and economic conditions within states (Alfredsson and Ferrer 2004), the most relevant, innovative and participatory for minorities being the UN Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights. Despite its lowly position in the UN hierarchy of meetings, it provides an annual forum in which representatives of minority communities, governments, scholars and experts can discuss contemporary themes of concern to minorities, including social and economic issues.
The advocacy work of the London-based Minority Rights Group International (MRG) contributed to the establishment of the UN Working Group in 1995. MRG also initiated a Training Programme to place minority rights activists in direct contact with this international forum. Follow-up activities organized in relation to this Programme create the potential for transferability and expansion of the network of individuals and groups working on minority issues. It has also given minorities greater access to decision makers. Many of these minority groups are actively engaged in the struggle for minority rights, their presentations often emphasizing social and economic rights and concerns on human sustainable development, land issues, the forest environment and Roma ghettos.
The UN Working Group on Minorities began in 2003 to examine ways in which to mainstream minority rights in development. A debate on the future role of this body was also launched at its 2004 session where MRG and a number of other NGOs argued for a strengthening of the UN Working Group as a forum for constructive debate between minorities and governments and for greater consideration of development issues in particular. UN agencies were furthermore encouraged to participate in its sessions and to engage in direct dialogue with representatives of international and bilateral development agencies. It was also recommended that the UN Working Group commission a paper on “Millennium Development Goals and Minorities” for its 2005 session.
Since in 2004 the UN Working Group met at the same time as the annual meeting of the CERD, some minority representatives were able to be present during consideration of their countries by CERD. They thus learned more about this treaty-monitoring body as well – an experience that they will take back to their countries and put to use locally.
2. OSCE Mechanisms
A. The OSCE Human Dimension Implementation Meetings
The ‘Human Dimension’ Implementation Meetings, convened in Warsaw by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), provide a good opportunity for civil society organizations to raise concerns through interventions or to lobby in the coffee areas. Additional Human Dimension Seminars and Meetings are also organized to explore a particular thematic issue in greater depth. Some funds are provided for Roma organizations to attend.
Economic and social issues usually do not feature high, although a Human Dimension Seminar was recently organized on the topic of the participation of women in public and economic life in May 2003. Minority organizations also have the opportunity to convene their own meetings in parallel to discuss certain issues more fully.
B. The OSCE High Commissioner on National Minorities
Another OSCE mechanism, the HCNM, in addition to its standard-building role, enters into dialogue with governments on social and economic situations inter alia. In 1999, High Commissioner Max van der Stoel was particularly concerned about the proposed Labour Code of Latvia which did not meet certain language requirements. He thus raised questions related to economic liberty and discrimination in employment in his correspondence with the Latvian Foreign Minister (Kemp 2001: 159). When asked by the Foreign Minister to provide further written arguments about the incompatibility of the draft law with international standards, he referred to a number of such standards including norms of international labour law, adding that
…there would be serious negative implications for Latvia in terms of attracting foreign investment, creating local conditions friendly towards business development, and eventually, also in terms of accession to the European Union, which has specific requirements relating to the effective functioning of the single market.
Earlier, the HCNM had been concerned about the naturalization process in Estonia which faced many similar issues to those in Latvia, particularly in relation to citizenship and language as well as the social and economic ramifications for persons belonging to the Russian minority. However, in contrast to Latvia, Estonia took a more open approach, ratifying the FCNM in 1997 and taking a number of positive steps in response to the HCNM’s recommendations between 1993 and 1996 (Kemp 2001: 148).
The new HCNM Rolf Ekéus has expressed his interest in exploring recommendations and guidelines, in dialogue with OSCE participating states and other key actors, on the social-economic aspects of interethnic relations, particularly in the field of employment. He has also noted that, although it may be inconceivable to think of a conflict between original EU member states, tensions exist between new EU members which collectively face substantial challenges ahead in responding to the social and economic conditions of national minorities. A specific proposal has been made for the EU to engage its national minorities in small and medium enterprises that substantially enhance the local economy and trade with the new EU neighbours, and also reinforce peace and stability.
C. Reviewing the Implementation of the OSCE Roma and Sinti Action Plan
The OSCE stipulated in the Roma Action Plan that its implementation would be reviewed at Human Dimension Implementation Meetings, Review Conferences and other relevant human dimension events (OSCE 2003: §X, para. 133). It also proposed that the ODIHR Director report to the OSCE Permanent Council, which may in turn recommend priorities for cooperation to OSCE states and institutions (ibid, para. 134).
Informal briefings by the ODIHR Contact Point for Roma and Sinti Issues (CPRSI) to the Permanent Council on the impact of the Action Plan are also foreseen (ibid, para. 135).
Finally, OSCE states are encouraged to provide information on recent developments in the situation of Roma and measures inspired by the Action Plan (ibid, para. 136).
3. Council of Europe Mechanisms
A. The CoE Specialist Group on Roma and Travellers (MG–S–ROM)
MG–S–ROM is not a formal monitoring mechanism, although it does make recommendations to the Committee of Ministers on policy and offers advice on current practices. It also receives verbal reports on recent developments in member states.
MG–S–ROM may soon be superseded by the proposed Roma Forum that is intended as a representative body of Roma from all Council of Europe countries.
B. The European Committee of Social Rights (ECSR)
ECSR is a body of nine experts trusted with monitoring the implementation of the rights guaranteed by the European Social Charter. Monitoring is carried out through two different channels: (1) a traditional reporting system in which State Reports are examined; and (2) a more innovative mechanism: the collective complaints procedure. No visits to states are undertaken, however.
C. The European Commission against Racism and Intolerance (ECRI)
ECRI’s primary task is to assess the effectiveness of the range of legal, policy and other measures that member states take to combat racism, xenophobia, anti-Semitism and other forms of intolerance, and to recommend further action as necessary. Member states each have one representative on ECRI, who is nominated by the government.
ECRI receives regular State Reports, visits countries and, although it is not a mechanism of international law, it can offer a form of protection for groups outside the scope of application of the FCNM. Like the FCNM Advisory Committee, it submits its reports to states and to the Committee of Ministers and then places them in the public domain.
D. Implementation and Monitoring of Domestic Strategies and Programmes
1. National Integration Programmes
Strategies and programmes to ensure the effective participation of minorities in cultural, social and economic life need to be complex, necessitating government priority, good planning, communication and coordination between the various ministries involved, pilot schemes, as well as implementation and monitoring mechanisms with budget allocations and resources – both centrally and locally. Such initiatives also need to involve senior officials, local government officers, capable managers, good agencies and experienced and committed staff. Civil society, including minorities, can participate in a variety of ways not only to ensure that appropriate measures are agreed, monitored and strengthened over time, but also in implementing relevant projects directly themselves.
However, a lack of comprehensive and accurate data on the situation of minorities represents a serious obstacle not only to the formulation of effective non-discrimination and integration policies but also for their evaluation. This is particularly true in the case of the Roma Strategies, as has been highlighted, inter alia, in the EUMAP reports which suggest that the extent of discrimination that minorities experience is often hidden by the lack of comprehensive statistics and other reliable data. The situation in the candidate states as well as in some of the older member states stands in contrast to that of the United Kingdom where “comprehensive ethnic statistics have proven an invaluable tool for the development of differentiated policies” (OSI/EUMAP 2002b: 45).
The lack of good statistical information is also an obstacle for effective international monitoring. Quality data on the economic and social conditions of minorities in particular is the exception rather than the rule, as evidenced by the FCNM State Reports.
Many other obstacles to implementation have been identified by the EUMAP reports, including the lack of adequate domestic evaluation and monitoring mechanisms, as well as insufficient participation of minorities in implementation, evaluation and monitoring.
2. PRSP Mechanisms
The World Bank has published a leaflet on “PRSP Good Practices” which places considerable emphasis on the participation of different sectors of society and local ownership of the PRSP and its implementation. It goes as far as to warn diplomatically against interference by ‘external partners’, proposing that they “provide timely and constructive feedback to PRSP teams but resist comments on drafts that could undermine country ownership”.
Recognizing that there is no general blueprint for participation, the leaflet emphasizes the good practice of participative processes. The PRSP process is thus intended to be open and participatory, including all major stakeholders, including Civil Society Organizations (CSOs) – even those that may be out of favour with governments – private sector representatives, trade unions, women’s groups, direct representatives of the poor, and donors. The leaflet also stresses that special efforts may be needed to reach traditionally marginalized groups.
The World Bank suggests taking into account the accompanying Joint Staff Assessment (JSA) when reviewing PRSPs or interim PRSPs. This review is, de facto, becoming a form of international monitoring. Thus, the JSA on the PRSP for Serbia and Montenegro commented that it provides an accurate and detailed analysis of the poverty situation based on the data available, and that it also accurately acknowledges data limitations specific to each Republic. At the same time, it noted that existing data was inadequate for tracing the evolution of poverty and its correlates over time, because of inadequate measurement of consumption and insufficient information on gender, ethnic and regional disparities, and labour market linkages.
3. Participatory Monitoring and Evaluation of Strategies and Programmes
There is a crucial need for more developed internal monitoring mechanisms as well as external evaluation of strategies, policies and programmes. Indeed, it is important to create genuinely participative monitoring and evaluation processes rather than schemes that are technocratic, limited to measuring outputs and designed to satisfy donor accountability. Approaches need to be developed to ensure that these initiatives are reaching the intended beneficiaries among minorities. If not, they need to be redesigned as they progress.
The OSCE Roma Action Plan highlights the importance of including Roma in formal consultative processes at an early stage (OSCE 2003: paras. 12, 13, 88). It also points out that the effectiveness of their participation should be ensured by involving them in a broadly representative process (OSCE 2003: para. 88).
The FCNM Explanatory Report also draws attention to the importance of involving national minorities in the preparation, implementation and assessment of national and regional development plans and programmes likely to affect them directly, as well as in studies to assess the possible impact on them of projected development assistance.
Substantial documentation has been provided to the FCNM Advisory Committee and the Committee of Ministers on Roma Integration Strategies by various states parties. Still, the impact of these initiatives is difficult to discern.
Some new initiatives are underway in the Council of Europe and elsewhere to promote the effective participation of Roma in monitoring and evaluation programmes developed for their benefit. One such initiative has been carried out by the International NGO Training and Research Centre (INTRAC) which has observed that only a few programmes have set specific and quantified targets which are needed for monitoring progress. Moreover, in many cases, there is confusion between monitoring and evaluation. There is also a tendency to consider that internal monitoring by implementation agencies is sufficient, and to disregard the possibility of monitoring by specially-created independent agencies or by civil society. Each of these forms of monitoring has its own rules and conditions which should be embedded in the policy-making process and addressed in detail in special chapters of national Roma programmes.
Among INTRAC recommendations currently under consideration by MG–S–ROM is the allocation of funding for monitoring projects carried out by Roma NGOs as well as support for the capacity-building of these organizations so that they may contribute more effectively to the wider evaluation of strategies and programmes.
A wide set of standards is now in place to promote the economic and social participation of minorities. Still, many gaps need to be addressed, such as the responsibilities of states concerning the social and economic circumstances of minority communities.
The most comprehensive of these standards in the field of economic and social participation, the UN Declaration on Minorities, is not a binding instrument of international law. It also has the weakest monitoring mechanism with minimal participation by states and by minorities (annually in Geneva). The FCNM, on the other hand, lacks specific standards on social and economic issues, with a consequent lack of detailed attention of its monitoring mechanism to these issues. Still, overall, the FCNM has the most effective and participatory monitoring mechanism for minority protection in Europe; indeed, despite five-year monitoring cycles, it has fostered local processes of minority participation. It thus has the potential to be a more effective monitoring tool also concerning the effective participation of minorities in economic and social spheres, provided that governments, minorities and the Advisory Committee itself pay more attention to Article 15 on effective participation, including in economic and social life.
International law is not set in stone and evolves through the custom and practice of case law. One of the best opportunities to strengthen the protection of social and economic rights may therefore be to use the ‘soft law’ of Articles 4 and 5 of the UN Declaration to help interpret the ‘hard law’ of Article 15 of the FCNM and the EU Race Equality Directive. This may be complemented by the General Comments of CERD that can be seen to have a specific minority context. This leaves considerable scope for the work of the CoE FCNM Advisory Committee.
The economic and social participation of Roma in particular has deservedly become a major issue of concern throughout Europe over the last decade. Concern and action isgrowing at the level of the OSCE, the Council of Europe and the EU, though this has not yet been matched by major successes of strategies and programmes to combat the economic and social exclusion of Roma domestically. It is now widely accepted that Roma are often trapped in a vicious circle of poverty which repeats itself from generation to generation. There are now millions of Roma in these circumstances within the EU. Yet, many of the programmes in place have been ad hoc, tokenistic and conflictual, lacking the real commitment of all the parties involved. They have often failed to adapt to Roma cultures and lifestyles, while at the same time being beset by prejudice in the wider community. There is also often a lack of high quality, differentiated data on the circumstances of Roma communities, their motivation, their capabilities, their interests in various opportunities and their perceived needs. What is needed is a holistic approach, developed in close consultation with Roma communities themselves, emphasizing the talents and flexibility of many Roma to become self-reliant.
The EU clearly takes the issue of economic exclusion of Roma seriously and is putting remedial measures in place. Furthermore, the political participation of minority-based organizations in promoting minority rights has grown significantly and is expected to grow further in the future. However, there is a danger posed by the loss of pre-accession funding for Roma programming in the new member states and which may be replaced by insensitive mainstreaming that may fail to take account of the special needs of Roma and also of their surrounding communities.
At the same time, there remains a significant risk that other marginalized ethnic minorities, ranging from recent migrants and those without citizenship to poor communities in rundown inner city areas or in remote areas, such as the Pomaks in Bulgaria, may either fall outside the scope of international minority protection or be neglected by states and fail to enjoy full and effective economic and social participation.
Any effective response to these problems needs to be strategic, adopting a long-term approach to exclusion, using the tools and methodologies proposed by development agencies and the World Bank, such as Poverty Reduction Strategies that involve all communities but target the poorest. Western Europe often fails to acknowledge the poverty and high levels of unemployment within particular ethnic groups that are hidden in its national statistics and is too proud to realise that it, too, can learn from development processes. The success of development strategies can be enhanced through the effective participation of minorities in needs assessment, design, implementation, monitoring and evaluation. Scholarly baseline studies that protect the identities of individuals are also needed to determine the precise situation of different members of Roma communities for targeted programming linked to specific areas of exclusion.
Models of good and bad practice in employment and training emerging from existing strategies also need to be shared by the EU and the Council of Europe. Self-employment and small enterprises, often the way in which ethnic minorities choose to work, should be supported. New thinking is also needed on local credit unions to provide the necessary capital. Additionally, larger companies should explore ways in which minorities, with their language and trading skills and cultural affinities, can help open up new markets.
States must ensure that the minorities living within their borders are fairly represented at all levels of government. If they are not, then special measures should be adopted and complemented by awareness-raising programmes on their rights and services available.
International standards and effective international monitoring on their own will not result in prosperity for ethnic minorities. But they can help identify problem areas and show how legislation and policies may adversely affect them. They can also stimulate new initiatives, ensure that minimum forms of protection against discrimination are in place, and provide a platform for dialogue on objective comparable standards in local communities – nationally and internationally. Good faith and the recognition of minority rights can lead to practical cooperation in developing comprehensive strategies, finding specific mechanisms to boost investment and encouraging appropriate, targeted training and employment initiatives. Over time, these measures can lead to a fuller and more effective participation of minorities in the economic and social life of the EU.
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