L'Arizona de l'Europe?

Immigrants and their advocates in the United States breathed a sigh of relief on Wednesday as a federal district judge enjoined the harshest provisions of Arizona's draconian new immigration law from taking effect. That same day, across the pond, a human rights NGO spoke out against a "racialized vision of society in which a human group, though heterogeneous, is treated as criminogenic." L'Arizona? Non. La France? Oui.
In response to a riot last week (sparked by the police shooting a man dead) involving fifty travellers in central France, President Sarkozy announced Wednesday plans to dismantle 300 Roma and traveller camps across the country as part of his "war on crime and urban violence". In fine Arizona style, he also ordered the "almost immediate" expulsion of Roma from Bulgaria and Romania who have committed offenses against the public order and promised new legislation to make it easier to deport groups like the Roma for security reasons. (See too migration post below.)
The move has sparked concern on the part of human rights groups about promoting negative perceptions of the 400,000 travellers living in France, 95 percent of whom are said to be French nationals. Sarkozy's Interior Minister's responded by claiming that the measures "are not meant to stigmatize any community, regardless of who they are, but to punish illegal behavior". Evidemment.
And what did the European Commission have to say about all of this? Oui, bien sûr. Ben -- c'est-à-dire, peut être. Agence France Presse first reported that the European Commission had assented to Sarkozy's new policies, quoting the spokesperson for Viviane Reding, the Commissioner for justice, fundamental rights, and citizenship (pictured right) as saying, "European laws on the free movement of European citizens provide EU member states with the right to control their territory and combat crime." That provoked a response from Reding's spokesperson, who stated that AFP had misinterpreted the prior statement, and that the Commission was "neither for nor against" France's proposal to expel Bulgarian and Romanian Roma on security grounds. C'est clair?
The Romanian government, on the other hand, has minced few words in its assessment of France's approach (calling to mind Mexican President Felipe Calderon's response to the Arizona law). After the Minister of Justice declared Romania's readiness to cooperate with France, he noted that "cooperation does not mean using bulldozers to destroy camps and publicly blaming Roma." The Romanian Minister of Foreign Affairs expressed a similar willingness to cooperate, before suggesting that EU member states should be able to address criminal activity without resorting to ethnic stereotypes. He argued that "the solution to the Roma's socio-economic difficulties is social inclusion in the societies in which they live, whether in their country of origin or host state, in strict respect of human rights." Bucharest called for a European solution "to complement national efforts in areas such as education, professional training, health, and housing." On va voir.

(Hat tip to Diane Marie Amann for the Le Monde article; translations, and any errors therein, are mine.)

Enforcing Roma Rights

Last month, the European Roma Rights Centre (ERRC) filed a complaint against Portugal under the Revised European Social Charter, charging violations of the rights to housing and non-discrimination as well as the rights of the family to social, legal, and economic protection and the right to protection against poverty and social exclusion. The Charter, originally drafted in 1961 and revised in 1996, protects a broad range of negative and positive social and economic rights that are not fully covered by the European Convention on Human Rights.
The Charter has been signed and ratified by most European nations, from Albania to the United Kingdom, and fourteen states, including Portugal, have accepted its collective complaint procedure. This mechanism allows certain trade unions and international NGOs to file against member states claims that are adjudicated by the European Committee of Social Rights (ECSR), a group of fifteen independent experts. Where the Committee of Social Rights finds a violation of the Charter, the Council of Europe's Committee of Ministers adopts a recommendation to the relevant State Party. While the Committee of Social Rights is far from attaining the stature of the European Court of Human Rights, it is increasingly being used as a venue for vindicating social and economic rights in Europe. Sixty-one complaints have been filed through the collective complaint procedure since its creation in 1998, with nearly half of those complaints filed since 2006.
The European Roma Rights Centre's current claim against Portugal is based on

problems of access to social housing, substandard quality of housing, lack of access to basic utilities, residential segregation of Romani communities and other systemic violations of the right to housing. . . compounded by a lack of practical access to effective legal remedies for redress.

This is the seventh complaint filed before the Committee of Social Rights by the Centre, which has presented similar housing claims against Bulgaria, France, Greece, and Italy, creating an ECSR jurisprudence on which it can draw. Moreover, the ERRC "aims to establish beyond any doubt that the right to housing, particularly concerning vulnerable groups such as Roma, is firmly entrenched in international law" by drawing from existing treaty law, including the European Convention on Human Rights, and relevant soft law.
The ERRC's strategy and the ECSR itself present interesting models for the enforcement of social and economic rights of migrants, though it's hard to imagine the creation of a similar mechanism to which the United States would submit itself. In the wake of frightening state experiments with immigration law, though, it's worth considering how we might start taking the first steps towards creating an equally robust human rights regime right here in North America. A distant dream, but one worth pondering nonetheless.

HIV+ Women & Forced Sterilization

The Legal Assistance Center, a human rights organization in Namibia, currently represents approximately 10 HIV-positive women who have been forcibly sterilized in government hospitals. Lawyers working on the cases for LAC report that some of the women had no idea that doctors had performed the sterilization while they were undergoing Cesarean sections. Many of the women did not discover the sterilization until they reported back to the hospital for follow-up care or other services. Some women consented to the procedures, but did so under duress. Although there is on-going litigation at the domestic level, these cases may end up before the Committee that monitors the Convention on the Elimination of All Forms of Discrimination against Women at some point in the years to come.
Namibia ratified the Optional Protocol to CEDAW on May 26, 2000. In 2006, the CEDAW Committee decided a forced sterilization case brought by a Hungarian Roma woman who alleged that she had been sterilized without her informed consent. According to the Committee,

Before leaving the hospital the author asked the doctor for information on her state of health and when she could try to have another baby. It was only then that she learned the meaning of the word 'sterilization.'

The Committee found that the government had violated Article 10(h) of CEDAW by failing to provide appropriate family planning information. The Committee also found that the lack of informed consent violated Articles 12 and 16, which – respectively – guarantee the right to non-discriminatory health care services and the right to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. In both cases, the women faced a pernicious form of discrimination based both on gender and HIV status or ethnicity.
Kudos to the Legal Assistance Center for taking this issue on!

Xenophobia Rising?

The economy, of course, is on everyone's minds these days, and when asked how it's likely to affect my field -- immigration -- I think of the obvious: fewer jobs, fewer remittances to send home, and eventually, fewer immigrants, particularly the low-skilled and undocumented. But here's a grimmer possible outcome: increased xenophobia and violence against immigrants. We've seen it before, from Marseilles to Johannesburg -- when unemployment rises, so does anti-immigrant sentiment, which quickly turns to violence against those whom even the police often don't protect. Indeed, we see politicians exploiting racial hatreds in order to get elected, and local officials at best turning a blind eye to abuse of migrants, and at worst, participating in the violence.
This concern may underlie yesterday's press release in which the UN Independent Expert on minority issues, Gay McDougall (right), and the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related forms of intolerance, Githu Muigai (left), expressed "grave concern" over the recent increase in violence against Roma in Europe. The Roma, who migrated to Europe from India in the 11th century, have continually suffered extreme discrimination by state actors, from genocide at the hands of the Nazis to recent reports of coercive sterilization by the Czech government and police brutality in Greece and Romania. In McDougall's words, “Extremists may feel they have license for their attacks when the message they receive from government activities in other spheres is also that the Roma are a problem.”
So what does this all have to do with immigration? While Roma may be citizens of the country in which they reside, their nomadic lifestyle may lead them to cross borders without authorization. Even in states where they are citizens, Roma may face numerous obstacles to obtaining residency documents including exclusion as the "other". This lack of regularized legal status combined with government neglect or hostility is an explosive combination that may lead to severe violence, such as the incident in the Czech Republic that prompted the UN experts' press release, in which far-right extremists attempted to attack a Roma community with stones and petrol bombs. As the world economy faces perilous times, we must be particularly vigilant in ensuring that financial woes aren't translated into increased assaults against migrant communities. As McDougall suggests:

Governments must strongly condemn such actions. Moreover they must be committed to finding ways to create safe environments for all by carefully monitoring and strengthening their own anti-racism activities, through leadership and public education, by swiftly denouncing hate speech and prosecuting the racist and violent actions of others in society.

'Nuff said.

On July 20

On this day in ...
... 1953 (55 years ago today), Frances E. Willis became the 1st woman U.S. Foreign Service Officer to be appointed an Ambassador. Previously an Assistant Professor of Political Science at Vassar College, Dr. Willis, who'd earned her Ph.D. at Stanford, was appointed Ambassador to Switzerland. She presented her credentials on October 9 and served until May 5, 1957. Willis later served as Ambassador to Norway, from 1957 to 1961, and Ambassador to Ceylon, now Sri Lanka, from 1961 to 1964. The 3d woman ever to be a Foreign Service Officer, upon her appointment to that position on August 29, 1927, she was appointed a Career Ambassador on March 20, 1962. Willis, who died in 1983, was honored on the postage stamp above right.
... 1928 (80 years ago today), Hungary decreed that all traveling people -- then called Gypsies -- were to forsake their nomadic life and traditional clothing and adopt instead permanent dwellings and "modern European dress." Those born in Hungary who obeyed the decree were to be granted rights to vote and own property and to be required to serve in the military; the foreign-born were ordered to leave the country within a month or face imprisonment. Roma people, as they are called today, continue to face discrimination in Europe. (credit for 1902 photo of Gypsy camp in Hungary)

On this day

On April 8, ...
... 1971, the 1st international meeting of representatives of the Roma people (flag at right) was held near London. Since 1990 the date's thus been observed as International Roma Day in order to raise awareness of the needs of this people, whom the European Roma Rights Centre describes as "the most deprived ethnic group of Europe." Among the areas in which Roma suffer discrimination in various states of Europe is education -- an issue addressed, as IntLawGrrl Diane Orentlicher posted, in a recent decision of the European Court of Human Rights. Other areas of concern are jobs, health care, social services, and housing, according to the Centre.
... 1899, 44-year-old Martha M. Place became the 1st woman to be executed in the electric chair, in New York's Sing Sing Prison (left). Said to have been "mentally unstable" since childhood, Place had been convicted of murdering her stepdaughter; then-Gov. Theodore Roosevelt rejected bids to pardon her.

Guest Bloggers: Kathleen Doty & Megan Knize

It's IntLawGrrls' great pleasure today to welcome 2 new guest bloggers, Kathleen Doty (left) and Megan Knize (right). The problem of counterfeit medicines -- a particular concern in anti-malaria efforts -- and the corresponding lack of legal frameworks to address the issue is the subject of their post above.
Both, I'm proud to say, were my students in intlaw courses at the University of California, Davis, School of Law, last year. (That makes 3 law students who've contributed as guests; the 3d was Deborah Popowski, who wrote on accountability for torture back in December.)
Kathleen is a 3d-year law student at Davis. As coach and oralist on the school's Jessup International Moot Court Team, she was part of the team that, as posted, won the 2008 Pacific Super Region Competition last weekend. She'll be arguing in the Shearman & Sterling International Rounds in Washington D.C. in April 2008. Kathleen is interested in public international law and global health policy. She graduated cum laude from Smith College, where she majored in Latin American Studies and minored in Film Studies. She has traveled extensively in the Hispanic Caribbean and, most notably, studied abroad at La Universidad de la Habana in Cuba. Before entering law school, she worked for Engel Entertainment, where she was a production assistant and sound recordist on adventure, science, and travel documentaries for cable broadcasters.
Megan, also a 3d-year law student at California-Davis, is Editor-in-Chief of the UC Davis Law Review (vol. 41). She's most interested in the intersections of poverty, rurality, and law, and she's spent considerable time living and traveling in Europe and the Middle East. After graduating with honors in American Studies from Stanford University, where she was Editor-in-Chief of the Stanford Daily, Megan worked for a nonprofit in California’s Central Valley and spent a year teaching English in France. She's also worked for the Centre d’Etude de la Vie Politique Française in Paris and the European Roma Rights Centre in Budapest. While working for that Centre, she organized a research mission to Istanbul; there she interviewed Roma victims of forced eviction. In the fall Megan will start work as an associate at the law firm of Dewey & LeBoeuf.
Each dedicates her IntLawGrrls contribution to a transnational foremother. Kathleen's is Queen Lili‘uokalani, the last monarch of Hawai‘i. As for Megan? "In honor of Women’s History Month, I’ll go with Betty Friedan," she says, referring, of course, to the 2d wave feminist and author of The Feminine Mystique (1963), which "detailed the frustrating lives of countless American women who were expected to find fulfillment primarily through the achievements of husbands and children."
Heartfelt welcome!

Europe's Brown v. Board of Education

It would be hard to exaggerate the level of racism experienced by Roma (widely known as “gypsies,” a word many Roma abhor) in virtually every facet of daily life. Hostility toward Roma runs so wide and deep that it is peculiarly difficult to dismantle: Governments that have an otherwise strong commitment to human rights all too often act on the belief that Roma have earned the stereotypes that are enforced to their detriment.
Thus it is all the more noteworthy that discrimination against Roma in the Czech Republic provided the occasion for this week’s historic judgment by the European Court of Human Rights (ECHR). In the Case of D.H. and Others v. the Czech Republic the Court’s Grand Chamber ruled on November 13, 2007, that Czech Roma have suffered unlawful discrimination in relation to education, a violation of the European Convention on Human Rights and its Protocol No. 1. (Proud disclosure: My colleagues at the Open Society Justice Initiative, James Goldston and Anthony Lester, were lead attorneys in the case.)
The decision marked a watershed in anti-discrimination law in Europe. For the first time, the ECHR found that a pattern of racial discrimination in primary education, in this case resulting in an especially pernicious form of segregation, violated the anti-discrimination provision of the European Convention.
Like many countries in Central and Eastern Europe, the Czech Republic has diverted an astonishingly large percentage of Romani children to "special schools"—schools for children with mental disabilities. The applicants in D.H. v. Czech Republic came from the Czech town of Ostrava, where at the time of one survey Romani children represented only 2.26% of pupils in primary school—yet constituted 56% of pupils placed in special schools. Every way you come at the numbers, they tell a devastating story. Here’s another cut: More than half of Ostrava’s Romani children were assigned to special schools, compared to 1.8% of non-Romani students. And another: Romani children in Ostrava were at the time of one study 27 times more likely to be shunted off to special schools than non-Roma. (photo of Ostrova family courtesy of New York Times)
The facts that gave rise to this week’s ruling should, proverbially, speak for themselves. Yet they were not enough to persuade a seven-judge Chamber of the ECHR, which had rendered judgment against the applicants in the same case in February 2006.
The Grand Chamber, in contrast, saw the problem and, along the way, brought European Convention law in line with the more protective anti-discrimination standards enforced by the European Union. Among other notables, this week’s decision affirmed in clarion terms that indirect discrimination—discrimination resulting from a harmful and disproportinate impact on a particular group despite the apparently neutral terms of a policy—is prohibited by the European human rights convention. And, the Grand Chamber affirmed, it isn’t necessary to prove discriminatory intent on the part of government authorities to find that an official policy produces unlawful indirect discrimination.
Recognizing how hard it can be to prove discrimination that is camouflaged by seemingly neutral rules, the Grand Chamber helpfully clarified what it takes to make a case: Although statistical data are not a necessary form of proof, “statistics which appear on critical examination to be reliable and significant will be sufficient to constitute . . . prima facie evidence” of indirect discrimination.
Implementing this week’s ruling will surely be as daunting as the eight-year legal odyssey that culminated in the ECHR’s breakthrough judgment. As the Grand Chamber recognized, the Czech Republic is hardly alone in its practices, and the discrimination against Roma that pervades the societies in which they live is so ingrained it can be hard even to see. (So perhaps it is not surprising that the lawyers who mounted the Czech government’s defense in Strasbourg tried to defend Ostrava’s segregated education by blaming Romani parents.) Now, though, Roma have the powerful shield of European human rights law on their side.