Archive for Europe and Central Asia

As Spanish Government Turns a New Page, a Chance to Lead EU on Migration

As Spanish Government Turns a New Page, a Chance to Lead EU on Migration

Pedro Sanchez is the new Prime Minister of Spain after a stunning no-confidence vote. The refugee crisis deepens. The people want reform. Spain’s potential as a future EU trailblazer on migration policy rests in his hands.

By Madison Chapman

Street art depicting refugees at La Tabacalera in Embajadores, another diverse and artistic migrant neighborhood in Madrid adjacent to Lavapiés. Photo: Madison Chapman

Part I

 Madrid, Spain—Ndiogou spends the hottest part of the day—when many Spanish people take a siesta— with a group of fellow Senegalese men near the main plaza of Lavapiés, a lively migrant neighborhood in Madrid. When I met him one humid March afternoon, he was eager to chat, casually leaning on the wall of one of many nearby Lycra Mobile shops. Surrounded by the slight waft of tapas, it is hard to imagine that Ndiogou has had a tough life in Spain. Yet he spent his first decade in the country unable to obtain official paperwork—and with it, public assistance. His lack of work authorization forced him to live on a street in Lavapiés, where he both slept and slowly learned Spanish from passerby. He cracked a weary grin as he shared his integration experience, noting that not much had changed. But he continued to hold out hope that it would soon.

Since March, Spain has indeed changed. On June 2, Prime Minister Pedro Sanchez of the opposition Spanish Socialist Worker’s Party (PSOE) was sworn in after a no-confidence vote ousted Partido Popular (PP) Prime Minister Mariano Rajoy in May. Soon thereafter, Madrid accepted a migrant boat off the coast of Valencia, filled with 629 people from mainly Sub-Saharan Africa, after Italy turned the vessel away. The move attracted global attention and was cheered as a long-awaited political shift, given the previous dismal migrant intake in Spain—despite domestic public support for increased refugee assistance. Yet to make sustained progress toward a more inclusive migration policy, Sanchez has work ahead of him. Reforming the broken Spanish migration system will require not only additional refugee intake but the overhaul of a backlogged and inefficient asylum solicitation system—known as the acogida system. Just as Spain must no longer sideline migration policy, it must also create a more efficient platform for dignified asylum assistance, with broad civil society support.

Ndiogou is a migrant from Senegal who arrived in Spain over a decade ago. For the majority of that time, he lived on the street in Lavapiés as he attempted to secure work authorization and access to public benefits. Photo: Madison Chapman

Ndiogou is not alone, and his journey is significant as Spain grows as a hub for asylum-seeking migrants from Africa, Latin America, and the Middle East. Yet the historical relationship between Spain and the rest of the EU on migration has been a fraught one. In 2015, former PM Rajoy called for an EU-wide approach to migration, stating that “Spain will not refuse the right to asylum to those entitled to it.” Yet he refused to commit to accepting more than 2,739 refugees or expand this quota, which was already far below that of Germany and France, without additional funding from the EU. As a result, Rajoy faced swift public pressure and criticism from the Spanish Catholic Church. Some have associated Rajoy’s hesitant border policy with fear of overwhelming public services and a slowly recovering economy after a harsh period of austerity and the most severe economic crisis in Spanish history.

Who Comes, Who Stays—Migration Politics

Graphs representing asylum applications received by Spain, with data from the Spanish Refugee Commission. Asylum applications have increased significantly in the last two years, especially from Venezuelans. Graph: A. Hernandez, El Mundo Gráficos

Within the first six months of 2016, Spain had only accepted 18 refugees—primarily from Eritrea—though it pledged to integrate over 16,000 in September of the same year. According to the Spanish Refugee Commission (CEAR), migration to Spain then skyrocketed to a historic high of 15,755 petitions for asylum at the end of 2016, primarily from Venezuelans, Ukrainians, Syrians, and Algerians. This number created an all-time record for Spain, up 874 from 2015. Yet this still constituted only 1% of total people who requested refugee assistance in the EU. The International Organization for Migration (IOM) notes that between January and August of 2017, over 11,000 migrants attempted to enter Spain by sea– a number it forecasted would grow and eventually surpass even migration to Greece. In addition, the number of attempted coastal arrivals to Spain tripled in 2016, resulting in over 3,000 attempted arrivals and over 50 deaths. The sudden and extreme influx of migrants to Spain by sea left the Rajoy government reeling, unable to effectively respond to new arrivals. Migration to Spain increased from Venezuela and Central America, though only six refugees from Venezuela were accepted between 2012 and 2016—leading popular Spanish newspaper El País to boldly claim that “Spain Does Not Want Venezuelan Refugees.” Meanwhile, Spain began to detain more migrants in North Africa, as migrant men attempted to cross the imposing barbed-wire fence between Morocco and the North African Spanish city of Melilla, a Spanish enclave. With increased arrivals to North Africa came tent cities outside of Melilla and Ceuta, a clamp down on access to ports of entry, and human rights violations that invited widespread international criticism. The urgency of migration reform has arguably never been more palpable and intense.

Why Does Spain Matter? Spain’s Acogida Challenge

 Spain enjoys a strategic location straddling Europe and Africa, which has also posed a unique challenge to its asylum intake and evaluation system. Though more individuals were granted some form of protection in Spain in 2016 than ever before, very few were granted refugee status. Of the 6,855 people who were permitted to stay, only 355 (or 3.4%) received refugee status and 6,500 were given subsidiary protection.. Though migrants seek asylum from other concerning conflicts, political pressure has impacted who stays and who is denied asylum in Spain. The growing rejection of people from Venezuela, who continue to constitute the greatest individual group of those seeking asylum in Spain, is compounded by this issue. Of 12,818 applications pending at the close of 2017, only 16 were granted refugee status and 98.9% rejected.

Sufian is an economic migrant from Bangladesh. He has praised the services available to him as an economic migrant, including language classes and health services. His primary concern is that within Lavapiés, people do not need to learn about Spanish culture or vice versa, because there are so many migrants. But he noted that when he leaves the barrio, or neighborhood, there is somewhat less understanding. Photo: Madison Chapman

The central issues facing the Spanish acogida system are wait times and restrictions on work permits and public assistance that migrants face upon arrival. While municipal governments have taken a more flexible approach to migration, with Madrid even hanging a banner emblazoned with “Refugees Welcome” over the landmark Palacio de Cibeles, the central government has taken a stricter stance. In total, the asylum application process may take up to 3 years. First, an individual submits an asylum application, which may be accepted or denied at the end of an often backlogged, months-long waiting process. During this time, the state does not provide holistic public services or benefits to migrants. In fact, according to William, a staff member at ONG Rescate, “the state does what it can with the acogidas… but then leaves the [rest] to NGOs so that it complies” with international obligations. If the asylum application is accepted, a temporary acogida phase begins, in which some government support arrives. Yet many migrants seek the assistance of municipal governments or civil society, which manage the majority of asylum centers in Spain. Amongst the most active in Spain are Caritas, Accem, CEAR, ONG Rescate, the Spanish Red Cross, and UNHCR, as well as a variety of faith-based organizations such as Protestant Social Action. As told by Juan, a food artisan from Madrid, “madrileños [people from Madrid] are very conscious and want to help… [but] everything is politics with the acogidas, [and] refugees don’t vote so politicians just don’t care.”

Organizations like ONG Rescate and CEAR provide temporary housing, legal and social services, resume and job support, psychological services, and language training. They also permit clients clothing, health services, a small monthly stipend to cover food. However, migrants seeking asylum cannot work during this time, leaving them totally dependent on outside assistance while they await a legal decision. Because the application waitlist is so backlogged—El País recently reported that 41% of people who have applied for asylum since 2010 are still waiting, or 20,000 people—this 6-month process can take up to a year or longer in deemed non-vulnerable cases. It is particularly difficult for groups like ONG Rescate, which works primarily with LGBTQI+ people and women seeking asylum for gender motives. Any NGO must specify their acogida and integration agenda to the individual profiles, and given the extreme vulnerability of their clientele, provide a high standard of attention and care. This can be difficult as the state keeps rapidly changing processes, interfering with and qualifying a long-term endeavor.

Finally, the individual enters the integration stage during which they live independently, but continue to have some financial dependence on the state or an NGO as they build skills and prepare to enter the workforce. 6 months to a year later, they enter the autonomous stage where they can rely on NGO support to search for jobs but are otherwise independent. In its entirety, the process can take up to 3 years for ordinary cases. Yet even after up to 3 years of integration, an asylum application can be denied— meaning that the applicant must return to their country of origin. The slow wait times, low acceptance rates, and inability to work—unlike in other EU countries such as Germany, where the wait to work is only 3 months—during the initial stages of acogida make Spain an uncertain destination for migrants. It also leads to immense stress on already economically strapped civil society organizations, which receive inconsistent government support. This is crucial, as civil society organizations like ONG Rescate often refuse the one size fits all view of refugees that can complicate integration. “We always try to help the person” William added. “[Acogida] has to be transcultural.”

As we will see in Part II, there is a willingness and eagerness amongst Spaniards to realize this important goal—but it is not always clear how to create such a transcultural policy.


 

 

Madison Chapman is a MALD candidate at The Fletcher School of Law and Diplomacy at Tufts University. She most recently served as a Fulbright ETA in Madrid, Spain, where she also conducted research and helped to resettle refugee women and LGBTQI+ migrants through ONG Rescate. She has formerly worked with Human Rights Watch, PeaceWomen, and the East Bay Community Law Center on migration and gender research, and is focused on gender-responsive asylum law and resettlement policy. She earned her degree in Political Science at the University of California, Berkeley. Ms. Chapman can be contacted at madisonchapman10@gmail.com.

Will Brexit Setback Human Rights Protections in the United Kingdom?

Brian Dan is a guest contributor from the University of Strathclyde and a L.L.M. candidate in human rights law

Is Brexit just a snag in European Union integration without accompanying regression in human rights legislation? Of course not. Brexit signals a backsliding in human rights protections and imperils the closest thing to a constitutional framework for human rights in the United Kingdom.

The U.K. has over 40 years of EU law transposed into its own laws. Together, the EU laws, which are supreme to the domestic laws of the EU states; the Common Law system of England and Wales, which is law created by judges in courts; and the legislative directives of the Council of Europe, an international organization comprised of 47 European states, constitute an overarching, legally-binding system for the promotion, respect and protection of fundamental human rights and freedoms.

The human rights protections provided to British citizens by the U.K.’s membership in the EU and Council of Europe are distinct but also complementary. The EU’s Charter of Fundamental Rights and Council of Europe’s European Convention on Human Rights, which established the European Court of Human Rights as the apex interpretative body of EU law, all contribute to the human rights framework that protects citizens in the U.K. However, it is not the U.K. government’s intention to retain all EU law following Brexit. Instead, it has introduced what is now published as the European Union (Withdrawal) Bill, which will end the supremacy of EU law in the U.K. legal system when passed.  

For any U.K. electorate, the decision not to transpose the EU’s Charter of Fundamental Rights— one of the main instruments governing human rights protection in the EU— into domestic law via the withdrawal bill should cause concern. It means British citizens will be stripped of some of the legal protections guaranteed by the Charter if no equivalent legislative interventions are put in place.

This could mean a reduction in human rights and procedural remedies in areas within the scope of EU law. These areas include privacy, data protection and the right to a fair hearing, to name a few. The General Data Protection Regulation of the EU, passed in 2018, hinged on the Charter, for instance. It is currently directly applicable in the U.K. and affords  British citizens an elevated degree of personal data privacy and protection that expands on the protections offered by the UK Data Protection Act of 1998. The introduction of the right to be forgotten, for example, provides an obligation to erase any personal data held by an organization upon request by the right holder, the obligation to ensure that personal data is collected only after explicit consent, and the right to access personal data upon request in a readable and portable format, rights which are some of the data security protections accorded to all EU citizens. There are currently no immediate equivalent protections in U.K. domestic law.

Pro-EU protests in the aftermath of the United Kingdom European Union membership referendum, 2016. // ilovetheeu// Creative Commons

It would also mean the loss of a backstop of protection against regression to the national laws in areas such as anti-discrimination, environmental protections, workers’ rights, access to social security, and health care and consumer rights.

Furthermore, an EU exit represents the loss of the oversight role by the European Court of Justice over the U.K. in observance of its human rights obligations under EU laws. The Court of Justice has long protected fundamental rights by interpreting them as general principles of EU law for the last three decades.

It is clear that the elimination of European oversight over the many social gains exposes these guarantees to governmental attack and other mechanisms for dilution post-Brexit. As the situation stands, removal of legal protections may not even involve substantive parliamentary oversight. Historically, the U.K. government has strongly opposed much of Europe’s social rights agenda. So, only time will tell if Brexit will mean the end of many social rights protection in the U.K. The collective right of EU citizens were established at different times and in different ways, and the Charter was designed to summarize all the personal, civic, political, economic and social rights into one binding instrument.

At the moment, the U.K. has several layers of human rights protection frameworks that directly and indirectly impact its legal mechanisms in place to uphold fundamental individual rights. Where common law falls short, the U.K. courts rely on the jurisprudence of its affiliated regional and judicial institutions: The Court of Justice of the European Union and the European Court of Human Rights. This means the U.K. courts are obligated to consider the decisions of the European Court of Human Rights and act within the case law jurisprudence developed by it, not to regress from it and therefore undermine the level of protection afforded to UK citizens. Equally, the U.K. parliament and the executive are bound by its decisions as a State obligation under international law.

Of importance to note is that while the Charter’s direct applicability in the U.K. ends on “exit day,” the protection derived from the European Convention on Human Rights and the subsidiarity role of the European Court of Human Rights will remain unaffected. The U.K. still remains a member to the Council of Europe whose membership is hinged on ratification of its convention. In fact, the Council’s mandate revolves around the objectives of the Convention, and all 47 members states must be contracting signatories to the law.  

The Debate: Fundamental Rights Protections Post-Brexit

Much of the discussion at this stage is necessarily speculative as “exit day” has yet to arrive; even the provisions of the European Withdrawal Bill, with the amendments from the House of Commons set to be returned to the House of Lords, may not reach the statute book in their final form. The whole decoupling process is a beehive of uncertainties, at least for now. No final negotiation terms have yet been reached, and the stalemate seems not only to be in Brussels, the decoupling negotiation seat, but also at number 10 Downing Street.

At the moment, while the government remains adamant in its response to parliament that there will be no rights regression, the Joint Committee on Human Rights,  a select committee of both the House of Commons and House of Lords, remains unsatisfied with these answers. Some believe the disapplication of the Charter will not only result in a regression in rights protection but also create legal uncertainties. As general principles of EU law, the Charter rights form the anchorage upon which most legislation is established.

Human rights activists are calling for a reevaluation of Brexit, and a recent advisory case by anti-Brexiters in Edinburgh has expressed that the U.K. could still stay in the European Union if, for example, the current withdrawal stalemate continues and the resultant negotiation terms in the European Union Withdrawal Bill are rejected by Parliament. However, at the moment, there are no immediate indications as to when the court of sessions in Edinburgh will set down the case for a full hearing. While the opinion may take a long time to come, it remains worthy for consideration before “exit day” arrives.


Brian Dan is a human rights LLM candidate at the University of Strathclyde in the United Kingdom focusing on the United Nations human rights law system. His research interests lie in economic, social and cultural rights, and international law in general. He is currently a researcher at the Centre for the Study of Human Rights Law at the University of Strathclyde.

The Story of a Young Tunisian Mother’s Struggle for Safety

By Izzy Tomico Ellis, a journalist and activist who has been heavily involved in the refugee crisis since 2015. Additional reporting by Niamh Keady-Tabbal.

Syrine* is sitting on the edge of a bed inside a tidy room for two, in City Plaza — a squatted hotel in Greece where solidarians from all over the world have flocked to bring respite to its refugee residents. Her little son started walking yesterday. In between our conversation, she holds out her hands to catch him as he falls down. Soothing him, she recalls, “I looked on Facebook to find out what to do when he was crying. I was alone with a baby…I didn’t know anything.” 

When we asked her if we could write down her story, she smiled, “I’ve thought about telling it a lot.”

The strength with which she carried herself had compelled me to ask, and at the same time made me worry she’d laugh. For her, a 21-year-old mother, bravery comes so naturally. 

When we first met in Athens in the January darkness, she explained that her husband had gone out the previous night to buy cigarettes and never came home. In the morning, she had called the main hospitals.

“He wasn’t there. I was relieved a little,’’ Syrine recounts shakily. But a few hours later, she had discovered he was in prison after being caught without the legal papers for refugees in Athens.

Too scared to return to where she had been staying, Syrine had been pushing her son, Salah*, around the streets in a buggy ever since.

Alone and homeless, remarkably she kept a clear head. She spoke calmly in English, asking for a lawyer to come the next day to try and resolve the situation for herself and her family, and arranged a room at City Plaza.

It wasn’t the first time. The young Tunisian woman has spent nearly three years running to protect herself, her husband and their son. Salah was just 8-months-old when they had to flee their country after Syrine’s relatives threatened to kill her in revenge for bringing dishonor to the family. The couple had managed to marry just before Salah was born, but Syrine’s family continues to look for her.

“My brother would do it, I know he would,” she said. Until then, she had been at university, hiding the relationship and pregnancy from her family. “I didn’t want an abortion; it’s easy, but it was my baby with the man I loved.”

The International Women’s Day march in Athens, March 08, 2018. // Izzy Tomico Ellis

She described the double-life she was leading in Tunisia, scrolling through old Facebook posts and event pages of the electronic music nights she and her husband would attend in the city of Sousse, close to the country’s capital, Tunis.

Tunisia has made significant legal advancements in the push toward gender equality, including lifting a ban on Muslim women marrying non-Muslim men and ending a law that meant rapists could escape punishment by marrying their victims. However, systematic violence against women still persists: In 2016, the Tunisian Association of Democratic Women said 70 percent of Tunisian women were victims of abuse and honor killings in Tunisia are still reported.

“One man told me there was no hope for asylum, and I should just go back,” she shakes her head . “He has no idea… My father is a famous man, he cares about what the people think, not about me —  we had to leave.”

After fleeing to Turkey, they arrived on the Greek island of Lesvos. Syrine describes what she saw in the camp as unbelievable. “Everywhere children without clothes or shoes,” she says. “Some people stay there for over a year —  one year!” Her eyes widen. “ I would go crazy.”

Moria camp has become an infamous symbol of the European refugee crisis where living conditions that lie behind barbed wire fences have been repeatedly condemned by leading human rights organizations. 

“We went to a hotel the next day and travelled to the mainland illegally. I couldn’t live there… with a baby,” she shakes her head.

“I think he misses him. He was happier before,” she gestures to Salah, as he refuses food in a restaurant close by to where they are staying.

Syrine has spent the last few weeks trying to arrange paperwork for her husband, to no avail. As the pair had left the previous island camp without the correct documents, she was told she would have to return if their asylum case was to be processed as a couple. Though, Syrine has relentlessly tried other ways.

“Every day I wake up early, I go to this organization — Katahaki (the Greek Asylum Service) — but each day passes and nothing happens,” she says. “Every night I would fall asleep and hope tomorrow will bring a solution.’’

But it hasn’t, so today she is leaving. Her hair is more blonde, and she’s cut it shorter. Her husband is still imprisoned, and Syrine is forced to leave her safe room in the hotel —  to travel back to a camp and live alone.

“It’s a dangerous step, but I must do it. I must go back there to help my husband,” she says. Her voice falters. Only a few days were spent at the camp before —  but she’s seen enough to know the dangers, the difficulties, the fear —  not being able to go to the toilet after a certain time, sleeping with her belongings wrapped in her arms, with her baby.

We find Syrine’s suitcase and bags parked outside the hotel. She comes out a few minutes later. Her face is made up. She looks European. It’s deliberate, for fear of police and discrimination. She pulls a hat over her son’s dark curls, speaking to him in English. Walking toward the train, she runs into friends on the street, another goodbye.

She made the same trip, just in the other direction, with her husband only months before. The closer we get, the more her face looks as if it will crumble —  her nervousness at the uncertainty that awaits her and her little baby lurching closer and closer each station we pass —  but it never does.

“I studied one year of architecture, then nursing, but now I think I want to be a mechanic,” she had told us in the days before.

Off the train, she gathers herself again, struggling to collapse the buggy into a taxi as the driver tuts impatiently, the hinges catching on baby toys —  as ever, she holds her cool —  once again methodically packing her life belongings.

 

*Syrine and Salah are false names used to protect real identities.

 

Izzy Tomico Ellis is a journalist and activist who has been heavily involved in the refugee crisis since 2015. Izzy graduated with a first class honours degree in journalism from the University of Westminster in 2016 and is currently based in Greece. Additional reporting for this article was contributed by Niamh Keady-Tabbal.

 

Soviet Affirmative Action and Contemporary Inclusion of Minorities

by Ulia Popova, a Visiting Scholar at Columbia University ISHR 

November 7 marks the 100th anniversary of the Russian Revolution, an event that set in motion one of the controversial political experiments of the 20th century, the development of a socialist state. The legacy of the Soviet experiment is contradictory, given the greatness of the idea that inspired it and the tragedies it engendered. The Soviet treatment of the rights of ethnic minorities is particularly instructive in this regard, not least due to its relevance to the contemporary debate over inclusion and diversity.

Terry Martin, a Harvard historian, called the Union of the Soviet Socialist Republics (USSR) the “world’s first Affirmative Action Empire.” With the exception of India, no other multi-cultural state before or after the USSR, Martin writes, took action of equivalent scope in support of the cultural and political rights of ethnic minorities. The architects of the Soviet Union envisioned it as a state based on the principle of self-determination of all nations. The new state was diverse: the first census in 1926 accounted for close to 200 distinct cultural communities composing the USSR. Lenin theorized self-determination primarily as political autonomy: the arrangement of the new state would offer oppressed peoples a unique chance to liberate themselves by taking control over their political destinies.

Soviet measures in the area of minority rights became known as “nationalities policies,” after the Russian legal term natsional’nost’ that captures a cultural identity of a group and a citizen, while also having a political component. Nationality linked a specific group to an explicitly defined territory, which that group was entitled to administer as its officially recognized historical homeland.

An elaborate and hierarchical system of institutions of self-government was developed to implement this vision on all levels, beginning with the Union republics, and going down to reach distant and demographically small cultural groups living in the Russian North. Measures of quota-based representation of minorities in the regional and federal institutions of administration reinforced the vision, helping ethnic leaders to advance to positions of power.

Russian Revolution has given national life and development to many groups in Russia. Russian Posters Collection, 1919-1989 and undated. // David M. Rubenstein Rare Book & Manuscript Library, Duke University

These policies were implemented in varying degrees throughout the history of the Soviet Union. Despite their promise of political liberation, the Soviet Affirmative Action did not afford minorities self governance. On the contrary, from the start these policies became instruments to maintain a centralized authoritarian state.

Why? The Soviet state architects were not concerned with protecting the institutions of governance that traditionally functioned within the ethnic communities integrated into a new state, such as, for example, kinship-based rule, prevalent among Soviet Asian communities, or the prominence of spiritual leaders (shamans) in decision making among remote indigenous Northern communities. Further, facing the threat of nationalism at the formation of the Union, Soviet leaders could not allow minorities to make decisions in accord with their local contexts and traditions. On the surface, Soviet policies guaranteed ethnic leaders an opportunity to institute a degree of control over their designated homelands, but in reality, the available means of governance were those devised to support communist rule. This approach stripped local authorities of their powers; their influence was limited to the private sphere as a group of new leaders, notoriously known as “ethnic party cadres,” replaced them. Trained in the Soviet system of education and employed within the state administration, they could only stay in power by serving their state and thus extending the institutions of authoritarian rule. The forms of local self-government they helped to institute were– to borrow from Stalin– “national” (i.e. ethnic) in form, “socialist in content.”

The legacies of the nationality policies are sadly known. During the Soviet times, they caused demographic catastrophe for a number of communities, most prominently to the Russian Northern indigenous groups, especially when implemented through forced relocations and industrialization projects. The structural and political arrangements these policies helped to produce became supportive of authoritarian rule during the post-Soviet times. In Russia, for example, a rise of ethnic self-determination movements during the 1990s engendered an extreme rise of autocratic governance leading to a contemporary approach to minority rights– to quote one observer– framed by Moscow’s attempt to “drive ethnicity out of politics.”

The wider significance of the Soviet Affirmative Action experiment is in its relevance to the contemporary projects of multiculturalism. Current visions of political equality often target measures that ensure inclusion of different groups into the state institutions in response to the history of their discrimination based on race, gender, culture and socio-economic conditions. While these measures provide opportunities to some minority individuals, they also support maintenance of the existing social and political order, as opposed to the reform that is promised rhetorically. As with the Soviet Affirmative Action initiatives, they strengthen the existing institutions of governance at the cost of widening the gap between those at the periphery of the system and those with power.

Ulia Popova (Gosart) is a Visiting Scholar at Columbia University ISHR, working with Elsa Stamatopoulou, director of the Indigenous Peoples’ Rights program. Her current research focuses on political mobilizations among indigenous peoples living in the post-Soviet states. She has served on Russia’s indigenous umbrella organization for several years as a U.N. representative. Her publications are available at ResearchGate.

A Hidden Population of Disabled Refugees in the U.K.

By Jason Hung, a guest blogger from the University of Warwick

Currently, there are an estimated 118,995 refugees living in the U.K., composing less than one percent of the country’s total population. Three to ten percent of these refugees are thought to have a physical or mental disability. Due to the small number of disabled refugees living in the U.K., the rights of these refugees have often been disregarded, according to Keri Roberts and Jennifer Harris, research fellows from the University of York who generated data on the numbers and social characteristics of disabled refugees and asylum seekers living in Britain. Their research, which was completed in collaboration with the Refugee Council, found that U.K. communities are unable to provide sufficient aid for these vulnerable groups.

“Disabled people in refugee and asylum-seeking communities frequently experienced great hardship,” the authors note. “Considerable confusion about the responsibilities of different agencies and National Asylum Seekers Service (NASS), a lack of coordinated information and service provision, and gaps in professional knowledge on disability-related entitlements increased the difficulties experienced by disabled people in refugee and asylum-seeking communities.” For example, disabled refugees in the U.K. encounter inappropriate housing, as well as inadequate aid and equipment. There is also no official source of data about disabled refugees in the U.K, and it is noteworthy to highlight that even the United Nations High Commission for Refugees (UNHCR) fails to estimate the number of disabled refugees who have been resettled. Roberts and Harris conclude in their report that the insufficient statistical and empirical data about disabled refugees implicates the possibility of an invisible population of disabled refugees residing in the U.K. The extent of the social needs of these refugees remains unknown.

An image of refugee children in school // DFID // Flickr

A lack of financial support and access can bar disabled refugees from learning English and other valuable languages, such as British Sign Language (BSL) for deaf individuals, for example. In addition, communication difficulties have discouraged some disabled refugees from seeking community support and accessing benefits. One Vietnamese refugee missed out on disability-related benefits for 22 years because he was not properly informed about the availability of the Disability Living Allowance, according to a report by the Joseph Rowntree Foundation. The same report noted that a disabled Somali woman was never properly informed about how to apply for humanitarian aid due to language barriers. Without a helping hand, disabled refugees could find it challenging to live in the U.K. unless their English proficiency improves.

The year 2017 has further marked a bleak future for disabled refugees in the U.K. The government terminated the acceptance of disabled child refugees arriving from the war in Syria and other countries, including Libya, Yemen and Iraq. The Vulnerable Children’s Resettlement Scheme hoped to resettle 3,000 of the most vulnerable disabled child refugees prior to its suspension. These children must now stay in refugee camps, instead of being placed in the U.K. Shantha Barriga, director of Human Rights Watch’s disability rights division, denounced this action, stating, “Shutting the door on vulnerable children is an affront to British values…. People with disabilities endure unimaginable hardship during conflicts, and many faced huge hurdles in escaping the violence.” Lisa Doyle, head of advocacy at the Refugee Council, supplemented this statement by adding that disabled refugees are by definition the most vulnerable groups. The U.K. government should thus prioritize the resettlement of these cohorts and accommodate them safely, advocates argue.

Allan Hennessy // Noticias del Mundo // YouTube

Allan Hennessy, a blind Iraqi refugee and a recent law graduate from the University of Cambridge, told the BBC in July 2017 that he might have joined ISIS or been killed in war if he was not able to stay in the U.K. as a refugee. In the end, the biggest hurdle refugees with disabilities face might not be any physical limitation but the social discrimination that impedes them from pursuing a better life. “When you’re an overweight, brown, blind guy climbing the greasy pole, everyone can see and they judge you – even though they are doing it too.” Hennesy explained to BBC reporters.

Whether individuals have a physical or mental disability does not necessarily limit their work and life prospects; however, there is a contempt for disabled refugees, according to Hennessy. Refugees with disabilities suffer from social discrimination, including being sidelined in many aspects of humanitarian aid, such as health and rehabilitation services, reports the Division of Social Policy and Development Disability.

research report published by Research and Consultancy Unit (RCU) at Refugee Support and Metropolitan Support Trust defines disabled refugees in the U.K. as a “hidden population.” The number of disabled refugees and the multiple disadvantages they are up against are rarely known by local humanitarian service agencies and government authorities, the report notes. The research adds that most disabled refugees, in line with the rest of refugee cohorts, experience war and torture in their home countries and cultural and linguistic differences in their host countries. Their disabilities cast a further shadow on their livelihoods. As Hennessy wrote in The Guardian, “I have a disability; but I am not disabled.” It is the responsibility of both the U.K government and local communities to maximize the social capacity of refugees with disabilities by endeavouring to remove social stigmatization and ongoing impediments to aid.

Jason Hung is a visiting research scholar at UCLA for his original research project, “Good Muslim, Bad Muslim: The Existence or Absence of Cultural Tolerance toward American Muslims?” He will be presenting his research at the 7th International Conference on Interdisciplinary Social Science Studies at the University of Oxford. He is also a featured writer for both the Oxford Human Rights Hub and the LSE Human Rights Blog. His research interests include migration issues, refugee rights, feminism affairs, women’s rights, and public health policies.

From the Field: Building a Plurality of Memories in Spain

By Zina Precht-Rodriguez, Columbia College ’19

The story of Spain’s traumatic history is compelling because it is continuously unfolding. One of my most memorable experiences in Barcelona this summer was my visit to an air raid shelter that was designed during the Spanish Civil War to protect thousands of civilians during the fascist bombings of Barcelona. The existence of the shelter was only discovered a couple of years ago by a cable company. The company intended to build an underground landline to connect more people throughout Spain, but the irony of the situation is that something much deeper connects the people of Spain: a traumatic memory that tells the story of a vicious divide within Spain, as well as within Europe, of those who risked their lives for progressive change and those who compromised their own morality.

In 2017, these casual rediscoveries of a traumatic Spanish past are triggering an outpouring of civilian, intellectual and political inquiry. The European Observatory for Memories (EUROM) addresses these so-called “black spots in history” that have resulted in a pact of silence and brought Spanish society to an inevitable tipping point. In essence, an avalanche of unaddressed and unvalidated memories has come falling down, and there is no time to methodically pick up the pieces. To complicate this mess further, we must be reminded that the hands picking up the pieces are more likely to belong to the descendants of those witnesses of the Spanish Civil War, and later, of the Franco regime.

How does the intergenerational nature of the situation influence perspectives of justice? In order to explore this question, it is necessary to dive into my personal perspective and attempt to explain the nature of my own psychological matrix as I woke up everyday and went to work at EUROM. Toward the middle of my spring 2017 semester, I became transfixed with a pending national lawsuit called Juliana v. The United States. In short, the case posits 20 youth plaintiffs against the government. The youths are fighting for a right to a stable climate society; they explicitly argue that the government has disproportionately disfavored younger generations by leaving them with a turbulent climate system. My fascination with the case pushed me to challenge my understanding of generational trauma and justice. Similar to climate change, generational justice cannot be achieved by pointing the finger. It is easy to say that someone is “responsible,” but at the same time, responsibility gets lost in translation as generations elapse.

EUROM and Juliana are similar in the sense that they attempt to reinvent societal consensus; just as Juliana pushes the justice system to reevaluate how crucial climate is to a stable society, EUROM pushes people to finally recognize the gruesome realities of the war and the traumatic impacts it had on collective societal consciousness. In this vein, both actors attempt to evolve a moral spectrum by tapping into a unique emotionality.

Visitors explore the internal structure of La Model // Zina Precht-Rodriguez.

I was lucky enough to witness EUROM succeed in this mission; one of their most exciting recent developments includes the closure of a former men’s prison, La Model. The organization worked alongside the city government and other bilateral community organizations in a participatory process to close the prison, which served as one of Franco’s torture centers of innocent people during the Spanish Civil War. The process transformed the prison into a cultural and memorial space. The logic of this transformation is to recognize the significance of this space and to dismantle the tortuous and imprisoning aspect of it. Refashioning the space to facilitate activities that promote justice signifies to society that communities cannot only come to terms with the cruelty once committed in this space but also can positively address it.

But the impacts of the transformation go beyond mere symbols; the men once imprisoned in La Model are now emancipated and starting to integrate back into society. They have the opportunity to work during the day to earn money and then are required to return to government supervision at night. This experiment is called the “open prison model.” The model releases the men from the panopticon watch that the prison was designed to promote.

Projects like La Model exhibit how EUROM advocates that justice cannot be achieved when paired with amnesia. The process of remembering, recovering and retelling is central to the process of healing. Just because first-hand memories are gradually dissolving in numbers, it does not mean that younger generations facilitate civil society with a clean slate. I am returning to Columbia College reinvigorated by my experience at EUROM. I am approaching my studies with a strong belief that we inherit history, and as civilians, it is our duty to deal with and learn from it, passing this philosophy onto others when we leave earth.

This summer, Columbia College student Zina Precht-Rodriguez participated in an eight-week international internship program sponsored by Columbia University’s Institute for the Study of Human Rights (ISHR). Her research interests include climate policy and intergenerational justice. In this entry, she reflects on her time in Barcelona, Spain, at an ISHR affiliate organization, the European Observatory on Memories (EUROM), a “transnational network of institutions and organizations committed to the analysis and promotion of remembrance public policies.” The mission of EUROM is to “reflect on the recent history of the struggle for democracy and freedom in Spain and Europe, and to advocate for a plurality of memories.”

Viktor Orbán’s Hungary: A Nationalist Government Within the European Union

By Bárbara Matias, an M.A. student in human rights

In late May, thousands of Hungarians marched against Prime Minister Viktor Orbán’s educational reform laws subduing foreign universities and non-governmental organizations. The educational reforms were the latest in a series of clashes between the right-wing Hungarian government and the European Union (EU); the protests yet another manifestation of civil society’s mobilization against Orbán’s opposition to EU frameworks. On May 1, the 13th anniversary of Hungary’s accession to the EU, for example, thousands took to the streets in a pro-EU rally, suitably called “We Belong to Europe.’’

This past April, Prime Minister Orbán and Hungary’s parliament passed an amendment to Hungary’s national law on higher education, tightening regulations on independent and foreign-funded universities. Specifically, the law targets the Central European University (CEU), a Budapest-based university founded by Hungarian-born American financier George Soros and accredited in the United States and Hungary since 1993. The current government under Orbán sought legal means to shut the university down, viewing it as a foreign NGO whose liberal and internationalist teachings undermine the power of the elected government.

Hungarians marched against Prime Minister Viktor Orbán in April 2017 // jennifer.ang // Fickr

The act defines new requirements such as opening a campus in the country of accreditation and tightening bilateral agreements between Hungary and the university’s country of origin, in this case, the United States. It pushes back against globalization and liberalism, and further threatens to slide the country into an authoritarian state. As academics worldwide and international organizations condemned the passage of this law, Lydia Gall, Balkans and Eastern Europe researcher at Human Rights Watch, stated, “The Hungarian government’s contempt for critical voices in society and academic freedom is unworthy of an EU member state.”

Hungary has been under the current administration of Prime Minister Viktor Orbán’s national conservative rule since 2010. Openly skeptical of EU integration, Orbán said in May 2014 during the European Union elections that Hungary “must tell Brussels loudly and resolutely: respect the Hungarians!” He quickly opposed the EU Commission’s mandatory quotas for relocating migrants, calling a national referendum to vote on the EU plan, which prompted EU representatives to question how such a referendum “would fit into the decision-making process which was agreed to by all member states, including Hungary, under EU treaties.”

Viktor Orbán // Creative Commons

The referendum sought to legitimize the government’s conservative, anti-European and anti-immigration stance through a popular domestic vote – in fact, Orbán spent 10 bn Hungarian forints (around €30m) campaigning for the ‘No’ vote and feeding the concerns of the electorate.

Prime Minister Orbán also notably sparked outrage in 2013, by amending the country’s constitution to boost his executive powers. At the time, German media outlet Der Spiegel noted, “In other words, a country at the center of the European Union is moving away from the principles of freedom, democracy and the rule of law.’’

In 2014, the Hungarian Prime Minister incensed EU counterparts once more by claiming that the EU does not deter Hungary from “building an illiberal new state based on economic hardship.” In 2015, Orbán similarly faced European outcry by stating that he believes the death penalty should be put back on the government’s agenda – even as a total ban of capital punishment is enshrined in both the Charter of Fundamental Rights of the EU (Article 2 reads that “no one shall be condemned to the death penalty, or executed’’) and the European Convention on Human Rights (Article 1 of the 13th Protocol establishes that “the death penalty shall be abolished’’).

Protest in April 2017 against Prime Minister Viktor Orbán in solidarity with CEU // jennifer.ang // Fickr

Most recently, with the amended education law, the Hungarian government has once more challenged core values of the union it belongs to. Article 13 of the Charter of Fundamental Rights of the EU states that “the arts and scientific research shall be free of constraint” and “academic freedom shall be respected,’’ much like Article 14 safeguards the right to education. EU officials finally launched an infringement procedure against Hungary in late April, demanding that is either justify or amend its breaches to EU human rights and open-market standards, at the risk of a referral to the European Court of Justice and possible fines.

Clearly, there is an evident downward spiral of human rights and rule-of-law in Hungary as Prime Minister Orbán insists on continuing to defy EU standards of academic freedom and democratic governance. As EU citizens and rights-holders, Hungarian’s freedoms remain at risk under Orbán’s repressive crackdowns and government of supranationalism.

Bárbara Matias is an M.A. candidate at the Institute for the Study of Human Rights at Columbia University. Her research interests include refugee rights, forced displacement, and human rights affairs in the context of the European Union.

 

Roma Communities in the EU Continue to Lack Access to Equal Education Opportunities

By Claudia Kania, guest blogger from Reavis high school

The United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) released a statement in 2000 that acknowledged “the place of the Roma communities among those most disadvantaged and most subject to discrimination in the contemporary world.” Such socially and institutionally-accepted xenophobia is perhaps most clearly epitomized by the European school system. Although academic institutions are often portrayed as “the great equalizers,” a system founded on the principles of ignorance and prejudice frequently separates Roma, one of the largest minority groups in Europe, from reaping the benefits of education.

The right to education is universally established as a fundamental guiding principle within international human rights discourse. It is recognized as a human right by Article 26 of the Universal Declaration of Human Rights, as well as Articles 28, 29, and 40 of the Convention on the Rights of the Child. To further contextualize the premise of academic equity, UNESCO put forth the 1960 Convention against Discrimination in Education, an international legislative framework adopted to promote “the ideal of equality of educational opportunity without regard to race, sex or any distinctions, economic or social.” This convention recognizes education as not only a right in and of itself, but also as an intrinsic vehicle in realizing other rights. It is an instrument vital in securing a life free of financial hardship, disenfranchisement and social exclusion.

A report released in 2016 detailed the true scope of the expulsion of Roma communities to the fringes of European society. For example, while approximately 17 percent of EU citizens are at risk of poverty, that number is more than four times higher for Romani individuals. In the month prior to the study, only about 30 percent of Romani households received paid work. The Office for National Statistics further revealed that out of 60,000 individuals who identified as Roma, 60 percent had no formal schooling. Moreover, Roma individuals are often the victims of hate crimes and police brutality.  

Interior of container school for Roma children in Slovakia // Amnesty International

Segregation remains one of the primary obstacles standing between Roma pupils and equal education opportunities. Although prejudice is sometimes blatantly propagated by biased media and political campaigns, such instances present a gateway to other less conspicuous modes of discrimination. For instance, lower expectations for Roma students subsequently led to higher dropout rates within their communities, which substantially decreases the prospects of secondary and tertiary education for Roma individuals. This, in turn, translates to higher unemployment rates and hinders the participation of Roma in the democratic process. Thus, the cycle continues.

A 2015 report by Amnesty International illustrates discriminatory placement of Romani students in remote classes separating students from their non-Roma peers. A UNICEF report, specifically noting a 2002 case in Hungary, states that, in general, all-Roma classrooms typically lack fundamental resources otherwise available to students not of the Roma ethnicity, including experienced teachers and up-to-date curricula. More recently, the European Commission specifically targeted discrimination within Hungarian schools. Although EU member states are expected to abide by equal education frameworks, legal directives such as the Racial Equality Directive and the EU Charter of Fundamental Rights oftentimes have little impact on institutionalized forms of ethnic discrimination.

In 2012, The Slovakian Regional Court condemned the segregation of Roma in its schools. Although the ruling sent a message to the Slovakian Ministry of Education regarding the country’s international obligations to provide impartial access to education, it did little to prevent ethnic-based segregation. Not only do schools continue to run all-Roma classes, but Slovakian Roma pupils are faced with the prospect of being sent to “container schools,” schools made from material resembling shipping containers, and isolated from the rest of Slovak society. When the guardians of Roma students attempt to enroll their children in non-container schools, their pleas are refused by school board officials who argue that their schools do not have the capacity to accommodate Roma pupils. The “convenient” construction of substandard learning institutions within close geographic proximity to Roma settlements is nothing other than an arm of ethnic discrimination and social exclusion, as noted by Amnesty International.

The European Roma community also faces another kind of widespread segregation: Roma pupils are frequently placed in learning disability schools, regardless of scholastic comprehension. A 2013 ruling by the European Court of Human Rights remarked that Hungary’s systematic misdiagnosis of learning disabilities violated the European Convention on Human Rights. In addition, a 2012 report by the Roma Education Fund highlights the prejudicial nature of such entrance level examinations, which focus specifically on cultural and linguistic biases.

A young student // Daniel Mihailescu/Getty

Cases of outright denial to enroll Romani children to academic institutions continue to remain prominent. The mayors of several French municipalities, for example, refused to enroll Roma children in public schools on the basis of their lack of certification. Certification, however, is not easily achieved by Roma parents, as informal settlements are almost never recognized by government officials. As identity documents remain largely inaccessible to Roma individuals, most families remain stateless. Thus, admission, in most cases, is granted only after the intervention of the French Ombudsmen. A recent article by the New York Times highlights the bureaucratic obstacles Roma students face when attempting to gain access to French schools. The country has made headlines due to the forced evacuation of hundreds of Roma families.

Former Columbia Law professor Jack Greenberg linked the Roma battle for equal education to the American Civil Rights Movement. Both groups have experienced the harrowing realities of slavery, societal disenfranchisement, and discrimination, propagated in part by stereotyping in a biased media. Schools today segregate non-Roma students from their Roma peers, providing the latter with substandard educational resources. The case of Horváth and Kiss v. Hungary bears a striking resemblance to Brown v. Board of Education of Topeka. Although both rely on the concept of strategic litigation, the successful implementation of anti-discriminatory education policy is currently a far reach for contemporary Europe. It will require not only the willingness of policymakers, but also the active mobilization of Roma civil society.

Locally, individual schools should engage in active redistricting in order to achieve ethnic diversity within academic institutions, as well as incorporate Romani culture into standing curricula to promote diversity and ethnic tolerance. It is well within the means of any school within the EU to guarantee an environment based on social inclusion and academic equity. Likewise, it is crucial that international bodies, such as the European Commission and European Union,  apply political pressure on national governments to uphold international and national legislative standards of equality. The implementation of such standards and their effects on academic institutions should be monitored by national bodies, benefiting from the interests of both grassroot NGOs and international donors.

Claudia Kania is a contributing researcher for the University of Cambridge Centre for Governance and Human Rights research project, “ICTs and Human Rights,” as well as featured writer for the Oxford Human Rights Hub. Her research interests include minority rights, women’s rights, and education policy. 

Turkey and the European Human Rights Regime: Is it right to derogate?

By Marina Kumskova, an MA student in Human Rights

Several human rights treaties allow for states to derogate from their obligations to protect certain rights. These adjustments can only take place temporarily, however, and in exceptional circumstances – i.e. in times of public emergency threatening the life of a nation. Yet, despite the professedly innocuous  intent of such systems, states of emergency have a dark history of being used in controversial ways to usher in tyrannical regimes, under the facade of confronting a threat to the existence of the nation.

Take the example of France. The perceived threat to the life of the nation from terrorist attacks, caused by people only loosely connected by an ideology, is  seemingly tremendous. However, France has proven that the introduction of emergency powers, which allow for the derogation of rights, also ushers in a temptation for misuse. France’s state of emergency last December was less than a month old when its emergency powers were used, not in the fight against suspected ISIS terrorists, but to place climate change protesters under house arrest during the Paris Climate Summit. Although the state did not hesitate to make the most of its extended powers against the protesters, it was still unable to prevent the Bastille Day attack in Nice a few months later. Given the events of the past few months, France’s state of emergency appears more effective in breaching its social contract, rather than in delivering a proportionate response to terrorist threats.

Citizens protesting against Turkish President Tayyip Erdoğan // Al Jazeera

Following the recent failed coup in its territory, the Turkish government announced its intent to derogate from the European Convention on Human Rights as part of the country’s state of emergency. It is a State’s legal right to derogate from some obligations under the Convention in response to crises. However, Turkey’s response to the uprising requires further detailed investigation into what exactly constitutes a threat to the life of the nation.”

The Human Rights Council interprets derogation measures as measures that must be limited “to the extent strictly required by the exigencies of the situation.” In other words, such measures need to be proportionate. The requirement of proportionality constitutes one of the substantive limits to emergency powers, requiring specific scrutiny and justification of each measure taken in response to an emergency, rather than an abstract assessment of the overall situation.

Is the response of Turkey to the failed coup proportionate? “The first state of emergency decree goes well beyond the legitimate aim of promoting accountability for the bloody July 15 coup attempt,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch. “It is an unvarnished move for an arbitrary, mass, and permanent purge of the civil service, prosecutors, and judges, and to close down private institutions and associations without evidence, justification, or due process.” As a result of the vague and open-ended wording of the original Turkish decree, roughly 18,000 people have been detained since July 16, and another 60,000 government workers have lost their jobs.

Much remains uncertain about the coup, allegedly organized by a community of people inspired by the US-based Islamic cleric Fethullah Gülen. However, the Turkish government’s response to the attempted coup can be used to target any adversary – perceived or real – beyond those in the Gülen movement. The striking non-proportionality of Turkey’s derogation has already further affected its foreign relations, complicated the fight against ISIS, and raised questions about whether the country is drifting towards a Putin-style government where power is concentrated in the hands of one person.

Turkish protestor // Petros Giannakouris

It cannot be left unsaid that Turkey, along with Russia, is one of the countries most frequently found by the European Court of Human Rights (ECHR) to have violated the European Convention. Therefore, it is unclear why Turkey is keen to suspend the Convention now, given that its previous violations have been met with relative impunity. However, the suspension of the Convention by Turkey does not guarantee that the government will not be tried for human rights violations committed during times of emergency in the future. Anyone claiming to be the victim of a violation of the Convention by Turkey as a result of new measures adopted under the state of emergency will have the right to bring their case to the European Court of Human Rights. As Turkey has learned before through the ruling of a 1996 ECHR case, derogation  does not mean that the authorities have carte blanche to violate people’s’ rights without retribution..

The drafters of the international treaties intended to give states the flexibility to deal with particularly serious crisis situations while simultaneously imposing strict binds in order to prevent abuses. Resorting to extraordinary measures should always go hand in hand with strict limitations and international accountability.

Looking at the world today, it is clear that the declaration of the state of emergency has been used over and over to justify extreme “measures” such as interventions, occupations, civilian killings, and torture programs. On the other hand, it has barely proven its effectiveness in addressing crisis situations. The case of Turkey is another example of derogation used to strengthen authoritarian regimes and prioritize militarism at the expense of safeguarding human rights.

Marina Kumskova is a graduate student in Human Rights Studies at Columbia University and a research assistant at the Center for International Human Rights at John Jay College. In her research, she focuses on religious discrimination in the context of counter-terrorism policies.

Strasbourg delivers a blow to reproductive rights, women’s rights, and Roma rights in one go

By Judit Geller, Adam Weiss, and Bernard Rorke, guest bloggers from the European Roma Rights Centre

On June 9th 2015, the European Court of Human Rights declared an application submitted by the European Roma Rights Center (ERRC) on behalf of a victim of forced sterilization inadmissible. The injustices visited upon the applicant from the moment of being sterilized in Hungary are disturbing – the legal reasoning behind the decision is deeply troubling for anyone interested in reproductive rights, anti-Roma discrimination, women’s rights, or the emerging legal field of intersectionality.

The facts (which can be found in an anonymised version of the application on the ERRC website) are as follows: On February 9th 2008, the applicant G.H. was admitted to the hospital, twenty-two weeks pregnant with twins and bleeding heavily. An urgent Caesarean section was ordered. The applicant signed a form consenting to this procedure. It was discovered that the foetuses were dead, and they were removed. During the operation, the applicant’s fallopian tubes were tied, and during her stay in the hospital, she was placed in a ward of the hospital occupied only by Roma patients (although not Roma herself, her husband was).

On the day of the applicant’s release, the hospital issued a medical discharge document which included a reference to the fact that the applicant had been sterilized. The document did not refer to her giving consent. It was only upon seeing this document after her release that the applicant first understood that she had been sterilized.

The courts in Hungary found that the hospital should have asked G.H. to sign a consent form, and that because they did not do so, she was to be compensated for those administrative oversights. But not too much: the two million Hungarian forints (about €6,000) she had been awarded were deemed excessive. On appeal, the Supreme Court slashed the amount in half, since according to the doctors, the applicant had consented to the sterilization, but the hospital had just forgotten to follow the formalities.

G.H.’s contrasting and more credible version of the story bears a striking resemblance to A.S. v. Hungary,  another case where a Romani woman was sterilized in a Hungarian hospital in 2001. Just as in the A.S. case, despite the doctor’s claims, it does not matter whether G.H. ‘consented’ in the middle of a traumatic medical emergency. Sterilization without fully informed consent is a serious human rights violation and an arbitrary interference with a woman’s bodily integrity, reproductive health, and right to family and private life. International bodies have already established this, including the Strasbourg Court itself. However, the intersectional discrimination has never been acknowledged: these women are targeted because they are female and Roma.

The European Court disposes of most inadmissible applications it receives by having them decided by a single judge and sending a short rejection letter without reasons. G.H. was given the less usual benefit of a reasoned inadmissibility decision from a seven-judge Chamber explaining why she lacked victim status. The Strasbourg Court found that the applicant “was in the position to take an informed decision,” had received compensation and an apology. In short, there was nothing left to complain about.  

The Chamber found that compensation received from the domestic courts deprived her of victim status:

  • To the extent that the applicant claims that the medical intervention, which was carried out with her consent but without a written procedure required by the domestic law, amounts to an infringement of her right to respect for private life under Article 8, the Court finds that the applicant can no longer claim to be a victim of a violation for the following reasons.
  • The Court notes that material compensation, in an amount of EUR 3,300, was awarded to the applicant for the grievance in question, that the courts recognised a breach of her rights, and that the hospital apologised for the procedural irregularity committed.
  • In these circumstances, the Court considers that an express acknowledgement of the violation of the applicant’s rights occurred and she received adequate redress.

It comes as no surprise that the Court, when faced with conflicting versions, opted for the domestic court’s preference for the defendant’s account. Subsidiarity dictates this kind of deference to national courts. But the Court went further: it put the hospital’s version of events into the applicant’s mouth. Bluntly ignoring G.H.’s own claim that she never asked to be sterilized, the Court summarised the application submitted by ERRC as follows:

“The applicant mentioned to her doctors that she thought it was reasonable to tie her Fallopian tubes in order to sterilise her. The doctors repeatedly asked her if that was indeed her desire and explained that this intervention could not be subsequently undone. The applicant answered in the affirmative, confirming that she wanted no more children. These statements were made to three doctors and a midwife.”

The core of the problem, though, is with the result the domestic courts and the Strasbourg Court drew from that version of the facts: if a woman gives some form of consent to sterilisation in the middle of a pregnancy-related medical emergency, her approval under duress somehow mitigates the human rights violation.

The International Federation of Gynaecologists and Obstetricians has said, in its own guidelines on the subject, that “No woman may be sterilised without her own, previously-given informed consent, with no coercion, pressure or undue inducement by healthcare providers or institutions”, and that “Sterilisation for prevention of future pregnancy is not an emergency procedure. It does not justify departure from the general principles of free and informed consent.”

The European Court normally awards tens of thousands of euros in cases of forced sterilization. The €3,000 G.H. received from the Hungarian courts was not just stingy – it was based on the conclusion that the applicant’s “consent” mitigated the damage. The Strasbourg inadmissibility decision finding that she was not a victim confirmed this approach. It is a procedural blow to reproductive rights, women’s rights, and Roma rights. A woman in the middle of a pregnancy-related medical emergency is vulnerable to serious abuse and irreparable harm.

It is no accident that so many Romani women are affected by forced sterilization: one of the most common racist stereotypes about Roma is that they have large families, and one of the most common racist beliefs is that they should not. The challenge for the future is to frame such cases in ways that force judges to address the discriminatory structures at play. The Court had an opportunity to examine these intersectional issues in a sophisticated way. Instead, they passed up on this opportunity, and chose instead to see it as a case of someone quibbling over money.

The European Roma Rights Centre (ERRC) is an international public interest law organization working to combat anti-Romani racism and human rights abuse of Roma through strategic litigation, research and policy development, advocacy and human rights education. You can read more of their writing here.