1. Legal and policy instruments
Charter of Fundamental Rights of the European Union [2000] OJ C364/01.
Council of the European Union Working Party on Human Rights (COHOM), ‘Toolkit to Promote and Protect the Enjoyment of all Human Rights by Lesbian, Gay, Bisexual and Transgender (LGBT) People’
(11179/10, 17 June 2010).
Commission of the European Communities, ‘Proposal for a COUNCIL DIRECTIVE on implementing the
might reinforce sexist, heteronormative, racist and islamophobic stereotypes. Structural issues as well as crucial areas (such as marriage issues in the LGBT Guidelines) are very often neglected or left out.
The lack of coherence constitutes a problematic point when it comes to addressing social factors that hinder human rights protection by means of anti-discrimination and equality policies. Several dimensions of incoherence are at stake in this context: Vertical incoherence refers to different anti-discrimination and equality standards, instruments and measures used by EU and Member States’
delegations as well as double standards, i.e. asking for anti-discrimination and equality standards which are not guaranteed at all by Member States for their own populations. Another aspect is a lack of horizontal coherence which refers to evenly integrating anti-discrimination principles in different EU policy fields as well as the even implementation of different anti-discrimination aspects into EEAS policies. It is hard to comprehend how and why priorities are set concerning the focus on certain categories or areas in the EEAS, which not only refers to a lack of coherence but also to a lack of transparency. Inter-institutional coherence seems to be quite well-functioning, especially with regard to the collaboration of the EEAS with DG DEVCO, although the officers mainly cooperate on an informal basis. However, there still seems to be room for improvement, for instance in the form of a better formalisation of this process as well as the enhancement of intra-institutional coherence within the EEAS, such as a better dissemination of anti-discrimination and equality expertise within the service.
Finally, internal-external incoherence in EU non-discrimination policies is a serious issue not only with regard to the prevalence of discrimination and inequalities in EU Member States but also concerning the legal and policy dimension. Different grounds and areas of discrimination are taken into account in external compared to internal policies and laws (see above, sub-section II.E.3.d).
The effectiveness of anti-discrimination and equality policies in the EEAS is narrowed down to the aspect of effectiveness in representation. Effectiveness in impact, meaning to achieve EEAS anti-discrimination objectives, to have a positive and human rights promoting impact on the ground and to effectively combat social factors that hamper the protection and respect of human rights, is rarely seen as an explicit objective and policies are seldom reflected according to this aspect.
F. Bibliography
1. Legal and policy instruments
Charter of Fundamental Rights of the European Union [2000] OJ C364/01.
Council of the European Union Working Party on Human Rights (COHOM), ‘Toolkit to Promote and Protect the Enjoyment of all Human Rights by Lesbian, Gay, Bisexual and Transgender (LGBT) People’
(11179/10, 17 June 2010).
Commission of the European Communities, ‘Proposal for a COUNCIL DIRECTIVE on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ COM (2008) 426 final, CNS 2008/0140.
Committee on Civil Liberties Justice and Home Affairs, Rapporteur: Ulrike Lunacek, ‘Report on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity’
(2013/2183 (INI), 2013).
Council of the European Union, ‘EU Annual Report on Human Rights and Democracy in the World in 2013’ (111107/14, 23 June 2014).
Council of the European Union (2013a), ‘Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons’ (Foreign Affairs Council meeting, 24 June 2013).
Council of the European Union (2013b), ‘EU Guidelines on the promotion and protection of freedom of religion or belief’ (Foreign Affairs, Council meeting, 24 June 2013).
Council of the European Union (2013c), ‘EU Annual Report on Human Rights and Democracy in the World in 2012 (Thematic Reports)’ (9431/13, 13 May 2013).
Council of the European Union, ‘EU Strategic Framework and Action Plan on Human Rights and Democracy’ (11855/12, 25 June 2012).
Council of the European Union (2010a), ‘Proposal from the High Representative for Foreign Affairs and Security Policy to Council’ (8029/10, 25 March 2010).
Council of the European Union (2010b) Council Decision of 26 July 2010 establishing the organisation and functioning of the European External Action Service, 2010/427/EU [2010] OJ L201.
Council of the European Union, ‘EU Guidelines on violence against women and girls and combating all forms of discrimination against them’ (2008).
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic [2000] OJ L180/22.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment [2000] OJ L303/16.
Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37.
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23.
Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC [2010] OJ L180/1.
EEAS, ‘Human Rights and Democracy in the World: Report on EU Action 2011’ (European External Action Service 2012).
EEAS, ‘EU Annual Report on Human Rights and Democracy in the World in 2010’ (European External Action Service, 2011).
European Commission ‘Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’, COM(2010) 573 final (European
Commission 2010a).
European Commission, ‘Human Rights and democracy in the world, Report on EU action, July 2008 to December 2009’ (European Commission 2010b).
European Council, ‘The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’ (2010) OJ C 115/01.
Mandate of COHOM, ‘Mandate of the Working Group on Human Rights’ (16510/14, Annex, 10 December 2014).
Regulation (EC) No. 1889/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a financing instrument for the promotion of democracy and human rights worldwide [2006]
OJ L386/1.
Treaty establishing the European Coal and Steel Community [1951].
Treaty establishing the European Economic Community [1957].
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1.
2. Literature a) Books
Ashcroft, B., Griffiths, G. and Tiffin, H., Key Concepts in Post-Colonial Studies (Routledge 1998).
Keukeleire, S. and Delreux, T., The Foreign Policy of the European Union (Palgrave Macmillan 2014).
Phelan, S., Sexual Strangers. Gays, lesbians, and Dilemmas of Citizenship (Temple 2001).
Pilcher, J. and Whelehan, I., Fifty Key Concepts in Gender Studies (SAGE Publications 2004).
b) Book Chapters
De Búrca, G., ‘Stumbling into Experimentalism: The EU Anti-Discrimination Regime’ in Sabel, C. F. and Zeitlin, J. (eds.), Experimentalist Governance in the European Union, Towards a New Architecture (Oxford University Press 2010) 215-236.
EEAS, ‘Human Rights and Democracy in the World: Report on EU Action 2011’ (European External Action Service 2012).
EEAS, ‘EU Annual Report on Human Rights and Democracy in the World in 2010’ (European External Action Service, 2011).
European Commission ‘Communication from the Commission, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union’, COM(2010) 573 final (European
Commission 2010a).
European Commission, ‘Human Rights and democracy in the world, Report on EU action, July 2008 to December 2009’ (European Commission 2010b).
European Council, ‘The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’ (2010) OJ C 115/01.
Mandate of COHOM, ‘Mandate of the Working Group on Human Rights’ (16510/14, Annex, 10 December 2014).
Regulation (EC) No. 1889/2006 of the European Parliament and of the Council of 20 December 2006 on establishing a financing instrument for the promotion of democracy and human rights worldwide [2006]
OJ L386/1.
Treaty establishing the European Coal and Steel Community [1951].
Treaty establishing the European Economic Community [1957].
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1.
2. Literature a) Books
Ashcroft, B., Griffiths, G. and Tiffin, H., Key Concepts in Post-Colonial Studies (Routledge 1998).
Keukeleire, S. and Delreux, T., The Foreign Policy of the European Union (Palgrave Macmillan 2014).
Phelan, S., Sexual Strangers. Gays, lesbians, and Dilemmas of Citizenship (Temple 2001).
Pilcher, J. and Whelehan, I., Fifty Key Concepts in Gender Studies (SAGE Publications 2004).
b) Book Chapters
De Búrca, G., ‘Stumbling into Experimentalism: The EU Anti-Discrimination Regime’ in Sabel, C. F. and Zeitlin, J. (eds.), Experimentalist Governance in the European Union, Towards a New Architecture (Oxford University Press 2010) 215-236.
Lensu, M., ‘Equality and Non-Discrimination in EU-External Action’ in Benedek, W., Benoît-Rohmer, F., Karl, W. and Nowak, M. (eds.), European Yearbook on Human Rights (European Academic Press 2011) 255-266.
Meuser, M. and Nagel, U., ‘ExpertInneninterviews – vielfach erprobt, wenig bedacht, Ein Beitrag zur qualitativen Methodendiskussion’ in Bogner, A., Littig, B. and Menz W. (eds.), Das Experteninterview, Theorie, Methode, Anwendung (VS Verlag für Sozialwissenschaften 2005) 71-93.
Oikarinen, J., ‘Reform of the EU Human Rights Policy and the Challenge of Implementation’ in Benedek, W., Benoît-Rohmer, F., Karl, W., Kettemann, M. C. and Nowak, M. (eds.), European Yearbook on Human Rights (European Academic Press 2014) 115-124.
Smith, K. E., ‘The EU as a diplomatic actor in the field of human rights’ in Koops, J. and Macaj, G., (eds.), The European Union as a Diplomatic Actor. The European Union in International affairs (Palgrave Macmillan 2014) 155-177.
c) Journal Articles
Bell, M., ‘The Implementation of European Anti-Discrimination Directives: Converging towards a Common Model?’ (2008) 79:1 The Political Quarterly 36-44.
Conceição-Heldt, E. and Meunier, S., ‘Speaking with a single voice: internal cohesiveness and external effectiveness of the EU in global governance’ (2014) 21:7 Journal of European Public Policy 961-979.
Elisg, M., ‘The EU as an effective trade power? Strategic choice of judicial candidates in the context of the World Trade Organization’ (2013) 27:3 International Relations 325-340.
Krumer-Nevo, M. and Sidi, M., ‘Writing Against Othering’ (2012) 18:4 Qualitative Inquiry 299-309.
Marangoni, A.-C. and Raube, K., ‘Virtue or Vice? The Coherence of the EU’s External Policies’ (2014) 36:5 Journal of European Integration 473-489.
Niemann, A. and Bretherton, C., ‘EU external policy at the crossroads: The challenge of actorness and effectiveness’ (2013) 27:3 International Relations 261-275.
Portela, C. & Raube, K., ‘The EU Polity and Foreign Policy Coherence’ (2012) 8:1 Journal of Contemporary European Research 3-20.
Tobler, C., ‘Equality and Non-Discrimination under the ECHR and EU Law, A Comparison Focusing on Discrimination against LGBTI Persons’ (2014) 74:3 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 521-561.
d) Policy and other reports
Lassen, E. M. et al., Report on factors which enable or hinder the protection of human rights (FP7 FRAME Deliverable 2.1, European Union 2014).
Lewis, T. et al., Report on coherence of human rights policymaking in EU Institutions and other EU agencies and bodies (FP7 FRAME Deliverable 8.1, European Union 2014).
Mayrhofer, M. and García San José, D., ‘Social Factors’ in Lassen, E. M. et al., Report on factors which enable or hinder the protection of human rights (FP7 FRAME Deliverable 2.1, European Union 2014) 85-113.
Lewis, T. et al., Report on coherence of human rights policymaking in EU Institutions and other EU agencies and bodies (FP7 FRAME Deliverable 8.1, European Union 2014).
Mayrhofer, M. and García San José, D., ‘Social Factors’ in Lassen, E. M. et al., Report on factors which enable or hinder the protection of human rights (FP7 FRAME Deliverable 2.1, European Union 2014) 85-113.
III. Ethnic factors and EU internal policies of non-discrimination and equality
A. Introduction
The Report on factors, completed under the auspices of the FRAME project mapped historical, political, legal, economic, social, cultural, religious, ethnic and technical factors that enable or hinder human rights protection in the context of the EU’s internal and external policies (Lassen et al., 2014). The report concluded that further exploration of challenges and gaps through in-depth research and analysis was called for. EU legislation protecting against discrimination on the ground of race and ethnic origin and its application in practice, including the function of the designated equality bodies, was identified as a key area for additional research and analysis.
Ethnic factors that significantly enable or hinder the protection of human rights were mapped in Chapter VIII of D 2.1. (Lassen et al., 2014). The chapter defines ethnic factors as ‘issues related to ethnicity, which have an impact on the enjoyment of human rights’ (Lassen and García San José, 2014, p. 130). Ethnicity in itself is not a factor for enabling or hindering human rights unless interlinked and discussed within the context of other factors (Lassen and García San José, 2014; Mayrhofer and San José, 2014). Related issues that make ethnic factors relevant to explore here are the historical evolvement of societies and their states, the demographic development, the legal structures, political ideology and economic situation – just to mention some of the overriding related issues. In other words, ethnic factors enable and hinder human rights in juxtaposition with historical, legal, social, political and economic factors. For instance: a state and its society’s historical evolvement set the scene as to which legal and political structures are in place to protect and promote the rights of all, irrespective of ethnicity as well as the recognition of minorities as legitimate members of the society. Economic factors play a central role as to the priorities given to combating discrimination of ethnic minorities and promoting rights. Analogously, political factors take central stage as to who is permitted to enter and enjoy equal opportunities on equal footing as its citizens.
Discrimination based on race and ethnic origin is perceived to be the most prevailing form for discrimination in the EU (European Commission, Justice, 2012). Studies on issues regarding discrimination on the EU and national levels document the lack of substantive equal treatment in practice for persons experiencing discrimination based on their race and ethnic origin in relation to access to justice, health services, education, housing, and goods and services.7
The principles of non-discrimination and equal treatment are pivotal principles in ensuring equal access and enjoyment of one’s human rights. This in effect means that access to, for example, health care
The author of this chapter is Mandana Zarrehparvar, Senior Advisor, the Danish Institute for Human Rights. Eva Krogsgård Nielsen assisted with the interviews and transcription.
7 Studies on EU level, among others conducted by the European Fundamental Rights Agency and The Network of Legal Experts in the non-discrimination Field, and national level for example the Danish National Barometer for Integration (2014), show that approximately 49 per cent of ethnic minorities report that they have been subject to discrimination based on their ethnicity.
services or self-determination should not be hindered by ‘[a]ny distinction, exclusion, restriction or preference which is based on certain prohibition criteria, and has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by certain persons, on an equal footing, of certain rights and freedoms’ (UN Human Rights Committee, 1989). Therefore, the promotion of equality, equal opportunities and equal treatment in access and enjoyment of human rights are proclaimed core values in the EU, internally and externally to the EU. These core values are expressed through extensive legislation and policy papers. The Treaty on European Union (TEU) and The Treaty on the Functioning of the European Union (TFEU) transposed by binding equality directives and provisions made in The Charter of Fundamental Rights for the European Union (CFREU). These documents all obligate the EU Member States to a higher or lower extent to combat discrimination based on ethnicity and to mainstream and promote the principle of equal treatment.
Are these core values, however, respected and promoted in practice? This chapter seeks to answer the following question: ‘Have the core values of non-discrimination and equal treatment, implemented by the Race Directive, resulted in the desired impact in the EU in order to protect and promote human rights of ethnic minorities within the EU and its Member States? Which factors are drivers and barriers to the promotion and protection of human rights irrespective of race and ethnic origin?’