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This book addresses the legal feasibility of ethnic data collection and positive action for equality and anti-discrimination purposes, and considers how they could be used to promote the Roma minority’s inclusion in Europe. The book’s central aim is to research how a societal problem can be improved upon from a legal perspective. The controversy surrounding ethnic data collection and positive action severely limits their use at the national level. Accordingly, legal and political concerns are analysed and addressed in order to demonstrate that it is possible to collect such data and to implement such measures while fully respecting international and European human rights norms, provided that certain conditions are met.

Part I focuses on ethnic data collection and explores the key rules and principles that govern it, the ways in which this equality tool could be used, and how potential obstacles might be overcome. It also identifies and addresses the specific challenges that arise when collecting ethnic data on the Roma minority in Europe. In turn, Part II explores positive action and the broad range of measures covered by the concept, before analysing the applicable international and European framework. It reviews the benefits and challenges of implementing positive action for Roma, identifies best practices, and gives special consideration to inter-cultural mediation in the advancement of Roma inclusion.

The book concludes with an overview of the main findings on both topics and by identifying three essential elements that must be in place, in addition to full respect for the applicable legal rules, in order to combat discrimination and achieve the inclusion of Roma in Europe by complementing existing anti-discrimination frameworks with the collection of ethnic data and the implementation of positive action schemes.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract
This chapter provides background and context. It explains why this book researches the legal feasibility of ethnic data collection and positive action for equality and anti-discrimination purposes in general, and their practical application in relation to the Roma minority in Europe. It reflects on the difficulties to define the notion Roma, the ambiguous and changing denomination of this minority over the years, and the lack of a uniform status of Roma across the European Union. Furthermore, it expands on the historical and present-day vulnerability of Roma and highlights how intersectional discrimination affects Roma in Europe. Due consideration is also given to the key role of cultural identity in the promotion of Roma inclusion. Lastly, this chapter introduces the two main topics of the book and provides insight in its the scope and structure.
Jozefien Van Caeneghem

Chapter 2. Human Rights and the Roma: Key Concepts

Abstract
This chapter takes a closer look at the concepts that hold the key to researching human rights and the Roma. It concerns: (1) the closely connected and inter-related concepts equality and anti-discrimination, the distinction between direct and indirect discrimination, and the need to complement a formal and a substantive approach to equality; (2) the controversial notions race and ethnicity and the interpretation given to and difference between these overlapping social constructs; (3) the multi-dimensional concept social inclusion, and pluralism as an alternative approach to integration in order to promote diversity and counter assimilation; (4) minority rights protection and its two-pillar structure, the right to identity and the prohibition of assimilation as interrelated building blocks of minority rights protection, and minorities’ right to the effective participation in public life; (5) privacy as a relative, dynamic, and multi-dimensional concept that holds personal autonomy at its core and entails positive and negative obligations for State authorities; (6) personal data protection, the key difference between various types of data, the applicable legal frameworks, and the role of supervisory committees and data protection authorities; (7) socio-economic rights, including: (a) the right to education and its dual role in minorities’ protection and promotion; (b) the right to housing and the protection of traveling as an important element of Roma culture and identity; (c) the right to work as a broad right that fulfils economic, social, and developmental needs; (d) the right to health, of which States must realise the bare essentials immediately.
Jozefien Van Caeneghem

Ethnic Data Collection

Frontmatter

Chapter 3. Ethnic Data Collection: Key Elements, Rules and Principles

Abstract
This chapter focuses on the key elements, rules and principles that govern ethnic data collection. It explains that, despite strong encouragement by international and European actors to use this human rights tool for equality and anti-discrimination purposes, States often hide behind an all-too restricted or faulty interpretation of the applicable data protection rules to collect such data. Due consideration is given to the context-dependency of the notions race and ethnicity and the challenges this poses to the definition of racial and ethnic origin for data collection purposes. It is highlighted that the determination of ethnic origin involves both objective and subjective criteria. Furthermore, this chapter expands on the general and special data protection rules contained in the data protection frameworks established, at the levels of the Council of Europe and the European Union, in order to demonstrate that they allow for the collection and processing of sensitive data on racial or ethnic origin, provided that certain conditions are respected and that appropriate safeguards are put in place to prevent misuse of the data and to respect the rights and fundamental freedom of data subjects. It also considers the inclusion of the protection of personal data in the right to private life in the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The chapter concludes with the identification of five operational and organisational principles that help to reduce the risk that sensitive data, which has been collected or processed, are misused.
Jozefien Van Caeneghem

Chapter 4. Ethnic Data Collection: Benefits, Risks, Data Sources and Methods

Abstract
This chapter includes an overview of, and a discussion on, the benefits, risks, data sources and methods involved in ethnic data collection for equality and anti-discrimination purposes. It describes the five main benefits of ethnic data collection, namely (1) acquiring information on integration, (2) uncovering discrimination and identifying good practices, (3) awareness-raising, (4) implementing, monitoring and evaluating policies, and (5) supporting discrimination claims in legal proceedings. This is followed by the analysis of the five main risks and fears that may be raised to justified the absence of ethnic data in a given situation. It concerns (1) exposing bad or insufficient government policies, (2) instigating conflict and stigmatisation, (3) misuse of data to discriminate, (4) discriminatory ethnic profiling by public officials, and (5) privacy and data protection violantions. This chapter also identifies the four main data sources which can be used to collected ethnic data and takes a closer look at the advantages and disadvantages of (1) official statistics, (2) research data, (3) ethnic monitoring, and (4) complaints data. Furthermore, it addresses the complexities involved in ethnically classifying people for data collection purposes. Lastly, this chapter discusses the benefits and limitations of the four approaches to identifying people ethnically through one or multiple ethnic categories, namely (1) self-identification, (2) proxies for ethnicity, (3) visual observation by a third party, and (4) identification by other members of the group.
Jozefien Van Caeneghem

Chapter 5. Challenges to Collecting Ethnic Data on the Roma Minority in Europe

Abstract
This chapter examines how data on Roma, needed for policymaking, can be collected in full respect of this ethnic minority’s human rights and interests. It expands on the large data gaps about Roma across Europe and considers multiple reasons why available data are often incomplete, unreliable or overlook vulnerable sub-groups. It reviews the advantages and disadvantages of various data sources on Roma, including (1) the limitations of official statistics, (2) the added value of research data, (3) the unreliability of complaints data and overrepresentation in crime data, and (4) the significance of international and European monitoring and litigation. This chapter also addresses methodological challenges. On the one hand, the complex and fluid nature of Roma identities complicates the construction of ethnic categories for Roma. On the other hand, the appropriateness of the various ethnical identification approaches depends on the context and purpose of data collection. Furthermore, the chapter examines methodological issues involved in interviewing Roma that affect the quality of the data collected, including sampling, type of interview(ers) and questions asked, and time and budget restrictions. It identifies four factors that must be considered when analysing and reporting on data on Roma, namely (1) biases, (2) terminological and methodological choices, (3) Roma diversity, and (4) transparency of data dissemination. This chapter also considers the impact of privacy and data protection rules on data collection efforts on Roma. Lastly, it highlights three principles—awareness-raising, active participation and genuine political will—that should be fulfilled when collecting data on Roma.
Jozefien Van Caeneghem

Positive Action

Frontmatter

Chapter 6. Positive Action and the Link with Ethnic Data

Abstract
This chapter considers the notion positive action and the link with ethnic data collection. It discusses working definitions used by various actors in the absence of a generally accepted legal definition of positive action and identifies its group-focus, proportionality, and temporary nature as key elements. Positive action is also compared to and delineated from other concepts and instruments, including indirect discrimination, reasonable accommodation, genuine occupational requirements, equality mainstreaming, and equality impact assessments. The boundaries of the traditional approach to equality are explored and it is considered whether positive action constitutes an exception to, or an aspect of, the equality principle. Next, the chapter delves into the six factors creating a wide variety of positive action measures. There may be differences according to the discrimination grounds, beneficiaries, and fields covered as well as regarding their nature and implementation. Because positive action may also vary greatly per type, special consideration is given to the difference between soft measures that do not include preferential treatment and strong measures that do. The chapter emphasises the need for an analytical and regulatory framework, the active participation of all stakeholders, political will and funding, and reliable ethnically disaggregated data when implementing positive action schemes. Furthermore, this chapter explores the five main justifications of positive action. Measures may pursue compensational, cultural, societal, pedagogical, and/or economic aims. Lastly, the possible barriers to, and limits of, positive action are considered.
Jozefien Van Caeneghem

Chapter 7. International Framework on Positive Action

Abstract
This chapter focuses on the international framework on positive action. It zooms in on the applicable instruments at the level of the United Nations and on the work of the treaty-monitoring bodies to uncover (1) whether the adoption of positive action is optional or mandatory, (2) which conditions must be fulfilled, and (3) which type(s) of measures can be adopted for equality and anti-discrimination purposes. The chapter first explores the context-dependency of the permissive or mandatory nature of positive action by analysing the practices of the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It also expands on their demand for a reasonable, objective, and proportional justification for special measures. Next, it covers their focus on remedial and cultural aims, their case-by-case consideration of the scrutiny test to be applied in relation to the proportionality requirement and their ban on the maintenance of permanent, separate standards and rights for different groups. Furthermore, this chapter reflects on the wide diversity of measures that are permitted according to the treaty-monitoring bodies. Lastly, it is considered whether the United Nations pursues equality of opportunities or equality of results, before explaining that the intensity of permitted measures depends on the goals pursued and the needs of the individuals or groups concerned in a specific context.
Jozefien Van Caeneghem

Chapter 8. European Framework on Positive Action

Abstract
This chapter reviews the European framework on positive action in order to uncover (1) whether the implementation of positive action is optional or mandatory, (2) which conditions must be fulfilled, and (3) which type(s) of measures can be adopted for equality and anti-discrimination purposes. This chapter first focuses on the Council of Europe. The analysis of the case law of the EctHR suggests a mixed approach towards the permissibility of this human rights instrument. A closer look at the work of the European Committee of Social Rights and the Advisory Committee on the Framework Convention for the Protection of National Minorities shows that these bodies appear to require the adoption of positive action under certain circumstances. The proportionality requirement is also considered and it is argued that it seems likely that the relevant supervisory bodies would accept strong measures providing preferential treatment in certain situations. Second, this chapter analyses the European Union framework. Given the sole focus on gender equality in employment until 1997, the most significant legislation and case law on gender-based positive action in employment is presented. The Court of Justice considers gender preferences as a derogation of the equal treatment principle and the focus appears to be on the pursuit of equality of opportunities rather than results. Furthermore, this chapter discusses the provisions on positive action based on racial and ethnic origin and other discrimination grounds and reflects on the possibilities presented by future case law for the CJEU to adopt a less restrictive approach.
Jozefien Van Caeneghem

Chapter 9. Positive Action for the Roma Minority in Europe

Abstract
This chapter expands on the importance of positive action for Roma. The use of this human rights instrument is indispensable in order to achieve full and effective equality for members belonging to this ethnic minority. Measures can pursue remedial, cultural, societal, pedagogical, and/or economic aims. Emphasis is put on the diverse range of positive action measures that are needed to advance Roma inclusion in Europe. It is argued that the proportionality principle allows the implementation of both soft and strong measures for Roma. Furthermore, this chapter considers why, despite the clear benefits of this human rights instrument in the promotion of substantive equality for Roma, it has failed to reach its full potential in the EU so far. The five main challenges are identified and analysed. It concerns the lack of awareness-raising activities about positive action and the need for such measures, the absence of genuine political will to tackle Roma issues, the lack of (reliable) disaggregated data on Roma, the lack of active participation of local Roma communities in positive action schemes, and the inadequate, short-term, and often top-down funding of positive action for Roma.
Jozefien Van Caeneghem

Chapter 10. Positive Action for Roma in Four Key Areas

Abstract
This chapter provides insight in how positive action can look like in practice with a view to combating the discrimination against, and promoting the inclusion of, Roma in Europe. It highlights examples and good practices across Europe, because the widespread lack of awareness about what positive action is and what it does hinders this human rights instrument from reaching its full potential for this ethnic minority in Europe. First, emphasis is placed on the importance of adopting a sectorial, bottom-up approach to the designing, implementing, monitoring and evaluating of positive action to ensure that the measures are tailored to the specific needs of local Roma communities and proportionate to the goals they pursue. Next, the inter-connectedness of the problems encountered by Roma in the areas of education, housing, employment and health is acknowledged, before taking a closer look at the implementation of soft and strong types of measures for Roma in these four key areas of socio-economic life. Too often, discussions are dominated by the controversy that surrounds strict quotas, which are by far the most well-known as well as the strongest kind of positive action. The aim of this chapter is to demonstrate that States have a considerable number of options with varying levels of intensity in each of these fields.
Jozefien Van Caeneghem

Chapter 11. Inter-Cultural Mediation to Enhance Roma Inclusion

Abstract
This chapter focuses on inter-cultural mediation as an interesting example of positive action for Roma. Inter-cultural mediators play a proactive and positive role in the promotion of Roma inclusion, which distinguishes them from mediators in the traditional sense of the word. Through the development of a trust relationship between Roma and public institutions and society more generally, awareness and understanding is raised about discrimination against Roma and of cultural difference between Roma and non-Roma and the interests of Roma are promoted. It is argued that inter-cultural mediation offers promising prospects by taking a sectorial, bottom-up approach to tackling the multifarious and multidimensional issues faced by members of this ethnic minority, thereby making it possible to take the specific situation and needs of local Roma communities into account. By doing so, it constitutes a very powerful instrument in the promotion of real change for Roma. Whereas different factors may limit the impact of mediators’ work, training and institutional consolidation of inter-cultural mediation can help to overcome some of these challenges. Some examples of inter-cultural mediation in the areas of education and health help to gain insight into the practical application of positive action. This chapter also stresses the importance of adopting a gender approach to Roma mediation.
Jozefien Van Caeneghem

Chapter 12. Final Conclusions and Recommendations

Abstract
This chapter wraps up the discussions on ethnic data collection and positive action for Roma in Europe by summarising the main findings of the book and by making suggestions on how to move forward. Despite their long-term presence in Europe and the achievement of legal equality following the introduction of anti-discrimination legislation and human rights norms, an overwhelming number of Roma remain on the margins of European society due to persistent discrimination and high levels of socio-economic exclusion. The achievement of real and long-term changes is hindered because ethnic data collection and positive action are currently often missing in national policies that aim to improve this ethnic minority’s situation. First, the author looks back at the discussions on the legal feasibility and practical application of ethnic data collection and positive action to combat the discrimination against, and promote the inclusion of, Roma in Europe. Next, this chapter identifies three indispensable elements—awareness-raising, active participation, and genuine political will—that must be in place when using this human rights tool and instrument. The author also formulates several recommendations to EU legislators and policymakers. Some final remarks on trust round up this chapter, and so also this book.
Jozefien Van Caeneghem
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