Diversity in the European Union

Diversity in the European Union

This page intentionally left blank

Diversity in the European Union Edited by

Elisabeth Prügl and Markus Thiel

diversity in the european union Copyright © Elisabeth Prügl and Markus Thiel, 2009 All rights reserved. First published in 2009 by PALGRAVE MACMILLAN® in the United States - a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–61929–6 Library of Congress Cataloging-in-Publication Data Design by Integra Software Services Pvt. Ltd First edition: December 2009 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America

Contents

List of Tables and Figures

vii

Preface

ix

Notes on Contributors

xi

Part 1 Introduction 1 Understanding Diversity in the European Integration Project Markus Thiel and Elisabeth Prügl 2 The European Union’s Policies to Safeguard and Promote Diversity Joke Swiebel

3

21

Part 2 Migrants and Muslims 3 The Success and Failure of Integration Policy in France and Britain: Convergence of Policy and Divergence of Results Martin A. Schain 4 Negotiating Third-Country National Rights in the European Union Emek M. Uçarer 5 Migrant Women: Negotiating Rights and Recognition in the Political and Legal Framework of the European Union Helen Schwenken 6 New Muslim Pluralism and Secular Democracy in Turkey and the EU Murat Somer and Gönül Tol

39

59

77

95

vi

CONTENTS

Part 3 Sexual Minorities and Gender 7 Return to (Illiberal) Diversity? Resisting Gay Rights in Poland and Latvia Conor O’Dwyer and Katrina Z. S. Schwartz

115

8 Diversity Before the European Court of Justice: The Case of Lesbian, Gay, Bisexual, and Transgender Rights Gabriel N. Toggenburg

135

9 Intersectionality, Inequality, And EU Law R. Amy Elman 10 Intersectional Discrimination: Difficulties in the Implementation of a European Norm Snjezana Vasiljevi´c

155

169

Part 4 National and Cultural Minorities 11 Let Freedom Reign: The Impress of EU Integration on Minority Survival Colin H. Williams 12 European Integration and Ethnic Mobilization in Newly Admitted Countries: The Case of the Hungarian Minority in Romania Lavinia Bucsa 13 European Norms, Local Interpretations: Minority Rights Issues and Related Discourses in Lithuania after EU Expansion Dovil˙e Budryt˙e and Vilana Pilinkait˙e-Sotiroviˇc

185

205

221

Part 5 Conclusion 14 Theorizing Diversity in the European Union Markus Thiel and Elisabeth Prügl

237

Bibliography

249

Index

285

List of Tables and Figures

Tables 3.1 Educational Attainment of Immigrant Populations Compared with Native Born, 2004

52

3.2 Political Integration of Immigrant Populations, 2004

53

3.3 Attitudes toward Immigrants and Muslims

54

3.4 Muslims in Europe: Attitudes toward Identity, Fellow Citizens, and Modernity

54

7.1 Support for EU Membership According to Eurobarometer Public Opinion Surveys 11.1 The Changing Nature of the Debate

122 188

Figures 7.1 Party Positions on Euroskepticism and Social Conservatism, by Country

123

7.2 Party Positions on Nationalism and Social Conservatism, by Country

127

This page intentionally left blank

Preface

This volume originated in a conference on Diversity and European Integration, held in March 2008 at Florida International University in Miami, under the auspices of the Miami-Florida European Union Center of Excellence. The motto “united in diversity” had repeatedly emerged in European Union (EU) communications since the turn of the century. In addition, 2008 was the European Year of Intercultural Dialogue, following the EU’s themed Year of Equal Opportunities for All in 2007. In this context of enhanced attention given to issues of diversity, we felt compelled to explore more deeply minority politics and politics of difference in the EU and their relationship to the EU integration process. Reflecting our theme, we invited both empirical and theoretical contributions from multiple disciplines and a variety of social science perspectives. We also sought to provide perspectives from various locations—including the European institutions and old, new, and aspiring member states—and on different groups of minorities—including migrants; Muslims; lesbian, gay, bisexual, and transgender people (LGBT); and national, cultural, and linguistic minorities. This diversity of contributions allowed us to bring together conversations that are usually conducted separately—such as the conversations over national and sexual minorities or the conversations over immigrant rights and cultural minorities. In our effort to give coherence to this volume, we found it necessary to reduce this diversity. The volume showcases the more empirically oriented presentations from the conference supplemented by papers we solicited to fill in gaps. We hope that the resulting synopsis will broaden knowledge about diversity in the EU and stimulate further research on the issue. The conference that spawned this book would not have been possible without the financial support of the European Commission and its delegation in Washington, D.C., through the Miami-Florida EU Center of Excellence. We would like to thank the center’s assistant director, Christine Caly-Sanchez, for her tremendous help in organizing the conference. We also would like to thank the presenters and the participating

x

P R E FA C E

faculty and students for their spirited discussion and for helping us refine the focus of our topic. In the process of compiling this collection, we received additional help from various quarters. We owe thanks to our contributors, who patiently responded to our requests for changes and put up with our sometimes short deadlines. We are especially grateful to Joke Swiebel, who prepared an internal aide-memoire, teaching those of us without legal training how to cite EU treaties. Thanks also to Nell Williams of the Graduate Institute of International and Development studies in Geneva who – on short notice – helped perfect our index. Finally, we would like to acknowledge the support of the Department of Politics and International Relations at Florida International University in providing us the space and resources to complete this collection. We hope that readers will find the outcome of this project as stimulating as we found our mutual collaboration in the process of writing and editing. Elisabeth Prügl and Markus Thiel

Notes on Contributors

Lavinia Bucsa is Ph.D. student in the Department of Politics and International Relations at Florida International University, Miami. She holds a master’s degree in political science from Florida Atlantic University and a bachelor’s degree in sociology from the University of Bucharest, Romania. Her research interests include ethnic conflict and politics in Central and Eastern Europe (CEE) after European Union enlargement, the linkages between Europeanization and regionalization processes in CEE, multilevel governance, and discourse analysis. Dovile Budryte is associate professor of political science at Georgia Gwinnett College. Her areas of research and teaching interests include democratization and nationalism. Her publications include articles on minority rights and democratization in the Baltic states and two books, Taming Nationalism? Political Community Building in the Post-Soviet Baltic States (2005) and Feminist Conversations: Women, Trauma and Empowerment in Post-Authoritarian Societies (2009), coedited with Lisa M. Vaughn and Natalya T. Riegg. R. Amy Elman is professor of political science at Kalamazoo College. She has published on the response of states and the European Union to issues of citizenship, migration, sex discrimination, and violence against women. Her most recent book is entitled Sexual Equality in an Integrated Europe (2007). She is currently conducting research into the response of the European Union to the recent rise of anti-Semitism throughout Europe. Conor O’Dwyer is assistant professor of political science and European studies at the University of Florida. His research centers on the development of states and political party systems after communism. It also grapples with the questions of to what extent and in what ways European Union enlargement is reshaping domestic politics in postcommunist

xii

NOTES ON CONTRIBUTORS

Europe. As case studies of the latter, he has been researching both the protection of minority rights and the recent wave of flat-tax economic reforms in Eastern Europe. Vilana Pilinkaite-Sotirovic is lecturer at European Humanities University and project coordinator at the Center for Equality Advancement, Vilnius, Lithuania. Her research interests include human rights, gender equality, and nondiscrimination policies in the European Union. In 2007-9 she was research fellow at the Center for Policy Studies, Budapest, and completed research on the issues of quality of gender and equality policies in Lithuania. In 2009 she published “Paradoxes of Gender Equality in Lithuania: Violence against Women and Equal Opportunities,” in Budryte, Vaughn, and Riegg eds. Trauma and Empowerment, and, together with her colleague Dovile Budryte, “Lithuania: Progressive Legislation without Popular Support,” in Rechel ed. Minority Rights in Central and Eastern Europe. Elisabeth Prügl is professor of politics at the Graduate Institute of International and Development Studies in Geneva and associate professor in the Department of Politics and International Relations at Florida International University in Miami. From fall 2007 to summer 2009, she was codirector of the Miami-Florida European Union Center of Excellence. In addition to numerous scholarly articles on gender and international relations, she has published The Global Construction of Gender: Home-based Work in the Political Economy of the 20th Century (1999) and coedited Gender Politics in Global Governance (1999). Her current research focuses on gender construction in European agricultural policy and gender mainstreaming. Martin A. Schain is professor of politics at New York University. He is the author of The Politics of Immigration in France, Britain, and the United States: A Comparative Study (2008); coeditor and author of Comparative Federalism: The U.S. and EU in Comparative Perspective (2006), Shadows over Europe: The Development and Impact of the Extreme Right in Europe (2002), Chirac’s Challenge: Liberalization, Europeanization and Malaise in France (1996), and The Politics of Immigration in Western Europe (1994); and editor of The Marshall Plan: Fifty Years After (2001). He has also published numerous scholarly articles on politics and immigration in Europe and the United States and the politics of the extreme right in France. Professor Schain is the founder and former director of the Center for European Studies at New York University and former chair of the

NOTES ON CONTRIBUTORS

xiii

European Union Studies Association. He is coeditor of the transatlantic scholarly journal Comparative European Politics. Katrina Schwartz is assistant professor of political science at the University of Florida. Her primary research interests are in environmental politics and political ecology, nationalism, and the comparative politics of postcommunist Eastern Europe and the former Soviet Union. She is author of Nature and National Identity after Communism (2006). Helen Schwenken is assistant professor in political science at the University of Kassel, Germany. Her main fields of interest are migration studies, gender and work, feminist theory and social movements. She serves as co-speaker of the research committee on Gender and Politics in the German Association for Political Science. She has authored Without Rights, but Not without a Voice—Political Mobilizations on Irregular Migration in the European Union (2006) among other publications. Her current research focuses on the modes of knowledge production in international labor migration policies. Murat Somer is an associate professor of international relations at Koç University in Istanbul, where he teaches courses in comparative politics and international political economy. Somer’s research on ethnic identities and conflict, public and private polarization, democratization, the Kurdish conflict, and political Islam have appeared in journals such as The Annals of the American Academy of Political and Social Science, Comparative Political Studies, The Middle East Journal, and Third World Quarterly. Joke Swiebel studied political science at the University of Amsterdam. She worked for many years as a civil servant for the Dutch government, inter alia as coordinator of international women’s affairs. From 1999 to 2004 she was member of the European Parliament for the Dutch Labour Party. There, her work included human rights and nondiscrimination, migration issues, and EU enlargement. She was also chair of the Parliamentary Intergroup for Gay and Lesbian Rights. She has written numerous papers and articles on issues such as gender equality policies, antidiscrimination legislation, and human rights (see http://www.jokeswiebel.nl). Markus Thiel is assistant professor in the Department of Politics and International Relations at Florida International University, Miami. His research interests are European Union politics, nationalism and identity (politics), political sociology, and European security. He has

xiv

NOTES ON CONTRIBUTORS

published several European Union-related articles and book chapters at the Miami-Florida European Union Center of Excellence as well as in Transatlantic Monthly, Tamkang Journal of International Affairs, and Perspectives on European Politics and Society. He is currently working on two projects, one focusing on European identity construction, the other on comparative identity politics. Gabriel N. Toggenburg, LL.M, gained his Ph.D. from the European University Institute Florence and is since 1998 working as senior researcher in the Institute for Minority Rights at the European Academy Bolzano/Bozen. Toggenburg is managing editor of the European Diversity and Autonomy Papers, www.eurac.edu/edap, and the European Yearbook on Minority Issues. He is the editor of Minority Protection and the Enlarged European Union: The Way Forward (2004). Recent publications include “Who is Managing Ethnic and Cultural Diversity within the European Condominium? The Moments of Entry, Integration and Preservation” (JCMS, Vol. 43/4, 2005); “A Remaining Share or a New Part? The Union’s Role vis-à-vis Minorities after the Enlargement Decade” (EUI Working Paper 15, 2006); and “Europe and the Integration of Integration” (Journal on Ethnopolitics and Minority Issues in Europe, Vol. 6, 2007). Gönül Tol received her B.A. degree in international relations from Middle East Technical University in Ankara and her Ph.D. in political science from Florida International University. Her dissertation, “The Rise of Islamism among Turkish Immigrants in Germany and the Netherlands,” is a comparative study of the Milli Görü¸s Movement in Germany and the Netherlands. Her research interests are Islamist movements in Europe and the Middle East, immigration, ethnic and religious conflict, and institutionalization of political Islam. She is currently a visiting scholar at the Middle East Institute in Washington, D.C. Emek M. Uçarer is associate professor of international relations at Bucknell University. Her research interests include global governance, immigration and asylum in the European Union, human trafficking and smuggling, and political mobilization of migrants in host countries. Her recent publications include “Safeguarding Asylum as a Human Right: NGOs and the European Union,” in Joachim and Locher eds. Transnational Activism in the UN and the EU (2009); “Justice and Home Affairs,” in Cini ed. European Union Politics (2007); and “Burden-Shirking, Burden-Shifting, and Burden-Sharing in the Emergent European Asylum Regime” International Politics 43 (2006).

NOTES ON CONTRIBUTORS

xv

Snjezana Vasiljevi´c is Jean Monnet Chair for European Public Law, Faculty of Law, University of Zagreb. She obtained her master’s degree at the Faculty of Law, University of Cambridge, Darwin College, and recently received her doctor of law. She was an associate of the United Nations Development Fund for Women (UNIFEM) and United Nations Development Program (UNDP) Croatia. She has been a visiting researcher at London School of Economics and Political Science, Faculty of Law; University of Liverpool; Johannes Kepler University Linz; and Columbia Law School. Her specialization is in the field of antidiscrimination law and policy in the European Union. Colin H. Williams is research professor in the School of Welsh, Cardiff University, UK, and a member of the Welsh Language Board. His main scholarly interests are sociolinguistics and language policy in multicultural societies, ethnic and minority relations, and political geography. He is the author/editor of 16 books, the most recent of which are, as editor, Language and Governance (2007) and Linguistic Minorities in Democratic Context (2008) and, as coeditor with Pertot and Priestly, Rights, Promotion and Integration Issues for Minority Languages in Europe (2009).

This page intentionally left blank

Part

1

Introduction

This page intentionally left blank

CHAPTER

1

Understanding Diversity in the European Integration Project Markus Thiel and Elisabeth Prügl

European integration efforts have long envisioned the creation of unity out of diversity. The preamble to the Treaty of Rome famously set out the determination of the signatories “to establish the foundations of an ever closer union among the European peoples.” The creation of unity has entailed the building of common policies, but increasingly also of a common culture and identity. Thus, since the end of the Cold War, moves to create a European market also have become attempts to construct a European society, and efforts toward unity have been accompanied by a new valuing of diversity. Since the 1990s, mobilizations against the ratification of various treaties have raised sensitivity among politicians toward the opinions of diverse interest groups in the European Union (EU) and have led politicians to address a perceived “democratic deficit” in European decision-making processes. In addition, the enlargement of the Union to 27 member states gave rise to unprecedented societal and political diversity and new demands for rights and recognition. But acknowledging diversity has not come easy to Europeans. The “war on terror” and the discourse on the “clash of civilizations” have framed those who wanted to enter the EU—whether as citizens of applicant states or immigrants—as security and “sociocultural” risks.1 Questions

4

MARKUS THIEL AND ELISABETH PRÜGL

about further enlargement, immigration, and the EU’s democratic deficit have generated a profound crisis in the European integration project that not only has affected the effectiveness of European institutions but also has raised larger questions of European identity and the nature of the European polity. Diversity, at the fulcrum of these debates, is ironically framed as both threatened and a threat. On the one hand, some fear that the technocratic thrust of European integration (and the role it has played in economic globalization) homogenizes national cultures and traditions. On the other hand, some fear that enlargement has brought unwanted elements into the EU and that any further enlargement, in particular the potential inclusion of Turkey, threatens the very core of European identity. Some are seeking to identify Europe on the basis of a Christian heritage that needs to be defended against political Islam and are marginalizing Muslim citizens, thus redefining groups of immigrants as essentially un-European. Others are rejecting such exclusionary impulses and define Europeanness around values of human rights. They run up against fears of diversity evident not only in xenophobia but also in bigotry against lesbian, gay, bisexual, and transgender (LGBT) individuals and other social minorities such as the Roma. In the context of these debates, the EU itself has clearly embraced diversity as a value. Initially, this valuing focused on the preservation of national cultures. In 1973 a European Council summit in Copenhagen first broached the issue and adopted a Declaration of European Identity, which specified as its main ingredients the rule of law, social justice, and human rights, while emphasizing in addition the desire to protect national diversity among member states.2 Such language has since reemerged with regularity, culminating in the EU constitutional treaty’s motto, “united in diversity.” While the common term employed in these efforts is diversity, the meaning of diversity in EU discourse has changed over time in conjunction with increasing freedom of movement and EU enlargement. Enlargement brought into view subnational minorities, such as the Hungarians in Romania and Slovakia and the Russians in the Baltic states, raising the issue of the protection of minority cultures and languages. The claims for recognition of these minorities met and helped strengthen those of groups in Western Europe, including Catalans and the Welsh, who have long fought to preserve their distinctive cultures and languages. Diversity discourse has also begun to encompass questions of individual rights, linking up to the EU’s stated commitment to human rights and to its tradition of fighting discrimination based on gender. EU directives now prohibit discrimination on the basis of racial or ethnic origin, religion

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

5

or belief, disability, age, or sexual orientation, in this way marking “a new stage in the process of creating an ever closer union among the peoples of Europe.”3 While diversity has become a pressing topic in political practice, in the literature on the EU the issue is under-analyzed and theoretically underdeveloped. Research has been conducted on the impact of European institutional and national diversity on the decision-making processes in Brussels,4 but there has been a dearth of investigation of the different ways that minorities have used identity politics as rights attainment strategy within the ever-changing conditions of European integration and the politicization of a European polity.5 Our departure from institutionheavy analyses stems from the realization that the debate over demos and legitimacy increasingly has moved to the forefront of public discourses and political-legal interpretations within the Union, brought about by economic globalization, immigration pressures (from in- and outside the Union), contested enlargement perspectives, and, finally, the Union’s legislative and regulatory action itself. With this book we seek to broaden the understanding of diversity and European integration beyond institutional approaches by introducing views from law and geography in addition to those from political science and international relations. Our contributors utilize the concepts of identity, activism, and citizenship highlighted below in order to provide a complex understanding of the relationships between diversity and the European integration project. We add to a growing literature on European integration that brings into view the social dimension of integration.6 Thus, we conceptualize the European project not simply as a political one but as one that changes what it means to be European, changes how diverse groups and individuals appeal to new European institutions, and changes how rights and obligations are being defined through European politics. The Status of Diversity in the European Union Diversity is a contested concept whose meaning is established in concrete situations and in actual struggles in the context of integration. In this book we focus on three political fields where contestations over diversity and European integration are particularly virulent. The first such area centers on migration, both from poorer to richer member states and from countries outside the Union into the Union. The second field involves questions of the regulation of gender and sexuality and focuses on LGBT people. Both migrants and LGBT people are benefiting from the expansion of EU rules of nondiscrimination. The third field involves

6

MARKUS THIEL AND ELISABETH PRÜGL

subnational minorities that have asserted themselves in parallel with the formulation of group rights in the EU during the Eastern enlargement, and who are benefiting from the EU’s regional policies. We review each of these subjects of contestation in turn.

Migrants

Migration into the EU has a long history, but formulating common policies on migration has been a difficult process with governments loath to cede authority on the matter. Accordingly, very different citizenship regimes continue to exist in the EU, with former colonial powers typically more open to immigration than other states. While less than 4 percent of the EU population consisted of third-country nationals in 2006, the number of foreign-born citizens is higher in countries such as France, the UK, the Netherlands, and Sweden, where many third-country nationals have acquired citizenship. In 2006, most registered migrants into the EU came from Turkey (2.3 million), Morocco (1.7 million), Albania (0.8 million), and Algeria (0.6 million)—all Muslim-majority countries.7 Policy debates have focused on the integration of migrants who are often ethnically different and increasingly defined by their religion. Because most immigrants into the EU are Muslims, there has been an progressive conflation of immigration with Islamization, raising questions about the identity of Europe. The EU’s nondiscrimination directives provide legal rights to those EU citizens who are racially, ethnically, or religiously “different,” often placed in a minority position because of their history of migration. But the EU has few instruments for securing the rights of noncitizen, third-country migrants;8 member states retain primary competence on the matter. Despite very different policies toward the integration of migrants, and despite difficulties in creating a common policy, there seems to have been some de facto convergence toward a European approach that combines multiculturalism with a requirement that migrants assimilate to some extent.9 Like national minorities or LGBT communities, the Muslim constituency can be classified as a new interest group that has only recently begun to take on the challenge of equitable selfrepresentation in European member states.10 Foreign-born citizens and their descendants have organized and connected in European networks interacting with the EU (such as the European Network against Racism) to fight racism, xenophobia, and “Islamophobia.” Migrant struggles have brought to the fore intersecting identities of gender, race, ethnicity, and religion.11

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

7

LGBT and Gender

Discrimination on the basis of sexual orientation and gender is deeply rooted in European societies but attitudes vary considerably across member states. For example, according to a Eurobarometer survey in 2006, most people in the Netherlands, Sweden, and Denmark (from 82 to 69 percent) favored same-sex marriage while only a small minority did so in Romania, Latvia, and Cyprus (from 11 to 14 percent). In addition, in the Netherlands 91 percent were comfortable with having a homosexual as a neighbor as opposed to only 36 percent in Romania.12 Discrimination is evident (though rarely documented) in the labor market, education, the media, and health services and shows itself in the form of hate crimes and hate speech. Where gays, lesbians, and bisexuals have had some voice and visibility in postwar Western Europe, transgender people (i.e., those who have a gender identity that differs from that assigned at birth) are gaining recognition only recently. Both at national and European levels, a widening network of activists are challenging prejudice and discrimination. Their demands for equal treatment and nondiscrimination have yielded sometimes violent reactions from societal groups who consider heterosexuality and binary gender roles as ordained by God and nature. Attacks have been particularly virulent in new member states.13 In some countries, administrations have obstructed Pride Parades and similar events, infringing the right of LBGT people to freedom of assembly. But in some Western member states, politicians, rights agencies, and even churches have supported such events.14 The EU’s Framework Directive of 2000 covers a range of grounds for discrimination, including sexual orientation, but is less comprehensive than the Race Directive, implicitly establishing a hierarchy among discrimination grounds. A legal analysis by the EU’s Fundamental Rights Agency15 suggests that this may not be compatible with international human rights law. At the time of writing, a new comprehensive antidiscrimination bill is moving through the EU institutions, which seeks to extend the provisions of the Race Directive to all grounds of discrimination.

National and Cultural Minorities

National and cultural minorities became an issue in EU politics with Eastern enlargement. As Will Kymlicka points out, the EU showed little interest in the rights of such minorities prior to 1989.16 The violent ethnic conflicts in the Balkans and in the former Soviet Union after the

8

MARKUS THIEL AND ELISABETH PRÜGL

end of the Cold War suggested that dealing with minority rights was a crucial security issue for the enlarging EU. The EU’s Copenhagen Summit in 1993 listed guaranteeing the rights of minorities as a precondition for accession to the EU. But minority rights were never codified further in the EU. Instead, the EU relied on the Council of Europe’s Framework Convention for the Protection of National Minorities of 1995 as a standard, including state report mechanisms and complaint procedures. In addition, it regularly consulted the OSCE’s High Commissioner on National Minorities to assess minority rights in the applicant states. But the EU has established itself as a forum in which the rights of cultural minorities are enabled a hearing, and national minorities from the old member states are now using it as well to voice their demands for recognition.17 Cultural minorities throughout the EU are organizing in advocacy networks that allow them leverage against resistant majority governments. Their demands run the gamut from language preservation and educational autonomy to political representation and territorial autonomy. Sometimes, as in the case of the Hungarians in Romania, they are supported in these efforts by their external kin states.18 The framing of the rights of cultural minorities as group rights has given rise to debates about their compatibility with the rights of individuals not to be discriminated against. In sum, contestations over diversity vary according to the political fields in which they are embedded and, as such, they have yielded different outcomes. National “old minorities” have been able to claim group rights and achieved the inclusion in the Charter of Fundamental Rights of an explicit reference to “the protection of religious, cultural and linguistic diversity.”19 But there has been a tendency in recent years to subsume group rights under individual rights of nondiscrimination.20 “New minorities,” including migrants and LGBT people, have been able to secure rights of nondiscrimination at the European level, but no positive rights of (social and legal) protection. The distinction between nondiscrimination and active protection is fundamental, as the former requires simply abstaining from certain practices whereas the latter requires affirmative action steps to advance the situation of such groups. The EU has fostered positive action with regard to gender equality, but there are no comparable policies with regard to migrants or LGBTs. The engagement of the EU with diversity based on culture, race, ethnicity, religion, and sexual orientation clearly is not a story of linear progress but of contestation that inserts the EU in highly contentious debates that have activated political interests throughout European societies.

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

9

Multilevel Politics and Activism, Identity, and Citizenship: Three Conceptual Lenses Theories of European integration look at the emerging European polity from the point of view of unity. They ask, how is this unity furthered? Questions of diversity within this unity accordingly are marginal. In seeking to understand diversity in European integration, we find it useful to draw on theories of governance, in particular those that are informed by sociological perspectives. In the following we elaborate on three theoretical approaches that we have found particularly useful to understanding the way in which diversity relates to EU politics. The first approach probes contestations over diversity as politics in a system of multilevel governance, including social activism targeting the EU, and focuses on the political engagements of civil society organizations, networks, and social movements with European states and EU institutions. It explores how minority populations articulate their interests in the multilevel European polity and how such politics shape the opportunities of these populations. The second approach conceptualizes contestations over diversity as an aspect of European identity construction. It attempts to discern what meaning of Europe and European unity is being produced by such contestations. The third approach looks at diversity through the conceptual lens of citizenship. It asks what legal entitlements EU citizens should have, and how EU citizens ought to be enabled to actively participate in political debates and decision making. We elaborate on each of these approaches in turn.

Multilevel Politics and Activism

According to Vivien Schmidt, the reality in Europe “has been one of a progressive development of associations, unions, and social movements creating a significant space for society in the policy process.”21 Social movements, interest groups, and other nongovernmental actors constituting civil society have become vocal elements of policy making in the EU, addressing their demands not only to the national, but increasingly to the transnational level of governance. While traditional movements such as the labor movement have found it hard to move away from their state-centric mobilization focus, newer (post-materialist) movements and those that fall into the competences of the Union (e.g., regional movements) have been more successful in making claims to the EU.22 In their groundbreaking work, Doug Imig and Sidney Tarrow sketch the activities of these protagonists, from the domesticated nature of issue framing to the utilization of multilevel strategic lobbying at the various levels of

10

MARKUS THIEL AND ELISABETH PRÜGL

government, in dispersed EU institutions, and in public fora.23 They note that most European protest movements directly target the EU institutions without the backing of mass national organizations. If that is the case, the overall quality of bottom-up involvement in European integration is rather thinly legitimized but nevertheless constitutes a strategic response to the challenges of European integration of a plurality of societal sectors—something that transnational European parties have found difficult to achieve. The European women’s movement was one of the first to see the EU as an arena for political claims making in the 1970s24 and has since skillfully operated between Brussels and national capitals to advance gender equality. Like the feminist movement, LGBT groups rally around a common European standard of nondiscrimination and recognition. Brussels has responded by legislating individual rights rather than the provision of common legislative standards for same-sex couples or transgendered people.25 Pro-migrant NGOs attempt to counter xenophobia and work toward antidiscriminatory EU legislation for non-EU citizens.26 While they have seen limited success so far, one could argue that their progress is more determined by market considerations than genuine human rights considerations in that the regulation of migratory flows is contingent upon the need for foreign labor. While the literature frequently has portrayed noneconomic social movements and advocacy networks as advancing norms of equality, nondiscrimination, and inclusion in the context of a liberal transnational culture, analysts of collective action in Europe are less idealistic about the altruistic goals of these actors. Many have come to “reject the naïve analysis (and self-representation) of the worlds of media, law or NGOs, as a ‘mirror’ of society, the embodiment of ‘universal’ norms or the selfless advocates of ‘civil society’, respectively. Rather, each is read as political sites of contestation.”27 New conservative movements challenging the diverse configuration of the European polity are emerging; indeed, the social and cultural minorities focused on in this volume sometimes pursue particularistic goals that may not resonate with liberal norms of equality and nondiscrimination. In addition, minority-rights civil society actors have difficulties gaining leverage against powerful business interest groups. Some social movements and interest groups do not so much agitate in Brussels than utilize the legal provisions, normative standards, and funding opportunities provided by the Union to further their goals at the national level. In the multiethnic Central and Eastern European EU member states in particular, ethnic parties led by cultural minority leaders have advanced the claims of their kin or, at a minimum, acted

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

11

as legislative protectors vis-à-vis a majority government.28 But whereas domestic parties reflect certain socioeconomic cleavages, the overall representative strength of parties for social and cultural minorities is fairly weak, and European minorities continue to organize as social movements.29 They see the EU as an added platform for recognition and support, which sometimes helps them sideline national governments. They utilize transnational policy networks to advise EU policy-making bodies, which in turn rely on these epistemic communities as a source of insight and legitimacy.30 Many of the actions of civil society today are directed at the establishment or restitution of participatory rights in the EU, responding to processes of Europeanization, the pervasive impacts of European institutions and policy making on domestic societal and political conditions. Social movements and interest groups challenge top-down Europeanization through bottom-up strategic mobilization.31 Civil society actors have begun to press for more involvement in legislative considerations and transparency of decision making by the EU institutions and have thus opened the door for more participation in the EU. Scholars have described “advocacy coalitions” and “velvet triangles” of politicians, experts, and movement actors who have come together to lobby for language on gender equality. They have described EU institutions, particularly the parliament, the advisory committees (Economic and Social Committee, Committee of the Regions), and some functional agencies, as a political opportunity structure for activist claims making and explored the effectiveness of policy frames and strategies.32 And they have traced the combination of strategies at national and EU levels, describing boomerang and “ping-pong” effects in advocacy efforts in addition to “pincer movements” that have caught governments between pressures from the EC and the European Court of Justice (ECJ) on the one hand and national courts and local feminists on the other.33 In cooperation with outside actors such as academics or civil society and interest groups, European institutions are thus able to exploit the limited embeddedness of the Union in traditional patriarchal, nationalist, and xenophobic practices.34 Identity and Difference

The concept of identity has a long history in sociology, where it has provided an understanding of the way in which individuals become social actors, the way in which they integrate sets of roles offered by society in order to construct unique selves. The concept saw a revival with the emergence of cultural studies, including women’s studies and ethnic and

12

MARKUS THIEL AND ELISABETH PRÜGL

race studies. The central question pursued here was to understand constructions of difference and its identity effects. Thus, what it means to be a man (rational, strong, protective) emerges as an effect of constructing feminine difference—as emotional, weak, and in need to protection. What it means to be white emerges as an effect of constructing a colored difference. Identity was understood to be an effect of discursive practices. This formulation made it possible to dissociate identity from individuals and conceptualize organizations and nations as engaged in identity construction as well. In European studies, Iver B. Neumann has perhaps most closely followed this line of argument, suggesting that discourses of “the Other” in the East (Turkey, Russia, Northern and Central Europe) have played a central role in the construction of a European self.35 Other researchers have found elements of European identity formation not only in its boundary productions, but also in discourses of internal solidarity and participation.36 In general the literature on European identity development proposes that a transformation of identities in the EU is occurring as a result of various factors: differentiation and ascription from outside, below, and above (e.g., how Europeans see themselves and how they distinguish other “EU” Europeans); internal homogenization (e.g., the convergence of standard of living, of law, or of culture); and inclusion (e.g., of the societal peripheries into the center).37 These approaches are promising for an understanding of diversity in a context where the Other has become part of Europe, not only through enlargement but through the influx of migrants, and where ideas of solidarity and participation are being tested at the shoals of heterosexism, racism, and Islamophobia. Politics of European integration then entail contestations of the extent to which religious and cultural diversity, and diversity based on sexual orientation, threaten a European self. They also involve disputes over how much difference is acceptable in the name of diversity. For example, to what extent should political Islam, sexual practices constructed as abject, and illegal migration be allowed into a project of diversity? Does enabling diverse populations to participate in the European project and showing solidarity with diverse populations need the taming of difference? A focus on the politics of identity sheds light on the contentious and contradictory politics of power and empowerment. Issues of identity and difference have become visible most extensively in the area of European gender equality policy, and there may be lessons that can be learned from approaches developed in studying this policy. One such lesson pertains to the operations of power when difference becomes normalized and movement discourse co-opted by European state actors. For example, under the guise of gender mainstreaming the EU has turned feminist critiques of the gender division of labor in the household

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

13

into a policy of “reconciling work and family,” which has been used to justify a flexibilization of European labor markets, undermining the emancipatory intent of the original critique.38 Another lesson pertains to the recognition of the complexities of “intersectionality,” that is, the fact that those identified as different often are defined by more than one signifier of difference. Intersectionality may open up diverse venues for making claims toward the EU, but it also often leads to exclusions. For example, migrant women may be marginalized both in migrant organizations and in feminist organizations. Theorists of intersectionality also warn of a potential pitfall in discourses of diversity: the assumption that categories of difference are similar and that discrimination arising from them can be dealt with the same way. But categories of difference operate differently according to the range of positions possible (i.e., gender is dichotomous, race and ethnicity are multiple), whether difference is considered natural or social, whether practices of inequality are located in the public sphere or also in the organization of intimacy, whether they are produced through material processes or mostly discursively, and what European self they enable.39 These positions produce different patterns of subordination and discrimination that may require different types of intervention. Accordingly, the creation of unity in diversity demands sensitivity to diverse locations on the part of the EU and an alertness to mechanisms of silencing, co-optation, and normalization on the part of those valuing difference.40

Citizenship

The last conceptual approach to understanding diversity in the EU is closely connected to the two previous ones. On the one hand, specific entitlements provided through EU citizenship such as free movement and legal protection shape the identities of citizens of the member states and of residents/denizens who do not have these privileges and as a result often feel that they are outsiders and discriminated against. On the other hand, active and participatory citizenship is an expressed objective of EU politicians; better-informed citizens may be more active in civil society but also more likely to support the aims of the Union. Here again, migrants and refugees and their (NGO) representatives feel challenged to improve the lot of noncitizens through movement activism and the creation of political networks. Accordingly, European citizenship ought to be probed in terms of both access and process.41 The EU has designed European citizenship as complementary to and a priori based on national citizenship, even though policy makers have also

14

MARKUS THIEL AND ELISABETH PRÜGL

conceived it as an instrument to build European identity.42 Much of the discussion about citizenship has focused on the new rights that integration has afforded Europeans. In addition to market-related rights of movement and economic participation, these increasingly have been defined to encompass fundamental rights and protections as well. The expansion of these rights, including those focusing on minority protection, has been the topic of an extensive body of legal scholarship.43 Jürgen Habermas has suggested that the extension of citizenship from the traditional, nation centric to a European model should entail the creation of a constitutional patriotism based on contractual obligations of citizens toward a diverse European polity.44 According to this approach, discursive practices in public spheres enable participatory modes of citizenship. Habermas’s ideas, together with the contributions of political theorists advocating a similar form of transnational or supranational citizenship,45 informed the project of writing a European constitution. They largely remained confined to academic and elite circles and lost political influence after European voters rejected the constitution that could have paved the way for a redefinition of citizenship in the European integration context. But theorists criticized these conceptualizations as well for assuming a unitary citizen identity, evoking a transnational, potentially exclusive, European nationalism.46 Others have proposed the adoption of nonexclusionary citizenship patterns in view of processes of globalization.47 A specifically multicultural perspective on citizenship aimed at the inclusion of Muslim migrants views the questions of citizenship as related to integration as well as to immigration.48 The latter model, while challenging the nation-based citizenship configuration of the EU, continues to unite aspects of both judiciability and participation as outlined in current citizenship literatures. Historically, citizenship as a supranational form of belonging in the EU derived primarily from rights associated with the free movement of labor and was only later expanded to include educational, participatory elements to advance popular support for ongoing regional integration. The increasing convergence occurring through the legislative harmonization of civil and social rights for citizens within the Union causes the development of a more diverse society made up of various ethnic, cultural, and social groups of citizens and noncitizens. As these groups claim their rights for recognition and nondiscrimination, they add to the already tense public discourses about European integration. In this book, authors address issues of national and European citizenship as they delineate struggles over who is part of a political community: notions of citizenship determine degrees of inclusion or exclusion.49

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

15

Notions of citizenship also define rights though these rights may be contested.50 The evolution of an inclusive European citizenship alongside the constitutionalization of the European polity, which provides for participatory momentum and justifiable rights, are topical issues in current academic discourse as well as in the political arena. The theoretical approaches introduced aid in conceptualizing the politics and structuring of diversity practices in the EU. They propose three facets for understanding these practices: the activism expressed by social movements, NGOs, and civil society actors who co-constitute the changing European polity; the identities of individuals, groups, and the EU, which are renegotiated under the impact of continued harmonization and enlargement; and European citizenship, which, as a legal and social instrument, provides entitlements with different repercussions based upon the minority that one is identified with.

Review of Chapters The book is divided into four parts. The first includes, in addition to the editors’ introduction of issues and literature, an overview of the range of actions the EU has taken to safeguard diversity in the Union; it is written by Joke Swiebel, a former member of the European Parliament and longtime activist on issues of nondiscrimination. Swiebel discusses the shift in EU policies from a focus on cultural diversity to a focus on nondiscrimination in conjunction with the broadening of the grounds for protection and assesses the prospects of the nondiscrimination approach in view of experiences with the EU’s long-established gender equality policy. The following three parts address three groups of minorities and issues associated with their status: migrants and Muslims, the LGBT community and intersecting discrimination based on gender, and finally national and cultural minorities. In the second section, the book explores the status of third-country migrants, in particular Muslims. Martin Schain sets the stage for this section, reminding us of the very different approaches EU member states have taken to integrating migrants. He provides data on France and Britain to illustrate Republican and multiculturalist models of integration and probes the different outcomes they have produced. While emphasizing difference, he argues that there has been a convergence of European policies toward migrants that amount to a fusion of the two models. Emek Uçarer follows by tracking the ascent of third-country national integration in EU policy discourses. She identifies key actors pushing for the mainstreaming of this portfolio and reviews and assesses

16

MARKUS THIEL AND ELISABETH PRÜGL

the policy output to date. Comparing the Race Directive to the LongTerm Residents Directive and the Family Unification Directive, she shows that the first provided significant new rights for third-country nationals while the others are watered down and provide only modest rights and protections. While Schain and Uçarer focus on the activism and policy making, the following two papers problematize the unitary construction of migrants, highlighting their intersecting identities and the malleability of these identities. Helen Schwenken explores the representation of migrant women in EU policy making, finding them in both migrants’ and feminist organizations. She surveys three different EU approaches to addressing the problems of women migrants—gender mainstreaming, managing diversity, and antidiscrimination legislation—assessing the benefits and pitfalls of each approach from the intersectional perspective of women migrants. Despite difficulties with implementation, she finds most promise in gender mainstreaming and is particularly critical of legal antidiscrimination approaches that treat grounds of discrimination in an additive fashion. Taking a very different approach, Murat Somer and Gönül Tol seek to destabilize the rigid opposition between Muslims and Europeans by addressing the related oppositions between secularism and Islam, democracy and religion. Suggesting that the questions of Turkish immigrant integration in EU member countries, democracy in Turkey, and Turkey’s EU membership are interrelated, they first review Turkey’s relative success in integrating political Islam into its secular democracy. They then describe the very different experiences of Germany and the Netherlands in dealing with political Islam, resulting in the radicalization of Islamists in Germany and their integration into the polity in the Netherlands. The chapter finally develops an alternative approach to the opposition between Europe and Islam by recasting the terms of the debate over the relationship between secular democracy and religion in light of both Turkish and European experiences. Part 3 of the book addresses another constellation of intersecting identities, especially those based on gender and sexual orientation. While women have gained considerable protection against discrimination and have benefited from affirmative action, LGBT people in Europe have not benefited from comparable measures. Their status has emerged as particularly precarious in the new member states. Katrina Schwartz and Conor O’Dwyer ask if norms of conditionality in EU enlargement had an impact on tolerance vis-à-vis LGBT communities in Latvia and Poland. They do not find a strong effect resulting from the diffusion of EU norms or a backlash against them. Instead, they argue that extremist homophobia can assert itself on the national political stage because of weakly

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

17

institutionalized party systems and because of exclusionary constructions of national identity. The following three chapters explore the effectiveness of EU and national law in combating LGBT and intersectional discrimination. Gabriel Toggenburg explores how LGBT rights have been framed by the ECJ and what this means for the diverse interpretation of the family concept among member state governments. He reviews four major cases detailing the legal repercussions for LGBT people in the Union and previews the increasingly difficult balancing act between expanding ECJ jurisdiction in the field and countervailing national legal standards. Amy Elman explores the limits of gender equality legislation for lesbians. Her review of legal cases before the ECJ involving gay and lesbian couples illustrates that gender equality legislation does not protect gays and lesbians. While making a strong argument for considering intersectionality in legal practice, Elman cautions against treating multiple discriminations in an additive fashion and against establishing hierarchies of discrimination. Snjezana Vasiljevic explores a different set of intersections—those involving race and gender—in two contrasting cases: the UK and the EU candidate country Croatia. She suggests that there are discernible differences in the application of EU nondiscrimination legislation and concludes with recommendations aimed at improving the effectiveness of such legislation in the context of EU enlargements. The fourth part of the book explores the status of cultural and national minorities. Politics of cultural minorities differ considerably. The goals of some are locally focused and sometimes exclusionary and chauvinistic. Others strive for a civic nationalism that retains cultural identities and languages and sees itself as part of a European citizenry. Colin Williams describes efforts to combine the preservation of minority languages and cultures through inclusionary politics. He surveys the activism of existing EU networks, provides an overview of the changing discourse on the issue, and evaluates successes and failures from the perspective of practices on the ground in the field of health, focusing in particular on experiences in Catalonia. He considers the recognition of regional minority languages and cultures a key element of a deliberative democracy that has, however, not yet been realized in the EU. Looking to the East, EU membership and requirements for minority protection have empowered the Hungarian minority in Romania. Lavinia Bucsa argues that for this minority the EU’s legal and political framework constituted an opportunity structure and provided a discursive frame that allowed it to formulate demands for territorial autonomy. Similarly, in the context of EU pressure, Lithuania has enacted strong minority legislation, but the relationship between the ethnic majority

18

MARKUS THIEL AND ELISABETH PRÜGL

and the Russian, Polish, and Roma minorities is highly volatile. Dovile Budryte and Vilana Pilinkaite-Sotirovic show that European expectations about nondiscrimination and minority rights have affected social and political practices in Lithuania, but that there are multiple sources of domestic resistance. Interestingly, sexual minorities have become a target of national antagonism in this context as well. In the conclusion the editors revisit findings from the papers from the perspective of the three approaches specified: politics and activism in the multilevel polity, identity politics, and citizenship studies. We identify commonalities and differences and develop questions that arise from the studies of our contributors. We conclude by suggesting a sociologically informed program for future research.

Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

Taras 2008. Kraus 2008, 43. Council Directive 2000/43/EC, 22; see also Chapter 2. Heritier 1999; Checkel 2007. Wiener 2006. Checkel and Katzenstein 2009. Commission of the European Communities 2007, 3. Chapter 4. Chapter 3. Klausen 2007. Chapter 5. European Union Agency for Fundamental Rights 2009, 6. Chapter 7. European Union Agency for Fundamental Rights 2009, 7. European Union Agency for Fundamental Rights 2009, 5. Kymlicka 2006. Chapter 11; and McAdam 1996. For example, Chapter 12. Charter of Fundamental Rights of the European Union 2007, Article 22. Kymlicka 2006. Schmidt 2006, 32. Marks and McAdam 1996. Imig and Tarrow 2001. Hoskyns 1996. Chapter 9. Koopmans 2005; Geddes 2000. Favell 2006, 127. Chapter 12. Verloo 2006.

UN D E R S TA N D I N G DI V E R S I T Y I N T H E EU R O P E A N UN I O N

30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

Chapter 11. Imig and Tarrow 2001; Greenwood 2007; Della Porta 2007. Mazey 1998; Woodward 2003; Locher 2005; Helfferich and Kolb 2001. van der Vleuten 2007; Sifft 2003; Zippel 2004. Della Porta 2007; Bugdahn 2008. Neumann 1999. For example, Delanty 1995; Guerrina 2002. Herrmann et al. 2004; Risse and Maier 2003. Stratigaki 2004. Verloo 2006. Prügl 2010. Maas 2007, 109. Wiener 1998. For an overview see Toggenburg 2009. Habermas 2001. Balibar 2003. Karolewski 2006. Delanty 2000. Modood 2006. Chapters 13 and 5. Chapters 9 and 10.

19

This page intentionally left blank

CHAPTER

2

The European Union’s Policies to Safeguard and Promote Diversity Joke Swiebel

The European Union (EU)1 often declares itself a champion of diversity. It may be asked what is actually meant by this concept and which policies the EU is pursuing to live up to this promise. Is it only rhetoric, driven by considerations of political convenience, or are real measures being taken? And do they make a difference? This chapter proceeds as follows. The first section analyzes how the diversity of the member states themselves is safeguarded by the very structure and functioning of the Union. The second section looks into diversity within the member states and describes how minority policies became part of the EU’s political agenda. Section three analyzes the change in the EU’s minority discourse from group-based rights to individual rights. Multiculturalism has given way to integration; nondiscrimination is laid down in new legislation and is being mainstreamed into various EU policy areas. Section four contains a short remark on the EU’s sex equality policy and its relation to diversity. The last section contains a conclusion and suggestions for further research.

22

JOKE SWIEBEL

Diversity Among Member States In the context of EU politics and policies the diversity concept refers in the first place to the diversity of the national cultures of the member states. Remarkably, for this purpose these cultures are implicitly assumed to be homogenous. This can be seen in Article 6.3 of the Treaty on European Union (TEU): “The Union shall respect the national identities of its member states.” Lawyers understand this provision as a legal guarantee of the sovereignty of the member states. The member states remain “the masters of the treaties”; they stay in control of the limits of the integration process. The wish to safeguard the diversity of the member states does not only refer to their cultural identities, but is also about power politics: the member states are supposed to keep each other in equilibrium. Many observers have said that the EU is an international organization sui generis. It is neither a purely intergovernmental international organization, nor a political federation—let alone a federal state, but something in between. The national identity of the member states is protected by some elements in the EU’s legal structure and political machinery. I mention here the most important ones. • The principle of conferral (or competence attribution). The EU can only exercise those competences explicitly conferred upon it by the member states. These competences are (to be) enumerated in the treaties.2 • Revision of the Treaties demands the agreement of all member states.3 • The Council of the European Union, that is, the member states, still has the most important say in the political life of the Union. This element has been strengthened in the Treaty of Lisbon, inter alia by adding the right of the member states that wish to do so to leave the Union and by giving the national parliaments an independent role in the EU decision-making processes.4 • Within the Council, the voting procedures prevent a permanent alliance of strong member states against weaker ones.5 • The political machinery of the EU is multicentered, complex, and fragmented; this gives opportunities to many political entrepreneurs inside and outside the system and prevents domination from above by one single authority.6 • The principle of mutual recognition of technical standards for goods and services, instead of harmonization from above.7

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

23

• The languages regime: all official documents are translated into all recognized national languages and so is every intervention in the formal sessions of the Council and the European Parliament.8 In conclusion, the EU “is struggling to find a balance between the whole and the parts, between unity and diversity, coordination and autonomy.”9 Diversity Within Member States Diversity within the member states refers in the first place to the position of national, ethnic, or cultural minorities. The EU has no legal competence regarding the minority policies of the member states. An overall EU policy of how member states should deal with internal minorities and how they should manage cultural diversity within their territories is lacking. Such an EU policy with respect to diversity within the member states would run counter to the wish to preserve the diversity between them, insofar as they have different ideas and practices with respect to this issue. Managing diversity in both senses at the same time seems like trying to square a circle.10 Nevertheless, in the early 1990s the EU decided to demand decent minority policies from the countries in Central and Eastern Europe that had applied for EU membership. In 1993 the Copenhagen European Council decided that the accession states should have “achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.”11 The EU feared a “risk import”; ethnic and social tensions in the accession states might undermine the security and stability of the EU after enlargement. The EU lacked a clear set of norms and standards stating what this respect for and protection of minorities would entail. The international minority law existing at that time rested on Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which states, In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

This provision guarantees minority rights only in a general and negative sense. The obligations of the states parties to the Covenant are not clear at first sight. The EU monitoring process of minority policies in the accession states therefore leaned heavily on standards that were

24

JOKE SWIEBEL

being developed by the Council of Europe (CoE). The CoE adopted the Framework Convention for the Protection of National Minorities in 1995; it entered into force in 1998. The Framework Convention contains a systemized catalogue of rights and is far more concrete in specifying the obligations of the states parties. Ratification and implementation of this Framework Convention became the main condition to be met for the fulfillment of the Copenhagen criteria with regard to the protection of minorities. Recommendations from the Organization for Security and Co-operation in Europe (OSCE) and interventions by the OSCE High Commissioner on National Minorities also played a role.12 Working through these three international organizations—the EU, the CoE, and the OSCE—the governments of Western European countries developed a system of “diversity governance” for the countries in Central and Eastern Europe.13 But this diversity governance lacked a firm foundation in EU law. Moreover, the policies in the old member states ranged “from elaborate constitutional and legal means for minority protection and political participation to constitutional unitarism and outright denial that national minorities exist.”14 These policies of the old member states were not included in this monitoring exercise. This is the notorious double standard, which many observers have noted.15 The accession process brought considerable legal and institutional changes in the acceding states. But whether this resulted in effective minority protection depended largely on the domestic political agenda.16 Governments of the candidate states thought “more in terms of closing chapters, not solving problems.”17 In many cases the political will to deliver more than lip service was lacking. This seemed to hold for the EU institutions too. The Commission actually applied two different standards. Regarding the position of the Russian-speaking minorities in Estonia and Latvia, the Commission turned a blind eye to the policy of exclusion pursued by the governments of these countries, while in other candidate countries with substantial minority problems, such as Slovakia, Bulgaria, and Romania, “the Commission is clearly ‘on the side of the minorities.’ ”18 The process of Eastern enlargement of the EU has raised awareness about the situation of minorities and the issue of diversity in Europe. But the policy of conditionality had—and still has—serious flaws that hamper its political potential. The credibility of the exercise was undermined because substantive common EU standards were lacking, contradictory approaches were pursued for different applicant countries, and the old member states themselves still adhere to different views on minority policies.

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

25

This was no different with respect to the other elements of the Copenhagen criteria. Dimitry Kochenov has spelled out how the demands of democracy and the rule of law were lacking clear benchmarks, how the Commission presented poorly researched progress reports that were not actually used to determine progress, how opposing demands were made to different countries, et cetera. He concludes that conditionality was “a resounding failure.”19 The Two-Sided Nature of Diversity In the background of the problem sketched in the previous section is the two-sided nature of diversity. Diversity is both about individual rights and about group rights, the latter being much more controversial than the former. Individual rights guarantee nondiscrimination, that is, they ensure that individuals are not treated differently from others for unjustifiable reasons. Group rights demand minority protection measures allowing individuals and communities to preserve their cultural identity and protecting them from forced assimilation.20 This second sort of rights is about the use of languages, education, and even forms of political or territorial autonomy. While the Copenhagen criteria of 1993 demanded that future member states should guarantee the protection of minorities, both the Treaty establishing a Constitution for Europe in 2004 and the Treaty of Lisbon in 2007 have added “the rights of persons belonging to minorities” (my italics) to the articles that cite the values on which the Union is founded and which new member states are supposed to uphold.21 This changed wording of the minority clause reflects a change that has taken place in the past 15 years in the minority policies of the EU member states and of the EU itself. The group rights approach has almost disappeared; the protection of individuals from discrimination has been strengthened. Three trends in EU policy making can explain this change in the EU minorities discourse. From Multiculturalism to Integration

First, multiculturalism has been pushed back by or even replaced with integration. Increasingly, European policy makers have come to the conclusion that their minority populations, which originally came to Europe as foreign workers, would be better off if they are integrated in the countries where they have taken up residence and where they are likely to stay, instead of being permanently marginalized through a minority identity. The 1999

26

JOKE SWIEBEL

Tampere European Council announced a more vigorous integration policy that would give migrants rights and obligations comparable to EU citizens. The civic citizenship the Commission had in mind turned out to be a bridge too far. The result was, however, a series of modest directives, such as the Directive on Long-Term Residents, to which I will return later on in this section. A number of official statements since indicate the turn from multiculturalism to integration. The Common Basic Principles adopted by the Justice and Home Affairs Council on November 19, 2004, state that “(i)ntegration is a dynamic two-way process of mutual accommodation by all immigrants and residents of Member States.”22 In June 2007, the Council adopted “conclusions on the strengthening of integration policies in the EU by promoting unity in diversity.” These conclusions underline that “migrants who aim to stay permanently or for the long term should make a deliberate effort to integrate, in particular learning the language of their host society, and understanding the basic values of the European Union.”23 The European Pact on Immigration and Asylum, adopted by the European Council on October 15, 2008, invited the member states to establish ambitious policies . . . to promote the harmonious integration in their host countries of immigrants who are likely to settle permanently; those policies . . . should be based on a balance between migrants’ rights (in particular to education, work, security, and public and social services) and duties (compliance with the host country’s laws). They will include specific measures to promote language-learning and access to employment, essential factors for integration; they will stress respect for the identities of the Member States and the European Union and for their fundamental values, such as human rights, freedom of opinion, democracy, tolerance, equality between men and women, and the compulsory schooling of children.24

In such a vision there is less room for minority protection in the sense of safeguarding the traditional identities and cultures of minorities. In fact, recent immigrants and their descendants, often called new minorities and mainly living in Western Europe, are conceived as a policy problem inherently different from the minorities living in the Central and East European countries. These old minorities had their origin far back in history; their situation was to a great extent the by-product of the disintegration of imperial states such as the Russian and the Habsburg Empires and of the new boundaries that followed the world wars. The policy statements just quoted are soft law instruments; they do not have an immediate legal effect. But we also find a similar tendency toward stressing integration in the EU Directive on Long-Term Residents,

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

27

which says (in Article 5.2) that “Member States may require third-country nationals25 to comply with integration conditions, in accordance with national law.”26 Steve Peers observes that “there is nothing in the Directive that aims to preserve difference”27 and identifies here a conflict with international norms, such as Article 27 of the ICCPR and the Framework Convention of the Council of Europe. Gabriel Toggenburg, however, argues that “it is exactly this issue of identity preservation which prevents states from accepting new minorities as addressees of international minority law.”28 Rising Racism in Europe and the Expansion of EU Antidiscrimination Law

The resurgence of racist violence and xenophobia in Europe in the early 1990s—when the fall of Communism, growing migration, and globalization gave rise to profound economic, social, and political changes— propelled European politicians to demand strong measures to “tackle the tide of racism and xenophobia.”29 Both mainstream politicians and NGOs urged that EU member states should be obliged to adopt legislation prohibiting racial discrimination; for such EU action, however, the legal basis was lacking at the time. This induced a lobby campaign to create a specific EU competence in the Treaties to combat racial discrimination. At the time, the EU’s competence to fight discrimination was restricted to a ban on discrimination on the basis of nationality30 and the prohibition on unequal pay and sex discrimination in areas of employment and social security (originally based on Article 119 of the Treaty establishing the European Community [TEC]; later Article 141 TEC). The lobby campaign that wanted the EU to take up the fight against racial discrimination presented its demands deliberately as an extension of what was already an accepted part of the acquis communautaire: nondiscrimination as an individual right,31 legitimized not only by fundamental values but also by the internal market, demanding fair competition. In 1997 the campaign resulted in the now famous Article 13 TEC, which has enlarged the EU’s competence to take measures against discrimination also beyond the labor market and which now covers—in addition to sex discrimination—not only discrimination on the grounds of racial or ethnic origin but also on the grounds of religion or belief, disability, age, and sexual orientation. These latter four grounds were added by means of a bandwagon effect,32 that is, after smart politicking by involved MEPs and NGOs.33 Article 13 TEC became the legal basis for new secondary legislation. In June 2000, the Directive against Race Discrimination was adopted.34

28

JOKE SWIEBEL

A second Directive, which deals with discrimination on the basis of religion or belief, disability, age, and sexual orientation, was adopted a few months later, in October 2000.35 Nobody wanted to give the impression that these other types of discrimination were considered less important than racial discrimination. This does not mean that such an imbalance was absent. The difference was—and still is—contained in these legal texts themselves. EU legislation offers the most elaborate protection against racial discrimination. The scope of this legislation includes employment (including vocational training, employment conditions, and workers’ organizations); social security; social protection; heath care; social advantages; education; and access to goods and services, including housing. EU sex equality legislation now covers not only the employment issues but also the access to goods and services. The other new grounds for discrimination (religion or belief, disability, age, and sexual orientation) are only covered by the prohibition of discrimination in the labor market. This situation is often called the “equality hierarchy.” EU antidiscrimination law discriminates between the various grounds of discrimination.36 As a result, different groups enjoy different standards of legal protection against discrimination. Such a hierarchy of discrimination sends the wrong political message, that is, some animals are more equal than others. In other words, it seems to confirm that some types of discrimination are inherently more serious than others. In addition, it has created a hotchpotch of rules that deteriorates the quality of legislation, the administration of justice, and transparency for the citizens. Since 2000, both the European Parliament and NGOs have repeatedly criticized this state of affairs and urged a comprehensive antidiscrimination policy that affords an equal degree of protection from discrimination on different grounds. However, it was not until July 2008 that the Commission finally tabled such a proposal for a Council Directive.37 The proposal extends EU protection against discrimination in areas outside the labor market to religion or belief, disability, age, and sexual orientation, but leaves the situation regarding sex discrimination as it stands. This means that sex discrimination, the oldest area of European equal treatment legislation, will now become the type of discrimination with the least protection from EU legislation. Other flaws that are now being discussed in NGO circles and in the European Parliament are blanket exceptions concerning the access to education and exceptions around family status and reproductive rights. Apart from these and other criticisms, it is far from certain that the member states will be prepared to quickly swallow this proposal. The pressure on the EU to take up the fight against racism has not only brought the new Article 13 (TEC) legislation, but also new legislation

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

29

on hate crimes. On November 28, 2008, the Council finally adopted the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, after extensive debates in particular on freedom of expression.38 This Framework Decision obliges member states to make incitement to violence or hatred on the basis of race a criminal offence, while defining race in a broad sense, that is, also comprising color, religion, descent, and national or ethnic origin. It does not, however, include the other nondiscrimination criteria of Article 13 TEC: sex, disability, age, and sexual orientation. The subject matter of the Framework Decision was and still is very sensitive. This political atmosphere does not invite adding new problems to an already overloaded agenda. But it is a real and serious problem that this new EU instrument against hate crimes does not cover homophobic hate speech and crimes. A recent report of the EU Agency for Fundamental Rights recommended that the European Commission “should consider proposing . . . legislation to cover homophobia.”39 The European Parliament recently seconded this recommendation and called on the Commission to do so as well.40 Concern about racism and the vulnerable position of minorities is also reflected in Articles 21 and 22 of the EU Charter of Fundamental Rights, as adopted at the 2001 Nice European Council.41 It confirmed, strengthened, and widened the principles of nondiscrimination and minority protection as a norm for the EU itself and for the member states, insofar as they are implementing EU law. Article 21 expanded the forbidden grounds of discrimination to include inter alia language and national minority status, but also the other grounds of Article 13 TEC and more. Article 22 states that the Union shall respect cultural, religious, and linguistic diversity.

The Mainstreaming of the Nondiscrimination Principle

The third factor that is linked to the changed minority discourse of the EU is the new policy tool of mainstreaming. Before turning to the mainstreaming of the protection of (persons belonging to) minorities in EU policies, it might be instructive first to look at the origin of this concept and its use within the EU. Experiences with Gender Mainstreaming The concept of mainstreaming originated in the debates over sex equality policies at the United Nations in the 1980s. On the one hand, it reflects the experiences with the so-called integration of women’s policies into

30

JOKE SWIEBEL

the mainstream in Western countries since the 1970s,42 and on the other hand, it refers to the experiences in development cooperation, where it was increasingly felt that special development projects for women had to be supplemented by “the integration of women in development.” In 1995 the principle of gender mainstreaming was incorporated in the Platform for Action, adopted by the UN Fourth World Conference on Women, held in Beijing, urging “an active and visible policy of mainstreaming of the gender perspective in all policies and programmes, so that, before decisions are taken, an analysis is made of the effects on women and men, respectively.”43 On this slipstream, the Amsterdam Treaty (1997) inserted gender mainstreaming into the TEC: “In all the activities . . ., the Community shall aim to eliminate inequalities, and to promote equality, between men and women.”44 Although revolutionary in its potential, because it exposes the often hidden traditional assumptions in policy making (to have them corrected), the rhetoric “may prove to be rather more radical than the reality.”45 Academic studies and experiences on the ground have abundantly shown that gender mainstreaming demands an effective political will among the real power brokers in an organization, including the willingness to make agonizing reappraisals; enough knowledge and expertise in a specialized policy unit that has the mandate to monitor the state of play; training of officials; and development and introduction of new policy tools, such as impact assessments, disaggregated statistics, et cetera.46 In addition, some studies have emphasized the importance of problem definitions (“framing”).47 The experience with gender mainstreaming during the last two decades is mixed. The transformational potential of gender mainstreaming “is all too frequently undermined by assimilatory tendencies.”48 It has often become a merely bureaucratic exercise that only resonates with the dominant policy options. Joyce Outshoorn and Johanna Kantola observe “that requirements for successful gender mainstreaming such as expertise, sufficient funding and political will, are usually not in place,” in addition to the fact that “its use raises serious questions about the coordination of gender equality policy in the absence of well-marked responsibilities.”49 With these experiences and warnings about gender mainstreaming in mind, we are now well equipped to look at how the EU is mainstreaming minorities. Mainstreaming (Ethnic and Cultural) Minorities The intention to mainstream the fight against racism into all relevant EU policy areas was already proclaimed by the Commission in its Action

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

31

Plan against Racism in 1998. In subsequent years, minority issues have been integrated in the technique of impact assessments and in the policy dialogues that take place within the context of the Open Method of Coordination (OMC). Minorities have become an easy catchword in other policy areas as well. Impact Assessments. Impact assessments have their background in the wish of the Commission to integrate environmental considerations into policy making, but were subsequently expanded to cover all sorts of social impacts and even comprise checking new proposals against all provisions of the EU Charter of Fundamental Rights.50 The guidelines to be followed by Commission officials when making such an impact assessment of a new policy proposal include questions such as Does the option significantly affect third country nationals, children, women, disabled people, the unemployed, the elderly, political parties or civic organizations, churches, religious and non-confessional organizations, or ethnic, linguistic and religious minorities, asylum seekers?51

A special Commission website gives an overview of the application of this instrument.52 To which extent it has indeed induced better law making does not immediately catch the eye. Monitoring to what extent the impact assessments have brought visible improvements in the field of nondiscrimination and minority protection goes beyond the scope of this chapter. Toggenburg notes that this method leads to highlighting the economic and social side of minority issues, and not that much the cultural, let alone the political dimension of minority issues.53 Employment and Social Policies. The same, almost by definition, can be said of the application of the OMC to employment and social policies. The OMC was meant to stimulate an open exchange on policy ideas and experiences between the member states and between them and the Commission. Under this intergovernmental method, the member states are evaluated by one another (peer pressure), with the Commission’s role being limited to monitoring. It is based principally on (1) jointly identifying and defining objectives to be achieved (adopted by the Council); (2) jointly established measuring instruments (statistics, indicators, guidelines); and (3) benchmarking, that is, comparison of the member states’ performance and exchange of best practices (monitored by the Commission). The OMC is not laid down in basic EU law, but rests on political agreements concluded in the European Council, that is, on soft law.

32

JOKE SWIEBEL

Almost from the beginning, the European Employment Strategy (EES) has incorporated guidelines on the integration of ethnic minorities and other disadvantaged groups into the labor market. Targets, such as for women, are not given. A common problem is the lack of comparable definitions and data. The 2007 National Reform Programs show that the labor market dimension of migration is an important issue for the majority of the member states.54 The yearly Joint Employment Reports give the impression that labor market participation of immigrants (or third-country nationals) is mainly seen as an issue of sustaining the labor market or reducing labor market shortages. The perspective of integrating immigrants or minorities is much less acknowledged. Toggenburg observes that in the EES “belonging to an ethnic minority is seen as a ‘particular risk factor’ [italics in original] which enhances exclusion.”55 The same applies to social inclusion, a policy area for which an OMC was introduced in 2001, to combat poverty and social exclusion. The 2005 Joint Report on Social Protection and Social Inclusion outlined seven key policy priorities, one of which was “overcoming discrimination and increasing the integration of ethnic minorities and immigrants.” The 2008 Joint Report affirms that “inclusion and anti-discrimination policies need to be reinforced, not least in relation to immigrants and their descendants and to ethnic minorities.”56 Neither these nor other documents in the OMC’s policy cycle clearly indicate to what extent the member states have realized these priorities. Also, these reports mainly focus on new minorities, while policies regarding old minorities are left out, that is, left to the discretion of the member states. The mainstreaming of immigrants or ethnic minorities throughout EU policies has assumed enormous proportions, that is, enormous proportions of words. Next to the policy areas mentioned above, immigrants/minorities are mentioned in all sorts of other EU policy areas, such as external relations, justice and home affairs, education, health, and urban and regional policies. We also find other minorities and so-called vulnerable groups such as the disabled or young people scattered throughout these texts, but incidentally and unsystematically. Surveying them all is not an easy task. The Commission has hired two experts to map out all these activities. The resulting Guide to Locating Migration Policies in the European Commission57 counts 129 pages! This guide, however, does not give an assessment of the effectiveness of EU actions in this respect vis-à-vis the member states. Neither do we get here an insight into the allocation of funds to minorities or to minority studies and activities. Bruno de Witte and Enikö Horváth observe that “the emerging EU

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

33

minority policy is extremely multi-faceted, but also scattered and indirect”; this makes it “difficult for anyone not fully conversant in EU-speak to see the full range of functions and responsibilities that may impact on minorities.”58 Toggenburg perceives a “new engagement” of the EU with minorities within the EU territory, consisting of “astonishingly far reaching hard law instruments in the field of non-discrimination” and “politically strong, but legally soft” activities in the sphere of social and other policies. “All this clearly demonstrates that the Union internalized its minority engagement.”59 Looking at the lessons gender mainstreaming has taught us, I am less optimistic. Minority mainstreaming exercises at the EU may be rather a form of “issue perversion”: the issue has been cut and fashioned to make it fit into the dominant policy discourse. It is seemingly taken on board, but the priority is low and concrete results are uncertain.

Women and Diversity As we have seen, EU attention to racial discrimination had entailed the taking on board of a whole series of other grounds of nondiscrimination. Article 13 TEC counts 6 of them; Article 21 of the Charter of Fundamental Rights, 17. Sex discrimination is always included in such lists, but we may ask to what extent the promotion of equality between women and men is really part of the diversity management that seems to have taken hold of the EU. The fight against sex discrimination still has a special place in the EU. There are different treaty provisions and separate bodies of EU law. At the Commission, the units for equality between women and men and for action against (other) types of discrimination have only recently been moved into the same Directorate within the DirectorateGeneral on Employment, Social Affairs and Equal Opportunities. There are two separate groups of experts enlisted by the Commission to shed light on discrimination on the grounds of sex and the other Article 13 grounds, respectively; they hold separate meetings and prepare separate publications.60 The new EU treaties keep the mainstreaming provision mentioned above: “In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.”61 But the other Article 13 grounds have acquired a similar provision, albeit in a different wording: “In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”62

34

JOKE SWIEBEL

It will give years of employment to feminist lawyers to debate whether these two different provisions indeed reflect different rights or not. Some infer from Article 3.2 TEC a positive obligation to improve the position of women. Others state or deplore that this is not the case.63 Bringing women under the diversity concept apparently is neither self-evident nor unanimously accepted. Conclusion The minority discourse of the EU has metamorphosed from group rights to individual rights. This has had a both narrowing and broadening effect. On the one hand, the approach has become narrower: it focuses mainly on nondiscrimination and participation in economic life. The protection of minority identities has become less important. On the other hand, the EU nondiscrimination discourse has a much broader scope than ethnic minorities only; it is beginning to develop into a diversity policy, for old and new member states alike. This recent new engagement has different roots. It stems from enlargement and conditionality, but is also linked to the long-established principle of equal treatment of women and men and its extension to a broader-based antidiscrimination legislation, as well as to the use of new instruments in social policy making. Together these roots have grown a vast forest that is sometimes lacking accessibility. And sometimes it seems that the flowers are fake. EU institutions should enhance transparency and make clear the real effect of all these activities. More research is needed to map out how the relevant policy mechanisms really work and what results they produce. Is the diversity policy in the member states really helped by EU activities, and if so, in which respect and at what cost? Are member states pursuing different policies in these areas than they would have done without the EU’s influence? Without beginning to try to answer these questions, it will be impossible to say whether the new engagement of the EU in this area really makes a difference. We already have many studies at our disposal on the implementation by the member states of the EU’s antidiscrimination directives.64 The purpose of these studies is to mainly help the Commission in its role as guardian of the treaties. In the end, we will be able to measure the effects of the EU’s legal activities by studying implementation at the national level and the case law of the European Court of Justice. But regarding the soft law component, it is now almost impossible to separate facts from fiction. Extra efforts are needed to make the soft law actions of the EU more transparent. Experiences with gender mainstreaming in the EU and in the member states should make us more skeptical—before believing wholeheartedly and unconditionally in the EU’s new engagement with minority

EU PO L I C I E S T O SA F E G U A R D A N D PR O M O T E DI V E R S I T Y

35

issues. Moreover, the new approach has included all sorts of target groups in a fragmented and dissimilar way. The promise of a comprehensive EU policy on equality and nondiscrimination has yet to be fulfilled. Notes 1. I will refer to the European Union also for policies that are formally still in the realm of the European Community. References to treaty articles will clarify the relevant legal basis. When the Lisbon Treaty comes into force, the Union will become a single legal entity. 2. Consolidated version of the TEU (2008), Art. 5; consolidated version of the Treaty on the Functioning of the European Union (TFEU, 2008), Art. 2–6. 3. TEU, Art. 48. 4. Consolidated version of the TEU (2008), Art. 50 and Protocols no. 1 and 2. 5. TEC, Art. 205; consolidated version of the TFEU (2008), Art. 238. 6. Richardson 1996; Van Schendelen 2002. 7. Padoa-Schioppa 2005. 8. See “Official EU languages” [2009]. 9. Olsen 2007, 44. 10. Toggenburg 2004b, 11–12. 11. European Council 1993, 14. 12. Toggenburg 2004a. 13. Von Bogdandy 2007, 23. 14. Sasse 2004, 65. 15. Kochenov 2008b. 16. Sasse 2004, 65. 17. Open Society Institute 2002, 17. 18. Kochenov 2007, 36. 19. Kochenov 2008a, 300. 20. Open Society Institute 2002, 17. 21. Consolidated version of the TEU (2008), Arts. 2 and 49. 22. Council of the European Union 2004, 17. 23. Council of the European Union 2007, 24. 24. Council of the European Union 2008, 6. 25. In EU jargon, third-country nationals are foreign nationals who are not EU citizens. 26. Council Directive 2003/109/EC. 27. Peers 2004, 60. 28. Toggenburg 2005, 731. 29. Due 1996. 30. TEC, Art. 12. 31. It should be borne in mind that, to the extent that nondiscrimination legislation is interpreted as a means to full or real equality (as opposed to merely formal equality), such instruments can also allow for or even impose the duty

36

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

JOKE SWIEBEL

to adopt special minority measures, for example, positive action (Henrard 2007, 6). Bell 2002, 114. Swiebel 2009, 30. Council Directive 2000/43/EC. Council Directive 2000/78/EC. Swiebel 2004, 3. Proposal for a Council Directive 2008. Council Framework Decision 2008/913/JHA. De Schutter 2008, 156. European Parliament 2009, par. 73. Charter of Fundamental Rights 2007. Swiebel 1988. Platform for Action 1995: par. 79 et passim. TEC, Art. 3.2. Mazey 2001, 49. Swiebel 1988; Council of Europe 1998. Verloo and Maloutas 2005; Verloo 2007. Squires 2005, 155. Outshoorn and Kantola 2007, 278. Shaw 2004, 28; Toggenburg 2006, 11–13. Impact Assessment Guidelines 2005, 31. http://ec.europa.eu/governance/impact/index_en.htm Toggenburg 2006, 13. Kate and Niessen 2008, 71. Toggenburg 2006, 15. Kate and Niessen 2008, 105. Kate and Niessen 2008. De Witte and Horváth 2008, 382. Toggenburg 2006, 27. See: http://ec.europa.eu/social/home.jsp?langId=en TFEU (2008), Art. 8, copied from TEC, Art. 3.2. TFEU (2008), Art. 10. For an overview see “Thirty Years of EU Sex Equality Law,” 2005. See the EU’s website at http://ec.europa.eu/employment_social/ fundamental_rights/public/pubst_en.htm#stud.

Part

2

Migrants and Muslims

This page intentionally left blank

CHAPTER

3

The Success and Failure of Integration Policy in France and Britain: Convergence of Policy and Divergence of Results Martin A. Schain

During the past 50 years two sets of events have had a profound influence on the development of public policy on immigrant integration in Europe. The first is the challenge to public order posed by urban unrest in France beginning in the early 1980s and in Britain beginning in the late 1950s. In each of these countries, the public policy response to this urban crisis has involved important elements of multiculturalism, as part of a strategy to maintain public order. In each country the public policy response has also been influenced by other political considerations of domestic politics, but policies that at least implicitly recognized differentiated community (or “minority”) needs and benefits have been common to each. The second set of events is generally related to the challenge of Islamic terrorism and the recognition that some of it has domestic roots.

40

MA R T I N A. SC H A I N

Christian Joppke has made a persuasive case that there has been a convergence of integration policy in Europe around civic integration and antidiscrimination.1 The new trend tends to emphasize civic integration policies that create an obligation for immigrants who wish to attain the rights of citizens to individually demonstrate that they have earned those rights. The first of these programs was the year-long obligatory integration course inaugurated in 1998 in the Netherlands, which emphasized language instruction, civics, and preparation for the labor market, with examinations at the end. Integration policy was then linked to immigration control, through a requirement that applicants for family unification first take the course and pass the examination before they arrive. This program has now become a model for the rest of Europe. In France, a much reduced version of civic education was initiated by the Socialists in 1998. By 2006, demonstration of “Republican integration” was made obligatory for a long-term residence visa, and then, in one of the first moves of the Sarkozy presidency, the process was shifted abroad for applicants for family unification. The process in Britain was more complicated. Beginning in 2001, in the aftermath of urban riots (even before the attacks in the United States), the government developed requirements for citizenship and education programs that would promote policies of civic integration linked to a society based on shared values. By 2007, policies emphasizing civic education—similar to those in France—were in place. The development of a policy of civic integration was moved to the European Union (EU) level at the initiative of Nicolas Sarkozy, then French minister of the interior. In March 2006, the interior ministers of the six largest EU countries (the G6) agreed to pursue the idea of an “integration contract,” using the French model as a starting point. The initial step was to create a committee of experts to investigate the procedures used in all member states. They then planned to propose such a policy to the other 19 countries of the EU.2 Indeed, one of the first initiatives of the French presidency in 2008 was to propose a comprehensive, compulsory EU integration program. The compulsory aspect was finally dropped in June, but a European Pact on Immigration and Asylum was passed by the European Council in October 2008. Three criteria were established for acceptance and integration in Europe (according to the French government): language mastery of the receiving country, knowledge of and commitment to the values of the receiving country, and access to employment.3 At the same time, antidiscrimination programs in all European countries have grown in importance and have increasingly benefited those

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

41

immigrants who have made it past the door. Initiated in Britain in 1965, the antidiscrimination approach was given a major push by the Treaty of Amsterdam in 1997 and two (race equality) directives of the European Council in 2000.4 The treaty, which came into effect in 1999, brought questions of immigration, and to some extent integration (particularly the revised Article 6a on combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation), into the EU structure. Policy would be harmonized on the basis of proposals made by the European Commission and actions of the Council of Ministers. The directives obligated all EU countries to constitute commissions that would both monitor and act against patterns of racial discrimination. Since immigrant communities have been racialized in Europe, the emerging institutions have begun to offer them a measure of recognition and protection. Thus, both of these evolutions in policy have created similarities in the approach of all European countries to questions of immigrant integration. If the first has constrained policies of multiculturalism, the second has given new support and legitimacy to racial and ethnic diversity. Nevertheless, I argue that national models—or policy paradigms—are still useful for understanding why convergence has been limited. If criteria by which success of integration is judged at the European level appear to have converged in European standards, national policy approaches have shaped the success of integration programs, sometimes in unexpected and contradictory ways. The two countries that are the subjects of this chapter appear to be committed to very different ways of integrating immigrant populations that vary by the use of state institutions, the kinds of policies (indeed— whether or not they actually have explicit policies of integration) pursued, and the assumptions behind these policies. They also differ in terms of what they expect integration to mean, what should emerge at the end of the process. Finally, they appear to vary in terms of what has emerged through the process of integration. In the sections that follow, we will examine the evolution of integration policies. In each case, the state has become more directly involved in the process of immigrant integration, through either positive action or permissive policy. The increased involvement of the state, we shall argue, can be explained by perceived failures of integration and has been shaped by both national models and growing intergovernmental collaboration within the EU. Nevertheless, the focus has been overwhelmingly on process, with much less attention given to outcomes.

42

MA R T I N A. SC H A I N

France The most explicit process of integration seems to be what is often called the French Republican model, which has become more explicit as its assumptions have been challenged by the most recent waves of immigration from North Africa. In principle, the French model recognizes the legitimacy of collective identities only outside of the public sphere. This has come to mean that ethnic and religious groups are accorded no special privileges in public policy, nor are they granted special protection. This also means that there is “color-blind” public support and recognition only for individual merit and advancement. In general, the French approach has often been described by what it is not (multicultural, in the American or British sense), rather than what it is.5

Multiculturalism and Urban Order

The French Republican model of integration has always been complicated at the local level. Between the world wars, among the most powerful instruments for integrating new immigrant populations were the trade union movement and the French Communist Party. Both the unions and the party sought new members (and eventually electoral support) by mobilizing workers from Poland, Italy, and, after the Second World War, Spain on the basis of class solidarity, but also on the basis of ethnic and religious solidarities. Although the efforts of the Confédération Générale du Travail Unitaire (CGTU—the Communist-dominated trade union confederation between 1922 and 1936) and the party were integrative in the sense that they represented and aggregated the interests of immigrant workers together with those of other workers, they also organized separate language groups, and the party put into place immigrant manpower commissions. The Communist Party also supported ethnic organizations and demonstrations among immigrant groups that were both particularistic and more universal in nature. We find a similar pattern with the wave of Third World immigration after 1960. Studies on the ground provide clear evidence of the recognition of immigrant collectivities by both political parties and public authorities. As during the previous period, this evidence is more obvious at the local than at the national level. Nevertheless, there are some differences, the most important of which is that the pattern of policy making has been conditioned by what Maxim Silverman has termed the “racialized” view of the post-1960s wave of non-European immigrants that has clearly differentiated them from the waves of European immigrants that preceded them.6

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

43

Perhaps the most important change was the growth of ethnic associations after 1981. By the mid-1980s, these associations had become a network of established intermediaries for immigrant populations that negotiated with trade unions, political parties, and the state at the local and national levels. In contrast to earlier periods of immigration, these associations operated largely outside the established network of intermediary groups, which were then forced to recognize their independent existence. Even when established and more universal intermediary groups did succeed in incorporating the leadership of these groups, such inclusion remained conditional and problematic.7 How then, can we understand the evolution of policy on the ground, first at the local level and subsequently at the national level? Perhaps the best explanation is that the French state focused with greater intensity than before on issues of domestic security. Urban riots erupted in the 1980s and continued, sporadically, over more than two decades and, as a consequence, the state’s involvement in immigrant affairs grew. Its efforts contributed to the development of ethnic organization, as state agencies engaged in a sometimes desperate search for intermediaries among what came to be known as the “second generation.”8 In this search, both local governments and the central state have sought out and have sometimes supported whatever ethnic associations they feel can maintain social order.9 In education, the problems of rising dropout rates and student failures among the children of immigrants resulted in the initiation of several programs, the most important of which was the zones of educational priority (ZEP).10 The designation of these zones—which meant more money from several ministerial sources, more teachers, and more experimental programs—relied upon criteria that focused largely on the ethnic composition of an area.11 In practice, the programs targeted areas of immigrant concentration because restrictions imposed by the Republican model, reflected in a law of 1978, prohibited the collection of ethnic data.12 This has meant that relatively narrow geographic criteria have taken the place of group criteria. In this way, the Republican model has molded the way groups are targeted, but has not prevented special programs from being implemented. This has become more evident in recent years, with the government developing pilot programs of affirmative action (discrimination positive or égalité des chances) using the ZEP program as a framework. In fact, various approaches to discrimination have become integral to the policy on integration since 2000. Although the “race-relations” approach has been far more characteristic of British policy on integration, France has moved in this direction, largely in response to the

44

MA R T I N A. SC H A I N

racial equality directives of the EU issued in 2000. In 2001 and 2002 France passed legislation banning discrimination in employment and housing, but did not pass legislation authorizing an active antidiscrimination agency until 2004. The High Authority against Discrimination and for Equality (HALDE) issued its first report in May 2006. During its first year, it received more than 2,000 complaints from individuals— 45 percent of them complaints of employment discrimination. Although the agency lacks financial resources to investigate cases of discrimination, as well as strong legal means to pursue complaints and enforcement, it represents a new departure to deal with immigrant integration in terms of discrimination.13 Policy and Islamic Extremism

These various approaches to integration and their multicultural elements received a new impetus with the rise of Muslim extremism, which in France began to emerge in the early 1980s. In 1990, in reaction to the Islamic headscarf affair, Socialist minister of the interior Pierre Joxe invited representatives of Islamic organizations to form a Deliberative Council on the Future of Islam in France, an institution that would be the parallel to comparable organizations of Catholics, Protestants, and Jews. The hope was that such institutionalized consultation would help to undermine the rise of Islamic fundamentalism. This initiative took almost 15 years to reach fruition. The Conseil Français du Culte Musulman in itself represents a well-established French approach to dealing with organized religion. Nevertheless, it is clear that, even for most hardened Jacobins, the purpose goes well beyond the coordination of religion. On the one hand, the purpose is to influence the construction of a moderate, domestic Islam in France and to remove the control of Muslim religious life in France from countries of origin. In a speech at the inauguration of a new mosque in Lyon in 1994, for example, the then minister of the interior Charles Pasqua praised the effort to build a “moderate” Islam that would be compatible with the French Republican tradition.14 On the other hand, it is an attempt to harness the influence of religious intermediaries to enhance social control among young immigrants and French citizens of Islamic heritage. The advantage of this approach is that it falls well within the French tradition of dealing with ethnic groups through religious intermediaries. A review of the last 25 years of French policy on integration reveals a striking feature: the policy has been an evolving one, with a struggle to define it more explicitly. It is a policy born out of a quest for public order

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

45

and has been developed as a result of challenges to that order—from the urban riots that have punctuated French urban life to the issues raised by young girls wearing hajibs (headscarves). The most flexible strategies have been developed locally, through administrative actions. However, periodic laws that deal with integration have tended to reaffirm the principles of the Republican model. Britain The French political philosophy on integration can be compared with a different kind of British multicultural approach to integration. As Ira Katznelson observed 30 years ago, while British integration policy was still under formation, “I would suggest that the central dynamic of British elite reaction to Third World migration has been an attempt to structure the politics of race to take race out of conventional politics.”15 This policy consensus was partly based on a race-relations approach to immigrant integration that was sharply different from the French approach. The Race Relations Act of 1965 provided an institutional base for integration that was agreed to by both the Conservative Party and the Labour Party The extension of this legislation in 1968 and 1976 then provided substantial depth to this policy that secured a bipartisan approach to immigration, race, and multiculturalism.16 Nevertheless, by 1968, the race-relations approach to integration had begun to take on a life of its own, disconnected from considerations of immigration control, influenced by a parallel movement in the United States.17 By the time the third Race Relations Act was passed in 1976, there was considerable partisan contention and disagreement over its more far-reaching provisions (including “positive action provisions”), but not over the race-relations approach to integration.18 In Britain, the concept of “race” was applied to “New Commonwealth” immigrants (primarily those from Pakistan and India, as opposed to those from Canada, Australia, and New Zealand) in political debates over “coloured immigration” from the 1950s on. This way of looking at nonEuropean immigrants was not essentially different from the manner in which similar immigrant populations were viewed in France or Germany. The difference was in the formal policy framework that was developed to incorporate them. In France, acceptance of this kind of pluralism was seen as a temporary substitute for full participation in society, while in Britain, it was understood as an important dimension of such participation.19 By the 1980s, the education system had become an important proactive support for multiculturalism, which was also firmly grounded in the legal system.

46

MA R T I N A. SC H A I N

Thus, the British approach to integration evolved out of a political compromise on immigration legislation, as an approach to ease integration with an active antidiscrimination policy. The articulation of a positive approach toward multiculturalism, although it began with race relations, very quickly evolved into a broader understanding of multiculturalism. Thus, Roy Jenkins, home secretary at the time, noted in 1966: “I do not think that we need in this country a melting pot . . . . I define integration therefore, not as a flattening process of assimilation but as equal opportunity, accompanied by cultural diversity, in an atmosphere of mutual tolerance.”20 Jenkins’s perspective was reinforced by a series of reports on education, beginning with the Swann Report in 1985 (Education for All), which strongly advocated a multicultural education system for all schools, regardless of institutions, location, age range, or ethnicity of staff/pupils. The report made a link between education and multiculturalism by noting that racism had an effect on the educational experiences of black children in the United Kingdom.21 These conclusions have been reaffirmed by numerous reports since then. Perhaps most important was the 1997 report by the Commission on the Future of Multi-Ethnic Britain, which reaffirmed the United Kingdom as a “community of communities.” The net effect was what one author has called “a conceptual shift”22 that disassociated integration from immigration—the management of arrivals—and, as Tariq Madood has observed, recognized integration as a two-way process of responsibility, in which “members of the majority community as well as immigrants and ethnic minorities are required to do something; so the latter cannot alone be blamed for ‘failing to or not trying to integrate’. ”23 Thus, the British version of multiculturalism in public policy evolved on the assumption of “equivalent groups,” identified by culture, as opposed to race. The multicultural approach is also apparent in the way British policy has dealt with church-state relations. Britain has an officially established religion—Christianity—and in that sense, the state is not neutral. Nevertheless, the barriers to recognizing Islam in Britain appear to have been easily overcome, although positive state aid plays less of a role than in Germany. Planning permission for mosques has not been a major problem, and sites for ritual slaughter and cemeteries have been generally granted, although there has been considerable local variation.24 By the mid-1990s, 15–30 Islamic schools were established with private funds, and in 1998, the Labour government approved funding for two statesupported Muslim faith schools.25 By 2006, the number had grown to seven. Nevertheless, in the context of ongoing security concerns in

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

47

Britain, it has become clear that any future growth in public funding for this purpose is likely to be highly scrutinized. Faith schools—including 7,000 Christian and 36 Jewish schools—comprise about a third of the schools in the British public system.26 Because of the multicultural approach to integration, Britain was able, generally, to avoid the kinds of integration struggles over dress codes and religious organization that took place in France—at least until the reassertion of civic integration after 2001. The constraints on categorization and information gathering that have marked French efforts to deal with integration in terms of discrimination—especially in employment and housing—have been absent in the British case. Nevertheless, the focus on racial discrimination has left the question of religious discrimination more ambiguous. Most Muslims in Britain are also members of ethnic minority communities and have therefore been covered “indirectly.”27 Although the courts have been less active than in the United States in developing criteria of discrimination, British judges have applied the European Convention on Human Rights to integration issues. In 2005, for example, a British Court of Appeal judge ruled that a decision by a school in Luton, requiring that all students wear uniforms, failed to consider the human rights of Muslim girls who insisted on wearing a jilbab (a long and shapeless robe). The decision, in a school in which almost 89 percent of the students are Muslim, but come from 21 ethnic groups, had been taken in consultation with parents and Muslim organizations.28 Multiculturalism and Urban Order

With roughly the same rhythm as in France, riots have erupted in major British cities with high concentrations of immigrant populations (1981, 1991–1992, 2001). The British riots have had many of the characteristics of their French counterparts, except that they have been more violent in terms of personal injury to residents and the police. The most important difference has been the political consequences of the riots in each case. The reaction of French authorities to the first urban riots in Lyons in 1981 was to frame the problem in terms of social control and education. They expanded state involvement in neighborhood organization and in educational integration, an orientation that remained at the core of the French integration effort over the next two decades. The British reaction to the riots in 1958 was to frame the problem in terms of race relations, the solution for which was to limit immigration and prevent the kinds of racial clashes that had taken place in the United States.29

48

MA R T I N A. SC H A I N

By 1964, however, the 1958 events—still seen in terms of race relations— were understood as a problem to be dealt with through a new approach to integration. Although Labour’s initial response to the riots was confused, by the end of September (one month after the onset of the disorders) it had issued a policy statement committing itself to legislate against racial discrimination. Having formulated a pro-legislation policy, Labour followed through by urging the Conservative government several times during the next few years to pass antidiscrimination legislation.30

As with the French initial integration efforts, the British approach was rooted in a need to maintain public order: “For [Home Secretary] Soskice, race relations legislation was in large part related to concerns of public order, a lesson first learned by the [Labour] party in 1958.” As Soskice said in the House of Commons, Overt acts of discrimination in public places, intense wounding to the feelings of those against whom these acts are practised, perhaps in the presence of many onlookers, breed the ill will which, as the accumulative result of several such actions over a period, may disturb the peace.31

By 1965, Labour was able to get the agreement of the Tory opposition to this strategic formulation, and it became the core of the British approach to integration policy. Indeed, this approach endured, and was strengthened, even after three additional rounds of serious riots between 1981 and 2001 as well as the attacks on the London underground in June 2005. Policy and Islamic Extremism

Nevertheless, as in many countries, there is growing pressure to assert the limits of multiculturalism and support a stronger sense of collective identity. By 2001, in the aftermath of urban riots in the summer and the attacks in the United States in September, government reports indicated the beginning of a reassertion of policies of civic integration into a society based on shared values. The Cantle Home Office Report 2001, which was being drafted at the time of the attacks in the United States, linked the summer riots to highly segregated communities. The report’s conclusions centred on the need to redress this situation through a “greater sense of citizenship,” the identification of “common elements of nationhood” and the need for the “non-white community” to use

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

49

the English language and “develop a greater acceptance of, and engagement with, the principal national institutions.”32

This was followed by a Home Office report in 2002, Secure Borders, Safe Haven: Integration with Diversity in Modern Britain, which re-associated immigration with integration by arguing that immigration should be contingent upon increased civic integration and “shared values.”33 Thus, the attacks in London in 2005 accelerated a process that had begun four years earlier. Although the actual policy requirements in place by 2007 were not as coercive as those in France or the Netherlands, they were moving in the same direction.34 The most important symbolic change in this direction has been the initiation of a citizenship test and a citizenship ceremony under legislation passed in 2002. Beginning November 1, 2005, all applicants for naturalization were required to pass a Life in the UK examination, together with certification in the English language. Although the Home Office denied that this was a “Britishness test,” it was widely referred to in those terms by the prime minister and in the press. In fact, the mix of questions on history, politics, and society generally resembled the questions of the citizenship examination in the United States. Together with new citizenship ceremonies that include a pledge of allegiance, the civics and language tests are meant to create a meaningful gateway for integration, the kind that has never existed before in Britain. The tensions between manifestations of multiculturalism and the pressures to develop policies that focus on a common identity are most apparent in education, particularly in debates over the national curriculum. The profound impact on teachers can be seen in two recent government reports on education and curriculum. An April 2007 report from the Historical Association noted that some schools were avoiding teaching controversial history topics, including the slave trade and the Holocaust, because “they do not want to cause offense,” and, indeed, teachers are mandated to be aware of the sensitivities of their diverse populations.35 When the report was commissioned in 2006, Schools Minister Lord Adonis said the national curriculum encouraged teachers to choose content “likely to resonate in their multicultural classrooms”— but some found it difficult to do that. A few months earlier (in January 2007), a report to the education secretary had emphasized that the school curriculum should teach “core British values,” alongside the multicultural curriculum, with an emphasis on history and civic values.36 In fact, after 2005, the British government has devoted greater attention to what has often been phrased as a “hearts and minds” approach

50

MA R T I N A. SC H A I N

to Muslim communities, to enlisting Muslim individuals and community organizations in their efforts to enhance security. These outreach efforts have been far more extensive than similar programs in France and have been most explicit in the announced programs of the Foreign and Commonwealth Office and the Department of Communities and Local Government. They are aimed mainly at engaging with Muslim communities to prevent radicalization and promote voices of mainstream Islam among Muslim youth.37 Nevertheless, these government-sponsored efforts have been continued, even reinforced, under Gordon Brown, who placed emphasis on the importance of civic education programs at his first press conference in July 2007. It is estimated that 100,000 children attend religious education classes at mosques, and civic education has been integrated into religious classes.38 The government is also pursuing cooperation at the EU level that began with the French initiative at the meeting of interior ministers (G6) in March 2006. At that time, the then home secretary Charles Clarke noted that he supported a more muscular integration contract that would ensure that “new immigrants live up to the values of our society” and that they could be expelled if they did not.39 Thus, coming from different directions, policy orientations have been converging in ways described by Christian Joppke. The French have begun to focus on issues of discrimination, while the British have become increasingly concerned with questions of civic integration. In focusing on the convergence of policy concerns, however, we should not lose track of the differences of the policy emphasis and content. The British debate over the new national curriculum is relatively mild, compared with the French control over educational content through the Ministry of Education. The British citizenship examination is also mild, compared with the new French requirements for naturalization and family unification. Compared with Britain, the French state has become a far more important actor in the integration process through direct intervention. In addition, we should be clear that convergence indicates a direction in the policy process, but not the content of the policy itself. Convergence also tends to mask important differences in policy success. Failure and Success Both the French and the British models imply criteria of success and failure based on their objectives. In the French Republican model, the acceptance of common cultural and historical references is important, as well as conformity with French cultural and legal norms, in particular the acceptance of a common public space that is separate from religious

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

51

faith and expression. The British model accepts cultural and racial and religious diversity, as a necessary dimension of participation in society, rather than simply a way station to a deeper nationhood. However, in these terms, policy makers have perceived integration policy as a failure in several ways. For the French, the perception of failure began in the early 1980s, with the beginning of cycles of urban violence that culminated with the nationwide riots in November 2005. The policy debate has tended to focus on the failure of the school system to integrate new waves of immigrants as effectively as it had previous waves, on spatial concentrations of immigrants, and on urban unrest. For the British, the perception of failure had begun in 2001 and has grown with intensity after the attacks in July 2005. In both cases policy makers have increasingly questioned the effectiveness of policies and the policy paradigms within which these policies have been developed and have experimented with new departures to deal with the perceived failures. Peter Hall has argued that policy failure and attempts at adjustment may very well lead to further failures.40 In each case, the policy paradigm has been threatened by failure, but these threats have not (yet) undermined the authority of the existing paradigm and its advocates. Perhaps this is because some aspects of French and British integration policies have been quite successful, while others have failed in significant ways. In each case, the policy focus implied by the national model has been successful in achieving critical objectives, while what has not been emphasized has resulted in failure. One set of standards that we can use to evaluate relative success and failure has been formalized in a list of Common Basic Principles for Immigrant Integration Policy in the European Union, agreed to in the Hague Program in 2004 as part of a common program for integration. Among the 11 agreed-upon principles, the following are the most important: Employment is a key part of the integration process. Efforts in education are critical to preparing immigrants to be more successful and more active participants in society. Access for immigrants to institutions . . . in a non-discriminatory way is a critical foundation for better integration. The participation of immigrants in the democratic process . . . supports their integration.

Integration is a dynamic, two-way process of mutual accommodation by all immigrants and residents of member states.41 From these principles,

52

MA R T I N A. SC H A I N

we can derive several measures of integration that can give us some indication of relative success and failure: immigrants should be integrated into the economy; over time, the educational system should be an effective instrument of integration; the political system should provide effective representation of immigrant populations; and there should be both acceptance of immigrant populations by the host countries and acceptance of the host countries by the immigrant populations. Unemployment rates among immigrant populations have been generally higher than those of the native population in both France and Britain. However, in France unemployment rates for immigrants are more than 70 percent higher, compared with just over 50 percent for Britain in 2006. Moreover, youth unemployment is also highest among the French. Educational attainment is more complicated. On the one hand, educational attainment among immigrant populations at the university level is as great as or greater than that of the native population in both countries. On the other hand, the proportion of immigrants who drop out, or who never get to upper secondary education (a prerequisite for good jobs in most Western societies), is disastrously high in France, but comparatively low in Britain, particularly if we consider those who drop out (see Table 3.1). Therefore, in terms of employment and education, the outcomes for British immigrants have been relatively good compared with the outcomes in France. These differences are confirmed by an analysis of achievement scores in reading, math, and science among immigrant children in ten countries, including France and Britain, compared with native children of the same age.42 The differences were almost 40 percent higher in France, compared Table 3.1 Educational Attainment of Immigrant Populations Compared with Native Born, 2004.

France Britain ∗ UK

Less than upper secondary education∗

University degree or greater

Native born (%)

Native born (%)

Foreign born (%)

13 20

12 28

35 49

Foreign born (%) 56∗∗ 45∗∗

= through “O” level; France = BEPC (first cycle high school). qualification = dropout: UK = 10%; France = 50% Sources: (France and Britain): OECD in Figures, 2005, 65; European Community Labour Force Survey; INSEE, Enquête emploi de 2005; University College London, CreAm, Christian Dustmann, and Nikolous Theordoropoulos, “Ethnic Minority Immigrants and their Children in Britain,” CDP 10/06, 20.

∗∗ no

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

53

with Britain. Some of this difference can be accounted for by differences in socioeconomic status (SES), but in France, even if we control for SES, lack of achievement (especially at the lower levels) continues to be significant. If we control for SES in Britain, first generation immigrant children do as well (or as poorly) as others of the same age. Political representation can be understood as integration through politics. As Richard Alba and Nancy Foner have noted, election of immigrant candidates to political office is a measure of their integration “in the same sense that entry by minority individuals into high-status occupations is. It is an indication of a diminishment, however modest, in differentials in life chances that exist between majority and minority.”43 Representation also gives them a voice in the distribution of public goods as well as the ability to control the spatial zones in which they live. Table 3.2 indicates that immigrant representation is roughly similar for both countries at the local/state levels, but different at the national level, where the British record is modest, but better than the French. France has consistently had a worse record in this area than other major countries in Europe. On the other hand, attitudinal surveys indicate that by several measures France has been at least as accepting as Britain, and by others, even more accepting. Indeed the idea that “immigration is having a good influence” is (perhaps surprisingly) widely accepted in Europe, but the belief that Muslim immigrants seek to adapt to customs in their host country and that there is no conflict between devout Muslim practice and living in modern society is far more stronger in France than in other countries (see Table 3.3). These societal attitudes are reflected in attitudinal patterns among the immigrant population who identify as Muslim. French Muslims are, by far, the most integrative in their orientation and the least conflicted between their Muslim and national identities (see Table 3.4). A recent study of Muslim elites in Europe indicates a similar pattern at the elite level.44 Table 3.2 Political Integration of Immigrant Populations, 2004. Population (%)

Electorate (%)

State/local reps (%)

France

5

2.7

3.3

Britain

7.9

6.6

2.6

Source: Alba and Foner, June 2009.

National representation (%) 0 NA 0.6 Senate 2.3

54

MA R T I N A. SC H A I N

Table 3.3 Attitudes toward Immigrants and Muslims. A good thing people from ME and N Afr coming to your country

Immigration having good influence on your country

Muslims in your country mostly want to adapt to nat customs

No conflict betw being a devout Muslim and living in modern soc:

58 57 62 34

46 43 45 47

45 22 21 17

74 35 36 26

French resp British resp Spanish resp German resp

Source: Pew Research Center, June 2006, 3, 6, 8, 10; Global Attitudes Project, July 22, 2006; IPSOS Public Affairs, Associated Press International Affairs Poll, May 2006.

Table 3.4 Muslims in Europe: Attitudes toward Identity, Fellow Citizens, and Modernity. Positive views of Christians (%)

French Muslims British Muslims Spanish Muslims German Muslims

91% 71 82 69

Positive views of Jews (%)

71% 32 28 38

No conflict between being a devout Muslim and living in modern society (%)

Muslims in your country want to adopt national customs (%)

72% 49 71 57

78% 41 53 38

Source: Pew Research Center, June 2006, 3, 11–12; Global Attitudes Project, July 6, 2006.

Thus, Britain’s record of economic integration of immigrant populations is far better than that of France. These figures, combined with periodic urban violence, have left the impression that French immigration policy has failed, in comparison with policy in the past and compared with other countries (e.g., Britain). Britain’s record of educational integration appears to have been relatively successful (even if we control for SES) compared with that of France. The French record, however, is far worse. No doubt the poor French economic performance is linked to the failures of the educational system.

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

55

Nevertheless, in terms of attitudes, French people who identify as Muslim appear to be the most “European.” They have the most positive views of their compatriots who are Christian (and Jewish) and are among the least sympathetic to radical Islam.45 They are the most supportive of ideas that are consistent with the French Republican model. Among Muslim elites, there is a consensus about the compatibility of Islam and Western state values, which, in Jytte Klausen’s study, clearly differentiates Muslim elites in France from those in every other major country in Europe. Within Europe, Muslim immigrants in France have the strongest national identity and are the most inclined toward integration. Conclusion Although there has been a movement toward conversion of integration policy in France and Britain, this movement has come from very different directions. France has moved toward a more robust antidiscrimination policy and has developed policies that tend to favor some “positive discrimination” in education. Both sets of policies, however, are relatively weak, compared with the British efforts. They are severely limited by the assumptions of the French model. On the other hand, more recent efforts to give increased muscle to civic integration are well within the French tradition. The results of the French policy effort are apparent in both its failures and success. The statistics presented suggest that the ZEP program has been less than successful and that the efforts at positive discrimination may be misplaced. The French record of placement of immigrants in the university system is better than is often assumed, but that of school retention is far worse than is often stated. Therefore, programs to keep immigrant children in school may be more important than high-profile programs to place them in elite universities. Convergence in Britain has taken the form of a movement toward policies of civic integration and reconsideration (at least at the margins) of the multicultural national curriculum. However, the focus on education seems to have worked relatively well, and the civic integration effort has resulted in considerable confusion about “the common elements of nationhood.” In each case, convergence has come from a very different direction, based on a perceived, but different sense of policy failure. In addition, convergence has taken place in the context of intergovernmental collaboration at the EU level. In each case, however, the timid policy movements

56

MA R T I N A. SC H A I N

have been shaped and limited by the dominant policy paradigm based on national tradition and national struggles to integrate new immigrant populations. Indeed, in both cases, that paradigm has been stretched and modified, often in contradictory ways. Nevertheless, the clear failures do not seem to have undermined the authority of the existing paradigm and its advocates, at least not yet, and important national differences remain.46

Notes 1. Joppke 2007, 243. 2. Williamson 2006. 3. See www.euractiv.com, July 2, 2008. European Pact on Immigration and Asylum (13440/08), approved by the JHA Council on September 25 and adopted by the European Council. Statement issued by the French Council of Ministers, November 12, 2008. 4. Council Directive 2000/43/EC, June 29, 2000; and Council Directive 2000/78/EC, November 27, 2000. 5. Wacquant 1992. 6. Silverman 1992, Chapter 4. 7. Schain 1994. 8. Body-Gendrot 1993, Chapters 5 and 6; Jazouli 1992. 9. McKessen 1994, 30. 10. Caron 1990. 11. Costa-Lascoux 1989, 93–95. 12. The legislation that authorizes the prohibition against the collection of ethnic data is the Loi no. 78–17 du 6 Janvier 1978 relative à l’informatique, aux fichiers et aux libertés. However, this law was modified in 2004, and the National Commission on Computers and Liberty list seven criteria that could be used to measure “diversity”. See http://www.cnil.fr/index.php?id=1844. 13. See the extensive article in Le Monde on 4 May 4 2006. 14. Hargreaves 1995, 206–208. 15. Katznelson 1973, 125–126. 16. Hansen 2000, 128, and Chapter 6. 17. Bleich 2003, 84–85. 18. Money 1999, 100. 19. Weil and Crowley 1994, 118. 20. Benton 1985, 71. 21. Swann 1985. 22. Brighton 2007, 5. 23. Modood 2006, 2. 24. Vertovec and Peach 1997; Eade 1996. 25. Zolberg 2004, 39.

IN T E G R AT I O N P O L I C Y I N F R A N C E A N D BR I TA I N

57

26. Cowell 2006. 27. Bleich 2003, 104. 28. New York Times, March 3, 2005. This was consistent with earlier court decisions. In Mandla vs Dowell (1983), the court ruled that a headmaster was in violation of the 1976 Racial Discrimination Act for forbidding turban as violation of dress code. See Joppke 2000, 235. 29. Miles 1984, 262–264. 30. Bleich, 2003, 45. 31. Hansard, 711: 927, cited by Bleich, 2003. 32. Brighton 2007, 10. 33. Joppke 2004, 253. 34. Brighton 2007. 35. Historical Association 2007. 36. BBC News, January 25, 2007. 37. For more information about these initiatives, see the websites of the United Kingdom Foreign and Commonwealth Office, http://www.fco.gov.uk, and the department of Communities and Local Government, http://www. communities.gov.uk. Communities and Local Government was established in May 2006; one of its policy remits is to build community cohesion and tackle extremism. 38. Perlez 2007. 39. Williamson 2006. 40. Hall 1993, 79. 41. Council of the European Union (Justice and Home Affairs), Press Release, 2618th Council Meeting, November 19, 2004, 19–24. 42. Schnepf 2004, 12, 23, 33, 40, 34–36. 43. Alba and Foner 2009, 8. 44. Klausen 2005, 87. 45. Pew Research Center 2006, 4. 46. Howard 2005, 714–717.

This page intentionally left blank

CHAPTER

4

Negotiating Third-Country National Rights in the European Union Emek M. Uçarer

During the last ten years, integration of third-country nationals (TCNs) has been introduced into the joint policy domain of the European Union (EU). Starting with the Amsterdam Treaty, gathering steam at the Tampere European Council, and receiving another mandate with the Hague Program, the integration dossier is not yet as developed as some of the other dossiers in the joint governance of immigration and asylum. Nonetheless, the Brussels debates over integration of TCNs continue to gain momentum, pushed by certain services of the Commission, (Brussels-based) nongovernmental organizations (NGOs), and certain Presidencies of the EU. The modest policy output that has been frequently criticized for taking a minimalist approach can partially be attributed to divergent national practices, which member states are hesitant to harmonize; differing organization cultures within the different Directorates General of the Commission; and the relative constraints placed on successful NGO advocacy in the Justice and Home Affairs (JHA) field. This chapter seeks to track the EU-wide policy initiatives pertaining to TCNs, singling out those initiatives that would appear to have the closest links to their integration. The chapter leaves out a substantive discussion of integration, as this issue is covered by Martin Schain’s

60

EM E K M. UÇ A R E R

contribution to this volume. Using the Race Directive, the Long-Term Residents Directive (LTRD), and the Family Reunification Directive as case studies, the chapter demonstrates variance in the decision-making process and in policy outputs on a spectrum ranging from consensus to contention.

“The Rights of Others”: Migrants’ Rights in the EU The Universal Declaration of Human Rights proclaims “the right to leave any country, including [one’s] own, and to return to [one’s] country” to be a fundamental human right.1 With its designation as a human right, freedom of movement is thus acknowledged as fundamental and essential, recognizing “justified and urgent claims to certain types of urgent treatment.”2 Nonetheless, there exists no corresponding right to enter a country other than one’s own. Hence, legal migration and the integration and rights of TCNs continue to be hotly debated subjects in the EU. Most member states, including those who have recently joined the EU, continue to be destination countries for migrants and, as such, are faced with integration challenges. The European Commission estimates that “the total number of third country nationals legally residing in the EU 25 [sic] is currently double the number of the EU citizens having chosen to exercise their right to reside in another Member State.”3 It is, then, not surprising that current debates over how to “manage” migration occur synchronously with a reflection on the proper set of rights and responsibilities such migrants ought to have. Arguing that a cosmopolitan theory of justice ought also to “incorporate a vision of just membership,” Seyla Benhabib stresses the need to consider the “rights of others” and asserts that “permanent alienage is not only incompatible with a liberaldemocratic understanding of human community; it is also a violation of fundamental human rights.”4 The current debate over the treatment and integration of TCNs is premised on this notion. Although the distinction initially appears semantic, it is important to distinguish between migrants’ and immigrants’ rights. Tomas Hammar refers to migrants’ rights as those that accrue to resident aliens who are already in the territory of the host states.5 By contrast, the term immigrants’ rights is reserved for those who are in the process of admission. In the following, both sets of rights will be tied to the various EU policy instruments that have been recently adopted. But who are the “others”? Noncitizens do not represent a homogenous category. They are, by definition, a diverse group. Some of these

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

61

“others” are citizens of EU member states and hence are not TCNs. TCNs, citizens of non-EU countries, are also not a homogenous group, and their standing (and resulting rights) partially varies with their country of origin. For example, a TCN who is the spouse or minor child of an EU citizen has a certain set of rights that might differ from the set of rights of a long-term resident TCN, which differs yet again from that of a TCN who is not (yet) a long-term resident or not a resident at all. Complicating the matter further is the fluid nature of the concept of TCNs in the context of European integration: TCNs coming from countries that have special agreements with the EU (such as those in the accession process) might be subject to a different set of rights than those who do not come from countries with such arrangements.6 And finally, one might vanish from the ranks of a TCN altogether, most obviously, through naturalization in an EU member state but also through the accession of one’s country of origin to the EU. One might, of course, imagine a number of (familial) scenarios, which combine some of the scenarios briefly highlighted here and which create complex permutations. In most member states, the duration and categorization of one’s residence determines the level of rights that the individual can claim. It was not until relatively recently that the EU began to take on this issue seriously. In fact, as Louise Halleskov argues, “community law has for a long period of time served to legitimate unequal treatment of EU nationals and third-country nationals.”7 With the exception of potential derivative rights a TCN might enjoy by virtue of being a family member of an EU citizen, the EC Treaty did not make rights-based references to TCNs. As a starting point, the founding treaties did not contain any provisions for fundamental rights for noncitizens, although ex-Article 6 of the EC Treaty—now Article 12 Amsterdam Treaty—prohibited discrimination on grounds of nationality (presumably to protect other EC nationals) and ex-Article 119 (Article 141 Amsterdam Treaty) related to nondiscrimination between men and women in matters of equal pay. These articles reflect two fundamental principles on which the notion of freedom of movement in the EU is premised: nondiscrimination and the equality of treatment for EU nationals. As we will see in the discussion that follows, the policy choices to be made vis-à-vis TCNs center on extending these two principles to (certain kinds of ) TCNs. This, in essence, is an exercise in mainstreaming, one that focuses on integrating the TCN debate into ongoing policy conversations in the EU and approximating TCN rights with those of EU citizens. To track this development, we need to first take a brief look at how the TCN portfolio unfolded from the early 1990s.

62

EM E K M. UÇ A R E R

Maastricht and Amsterdam Treaties

With the 1993 Maastricht Treaty, the EU received a mandate to cooperate on immigration matters, which would be the first step to develop EU-wide instruments to apply to the admission and residence of TCNs. Immediately after Maastricht, the Commission issued a Communication on Immigration and Asylum Policies, in which it advocated for a comprehensive approach to migration, enhanced integration policies for legal migrants, and rights comparable to those of nationals.8 With the 1997 Amsterdam Treaty, the EU acquired the competence to develop instruments on (1) the conditions of entry and residence for TCNs;9 (2) the rights and conditions under which nationals of third countries, who are legally resident in a member state, may reside in other member states;10 and (3) the conditions of employment for TCNs legally resident in the Community territory.11 In 1996, member states adopted a (nonbinding) resolution on the status of TCNs legally resident in the Union territory on a long-term basis. This resolution, an initiative of the French Presidency, did not propose to grant any general rights to TCNs. In 1999, the Commission drafted an initiative on the admission of TCNs into the EU territory, which foresaw a right to employment and equal treatment with EU citizens for particular TCNs, namely, long-term TCN residents in an EU member state.12 This drew invitations from officials in member states as well as academics to reinforce the status of TCNs, in particular with respect to expulsion, and to establish equality of treatment with other EU nationals. Drawing a parallel with citizens who are generally protected from expulsion, “nationals of third countries born or raised in a Member State,” opined the experts, “should never be subject to expulsion.”13 After the Amsterdam Treaty and the creation of a Directorate General on Justice and Home Affairs (JHA, now renamed DG Justice, Freedom, and Security, JFS), the migrant integration portfolio was transferred from DG Employment and Social Affairs (formerly DG V) to the new DG, which now also had a mandate to initiate policies for TCNs already in the EU territory and those seeking entry. These efforts were a starting point to develop EU-wide policies for longterm resident TCNs that sought to approximate their status with that of EU citizens resident in an EU member state other than their state of origin. Admission-related policies would prove more difficult for joint decision making. During the 1990s, work proceeded on bringing the language of migrants’ rights in line with EU’s priorities in nondiscrimination. The new Article 13 of the Amsterdam Treaty embodied the antidiscrimination norm and introduced an “individually enforceable right to

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

63

nondiscrimination.”14 Furthermore, the Council decided unanimously to take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation.15 Tampere European Council and the Hague Program

After the relatively rapid entry into force of the Amsterdam Treaty, progress in JHA cooperation accelerated substantially, aided by the 1999 Tampere European Council dedicated exclusively to JHA. The goal of this summit was to discuss the future direction of JHA cooperation. Presidency conclusions at Tampere proclaimed that “the European Union must ensure fair treatment of third-country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting these individuals rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia.”16 Repeating the rhetoric of the mid-1990s, it further declared that “the legal status of third-country nationals should be approximated to that of Member States’ nationals . . . [and that they] should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens” (my italics).17 This was old wine in new bottles. Kees Groenendijk notes that equal treatment provisions for TCNs were foreseen as early as 1976 by the Council of Ministers, an objective that remained elusive at the time of the Amsterdam Treaty some 25 years later.18 A notable exception to the unequal status was the ability of TCNs to claim derivative status, as either family members of EC citizens exercising their right to freedom of movement or citizens of a country with existing Association or Cooperation agreements with the EC/EU within the context of Article 130 EC.19 With the Single European Act of 1986, EU nationals exercising their right to freedom of movement for employment were secured a right to equality of treatment with nationals of their host state. However, member states were reluctant to extend this to TCNs, essentially due to their unwillingness to create new obligations toward and new stocks of TCNs by developing Community-wide policies in what they considered a sensitive issue area. Amsterdam and Tampere signaled a potential shift in attitude. With the new near-equality20 mandates in hand, the Commission soon produced draft initiatives, starting with the right of family reunification. In November 2004, the Brussels European Council adopted the so-called Hague Programme to set the parameters for policy initiatives for the following five years. Since the Amsterdam Treaty, Tampere European

64

EM E K M. UÇ A R E R

Council, and the adoption of the Hague Programme, three new instruments related to TCNs legally resident in EU territory have been proposed and adopted: the Race Directive, the Directive on the Rights of Long-Term Residents, and the Family Reunification Directive. At the insistence of migrants’ rights NGOs, debates over appropriate integration of migrants ran alongside policy debates pertaining to migrants’ rights. After 2001, when the Commission presented its initial proposals on the rights of long-term resident TCNs and on family reunification, contentious debates ensued between member states, threatening the timely adoption of measures. Additionally sidelined in the aftermath of the 9/11 attacks and also the London and Madrid bombings, which shifted the focus of the JHA ministers to security- and terrorism-related matters, the TCN portfolio made little visible progress until 2003. The Greek Presidency, which was at the helm of the EU that year, can be credited with resurrecting TCN issues, especially those related to family reunification and the status of long-term residents.21 For its part, the Thessaloniki Presidency Conclusions reiterated the Tampere commitment to approximate the rights of long-term resident TCNs with those of EU nationals.22 On April 29, 2004, the EU adopted Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. The Directive affords family members of EU nationals who do not have the nationality of a member state and are therefore TCNs the same rights as the citizen whom they have accompanied, but leaves open the possibility of visa requirements for such individuals.23 In essence, this Directive has limited application to TCNs but excludes the bulk of TCNs in EU territory. In the following, EU policy initiatives that apply to a somewhat wider pool of TCNs will be discussed in more detail. The analysis highlights the Commission and Brussels-based migrants’ rights NGOs as proponents of more inclusive instruments infused with rights-based language and member states and the JHA Council as cautious actors seeking to minimize responsibilities arising from such rights-based language. Race Directive Brussels-based NGOs and think tanks, working in coalition with each other under the umbrella of the Starting Line Group (SLG), had been pressing the EU for developing EU legal instruments against all forms of racial discrimination since the early 1990s, even before the EU officially received its mandate in the field of immigration and asylum. The SLG was initiated in 1991 and came to represent some 400 NGOs working

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

65

against discrimination and xenophobia and was disbanded after it succeeded in its goal to bring about an EU instrument.24 Among the initial successes of the SLG was the role it played in the adoption of the Declaration on Racism and Xenophobia at the 1992 Edinburgh Summit, one that pressed the need to develop EU-wide instruments.25 Adam Tyson and Sandra Lavenex identify the principal proponents of the antiracism directive as the Commission’s DG Social Affairs and Employment and the European Parliament.26 In fact, it would be this directorate that would come up with the draft in conjunction with the DGs Internal Market and Justice, Freedom, and Security. It is important to note that this DG, tasked with the human aspects of the completion of the common market, is significantly different in institutional character than DG JFS, the latter falling much closer in line with the generally restrictionist tenor of the member states. After the Commission’s proposal in November 1999, the Council adopted a directive in June 2000 that implemented the principle of equal treatment irrespective of racial and ethnic origin, religion or belief, disability, age, or sexual orientation. Unlike the long delay between the introduction of Commission proposals and the adoption of a final draft by the Council that is characteristic of decision making in the JHA field, the Race Directive was adopted at record speed. Along with the SLG representing various NGOs, a Commission official chronicling the adoption of this instrument credits the European Parliament and the Commission with its relatively quick conclusion. The Commission’s proposal for a directive was based on legislation that was already in place in the EU on gender equality in the common market. It also included references to existing international instruments to which EU member states were party as well as legislation already in place in some member states.27 In essence, the proposal was modeling that which already was agreed upon in an adjacent issue area, something that probably contained divergent national opinions that would come to haunt the LTRD and the Family Reunification Directive discussed below. Furthermore, as Sandra Lavenex observes, it was linked closely to existing European Court of Justice (ECJ) jurisprudence on freedom of movement for EU member nationals and particularly to the case law that prohibited racial discrimination. Here was an instance of framing what is essentially a migrants’ rights issue as one of lifting obstacles to common market integration, which “as well as [the Directive’s] packaging together with other discrimination grounds such as religion, sex or disability in Article 13 TEC, weakened their links with the broader immigration discourse and moved them closer to less disputed core areas of European integration.”28 Adding to this set of fortuitous circumstances was a permissive political consensus among member states to combat

66

EM E K M. UÇ A R E R

racial and ethnic discrimination, reinforced by the electoral victory of Jörg Haider’s xenophobic Freedom Party in Austria, which further expedited the process. All of these factors coalesced to build and sustain consensus and resulted in a decision-making process that was unusually expeditious. Thus was born the Directive on Racial Discrimination, the negotiation context of which would prove impossible to replicate in subsequent policy instruments.29 The Directive gives important rights to those arriving in EU territory and those who are already residing there. It bans racial and ethnic discrimination, direct and indirect, in the areas of employment, self-employment, education and vocational training, working conditions, social security, health care, access to goods and services, and housing.30 Even though the Directive does not specifically name national origin as ground for discrimination, it applies to all residents of EU territory, including all TCNs. As such, it is perhaps the widest reaching instrument that is applicable to TCNs. The negotiation context of the other two instruments, namely, the Long-Term Residents Directive and the Family Reunification Directive, and the reach of the resulting documents were a far cry from that of the Race Directive for which the stars seemed to have aligned just right. It is to those instruments that we now turn. Long-term Residents Directive In accordance with Benhabib’s call to specify and strengthen the “rights of others” to avoid permanent alienage and remedy the exclusionary consequences of one’s immigrant status, considering the rights and duties of those TCNs who have been living in EU territory for extended periods of time is a logical place to start. In an effort to delineate such rights and responsibilities, in March 2001, the Commission introduced its proposal for a directive on the status of TCNs who are long-term residents.31 Unlike the Race Directive, which was launched by DG Social Affairs and Employment, this directive was developed by DG JFS. Article 1 outlines the dual goals of the directive: to approximate national legislation in the granting of long-term resident status to legal-resident TCNs so that “third-country nationals enjoy long-term status on equivalent terms” in all member states and to determine the conditions under which such persons could exercise a right to freedom of movement to a member state other than the one that granted them long-term resident status.32 Seeking to approximate the standing of long-term resident TCNs with that of EU citizens, the LTRD provides a long-term resident status to TCNs after five years of legal residence in EU territory and affords equal treatment rights on education, employment, and social security. Prior to the adoption of

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

67

this directive, only family members of EU citizens were able to benefit from the freedom of movement rules. Even though it was penned by DG JFS, which is generally regarded as a relatively conservative DG that resists instruments that could create a “pull factor” for migration, the draft was still quite a bit more liberal and inclusive than what was ultimately adopted. When political agreement was finally reached by the JHA Council in June 2003, resulting in the November 2003 adoption of the directive, the Commission’s original proposal was watered down by several rounds of changes. Importantly, while the 2001 Commission proposal was fashioned after existing EC rules on freedom of movement for workers and thus offered an instrument that sought to afford TCNs maximum legal certainty, the version that was adopted by the Council took its inspiration from existing national legislation. This resulted in a number of limiting amendments to the original text, evidently at the insistence of several member states (spearheaded by Germany and Austria) to retain their national policy prerogatives.33 In essence, the strategy that seemed to have worked for the Race Directive—anchoring the new instrument in already existing nondiscrimination measures for the common market—did not work. The final text also narrowed the scope of potential beneficiaries, ultimately excluding such TCNs as students and individuals undertaking vocational training, beneficiaries of temporary protection, refugees, and individuals with diplomatic or consular protection.34 But in some limited cases, primarily linked to family ties to an EU citizen, the Directive provided for freedom of movement for TCNs to another member state and allowed them to take up employment there.35 During the negotiations after the initial proposal from the Commission, a new paragraph was inserted into the draft at the initiative of Austria, Germany, and the Netherlands, requiring compliance with integration “conditions” of the recipient state. This new language, Groenendijk argues, enables EU members to insist that immigrants cover the financial costs of integration measures rather than allowing them to attend public courses offered by the receiving country.36 Article 4 obliges migrants to provide evidence of sufficient resources for themselves and their dependents, including possession of health insurance and access to appropriate accommodations, so that they do not present a financial burden to the state. Furthermore, Article 6 enables member states to refuse long-term resident status to individuals on public policy or security grounds, allowing them discretion in determining what constitutes such grounds. As for rights, those meeting all of the criteria listed in the Directive secure the right to residence in the member state in which the long-term resident application is launched. They also

68

EM E K M. UÇ A R E R

secure the right to equal treatment with nationals of the receiving state for certain dimensions, among others access to employment and selfemployed activity, tax benefits, education and vocational training, and freedom of association.37 A desire to move to another EU member state results in the necessity to relaunch the process in the new destination country. Despite the declaration of equality in Article 11, member states still retain the right to restrict equality in treatment, including in instances in which access to employment is contingent on citizen or EU citizen status. While Brussels-based migrants’ rights organizations such as the European Committee on Refugees and Exiles (ECRE), the Churches Commission on Migrants in Europe (CCME), and Caritas responded positively to the Commission’s initial draft, with its rights maximizing provisions, they reacted with recurring criticism to each new draft of the directive, but without the desired effect. Member states were successful in securing the insertion of limiting language into each new draft. The final text of the LTRD is thus widely criticized as falling short of overall equality between TCNs and EU nationals and merely affording the former a status that is somewhat more privileged than that of ordinary migrants but less than that of EU citizen migrants. Among these criticisms are the lack of transportability of the status (and its attendant rights) to another EU member state, the lack of a comparable EU status for the individuals concerned as member states are allowed significant discretion, the inferior legal safeguards for appealing a decision for expulsion compared with what is afforded an EU citizen, and the wide discretion that remains with member states in determining sufficient compliance with mandatory integration conditions.38 The use of obligatory integration tests in some member states to measure compliance with the integration conditions requirement and refusal of status based on their outcome has received particularly strong criticism as disadvantaging the poorer migrants or serving as a tool for exclusion of TCNs who are regarded as “different.” Ultimately, the instrument leaves the impression that the “migrant is seen as an alien who needs to become normalized.”39 As Kees Groenendijk observes, the ratcheting down of safeguards and rights as this instrument evolved can be explained by the modeling of EU instruments after the relevant (restrictive) national immigration rules of the member states, which has been the norm in the Third Pillar after Maastricht and Amsterdam,40 especially because of the unanimity rule that not only made decision making difficult but also predisposed to producing lowest common denominator outcomes.41 The LTRD thus exemplified a moderate degree of contention, with the Commission and NGOs unhappy to varying degrees with the final instrument. This dynamic was not

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

69

peculiar to this instrument alone. The Family Reunification Directive, which made its debut at about the same time, encountered increasingly restrictive iterations of policy proposals together with increasing criticism from NGOs.

Family Reunification Directive Protection of the family unit is a universal human right incorporated into Article 16(3) of the United Nations Universal Declaration of Human Rights as well as in Article 23(1) of the 1966 International Covenant on Civil and Political Rights and Article 10(1) of the International Covenant on Economic, Social and Cultural Rights. The 1989 Convention on the Rights of the Child likewise refers to the protection of the family unit as a fundamental right and calls on states parties to prevent the separation of children from their parents. Finally, Article 44 of the United Nations Convention on the Protection of All Migrant Workers and Members of their Families recognizes the protection of the family unit as a fundamental duty of the states parties to the convention. Highlighting also the link between admission policies and migrant integration, the International Labor Organization has argued that maintaining the togetherness of the family unit is “essential for the migrants’ well-being and their social adaptation in the host country.”42 As such, and similar to the asylum norm, which is also protected by regional and international law, any attempt to regulate the entry of certain family members of migrants has to be tempered by obligations arising from human rights commitments, essentially acting as a potential constraint on recipient states. The 1968 Council Regulation 1612/68/EEC already gave family members of EU workers, irrespective of their nationality,43 the “right to install themselves with the worker” provided that the worker had accommodations considered normal for national standards.44 While the rights of EU nationals to maintain their family’s unity were thus protected, no such right was extended to TCNs until the EU began working on an instrument that would outline the parameters for family reunification. On December 1, 1999, the European Commission issued its draft for a Council Directive on the right of family reunification, which would become the starting point of such an instrument.45 This would ultimately result in the adoption of the only EU legislative proposal dealing with legal immigration and the first of a set of measures arising from Article 63.3(a) EC Treaty on TCNs. This first draft would also straddle immigrants’ rights and migrants’ rights and provide strong references to the existing regional human rights instruments protecting the family unit.

70

EM E K M. UÇ A R E R

It was additionally presented by the Commission as an important tool for integration.46 The adopted text of the Directive maintains this rhetoric and posits that “family unification . . . helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion.”47 As Gisbert Brinkmann observes, family reunification can be seen “on the one hand, as a humanitarian or human rights issue, and, on the other, as an immigration matter which might place a strain on the labour market and social facilities, such as housing, education and medical facilities.”48 As it turned out, the lens through which one observed family reunification as a right would prove important: leaning toward the human rights frame, one that emphasized family unity as an internationally protected human right and insisted on highlighting the obligations of the receiving states to develop instruments that would be consistent with their obligations would likely produce a generous instrument, and leaning toward the security frame, one that reflected post-9/11 preoccupations that highlighted migrants as potential security threats49 would produce an instrument that would confer a restricted set of rights to restricted sets of family members. Although the Directive was initially thought to be relatively noncontroversial, and perhaps because it involved immigrants’ rights related to admission (a domain that continued to be controversial), negotiations were difficult and protracted. The original Commission draft met with resistance from member states. The Commission subsequently tabled two revised drafts in October 2000 and May 2002.50 At each turn, the Commission’s original proposal was weakened further. The Council finally adopted the Directive on September 22, 2003.51 It is important as it recognizes for the first time that TCNs also have a right to family reunification,52 extending such a right beyond that which was traditionally understood to be a right that accrued only to EU nationals.53 That said, the Directive was designed to determine the circumstances under which such a right could be enjoyed, essentially establishing conditions for this right. Echoing the critique levied against the LTRD discussed above, Ryszard Cholewinski argues that the “right to family reunification for thirdcountry nationals is in danger of being effectively rendered redundant by the conditions imposed upon this right.”54 Whereas the Commission’s original draft was consistent with the relevant human rights instruments, such as the European Convention on Human Rights and Fundamental Freedoms (Article 8) and the UN Convention on the Rights of the Child, the Directive in its final state dealt “as little as possible with legal obligations and, where necessary, [introduced] minimum standards below

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

71

those existing in national legislation.”55 While the Family Reunification Directive creates rights for immediate family members, it also makes it possible for individual member states to implement or maintain policies that would allow other groups of related individuals (such as first-degree ascendants, unmarried children, and unmarried partners) to claim family reunification benefits. As with the LTRD, certain categories of TCNs, most notably refugees and beneficiaries of temporary protection schemes, are excluded from the scope of the Directive. Effectively, during the course of negotiations, the scale tipped away from human rights and humanitarian prerogatives, allowing family reunification to be cast strongly as an instrument of admissions and migration control as opposed to one of human rights. The instrument was criticized widely for its limited scope, its very narrow definition of a family member, its exclusion of certain categories of noncitizens, the increasingly restrictive extension to the minor children of the applicant, and the removal of a standstill clause from the final text, which would have prevented member states with national standards that were more favorable to the applicant than those provided in the final document from lowering those to the level of the directive.56 Speaking on the issue of denials of family reunification applications on the grounds of public policy, security, and health, the director of the United Nations High Commissioner for Refugees’ (UNHCR) Brussels bureau observed that “ ‘public policy,’ in particular, is a very vague term that could be easily used to keep families apart without any real justification.”57 Echoing some of these criticisms, the European Parliament brought an action for annulment of certain provisions of the Directive to the ECJ on December 22, 2003, on procedural grounds, arguing that the Council adopted the Directive without consulting the Parliament as it should have pursuant to Article 67 EC Treaty. Furthermore, the Parliament raised substantive objections about the requirement that children over 12 years pass an integration test before being able to rejoin the applicant’s family and objected to the requirement that applications for minors be submitted before they turned 15 and to the requirement that the applicant must have resided in the country in which the application was being made before he or she could be joined by members of his or her family. These requirements, argued the Parliament, were incompatible with rights established by “the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and as they result from the constitutional traditions common to the Member States of the European Union, as general principles of Community laws.”58 The Grand Chamber of the ECJ on June 27, 2006, dismissed the Parliament’s action for annulment. It rejected the Parliament’s arguments,

72

EM E K M. UÇ A R E R

asserting that human rights texts “do not give the members of a family the subjective right to be admitted into the territory of a Member State; [that] compulsory integration tests are not illegal . . .; and [that] the Directive authorizes Member States to refuse reunification to children failing to apply before they turn fifteen, but in no way forbids them to consider applications from children over fifteen.”59 With this decision, the Directive stands as adopted, retaining the elements that were the subject of great criticism and controversy. As with the LTRD, but perhaps to an even greater extent, the Family Unification Directive was not only resisted by NGOs but also critiqued by the UNHCR, to no avail. NGOs interviewed expressed deep frustration with the course the adoption of the document took, judging themselves as having been “relatively unsuccessful” in influencing the final text. A decision-making climate that emphasized caution based on security concerns appeared to trump whatever human rights-based rhetoric was being advanced by NGOs. Despite their best efforts to mobilize against the restrictive elements that surfaced in the various drafts, even the more sophisticated Brussels-based NGOs and NGO coalitions came up short.60 In fact, the Family Reunification Directive was the most contentious of the policy initiatives highlighted here. Conclusions The EU’s TCN portfolio has been evolving since the Union received a mandate with the Maastricht and Amsterdam Treaties. While there has been considerable output when it comes to immigration policies that regulate admission of TCNs into EU territory, progress on EU-wide migrant policies is much more modest. Nonetheless, there is a clear articulation of the need to pay more attention to the rights of TCNs within the context of the liberal democracies in which TCNs live. It is not accidental that proponents of better articulation of TCN rights consciously link their arguments to the Union’s well-established norms of nondiscrimination and equality of treatment. While these norms are most frequently applied to employment in the context of the common market and its freedom of movement provisions, the evolving discourse stresses the incompatibility of rights-deprived TCNs with the principles of democratic inclusion, especially when many EU member states have long-standing stocks of TCNs. The Commission, the Parliament, and Brussels-based NGOs have been pushing for social and legal inclusion of TCNs in a terrain that is increasingly diverse. Such efforts have born some fruit, but also demonstrate significant contention among the stakeholders in the policy-making process. The

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

73

policy tracing exercise presented above suggests that migrants’ rights advocates have found this a frustrating environment in which to work. Despite the emergence of a professional cadre of NGO entrepreneurs in Brussels, which attempts to engage their dossier at multiple levels (national, regional, and international), in multiple settings (EU institutions and regional/national media), at various points in the policy cycle (conceptualization, formulation, adoption, and implementation), and through multiple strategies (agenda setting, solution development, networking, framing, and accountability seeking), civil society organizations have been frustrated by the closed nature of the Council. The securitization of the immigration portfolio has also hampered efforts to develop instruments that would be regarded as appropriately inclusive and protective when scrutinized from a human rights perspective. The result has been the frequent display of contentious engagements between NGOs and the EU decision-making apparatus and the not-too-infrequent disagreements between the EU institutions themselves. Furthermore, the frequently divergent national perspectives on appropriate common policies and a decision-making environment that has generated minimalist initiatives have made managing the Union’s migration-enhanced diversity a significant challenge. As a result, the current policy output is long on restrictions and exclusions and modest on rights and protections for the majority of TCNs.

Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

UDHR, Article 13(2). Nussbaum 2006, 36. European Commission 2005a. Benhabib 2004, 3–4. Hammar 1985. For a discussion on the rights of Turkish workers, which could themselves be a yardstick for comparison for other TCNs, see Theele 2005. Halleskov 2005, 181. European Commission 1994. EC Treaty, Article 63(3)(a). Ibid., Article 63(4). Ibid., Article 137(3). Peers 1999. Groenendijk and Guild 2001, 50. Lavenex 2006, 1288. European Union 1997. Council of the European Union 1999, paragraph 18. Ibid., paragraph 21, emphasis added.

74

EM E K M. UÇ A R E R

18. Groenendijk 2001, 226–227. 19. Halleskov 2005, 181; Theele 2005. 20. Halleskov (2005, 182) observes that “no independent definition of ‘nearequality’ exists in European law,” making it difficult to discern what exactly is meant by this. The obvious default standard could be the rights accorded to EU citizens who have exercised their right to move to another member state. 21. Peers 2004. 22. Council of the European Union 2003c, 8. 23. Council of the European Union 2004. 24. Geddes and Guiraudon 2004; Tyson 2001. 25. Chopin 1999; Niessen 2000. 26. Tyson 2001; Lavenex 2006. 27. Tyson 2001, 200. 28. Lavenex 2006, 1289. 29. Tyson 2001. 30. Council of the European Union 2000, Article 3. 31. European Commission 2001. 32. Ibid., Article 1. 33. Halleskov 2005. 34. Carrera 2005, 125. 35. Bendel 2005; Lavenex 2006. 36. Groenendijk 2004. 37. Council of the European Union 2003b. 38. Carrera 2005, 129–131. 39. Ibid., 132. 40. Groenendijk 2001, 230. 41. Uçarer, 2007. 42. ILO quoted in Cholewinski 2002, 274, emphasis added. 43. In the event that these were TCNs, they would as a consequence of the right provided for in the Directive, have acquired a right that might not have been available to other non-EU-relative TCNs. 44. Council of the European Union 1968, Article 10. 45. European Commission 1999. 46. Carrera 2005. 47. European Commission 1999, 23. 48. Brinkmann 2001, 243. 49. Bigo 2002; Huysmans and Buonfino 2006. 50. European Commission 2000, 2002. 51. Council of the European Union 2003a. The directive does not apply in the UK, Ireland and Denmark. 52. Boeles 2001. 53. Cholewinski 2002, 273. 54. Ibid. 55. Lavenex 2006, 1291.

N E G O T I AT I N G T H I R D -CO U N T R Y N AT I O N A L RI G H T S

56. 57. 58. 59. 60.

ECRE 2003. UNHCR 2003. European Court of Justice 2006, paragraph. 30. European Union 2007. Uçarer 2008.

75

This page intentionally left blank

CHAPTER

5

Migrant Women: Negotiating Rights and Recognition in the Political and Legal Framework of the European Union Helen Schwenken

“When you organize a training on Gender Mainstreaming . . . you discover that nationality and legal status . . . are not yet recognized or are, at most, ‘secondary factors,’ though manuals on program evaluation indicate the goal of reducing inequalities related to ‘multiple discriminations.’ ”1 The quote points to the difficulties a local project in the EQUAL initiative of the European Union (EU) faces: the project, which offers services for the professional qualification of refugees and asylum seekers, tries to marry official program evaluation criteria, general policy guidelines, and its own approach. These perspectives and requirements do not always match. Thus the project creates its own approach: it takes the already existing instruments and institutions from gender mainstreaming, adds “diversity,” and renames it as “Diversity Mainstreaming.” As the introductory example shows, various markers of identity or ascription, such as religion, sexual orientation, age, and ethnicity, matter for migrant women.

78

HELEN SCHWENKEN

These interrelations lie at the heart of this chapter: How can migrant women make use of the institutional mechanisms provided by the EU to legally and politically counteract discrimination based on gender, ethnicity, and other identity markers? Does the European political and legal institutional framework force them to “opt” for one “principal” dimension of identity and to argue that their discrimination results from that principal dimension? Or are the much discussed issues of intersectionality and multiple discriminations reflected in the European equality framework? As I will show, even after the Amsterdam Treaty (Article 13) and the subsequent directives, multiple discriminations are not per se acknowledged as such. Gender mainstreaming, diversity politics, and antidiscrimination are three important modes of acknowledging the rights and the representation of (migrant) women. These strategies have not only been influential in recent years, but they also each formulate a different relation to the state, from relying on the state as a grantor of rights to relying on market mechanisms instead of state regulations. It will be shown that all three approaches provide ambivalent outcomes for migrant women and the acknowledgment of intersectional discrimination. The chapter contributes to the discussion on state feminism and the historical development of a women’s policy machinery, which has been quite powerful in a range of industrialized countries and which resulted from strong women’s movements and their engagement with the state. It has been argued recently that state feminism is losing influence and is partly replaced by a “market feminism.”2 Starting from this diagnosis, the chapter probes what implications the shift from state feminism to market feminism has for equality claims of migrant women.

Women Migrants’ Political Representation and Recognition in the European Union In the following section I lay out the conditions under which the three instruments—gender mainstreaming, diversity politics, and antidiscrimination—operate. I first map the modes of representation and organization of migrant women in the EU; then I demonstrate that the same actors who have advocated for women’s issues in general have brought migrant women’s demands onto the agenda of the EU as well. As the Amsterdam Treaty has installed important provisions for the recognition of (multiple) discriminations, these are sketched out in the last part of this section.

MIGRANT WOMEN

79

Mapping Modes of Representation and Organization

The representation, participation, and organization of migrants in the EU takes a wide range of forms with more or less close or distant relationships to the institutional framework in the multilevel system of the EU. At least five modes of representation and organization can be distinguished:3 self-organization; inclusive representation in, for example, trade unions or general interest organizations; advocacy organizations and professionals; electoral mechanisms such as absentee voting; and special migrant advisory bodies and governmental mechanisms such as ombudspersons and special representatives for integration. What unites most of these forms of representation and organization is the reference to a rights-based approach. But the extent and strength of the infrastructure of NGOs and self-organizations of migrant women is different in every country of the EU. Old immigration countries, such as the United Kingdom, show a very high number of organizations; recent countries of immigration are catching up, while the new EU member states have both fewer immigrants and less in-/direct representational structures and organizations. At the European level there is no equivalent to the European Women’s Lobby (EWL) or the European Network against Racism (ENAR) as of yet. The EWL never had many member organizations consisting of immigrant women, except from the Netherlands. This is due to its structure: it consists of national umbrella organizations that traditionally have had a weak representation of migrant women. Nonetheless, already in the mid 1990s, the EWL brought the issue of migrant women on the European agenda through publications, policy seminars, and networking.4 The EWL also tries to encourage a European self-organization of migrant women, the European Network of Migrant Women, which is in its founding stages.

The Recognition of Migrant Women in Community Equality Action Programs

Gender equality policies in the EU and for funding NGO projects in that field are guided by Community Action Programs for Gender Equality, which can be considered as part of soft law in the EU. The following brief analysis of the programs from 1982 to 2010 illustrates the changes migrant women’s issues have gone through over time.5 The first action program (1982–5) proposed the principle of equal treatment for migrant women, and the Women’s Bureau solicited input from academic experts. But in the mid-1980s, the member states put pressure on the European Commission to stick to its narrow mandate

80

HELEN SCHWENKEN

of building a common market. As a direct consequence, migrant and ethnic minority women were no longer mentioned explicitly in the second action program, Equal Opportunities for Women (1986–90); they were, however, included in the chapter on particularly disadvantaged women in the labor market. Yet, in the third medium-term community action program (1991–5) female migrants and other disadvantaged groups of women were not mentioned. The training program New Opportunities for Women was used to fill the gap. In the fourth action program, Equal Opportunities for Men and Women (1996–2001), the trend of nonrecognition continued; however, funding for projects targeted at marginalized women was granted. The substantially widened definition of discrimination in the Amsterdam Treaty6 became an important point of reference. In its aftermath the conditionality of EU funding changed; at least two reasons of discrimination had to be addressed now. Hence, projects of and for women migrants got a better chance for funding. The fifth action program, Community Framework Strategy on Gender Equality (2001–5), put emphasis on women in business, civic rights for women, and combating trafficking in women. Only in the chapter on civic rights were female migrants mentioned, but—and that is significant—the targeted areas were to be outside the territory of the EU.7 Only information campaigns against trafficking in women could be funded within the EU. The Roadmap for Equality between Women and Men (2006–10) formulates six priority areas for EU action on gender equality (2006), among them equal economic independence for women, which includes immigrant women and aims at combating multiple discrimination. All in all, migrant women reappear on the European equality agenda. The focus is clearly one of labor market integration, which combines rights language (“ensure women’s rights and civic participation”) with a utilitarian approach (“fully use their employment potential”).8 A report on gender equality by the Commission, for example, argues that the “integration of immigrants in the labor market and in society is one of the key factors for success in reaching the Lisbon targets.”9 The strong reference to the labor market in gender equality policies is not new at all, but the strong emphasis on competitiveness and on the necessity to fully utilize human resources is a more recent development. This increasing importance of market language supports the observation by Johanna Kantola and Judith Squires that women policy makers and feminists are also moving toward market feminism, or at least make use of neoliberal discursive arguments.10 In sum, over the years, direct references to migrant women declined in the action programs, but they have reappeared. Despite the apparent

MIGRANT WOMEN

81

difficulty with the issue in European policy discourse, the Commission increased or kept up its attention and competence. This can be explained by two factors: First, since the mid-1980s, an advocacy network, or in the words of Alison Woodward a “velvet triangle,”11 of committed women in the European bureaucracy, female politicians and academics as well as women’s movements was built up. It was comparatively open to the demands of migrant women. Second, fresh winds blew with the Amsterdam Treaty as it included not only gender mainstreaming as a principle but also nondiscrimination. This improved the institutional setting for migrant women, as the separation of racial discrimination from gender discrimination was partly challenged. Hence, migrant women’s demands gained increased legitimacy. The Amsterdam Treaty

Article 13 of the Amsterdam Treaty and subsequent directives12 extended the grounds on which the EU prohibited discrimination. Historically antidiscrimination and equal treatment law only targeted gender discrimination and discrimination on grounds of nationality. With the new instruments, the EU now also prohibits discrimination on the grounds of race and ethnic origin, disability, sexual orientation, religion and belief, and age.13 In addition to the new Article 13, Articles 2 and 3 of the Amsterdam Treaty contain the principle of equal treatment of men and women. This prominent reference means that the antidiscrimination provisions are no longer restricted to the sphere of employment, but that all issues under EU responsibility are covered.14 By the multiplication of grounds of discrimination, the question whether cross-cutting discriminations will also be acknowledged is put onto the agenda. For example, if a Muslim woman is not allowed to work as a teacher but as a janitor, is this discrimination based on religion, ethnic origin, and/or her gender? In sum, migrant women’s issues moved onto the EU agenda because of direct and indirect representation of migrant women and institutional changes such as the Amsterdam Treaty. The following section discusses the prospects and pitfalls of the legal and conceptual framework established in the wake of the Amsterdam Treaty. Gender Mainstreaming, Managing Diversity, and Antidiscrimination as Instruments to Address Complex Social Inequalities? In the context of the policy frameworks described, what concrete strategies to counter discrimination of migrant and ethnic minority women

82

HELEN SCHWENKEN

did the EU pursue? Gender mainstreaming and antidiscrimination are both instruments the EU made mandatory to implement in the member states. Managing diversity is a concept developed in human resource management, which has inspired thinking in the EU and which it promotes increasingly. What complicates the analysis of these strategies for migrant women is the language used by the EU and the distance between feminist theory and political and legal practice: While in feminist theory “intersectionality” has become a new buzzword, in most European documents the terms “multiple discrimination” or “additive discrimination” are used. While in feminist theory the idea of discriminations adding up has been heavily criticized and replaced by the idea of interrelatedness, in the EU all terms tend to be used interchangeably. Legal cases involving discrimination due to gender and nationality have in almost all cases been successful if referring to only one category, although one could have argued that particularly the combination led to the discrimination.15 In this section I probe which instrument—gender mainstreaming, managing diversity, or fighting discrimination under the new legal instruments—is better at acknowledging multiple and intersectional discrimination. One benchmark to measure the potential of these instruments for addressing multiple and interrelated forms of discrimination can be taken from the discussion on intersectionality in feminist and critical race theory.16 To further concretize the concept of intersectionality Leslie McCall’s differentiation of intracategorial, intercategorial, and anticategorial complexities is instructive.17 The intracategorial approach takes inequalities and differences within one of the categories such as gender, class, or ethnicity into account; that is why this dimension is crucial for migrant women. The intercategorial approach focuses on the relations between the categories and requires to “provisionally adopt existing analytical categories to document relationships of inequality.”18 This perspective can be important in case of arbitrariness, neglecting the power of certain ascriptions. Within the recent debates one expert, for example, voiced the opinion that everybody can be affected by multiple discrimination because everybody has more than one identity—but in reality not everybody’s likelihood of being discriminated against is the same.19 The anticategorial approach reflects the skepticism in parts of feminist theory about using fixed categories at all; it methodologically deconstructs categories such as “woman” or “race.” Although it is clear that these theoretical concepts and the discussions on intersectionality cannot be translated directly into instruments and policies, the equality measures of the EU can be best described as intercategorial and partly intracategorial, while anticategorial complexity does not play a role at all.

MIGRANT WOMEN

83

Gender Mainstreaming: Between Processing Gender and Normative Framework

In its origins, gender mainstreaming is not a European instrument, but a strategy developed by a global women’s network from the South, Development Alternatives of Women for a New Era (DAWN), which formulated in 1985 the overall goal of empowerment for all women including considerations of heterogeneity and diversity.20 Gender mainstreaming also is part of the 1995 Beijing Platform of Action. In the EU it was incorporated into the 1997 Amsterdam Treaty and translated into several directives. As the historical background indicates, the concept contained in its early days diversity; however, it has been narrowed down to focus only on gender. It is today a conceptual rationale and commitment to incorporate considerations of gender into all policies, budgets, and institutional activities. To some degree gender mainstreaming complements older gender equality measures (such as positive action) and to some degree it replaces them. This has led to both confusion and political contestation. Newly introduced equality measures, for example, often need to carry the “gender mainstreaming label” to be acknowledged as up-to-date, but sometimes they are identical with older equal opportunity measures. Hence, Angelika Wetterer concludes that we currently face a “rhetorical modernization” of equality politics.21 Some critically point out its philosophies drawn partly from human resource management, its often nonbinding character, and the danger of essentializing differences. In the EU it was harmful in the short term as women’s committees, resources for women and positive actions, were almost abolished in the name of gender mainstreaming, “while in the long term it proved helpful in policy areas where gender equality coincided with other EU priorities, such as economic priorities of the European Employment Strategy or in policy areas that fell under the responsibility of feminist commissioners.”22 For migrant women it is of crucial relevance whether gender mainstreaming attempts account for impacts on different groups of women—the intracategorial aspect of intersectionality—as women are too often considered a homogeneous group.23 To ensure the inclusion of migrant and ethnic minority women into gender mainstreaming and to develop a transformative prospect, it is important to put more emphasis on the agenda-setting and participative-democratic aspects of gender mainstreaming.24 As the following examples illustrate, difficulties not only appear at the conceptual level, but also in terms of implementation and actual activities. At the programmatic level most EU documents on migration and

84

HELEN SCHWENKEN

immigrant integration contain passages such as that a “gender perspective [is] incorporated into all relevant actions.”25 However, the EWL claims that this is often lip service.26 A study on violence against migrant women in the Euromed region comes to the same conclusion. Migrant women’s issues are mainstreamed in the texts, but not sufficiently in the actual policy actions.27 Departing from the European level and looking at program implementation at the national and local levels, a case from Austria illustrates that migration and gender can be mainstreamed at the same time into concrete projects. However, the efforts taken have depended on the individuals who were responsible for gender mainstreaming in the projects. The project partners of seven so-called Development Partnerships founded a National Network Migration and Gender in which they discussed the situation of immigrant and Roma women in the Austrian labor market. The result was an evaluation of multiple and interrelated discriminations entitled “EQUAL, but not self-determined.”28 The report points to discriminations due to societal structures and laws, sexism and racism, disqualification and education, and socioeconomic conditions. Without going into the details of these and other cases, it can be concluded that, first, in most cases no actions are taken if there are no dedicated women (and some men) who have been involved in gender equality affairs previously. Second, gender mainstreaming is a starting point in which—if it works well—further categories of inequality and discrimination can be integrated. Third, an analytical view points to the persistence of exclusive structural and socioeconomic factors and the inherent limits of such projects and mainstreaming efforts. Managing Diversity: A Rewrapping of Integration Policies?

Diversity management originates from the world of business and aims to positively acknowledge the ethnic, gendered, or personal differences of individuals.29 The assumption is that disregard of these differences leads to a waste of resources. The strength of managing diversity lies in the gradual overcoming of prejudice and the valuation of diversity, although the root causes of discrimination and complex social inequalities are not touched. Among the three approaches discussed in this chapter, diversity management embodies most clearly the tendency toward market mechanisms in public policy. The concept of diversity has entered the EU’s equality agenda. It is particularly considered a good instrument for small and medium enterprises, which often do not fall under mandatory antidiscrimination and equality provisions.30 The popularity of the concept is not limited to

MIGRANT WOMEN

85

business; more and more city administrations redefine their integration policies by using the language and tools of diversity politics.31 Cities consider diversity programs as less deficit oriented and as a part of local competition policies. They often refer to Richard Florida’s concept of the “creative class” and the good economic performance of diverse cities.32 The new diversity trend is promoted by and coordinated at the European level, for example, by the European Network of Cities for Local Integration Policies for Migrants or the EUROCITIES project “Diversity and Equality in European Cities” and in EU soft law (such as on integration policies).33 Due to the increasing application of diversity politics as integration policies, it is worth reflecting on the concept and some practices. What are the main similarities and differences between managing diversity and gender mainstreaming? Both concepts stress potentials and leave a deficit approach behind. Both are conceptualized as top-down strategies in which decision makers and responsible staff units design mission statements, steer the processes, and carry the responsibility; nonetheless, both need sufficient backing and bottom-up initiatives. As with gender mainstreaming, it can be argued that diversity management essentializes and fixates differences—neither is anticategorial in McCall’s terms. A programmatic de-gendering34 or de-ethnicization is not part of the concept. However, experts involved in gender mainstreaming tend to be much more aware of such critical remarks made in feminist theoretical discussions than those implementing managing diversity with its managerial origins; thus a reflective culture about its pitfalls is much more common in gender mainstreaming. The most apparent difference is that gender and gender-related equality goals are at the centre of gender mainstreaming, but not of managing diversity. Gender does often disappear from the managing diversity agenda; categories of difference can be played off against each other. Gender mainstreaming is conceptualized as impacting all areas, while managing diversity is often limited to human resource development and public relations. Further, the profitability rationale may turn into a problem as equality may be more costly than the gains to be had from it, and if male dominance is profitable for the goals of the firm, this tends to be enforced rather than softened.35 As the brief comparison with gender mainstreaming illustrates, from a gender perspective, some caution is expedient. What might the shift from integration to diversity politics imply for migrants in general and migrant women in particular? In cities such as Vienna, Stuttgart, and Frankfurt the “old” integration paradigm is not completely abolished, but reformulated in terms of diversity to divert from the track of regarding migrants as causing problems and

86

HELEN SCHWENKEN

having deficits, but advocating for a more open-minded social climate within the cities, which should also increase their competitiveness. While the responsible units highlight gains, they also note critically that the diversity concept lacks means to combat structural social inequalities and that there is a continuous need to offer compensatory services for migrants.36 They call for a link between diversity, gender equality, and antidiscrimination measures, clearer definitions and tools to make maximum use of the different approaches.37 Other cities entrust for-profit consultants with the development of a diversity strategy, such as in Hamburg. They typically make the business case for diversity, but do not take structural social inequalities into account. Thus, without a creative merging of different approaches, such as in Frankfurt, Stuttgart, and Vienna, managing diversity has a clear class bias as mostly professional— and often male—migrants profit from measures to enhance “cultural diversity” in cities, firms, or public administrations. From a gender perspective most publications on diversity suffer from a clear deficit: gender may only be mentioned once, when the different categories of diversity are listed. When women’s policy units are abolished in the light of mainstreaming or diversity management, women’s issues may quickly be neglected. An impetus that allows addressing structural inequalities within diversity concepts comes from the United States. Nevâl Gültekin has noted that in the European context diversity is mostly limited to gender, age, and ethnicity, while in the United States a differentiation is made between demographic or social category diversity (age, gender, nationality etc.); personal diversity (faith, moral values, individual appearance); ability and skill diversity; and the informational diversity (differences regarding the level of knowledge and information).38 From this perspective diversity encompasses the multifaceted, vertical and horizontal, social and cultural differences in society. Hence, diversity is a combination of objective, collective, and individual aspects. This understanding opens up diversity management to a combination with other equal opportunity and antidiscrimination measures, which could then be an interesting tool from which migrant women could profit. Antidiscrimination: One or Many Grounds?

Antidiscrimination policies aim at protecting natural persons and groups of persons against direct and indirect discrimination and unequal treatment. But not all unequal treatment is considered discrimination, only “unjustified” unequal treatment.39 The post-Amsterdam directives are segmented into three different sets, each set focusing on specific grounds

MIGRANT WOMEN

87

of discrimination. The EU regulations on antidiscrimination are further differentiated according to their scope: one covers discrimination in the labor market,40 one outside the labor market,41 and one concerns goods and services.42 Due to its fragmentation EU antidiscrimination law turns out to be difficult to grasp, which limits the protection against multiple and intersectional discrimination.43 Nonetheless, the directives do not explicitly exclude interrelated forms of discrimination; the Race Directive states, “In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.”44 As with all concepts, antidiscrimination policies have been criticized, both in a fundamental and a concrete manner. A conceptually weak point in antidiscrimination legislation is that, as with the other instruments, the root causes for discrimination are not tackled. Furthermore it focuses on individual cases and legal proceedings. The exceptions that are already included in the regulations constitute a concrete problem. The Directive on Goods and Services, which, for example, excludes the content of media, advertisement, and self-employment45 of the Employment Equality Directive allows member states to exclude churches and other faith-based organizations from the antidiscrimination provisions. Thus, faith-based employers are allowed to continue their discriminatory hiring practices, which, for example, prohibit the employment of divorced or Muslim janitors in Catholic schools. Only the Czech Republic, Estonia, France, Lithuania, Slovenia, and Sweden did not choose to transpose this exception.46 The transposition into domestic law is often a barrier; there have been difficulties especially with the inclusion of sexual orientation. Germany holds the position of Europe’s slowest country to implement the antidiscrimination legislation, a step that should have been finalized by July 2003 and was in fact only finalized in August 2006.47 Under the new German antidiscrimination law multiple and intersectional discriminations can in principle be addressed. However, discriminations based on different grounds are checked separately, and all grounds need to be acknowledged as having caused the discrimination.48 A Muslim woman wearing a headscarf can, for example, be discriminated against directly due to her religion and indirectly due to her gender.49 Also burden of proof is a difficult issue; regulations vary from country to country and from one ground of discrimination to another (e.g., in Germany the burden of proof for sex and disability discrimination differs from other forms). Thus, although

88

HELEN SCHWENKEN

the EU sets the norms, national political cultures have a decisive impact on the actual outcomes in the member states. Compared with the two previously discussed approaches, in antidiscrimination policies the state plays the most important role. The state as legislator is the principal grantor of rights of nondiscrimination. Thus, advocates address their demands primarily to the state, both at the European level and at the national level. These two levels may play off against each other, and for a long time women’s movements have placed great hopes in the European institutions to bring forward gender equality through legislation and court rulings. Thus, the disappointment was intense when the European Court of Justice withdrew some of the earlier achievements (e.g., in the Kalanke case).50 Competition or Collaboration? For equality movements the post-Amsterdam antidiscrimination directives and discourse on diversity as well as multiple and intersectional discriminations signify more than just normal political changes. The consequences are legal, political, and institutional. In the following section these dimensions are bundled in the question of collaboration and competition between the different interest groups, such as women’s organizations; migrants’ associations; and gay, lesbian, bisexual, and transgender networks. The EU intends to institutionalize the new antidiscrimination approach by encouraging the establishment of national equality bodies that cover all acknowledged grounds instead of a number of such bodies dealing with each ground separately. The most severe impact may be for women’s organizations. So far women’s policy agencies have been most numerous, and due to the strength of state feminism and the velvet triangle they have proven effective in advancing women’s descriptive and substantive representation.51 Europe’s call for single equality bodies puts these institutions under pressure, and several countries, such as the United Kingdom with its new Equality and Human Rights Commission, have changed their institutional arrangements.52 At the European level the member states decided to modify the form and mandate of the Viennabased European Monitoring Centre on Racism and Xenophobia (EUMC) into an Agency for Fundamental Rights.53 This plan raised at the time concerns among antiracist organizations as it may be a welcome opportunity for the EU to water down critical analyses also on institutional racism in the member states.54 Another concern regarding these single equality bodies is related to general changes through neoliberal governance and an increased pressure for bureaucracies to work efficiently. “References

MIGRANT WOMEN

89

to intersectionality may thus become rhetorical moves to bring different constituencies behind these reforms.”55 This move to build alliances across socially stratified groups and related professional interest groups may prove difficult. Ange-Marie Hancock argues that unitary and multiple approaches lead to competition rather than collaboration and coordination between marginalized groups. She therefore considers intersectionality a “challenge to identity politics.”56 This becomes clear in theoretical and political expressions that point to the danger of dilution in those concepts that combine grounds of discrimination: while feminist activists and scholars fear the dilution of gender-specific demands,57 the ENAR shares the warning with regard to racism as a focus that may be diffused if too many responsibilities and forms of inequalities should be taken up at the same time.58 Besides the problematic loss of focus, Sylvia Walby formulates the hope that the outcome “may be strengthened if there were concerted actions of previously separate communities and initiatives on agreed priorities for intervention.”59 These concerns illustrate how difficult it is to really foster the collaboration of interest and advocacy groups on different forms of discrimination, as in the institutional context of the EU, such discussions always go hand in hand with a reallocation—often another term for cuts—of resources and competences and with the political interests of different actors. Conclusion: Acting Within the European Equality Patchwork and Beyond The analysis of current European policies shows that migrant women have advocated for and can make use of a “patchwork of models of equality.”60 The patchwork comprises antidiscrimination provisions in the legal sense, working toward substantive equality through gender mainstreaming, and promoting diversity. From a perspective that aims at increasing gender equality as well as improving the living and working conditions of migrants and ethnic minorities, the discussion of the three equality concepts revealed advantages and disadvantages. One example for the ambivalence is related to the question raised in the introduction, whether intersectionality is reflected sufficiently. In general, the political and legal framework does recognize multiple and interrelated discriminations, but in fact it seems more feasible to legally prove only one ground of discrimination. This situation is also reflected in the advocacy landscape, which continues to be organized along separate identity markers. Collaborations between organizations of different marginalized groups become more common, but they are still the exception. These ambiguities and

90

HELEN SCHWENKEN

shortcomings are determined by the equality concepts themselves and how they resonate with larger societal transformations, the exceptions concerning domestic transposition granted by the EU, the implementation at the national and subnational levels where particular political traditions matter as well as the current political climate, the interplay with already existing legal provisions and deeply embedded sociocultural practices, and the power relations between actors. The brief history of the recognition of female migrants in the European women’s politics showed that the general policy framework left a rather wide scope of interpretation and that the achievements for migrant women can be traced back to a strong feminist advocacy network and the self-organization of migrant women themselves. Without voice political and legal change is unlikely to happen. European gender equality policies have been emblematic for state feminism and intertwined with the work of femocrats. This legacy is most obvious in the development of a multifaceted anti-discrimination framework in the post-Amsterdam period which referred to the experiences made with legal provisions against gender inequality. But it needs to be remembered that the different types of discrimination work differently, thus neither legal provisions nor other political measures can be translated one-to-one from gender equality when combating discrimination due to religion, race or disability. The legacy of gender equality legislation also contains a particular relation to the state: a trust in binding legal equality norms and a strong linkage to state institutions and bureaucracies. This is also partly valid for the second instrument under review in this chapter, gender mainstreaming. However, the significance of the state lies in the establishment of norms and soft law, with the executive implementing programs following these norms. In contrast, managing diversity works differently, because the relevant actors are often private actors, the implementation is voluntary and the language is one of efficiency and competitiveness. As of now, these three mechanisms exist in parallel. But the tendency goes toward stressing positive market effects and increasing competitiveness through the valuation of gender, ethnic and other differences. This can be interpreted as a turn toward market feminism, that is, by a shift toward economic and efficiency criteria guiding policy priorities and practices.61 In how far do these developments matter for migrant women? Many activities of social movements and self-organizations of migrants take place outside the legal and political framework of the EU. The reasons for this are manifold: a lack of resources, a lack of access and recognition, and a strategic decision because some demands of migrants cannot be articulated successfully within the given framework. Furthermore, one can assume that those migrant women who are well-educated and who

MIGRANT WOMEN

91

have employment commensurate with their qualification are more likely to profit when societies become more open to diversity. But this concerns only a part of all migrants. At this point class matters. Economic efficiency cannot be the (main) rationale for an approach promoting social justice. Such an approach must be part of the normative framework of a society to counteract inequalities based on gender, race, class, and other modes of discrimination.62 Taking a stand for justice involves taking sides, aiming not only at recognition, but also redistribution,63 and thus producing conflicts about resources and power in society.

Notes 1. Fluchtort Hamburg 2005, 1. For important comments to a previous version I thank Gülay Caglar as well as the editors of the volume. 2. Kantola and Squires 2008. 3. Ruß and Schwenken 2008. 4. EWL 1995, 1999 2007. 5. cf. Schwenken 2006. 6. European Communities 1997, Article 13. 7. Commission of the European Communities 2000, 12f. 8. Commission of the European Communities 2006, 10. 9. Commission of the European Communities 2005b, 8. 10. Kantola and Squires 2008. 11. Woodward 2004. 12. It is important to mention that the list of grounds prohibiting discrimination is not an open list, but limited to the grounds explicitly named. For example, in the ruling of the European Court of Justice on a case dealing with a job dismissal of a Spanish national due to long-time sickness, sickness was not recognized as being covered under the grounds of discrimination (not as a form of disability or a state which may lead to disability) as stated by the respective European directives (ECJ 2006). The exhaustive list of grounds of discrimination stands in contrast to Article 14 of the European Convention on Human Rights according to which the list of grounds of discrimination is non-exhaustive “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” See Council of Europe 1950. 13. European Communities 1997; Schiek 2008, 116. 14. See special issues of European Journal on Women’s Studies 13, 3 (2006), Politics & Gender 3, 2 (2007), International Feminist Journal of Politics 11, 4 (2009). 15. Schiek 2008. 16. See special issues of European Journal on Women’s Studies 13, 3 (2006), Politics & Gender 3, 2 (2007), International Feminist Journal of Politics 11, 4 (2009). 17. McCall 2005, 1773.

92

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

51. 52. 53. 54.

HELEN SCHWENKEN

Ibid. Schiek 2008, 122. Braunmühl 2007, 39. Wetterer 2002. Stratigaki 2005, 166. Gültekin 2006. Shaw 2005, 26f; Squires 2005. European Commission 2005. EWL 2008, 1. Freedman and EMHRN 2008. Arbeitsgruppe Migration und Gender 2007. Stiegler 2006. cf. European Commission 2005, 2008; European Commission and CSES 2008. cf. Merx and Drossou 2008. Florida 2002. European Commission 2005. cf. Lorber 2000; Wetterer 2002. Stiegler 2006, 18. Merx and Drossou 2008. Nagel 2008, 34f. Gültekin 2006, 110. Gender-biased insurance premiums are considered legitimate if they are based on sound statistical data documenting gender-differentiated risk factors. See EU-Council 2004, Article 5(2). EU-Council 2000b EU-Council 2000a EU-Council 2004. Schiek 2008, 121. EU-Council 2000, 14. EU-Council 2004, Article 3(3)/(4), Article 42(2). ENIE 2005, 49. Baer 2006. AGG 2006, paragraph 4. Smykalla and Lewalter 2007, 17. “A national rule which guarantees women absolute and unconditional priority for appointment or promotion is not a measure of that kind, since it goes beyond promoting equal opportunities and substitutes for it the result ‘equality of representation’ ”. http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:61993J0450:EN: HTML Outshoorn and Kantola 2007. Kantola and Nousiainen 2009. EU-Council 2007. In 2005 the Commission held a public hearing on the role of the Agency. Contributions are available at: http://europa.eu.int/comm/justice_home/

MIGRANT WOMEN

55. 56. 57. 58. 59. 60. 61. 62. 63.

93

news / consulting_public / fundamental_rights_agency / news_contributions_ fund_rights_agency_en.htm. Kantola and Nousiainen 2009. Hancock 2007, 64. Walby 2005, 330. European Network Against Racism 2005, 1. Walby 2005, 330. Shaw 2005, 3. Kantola and Squires 2008. Braunmühl 2007, 45; Verloo 2007, 9. Fraser 2001.

This page intentionally left blank

CHAPTER

6

New Muslim Pluralism and Secular Democracy in Turkey and the EU Murat Somer and Gönül Tol

In this chapter, we aim to put forward and discuss two broad arguments. First, the questions of “new Muslim pluralism”—to be described shortly—in EU countries and Turkey are analytically and politically interrelated in important ways and viewing them as such may help to better address these questions. Second, in both cases, the better way to address this new pluralism seems to be social and political inclusion rooted in the merits of secular and pluralistic democracies with well-developed checks and balances. It is not social and political exclusion rooted in the twin preconceptions that Islam is essentially different from other religions and Islamism is a monolithic and unchanging ideology. Thus, both political institutions and social and political perceptions seem to matter greatly in addressing these questions democratically. In many European countries and in Turkey, a major current challenge is how to address within the contours of democracy the “new Muslim pluralism,” which consists of mostly Muslim immigrant communities in the former and new or newly vitalized expressions of Islam in the latter.1 European states developed and consolidated various models of secular democracy through painful historical processes that involved conflict and confrontation, negotiation and cooperation mainly among Christian and

96

MU R AT SO M E R A N D GÖ N Ü L TO L

secular actors and institutions.2 They are now faced with the challenge of integrating new Muslim minorities and a new religious tradition, Islam, into their social and political systems. Both the difficulties of Muslim immigrant groups in adapting to European norms and institutions and the xenophobic and authoritarian reactions within the state institutions and majority societies challenge the quality and stability of European democracies. Modeled on European examples, the main institutions of Turkish democracy were built during the first half of the last century through authoritarian reforms that were aimed at rapid and secular modernization, and nation building, led by a watchful, vanguard state.3 These institutions were partially remolded and opened to the participation of autonomous religious actors first after the transition to multiparty democracy in 1950, and then after the military coup and economic liberalization in 1980. Nevertheless, tensions between predominantly secular (or pro-secular) and religious (or religious-conservative) actors have been an underlying theme of Turkish politics and escalated to new dimensions in recent years.4 This happened with the emergence of newly vitalized and mobilized Islamic actors in such areas as politics, economics, and media, and, since 2002, the government by the Justice and Development Party (AKP). The AKP is a “Muslim-conservative” mass party with powerful roots in previous Islamist parties. During the AKP rule, Turkish democracy made major advances and started the EU accession process in 2005. But the accompanying religious-secular polarization and the mutual suspicions and authoritarian tendencies it feeds among both religious and secular actors reduce the stability and quality of democracy and are among the factors hindering democratic consolidation. Islamism can be defined broadly as a diverse and evolving set of ideologies transforming traditional Islam into programs that support Islam as a venue of social and political activism or as a code of ethics and way of life in the modern world, or both.5 Like other, non-Muslim religious actors, Islamist actors have to make adjustments in order to coexist and reconcile with secular democracies.6 Simultaneously, democracies have to make adjustments both to facilitate Islamists’ own transformation and to allow new religious actors to equally enjoy the democratic principles of representation and freedom. Arguably, secular and democratic governments face a choice between two broad strategies vis-à-vis Islamic movements and communities: inclusion and encouragement versus exclusion and punishment. In practice, all democracies employ a combination of both strategies, but they may emphasize one or the other.7 The more people view Islamism as monolithic and fixed, the more they may be inclined to promote the strategy of exclusion and punishment. The more they view

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

97

it as diverse and adaptable, the more they may be inclined to support inclusion and encouragement. Against this background, the cases of the Turkish-Islamist Milli Görü¸s (National Outlook, henceforth MG) in Germany and Holland and Turkey’s AKP, which partly emerged from within Turkey’s MG, are illuminating. All three cases point to the important and ongoing tensions between Islamist actors on the one hand and democracy and secularism on the other hand. These tensions point to the importance of well-developed, flexible, and creative democratic institutions, for the maintenance of secular democracy in the face of these tensions. Nevertheless, as we will discuss in the rest of the chapter, on balance the comparison of the MG under the three different social-political and institutional environments suggests that Islamist actors have considerable capacity to adapt to the requirements of democracy, and the strategy of inclusion and encouragement is overall a better strategy than that of exclusion and punishment. Our cases involve two consolidated Western democracies (Germany and Netherlands) with different policies toward immigrant communities and one Muslim-majority developing democracy. Islam, which is a minority religion in Europe, is the majority religion in Turkey, with 99.8 percent of the population being nominally Muslim. Therefore, unlike in Europe, some form of Islamism theoretically has the potential to become a hegemonic ideology in Turkey. This implies that the integration of Islamic actors in general, and of Islamist actors in particular, into secular democracy may require some additional conditions in Turkey, compared with EU countries. For example, stronger legal-institutional measures may be necessary to protect secular and non-Muslim rights and freedoms, alongside strong checks and balances between secular and Islamic political actors. Nevertheless, there are important lessons that Turkey and EU countries can draw from each other. This is because the challenges that new religious pluralism poses in both cases often regards in practice the integration of Islamic (or Islamist) actors such as the MG, not the integration of Muslim individuals per se. Furthermore, the developments in Turkey and the EU with regard to religious pluralism are interrelated in a political and psychological sense. Europe’s ability to integrate its Muslims into secular democracies as Muslims, based on social and political pluralism, would make it easier for Europeans to imagine and accept Turkey as an equal EU member. Simultaneously, it would help to overcome the secular-religious divide in Turkish politics by creating a more inclusive example of modernization and Europeanization. Turkey’s EU prospects constitute a crucial factor driving its democratization.8

98

MU R AT SO M E R A N D GÖ N Ü L TO L

In turn, Turkey’s ability to consolidate its secular democracy, which among other things requires it to overcome its secular-religious divide, would facilitate its EU accession. Simultaneously, Turkey’s democratic consolidation and EU membership would boost Europe’s relations with Muslims in both Europe and the rest of the world by breaking the mutually reinforcing preconceptions that “Muslims cannot embrace democracy” and “Europeans cannot accept Muslims as their equals.” Islam, Europeanization, and Secular Democracy in Turkey Turkish secularism is a product of a modernization project that was simultaneously a continuation and a critique of Ottoman modernization.9 Religion was the key factor shaping how the Ottoman state related to its subjects and how the multi-confessional Ottoman society was organized. Alongside ideologies such as constitutional monarchism, Turkish nationalism, and, to a lesser extent, liberal cosmopolitanism, Turkish Islamism emerged in response to the empire’s long decay. The Sultan also embraced it as an instrument to depersonalize state authority and to boost the state’s legitimacy and profile among its Muslim subjects, and among Muslims worldwide. This happened especially after Ottomanism failed to become popular among the empire’s Christian peoples and largely became associated with Muslim Ottomans.10 But the Ottoman state was not a theocracy. The state controlled religion as much as religion controlled the state, and Ottomans made major attempts to become a modern and secularizing European state from the early nineteenth century on. For example, they built secular schools parallel to religious schools, codified the Shari’a in an attempt to modernize it, and adopted the French commercial code while maintaining the fundamentals of the Shari’a system. On the one hand, the republican reforms that laid the foundations of modern Turkey continued these reforms and built on Ottoman institutions such as the Ministry of Religious Foundations. On the other hand, they were based on the conviction that Ottoman modernization was partial and unsuccessful and were aimed at preventing the return of the Ottoman ancien régime. Thus, a series of reforms during the 1920s and 1930s overhauled the traditional religious institutions such as Islamic schools, orders, and charities. These were replaced with either secular ones, such as secular schools, or pro-secular ones tightly regulated by the state. An example of the latter is the colossal Directorate of Religious Affairs, which, among other things, supervises all the mosques in the country. Other reforms such as the legal equality of men and women followed. In the eyes of the

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

99

reformers, the main motivation of these reforms was to catch up with European states through secular modernization in social-cultural and legal as well as political and economic spheres. These authoritarian reforms were implemented relatively peacefully thanks to Kemal Atatürk’s charismatic leadership and the strong legitimacy the republican regime enjoyed after its leadership in the War of Liberation (1919–22). But the liberal wing of the Kemalists, the Islamists, and the traditional-religious elites never consented fully to these reforms.11 Their largely passive opposition during the early decades translated into support for center-right and religious-nationalist parties after the transition to multiparty democracy in 1950 and into support for new Islamist parties after the 1960s. A major aspect of Turkish secular democracy was shaped by the secular state’s security concerns vis-à-vis religious actors autonomous of state supervision in general and Islamist political actors in particular. Perceived Islamist extremism was amongst the targets of military interventions in 1960, 1971, 1980, and 1997. The Turkish Constitution specifically prohibits the intervention of “sacred religious feelings with state affairs and politics” and the use of any rights and liberties “for dismantling the democratic and secular republic.”12 Accordingly, since 1946, eight political parties have been disbanded on the charge of anti-secularism. At the same time, the government actively supports, regulates, and controls Sunni Muslim religious activities. Certain religious expressions deemed to have political symbolism are restricted in public, although the Constitution grants freedom of religion, which is in general respected.13 The most salient and controversial of these restrictions is the ban on Islamic headscarves in schools (except for religious imam-hatip high schools) and for civil servants and for professions like the law and the military.14 Nevertheless, the Turkish political system allowed a considerable degree of inclusion for Islamic actors. Through their involvement in center-right parties and political clientelism, they obtained both representation and benefits such as a steady increase in the religious-vocational (imam-hatip) schools.15 Beginning with the 1980s when Turkish society opened up to the rest of the world through political and economic liberalization, religious actors became vibrant in a wide range of areas from export-oriented businesses and business and labor associations to banks, human rights organizations, and publishing houses.16 Furthermore, the system allowed considerable participation for Islamist political parties, through what may be called “conditional but promising participation.” Participation was conditional because they faced sanctions (by the judiciary and military) whenever they crossed secularist redlines. It was promising because they were able to participate in democratic politics, freely contest elections, and come to power in local

100

MU R AT SO M E R A N D GÖ N Ü L TO L

or national governments. Hence, although Islamist parties were periodically disbanded by the courts or military interventions, the five Islamist parties founded after 1971 participated in democratic politics for an average of about 6.5 years before closure. Two of them ruled the country in coalition governments, and they gained significant experience in local governments, especially during the 1990s. Thus, Islamist parties had significant incentives to adapt to secular democracy: they could rally in freely contested elections, come to power, and distribute social and economic benefits to their constituencies while in government. These incentives contrast with those in other Muslim countries, such as Egypt and Algeria, where Islamists are disallowed to either freely contest elections or govern if they win elections. The 1980–83 military regime also promoted religious feelings and actively supported various Islamic actors in order to stem left-right polarization and what they viewed as “social-cultural degeneration.” As a result of these incentives, Turkish Islamic social and political actors have been diversifying and adapting to liberal economics and democracy for a long time.17 Their last and most impressive product has been the AKP, which was founded in 2001 by reformist Islamists who broke away from the Islamist Virtue Party. The AKP calls itself “conservativedemocratic” and has a drastically more liberal-democratic and pro-West discourse and practice than its predecessors. Until 2007, except for a few moves, such as an unsuccessful attempt in 2004 to criminalize adultery, the party has shunned any conspicuously religious policy in government.18 It has also secured major legal-political reforms, making Turkey a more pluralistic and democratic country according to most accounts.19 However, the AKP government has also led to significant polarization between secular and religious actors. This polarization has resulted from both the indirect effects of the AKP’s image as an Islamic Party and the party’s actual and perceived policies that increased the visibility of Islamic actors and expressions in areas such as education and public recruitment and procurement.20 In 2007, the party’s successful election of one of its leading figures to the presidency led to major political fissures, including an ultimatum by the military announced online, and a legal case by the chief public prosecutor to disband the party. The Constitutional Court declined to disband the party in 2008, although it issued a warning that the party was involved in anti-secular activities. At the same time, the government displayed increasingly “illiberal” tendencies after its landslide electoral victory in the summer of 2007. Soon after the elections, the AKP government made a much needed attempt to reform the Constitution, which failed mainly because it only included legislation to lift the restrictions on Islamic headscarves. In 2007 and 2008,

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

101

the government was also criticized for losing steam in passing EU-led legal-political reforms. However, the flaws of the political party system and the weaknesses of the pro-secular parties may bear as much blame for the AKP’s liberaldemocratic deficits as the party’s Islamist roots. Under a political party system where secular and religious parties more effectively check and balance each other on a platform of EU-led reforms, the AKP may further adopt liberal democracy in order to maintain its constituency. Absent “effective and constructive” opposition, the AKP’s hegemonic tendencies gain strength.21 Simultaneously, Islam’s being the majority religion in Turkey implies that effective constitutional provisions are needed to protect secular and non-Muslim freedoms from social and political pressures. The situation is different in the European context where Muslims constitute a minority of the population. Yet, the rise of Islamist movements has posed similar questions for European democracies as for Turkey. We investigate these questions with regard to the MG, an ideological current that initially materialized in Turkey as a political party with an Islamist agenda. In 1969, Necmettin Erbakan, the founder of the movement and its ideological inspiration, formed the Milli Nizam Partisi (National Order Party). Starting from the 1970s the movement spread to Turkish immigrant communities in Western Europe. MI˙LLI˙ Görüs¸ in Germany and the Netherlands European democracies’ responses to the challenges posed by new Muslim pluralism display considerable variation. While the Netherlands has adopted a relatively inclusive approach toward its Muslim immigrants in general and Islamic movements in particular, in comparison, Germany has developed socially and politically exclusionary policies.22 Different approaches have resulted in different outcomes in terms of the integration of Muslim immigrant groups and Islamic actors and their adoption of European norms and institutions. A comparison of the MG in Germany and the Netherlands illustrates this variation. The MG’s European headquarters are in Cologne, Germany, but the movement has several regional organizations in other European countries, all with different agendas, institutional structures, and rhetoric. The Dutch MG has an internal structure that relies on democratic procedures and employs a political discourse that is couched in the language of democratic principles. It encourages its members to get involved in Dutch society socially and politically. Canan Uyar, chairperson of the North Holland MG Association’s Women’s Federation, states that the federation

102

MU R AT SO M E R A N D GÖ N Ü L TO L

organizes events to inform its members about candidates and the political process during Dutch elections and tries to raise awareness about the importance of political participation. The organization cooperates with local Dutch authorities on developing programs that are designed to enhance the integration and involvement of immigrants in Dutch society. Many of its activities and projects are funded by the Dutch government, and its officers are in constant contact with Dutch authorities. The organization holds regular meetings with ministries, including the Ministry of Internal Affairs, Ministry of Justice, and Ministry of Education and Social Affairs, and provides the Dutch authorities feedback on issues pertaining to the Muslim community.23 Despite its laic nature, the Dutch state has encouraged the existence of different ideological and religious networks by incorporating them into the public order. Its “pillarization system” gives religious groups the right to be subsidized by the government and to establish their own infrastructure on the basis of their ideologies.24 By allocating state subsidies through pillars according to the proportionality principle, the Netherlands has made ideologically and religiously based organizations a salient feature of its welfare state. With pillarization, a pluralistic organization of society where functional differentiation was superimposed by worldview differences became the hallmark of Dutch society.25 In its Note of Minorities of 1983, the Dutch government devoted serious effort to creating a society in which the members of minority and religious groups living in Holland would have equal opportunities and full chances of developing. Its policies aimed to establish the conditions required for emancipation and participation in society and prevent discrimination against these groups. The government acknowledged that it was important to take into consideration the cultural, including the religious, background of minority groups to construct a “multicultural society.” Its policy implies an equal respect for the religious beliefs of various groups, including the Muslims. The Dutch government stresses that “religion fulfills a function in developing and enforcing the self-respect and hence the emancipation of many members of ethnic groups.”26 Such a conceptualization of religion has provided an opening of a democratic space for religion, which seems to have transformed the MG’s approach toward Dutch society, democracy, and secularism. Accordingly, 80 percent of the MG members surveyed in the Netherlands agreed or strongly agreed with the statement “democracies might have problems but they are the best system of government.”27 Responses to other questions suggest that democracy is seen as an opportunity to live an Islamic life, not a threat to it. While Islam still constitutes the most important aspect

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

103

of their identity, Dutch MG members do not consider it to be an obstacle to embracing Western norms of democracy, which they consider the only viable way to have their voices heard in the Dutch context. They utilize the opportunities that democracy provides to them: they vote, establish their own Islamic organizations such as schools, receive public funding, and are visible in Dutch public space. They see themselves as subjects with the power to initiate changes and have an impact on Dutch society. Their ability to participate in the decision-making processes feeds a trust toward the democratic process.28 In comparison with the Netherlands, Germany has adopted more exclusive policies toward Turkish immigrants. It has limited representation of Islam in the public sphere through policies that do not grant Islam the legal status that would be necessary for it to be taught in public schools and for Islamic organizations to have access to public funding. According to its Constitution, the German state is neutral with regard to religion. However, the state collects church taxes from the members of Catholic and Protestant churches and from members of the Jewish community, which are recognized as public corporations (Körperschaft des öffentlichen Rechts). The regional states and these churches work closely in areas of common concern such as education. Eighty percent of the publicly funded nursery schools, a number of hospitals, and other welfare institutions are run by the churches.29 Islam has not been recognized as a religious community in a similar way, and no comparable association exists between the German state and Muslim organizations. This has created an unequal status for Islam in comparison with other religions with further effects on the teaching of Islam in Germany. Since, according to the German Constitution, religious instruction can only be carried out under the umbrella of a recognized religious community, Islam has not been able to gain access to public schools, which leaves Islamic education in the hands of the various Islamic movements. Parents who want their children to learn about Islam have no choice but to send their children to mosques that are owned by different Islamic organizations. Building on the economic, social, and political marginalization of the Muslim community as reflected in these exclusions, the German MG has developed into an anti-systemic force and become a government identified “extremist Islamist group.”30 Survey results confirm the antidemocratic stance of the MG in Germany. Forty-nine percent of the German MG members surveyed disagreed or strongly disagreed with the statement that democracies may have problems but they are better than any other form of government. Forty-five percent said that having a democratic political system was a fairly or very bad way of governing; 75 percent felt that democracies were not good at maintaining order.

104

MU R AT SO M E R A N D GÖ N Ü L TO L

The Dutch approach, which allows Islamic actors to play a legitimate role in the making of a society and politics with an Islamist identity, seems to initiate a process of adaptation and learning and tie Islamic actors to the democratic structure both institutionally and perceptually. In contrast, Germany’s relative exclusion of Islam from the public sphere seems to lead to the MG’s formulating an alternative public space in which Islamism becomes a tool to resist the “injustices” of the democratic system and challenge the norms and values of Western society. The Dutch and the German cases thus appear as two extremes in the way EU member states have negotiated Muslim pluralism and in the way Muslims have reacted to what they encountered. The two cases are instructive in that they demonstrate the malleability of Islamism while challenging suggestions of an incompatibility between secularism and Islam, democracy and religion. We explore these matters further in the context of debates over Turkey’s accession to the EU. Immigration, Turkey’s EU Accession, and the Politics of Religion and Secularism On the surface, Turkey’s “demographic window” until 2025 should be an asset for its EU membership prospects, as long as it keeps turning its young population into skilled labor through adequate educational polices.31 It could revitalize Europe’s economy by complementing its ageing population and dwindling labor force. Similarly, Turkey’s Muslim identity should be an asset for the EU as it could boost the EU’s image and influence in the rest of the world, as long as Turkey remains a secular democracy. In fact, however, Turkey’s Muslim identity and the fear of Muslim-Turkish immigration on the part of EU populations constitute barriers to Turkey’s membership. This reveals how questions of secularism, Islam, and immigration have tied a domestic policy issue—integration of Muslim immigrants—to a foreign policy issue, Turkey’s EU membership. The secularization of the European states can be seen as a response to the confessional wars of early modernity in Europe. To achieve peace and order, the state had to assume a neutral, as well as an often dominant, stand.32 Thus, secularism—the separation of church and religion—began to be conceptualized not only as a requirement of modernization and the accompanying rationalization but also as a requirement for the security of the state and society. The European integration process has sped up the process of secularization among Western European societies. Many studies have found that an increasing majority of the European population has ceased to participate

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

105

in traditional religious practices, indicating an increasing individualization of religion.33 This trend coincides with the strong, pro-secular current prevalent among European elites and occurs at a time when the EU is dealing with determining its external boundaries, defining its internal cultural identity, and integrating Muslim immigrants.34 It is also happening at a time period when Turkish society is becoming more religious, at least in terms of self-definitions.35 This should not pose a barrier to Turkish membership, however, insofar as Turkey remains a Muslim yet secular democracy and the EU is a club of shared values such as secularism and democracy, rather than that of cultural-religious identity. The question is more complicated, however. Increasing claims of immigrant religious groups in European public space feed anxieties that lead many Europeans to call for the privatization of religion as a main tenet of a modern secular society’s self-definition, exactly when Turkey’s AKP calls for a moderation of Turkish laicism to allow more public visibility for religion. Recognizing a legitimate public role for collective religious mobilization has become a problematical issue for the EU. Muslim organizations claiming a place in European public space pose a threat to European identity not only because of their “otherness as a nonEuropean religion but because of their religiousness itself as the other of European secularity.”36 Within this context, Islam becomes the alternative to Western secularity. The September 11, 2001, attacks and the events that followed exacerbated the fear of a Muslim presence in the EU, whereby immigration came to be treated synonymously with Islam. Islam has become the new security threat, fostering a “politics of exclusion” and the construction of “hard borders,” which turn the EU into a “gated community.”37 The prospect of Turkish accession intensifies this controversy over European identity, “Europe’s geopolitical place in the global world,” Muslim immigration, and the politics of religion within Europe.38 By bringing up the long-term dilemmas over the questions of what it means to be “secular” (both in Turkey and Europe) and how religion should relate to European public life, Turkish candidacy “destabilizes the European secular social imaginary.”39 Critics of Turkey’s membership tend to oppose Muslim immigration also, because of Islam’s allegedly inassimilable nature.40 Polls suggest that a majority of the European population opposes Turkey’s accession on cultural and religious grounds.41 As a reader’s letter to The Economist indicated, many believe that the question of Turkey’s belonging in Europe cannot be resolved through Turkish reforms since Turks are seen as having “an incompatible and primitive culture

106

MU R AT SO M E R A N D GÖ N Ü L TO L

serving as a Trojan horse for the rest of Islam’s impoverished masses.”42 The internal political discourse in the EU illustrates the parallelism between the discourses against Muslim immigrants and Turkey’s EU accession. Nicolas Sarkozy and Phillipe de Villiers have captured the French public’s sympathy by orienting their politics on opposing immigration and Turkish membership.43 In 2002, former French president Valery Giscard d’Estaing stated that Turkey was “not a European country” and that admitting Turkey into the Union would mean “the end of Europe.”44 Former West German chancellor Helmut Schmidt followed a similar line by stating that Turkey should not be accepted due to its unsuitable civilization. In 2004, the EU’s internal market commissioner, Frits Bolkestein, opposed Turkish accession by arguing that if Bernard Lewis is right that Europe would be Islamic by the end of this century, “the liberation of Vienna in 1683 would have been in vain.”45 Scholarly debates echo these discussions. Some scholars view Turkey’s predominantly Muslim population as a threat to Europe’s cohesion by arguing that Islam is especially “resistant to secularization,” for example, because of Prophet Mohammed’s fusion of military and spiritual authority.46 Others retort that Europe, Islam, and secularism should not be treated as “semantically closed universes . . . cut off from dialogues with other cultures” and47 that there might be multiple understandings of Islam, Europe, and secularism.48 They warn against the “fallacy of unique founding conditions,” which is the erroneous assumption that only Western Christianity has the necessary cultural traits to produce democracy and secularism.49 The debate over the place of God in the text of the European Constitution, the accompanying debate over “what it means to be European,” and the varieties of religio-linguistic groupings in Europe—OrthodoxSlav, Protestant-Germanic, and Catholic-Anglo-Saxon—reveal that there is no consensus on a cultural definition of Europe. An empirical analysis of different models of secularism in Europe and elsewhere and the diverse legacies of such European experiences as France under De Gaulle, Spain under Franco, Greece under the Junta regimes, and Eastern Europe under communism show that the state-religion relation also displays significant diversity and flexibility in Europe.50 Similarly, Islam is not monolithic in terms of its relationship to politics and public life.51 There are Islamist groups that have to differing degrees internalized democracy as a legitimate system of government and made it a central component of their political discourse, such as the Tunisian Ennahda Party, the moderate Algerian Movement for Society and Peace,

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

107

or the Moroccon Jamiat al-Adl wal-Ihsan.52 The Islamic movements in Europe also display vast diversity.53 An Alternative Approach to the “Islam vs. Europe” Debate There are two possible interpretations of the debates over religion in the preamble to the EU Constitution, the murder of the Dutch filmmaker Theo van Gogh, the hijab (Islamic dress) dispute in France and the anti-headscarf law in 2004, 3/11 terrorist attacks in Madrid, the Muslim immigrant riots in French suburbs in 2005, and the cartoon crisis in 2006. They may be interpreted as signs of why religion should be kept in the private sphere and why Islam and Turkey should be kept outside Europe. Alternatively, they can be seen as problems caused by the inadequate political-institutional models of integrating Muslims into European democracies “as Muslims,” not necessarily at the expense of their religious-cultural identity. From this point of view, the Muslim immigrant claims in European public space and Turkey’s EU candidacy challenge the prevailing notions of what it means to be “secular” in the sense of public representation of religion. Accordingly, the negotiations for Turkey’s membership need to take place within a framework of integrating Muslim immigrants into European societies, the consolidation of Turkish secular democracy, and the EU’s inclusion of a predominantly Muslim country. Different ways of addressing the “new Muslim pluralism” in both Turkey and the EU are closely related with different conceptualizations of secularism and democracy on the one hand and secular and religious (Islamic) actors on the other hand. An inclusionary and accommodating approach is rooted in the merits of pluralistic democracy and an understanding of Islamic and secular actors and institutions as diverse and changing. An exclusionary approach, in contrast, is built on an essentialist understanding of Islamic and secular actors and institutions that treats them as fixed and monolithic. Essentializing Europe, Islam, and secularism leads to overlooking the diversity within each cultural/political formation and the assumption of an inherent incompatibility between them.54 In fact, they are all sites of confrontation as well as sites of negotiation and cooperation. A system that is able to open up “a democratic space, shared both by religious and secular, the first giving up the absolutism of the religious truth-regime and the latter giving up its claims to hegemony over the society” has the potential to produce an Islam that embraces democratic norms.55 This does not mean that either religion or secularism is infinitely flexible, but that

108

MU R AT SO M E R A N D GÖ N Ü L TO L

both can change and develop new self-definitions in response to dialogue and social, political, and economic incentives that encourage coexistence within pluralistic democracy. Two conceptualizations encumber the successful integration of a new religious pluralism into secular democracies. The first is absolutist and moralist versions of religious ideology that place an exclusive claim to truth and reject the voluntarism principle in religious belonging.56 The second is an understanding of secularism that is exclusively shaped by a positivist vision of society and by the perception that autonomous religious actors—such as the unregulated church and new religions (e.g., Islam) in Western Europe, and the Sufi religious orders and educated yet openly religious women in Turkey—always pose a threat to this vision. In turn, a society based on “twin tolerations”—“that is, the minimal boundaries of freedom of action that must somehow be crafted for political institutions vis-à-vis religious authorities, and for religious individuals and groups vis-à-vis political institutions”—may have much more capacity to produce a peaceful reconciliation among Islamism, secularism, and democracy.57 It should be noted, however, that the emergence of twin tolerations is subject to the resolution of problems of trust between religious and secular actors, which in turn requires credible commitments and effective checks and balances in the political system.58 Turkish politics has long witnessed a contestation between two different visions of secularism (or laicism) in addition to challenges from hitherto marginal “anti-secular” actors. For example, Ahmet Necdet Sezer, former president of Turkey, stated, “Secularism prevents politicization of religion. It is a life style. A secular individual separates his religious beliefs from his life as a citizen. Practices in regards to religion should remain within the inner world of the individual. His/her life as a citizen is about the outside world.”59 By comparison, rightist politicians such as Suleyman Demirel and Turgut Özal have described secularism as a characteristic of the state, not of individuals, and believed that religion has implications beyond the individual’s conscience.60 The AKP’s coming to power reintroduced the debate over the role of religion in the public space, with more focus on the relationship between democracy and secularism. The AKP and its popular support symbolize the transformation of the social imaginary in Turkey, which creates an anxiety of identity loss among the secular establishment. Simultaneously, the weakness of pro-secular political parties creates a vacuum that religious moralists may be able fill and a sense of insecurity among the secular segments of society. While the EU has been struggling with the question

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

109

of what it means to be a “secular” Europe, Turkey faces the question of what it means to be a “secular” Muslim majority country. The frictions between secular and “un-secular politics” on the one hand and between different visions of secularism on the other hand will continue to shape European and Turkish politics for a long time to come. The cases we discussed here are far from being sufficient to enable us to predict whether these frictions will increase or decrease in the future and whether they will strengthen or weaken secular, pluralistic democracy in Europe and Turkey. This is not an easy process. Cultural difference breeds threat perceptions and defensive reactions on both religious and secular sides. But our discussion and cases suggest that Islam is flexible like other monotheistic religions in its ability to adapt. The Islamist rooted AKP’s coming to power by democratic means in Turkey and the democratic reforms it has undertaken so far are an outcome of the processes of interaction made possible by democratic openings as well as by bitter lessons learned from a lack of full democracy and the rule of law. Similarly, the Dutch MG’s relatively democratic outlook in comparison with the German MG’s radical and antidemocratic outlook illustrates the partially dynamic nature of religious identity and the ability of Islamist movements to learn, adopt, and transform. The case studies here support the perspective that every religion is “multivocal,” containing both democratic and nondemocratic elements.61 Exaggerated perceptions of Muslim difference stem from a “culturalist” understanding of Muslim, Turkish, and European values and identities as fixed and all powerful. Such an understanding is counterproductive from the point of view of European ideals of democracy and coexistence within diversity. At the end, the tools of democratic competition, inclusion, deliberation, and persuasion within the rule of law, which are inherent in European ideals of democracy, offer the best instruments to integrate Muslims into European democracies. They also offer the best tools available to resolve the secular-religious divide challenging Turkey’s democratic consolidation. Inclusion-encouragement is overall a better strategy than exclusion-punishment. Our cases inform this key insight. Turkey’s consolidation of a European style democracy in a majority Muslim context would create an influential, positive example that would break deep-seated Western prejudices about Muslims, modernity, and democracy. It would also encourage Muslims in Europe and elsewhere to more decisively develop democratic norms, movements, and institutions. Most Europeans and Turks may not think so, but there are important insights they can take from each other with regard to how Muslims will relate to secular democracies, and vice versa.

110

MU R AT SO M E R A N D GÖ N Ü L TO L

Notes 1. 2. 3. 4.

5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22.

For the term “new religious pluralism,” see Banchoff 2007. Buttigieg and Kselman 2003; Warner 2000; Kalyvas 1996. Bozdo˘gan and Kasaba 1996; Ahmad 1993. For terminological simplicity and to comply with the usage in Turkey, the terms “secular” and “religious” are used throughout the chapter. However, it should be highlighted that these are imperfect and sometimes misleading analytical terms to describe or to understand either group, and the socialpolitical division between them. As the discussion in the chapter should make clear, neither group is monolithic, and each has a variety of interests in addition to being pro-religious or pro-secular. While the division between them clearly involves differences over the nature of secularism, religion, and religious identity, being “religious” does not necessarily imply being “antisecular,” and being “secular” does not necessarily imply being “nonreligious or “antireligious.” For related definitions, see Mandeville 2007; Schwedler 2006, 8–11; Karpat 2001; Esposito and Tamimi 2000; Esposito 1999; Apter 1964. Berger 2007; Filali-Ansary 2005; Buttigieg and Kselman 2003; Ayubi 1997. For the case of France, see Laurence and Vaisse 2006. Müftüler Baç 2005. Tunaya 2007; Mardin 2005; Berkes 1998; Bozdo˘gan and Kasaba 1996; Ahmad 1993; Shaw 1977. Karpat 2001. Zürcher 2005; Küçükcan 2003. The 1982 Constitution of Turkey, revised in 2001, the Preamble and Article 14. Among others, 2007 Report on International Religious Freedom, US Department of State. Kalaycıo˘glu 2005. Bozan 2007. European Stability Initiative 2005; Yavuz and Esposito 2003; Yavuz 2003; Bu˘gra 2002; Ziya and Türem 2001; Mehmet 1990. Yavuz 2003; Öni¸s 1997. Under Turkey’s secular laws, adultery is a subject of the civil code and a possible cause of divorce. Under the AKP proposal, criminal prosecution would have been possible upon the complaint of a spouse. See also Zakaria 2004. Da˘gı 2006. Toprak et al. 2008; Somer 2007; Çarko˘glu and Toprak 2006. Öni¸s 2009; Somer 2007. The argument in this section draws on ethnographic research conducted by Gönül Tol in Germany and the Netherlands between 2004 and 2007. The data here come from surveys and testimonies of Milli Görü¸s members. A total of 118 and 132 surveys were collected, and 10 and 17 elite interviews were conducted, in the Netherlands and Germany in respective order. More in-depth insights were also gained through participant observation and

NEW MUSLIM PLURALISM AND SECULAR DEMOCRACY

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61.

111

lengthy face-to-face interviews. For a more detailed account, see Tol 2008, 2009. Uyar 2008. Shadid 1991. Sturm et al. 1998, 288. Shadid 1991, 90. See supra, note 7. Interview with a Milli Gorus imam, June 23, 2007, Utrecht. Nielsen 2004, 28. German Federal Ministry of the Interior 2005. Tüsiad 2006. Habermas 2008. Martin 1978; Davie 2000; Greeley 2003; Casanova 2004; Inglehart and Norris 2005. Casanova, 2004. Çarko˘glu and Toprak 2006; Toprak et al. 2008. Casanova, 2004, 28. Lavenex 2005, 123; Van Houtum and Pijpers 2007. Baban and Keyman 2008. Hurd 2006, 402. Yükleyen 2009. Hurd 2006, 401. Kettler 2002. Göle 2005, 3. Interview with Le Monde, November 8, 2002. The Guardian, September 8, 2004. Gellner 2000; Lewis 1988; Pipes 1995; Schiffauer 1997; Hawthorne 2004. Habermas 2008. Taylor 1998, 2004. Stepan 2000. Fox 2006. Eickelman and Piscatori 1996. Cavatorta 2006. Yükleyen 2009. For an insightful essay on the “retrospective extrapolation” that often underlies these preconceptions, see Kalyvas 2003. Göle 2005, 3. Berger 2007. Stepan 2000, 37. Somer 2007. Radikal, September 21, 2004. Sabah, June 14, 2004. Stepan 2000.

This page intentionally left blank

Part

3

Sexual Minorities and Gender

This page intentionally left blank

CHAPTER

7

Return to (Illiberal) Diversity? Resisting Gay Rights in Poland and Latvia

Conor O’Dwyer and Katrina Z. S. Schwartz

The collapse of Communism unleashed a phenomenon never before seen in Eastern Europe: people taking to the streets en masse to demand equal rights for lesbian, gay, bisexual, and transgender (LGBT) individuals. The region’s first public LGBT rights demonstrations were held in Prague in 1990, but mobilization began to take off only in this decade, when Gay Pride parades began to be organized in numerous postcommunist countries. Many of these met with aggressive resistance. Between 2001 and 2006, ten Pride marches were banned in the region, marches and related events were met with violence at least 13 times, “leading politicians . . . used inflammatory language on at least ten occasions,” and police forces “failed to provide adequate protection” seven times and “[broke] up a peaceful demonstration” twice.1 In those countries that were candidates for European Union (EU) membership, the accession process played a crucial role in emboldening LGBT activists. As a Polish analyst put it, “EU membership has had a huge impact. Activists feel more secure in Poland now. They know the EU is watching.”2 Opponents of LGBT rights, however, did not always seem to feel correspondingly constrained by the watchful eye of Brussels: of the 40 events described above, 26 occurred in candidate countries. Two states

116

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

stand out in particular: Poland and Latvia account for 19 and 4 of these events, respectively. In this chapter, we seek to explain why such strongly illiberal resistance to assertions of sexual diversity emerged in these two countries and what this resistance tells us about the EU’s pro-diversity project. Most scholarly assessments of the impacts of EU accession on domestic politics in the postcommunist candidate countries have endorsed one of two views. The first holds that EU institutions exerted a significant liberalizing influence through the accession process, with the defusion of ethnic tensions as the paradigmatic case.3 The dissenting view holds that EU enlargement, with its overly bureaucratic processes and its essentially nonnegotiable terms, produced a populist backlash against Europeanization.4 We find that neither of these formulations adequately explains resistance to LGBT activism in Poland and Latvia. While EU membership may have encouraged sexual minorities to mobilize in both countries, it manifestly failed to constrain illiberal forms of countermobilization. But antigay resistance also does not appear to be simply a case of “Europeanization blowback.” Rather, it is best understood not through a top-down focus on EU-level institutions and processes, but through bottom-up examination of national-level factors. Specifically, we argue that party system institutionalization and constructions of national identity were the determining factors in the emergence of antigay resistance in both Poland and Latvia. Central to the EU integration project, as noted in the introduction to this volume, is the embrace of certain kinds of diversity. Candidates and member states are enjoined to protect and celebrate the ethnic, religious, gender, and sexual diversity of their residents, but in doing so, they must become correspondingly homogeneous in their attitudes toward these forms of diversity: “united in diversity.” The promotion of desirable forms of identity diversity, ironically, demands the extirpation of undesirable (illiberal) forms of normative diversity. In the cases of Poland and Latvia, the “return to Europe” clearly has not brought about this value convergence. Instead, these countries have experienced another kind of “return to diversity”: a reemergence of historically rooted illiberal narratives of identity that serve as powerful obstacles to the diffusion of liberal European values. Failure to Converge: Resisting Diversity in Poland and Latvia Let us begin by establishing the extent of divergence in our cases from liberal European norms. EU law provides strong antidiscrimination protections for LGBT individuals. Article 13 of the Amsterdam Treaty

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

117

includes sexual orientation among the banned grounds for discrimination, as does the European Charter of Fundamental Rights. The Copenhagen Criteria required applicant states to transpose and implement these elements of the acquis communautaire as a condition of membership. In 1998, the European Parliament (EP) warned that it would not consent to the accession of any country that “through its legislation or policies violates the human rights of lesbians and gay men,” and in 2000, it called on six candidate countries to remove antigay provisions from their penal codes.5 The antigay backlash in both Poland and Latvia represents a clear repudiation of the liberal European standard on three dimensions. First, officials in both governments have conspicuously failed to uphold basic civil rights (freedom of speech and assembly, full protection of the law) for sexual minorities. Second, the antigay agenda has received broad support among political elites within “legitimate politics,” that is, in state institutions such as parliament, government, and the legal system. Third, antigay rhetoric in official public discourse has been exceptionally aggressive, sometimes constituting hate speech. We describe these phenomena at length elsewhere,6 and so a brief summary here will suffice. In Poland, the first “Equality Parade” brought some 300 people to the streets of Warsaw in 2001. While subsequent marches provoked ferocious controversy and sometimes violent resistance,7 it was in 2004, just months after Poland joined the EU, that Warsaw’s city government first stepped in to ban the event. Warsaw mayor Lech Kaczy´nski banned it again in 2005, in the face of considerable international pressure not to do so.8 After Polish courts declared the ban unconstitutional, the 2006 parade was permitted, but hostile counterprotesters pelted marchers with eggs. A conservative politician called for the marchers to be met with force: “If deviants begin to demonstrate, they should be hit with batons.”9 Similar events have played out in other Polish cities. Latvia’s first Pride parade took place in Riga in July 2005, after a court overturned the city government’s attempt to ban it. Some 70–100 people marching under heavy police protection were confronted by as many as 10,000 onlookers, including perhaps 500 aggressive protesters, who formed human chains to disrupt the march. Police had to evacuate participants from a church service held at the conclusion of the event. The following year, the city’s ban was upheld in court; participants in an alternative gathering were harassed (including pelting with bags of excrement) by hundreds of well-organized protestors, with virtually no police intervention. In both countries, aggressively antigay elites are in the political mainstream, enjoying representation in parliament and government.

118

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

Poland’s 2005 elections brought two socially conservative newcomers with stridently antigay rhetoric into the government and the presidency. During the campaign, both Law and Justice (PiS) and the League of Polish Families (LPR) had made opposition to the Pride parades and intolerance of homosexuality more broadly the centerpiece of their socially conservative programs.10 Former Warsaw mayor Lech Kaczy´nski (PiS) was elected president, and between 2005 and 2007 PiS and LPR’s combined vote share was 35, which gave social conservatives overwhelming power in the government. A corruption scandal brought this government down in summer 2007. In the October elections of that year, an LPR weakened by missteps on other issues failed to meet the minimum threshold for parliament, and PiS was unable to build a new government. It did, however, better its vote share from the 2005 elections and now constitutes the second largest parliamentary party. Even in opposition, PiS called into question passage of the Lisbon Treaty on the grounds that the European Charter of Fundamental Rights could lead to homosexual marriage in Poland.11 Meanwhile, Kaczy´nski remained in the presidency. In Latvia, the instigator of and most vocal participant in the antiPride backlash has been Latvia’s First Party (LPP). Popularly known as the “Preachers’ Party” because many of its members are clergy, it is Latvia’s first self-declared defender of conservative “Christian values.” This newcomer entered parliament shortly after its founding in 2002 with ten seats. Despite the party’s small size, its socially conservative agenda has been supported—or at least not actively opposed—by Latvia’s more established, mainstream parties. Since 2005, numerous MPs and officials from other parties have joined LPP in public gay bashing, and very few have spoken out against it. Shortly after the 2005 parade, the “preachers” proposed a constitutional amendment defining marriage as “between a man and a woman.” Though primarily a symbolic gesture, it marked the exclusion of sexual minorities from the full protection of the state and membership in the national community. In December, the amendment was passed with a resounding majority of 65, making Latvia the first European country to constitutionally ban same-sex marriage. Only 6 of parliament’s 100 members voted against it. The following June, LPP campaigned against amending Latvia’s Labor Law to include sexual orientation among the explicitly banned grounds for employment discrimination. Even though this omission was in direct violation of an EU directive (and potentially punishable by financial sanctions), the LPP initiative passed with a 46-vote plurality.12 Parliamentary elections in October 2006 returned a weakened LPP to the Saeima, but this poor showing did not appear to reduce the party’s influence on social issues. Despite considerable outcry from Latvian and European human rights

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

119

advocates, J¯anis Šmits, LPP’s most outspoken antigay voice, was made chairman of parliament’s human rights committee, and another LPP member was appointed special assignments minister for social integration. Finally, in both countries public officials have employed virulently homophobic rhetoric in the public sphere with impunity. This rhetoric condemns homosexuality as a dangerous threat to society, defends the infringement of gays’ political rights as a civic duty, and condones or even endorses intimidation of sexual minorities. Homosexuality is commonly equated with criminality, mental illness, pedophilia, necrophilia, and zoophilia. To cite an illustrative example, at LPP’s 2006 party congress, parliamentarian Dainis Turlais argued against allowing a second Pride march, saying, “What are we supposed to do? Make compromises? Let all kinds of scoundrels, drug addicts, bums and faggots walk in the streets, while we hide in the bushes? On the contrary—we will take to the streets, because the truth is on our side!”13 Outraged academics and human rights experts compared Turlais’s comments with Nazi rhetoric, but several days later the parliament approved him to join Latvia’s delegation to the Parliamentary Assembly of the Organization for Security and Cooperation in Europe.

The EU’s Role: Cure or Cause? Why did gay-rights advocacy elicit such powerful resistance in Poland and Latvia, and what analytical tools does recent literature on Europeanization in postcommunist countries provide to explain this phenomenon? One popular view holds that the Commission and other EU institutions serve as liberal enforcers and role models, promoting political convergence within the accession countries. An opposing, “Europeanization blowback” perspective emphasizes the hardships imposed by EU accession, suggesting that these provoke populist, illiberal political responses. Despite opposing assessments of the EU’s influence on democratic development, both perspectives share a top-down focus on EU-level institutions—on their leverage, example, or missteps—as the crucial factor driving national politics. We suggest a third perspective, a “return to diversity” among the postcommunist democracies after EU enlargement. While EU membership helped put gay rights on the political scene in Poland and Latvia, EU-level institutions lack the resources after accession to influence political outcomes as they did in the 1990s. Nationallevel particularities—differences in both narratives of national identity and party system institutionalization—are now shaping governments’ behavior toward sexual minorities.

120

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

AntiGay Politics as Roadbump on the Return to Europe?

Many scholars have argued that EU accession exerted a fundamentally liberalizing influence on political institutions, culture, and elites in the new member states.14 The paradigmatic case is ethnic politics, which was largely defused in the accession process. If this example is still relevant, then Poland and Latvia’s antigay mobilization should prove nothing more than a roadbump on the return to Europe. What, then, were the tools with which EU-level institutions neutralized ethnic tensions, and can they now be applied to antigay politics? The first two tools were conditionality and public criticism. The Copenhagen Criteria conditioned EU membership on respect for minority rights. The European Commission monitored compliance and publicized transgressions through its annual reports and with the aid of sister organizations such as the Council of Europe and the European Court of Human Rights. The third tool was less direct, but, some argue, crucial: EU-level institutions enhanced party competition in the postcommunist democracies. They coordinated liberal parties, increased information available to voters, educated political elites in liberalism, and provided a focal point for those elites to mobilize around before elections.15 In this way, European integration made party systems more competitive, which led to more liberal governments.16 An oft-cited example of such leverage is Slovakia: with the Commission’s help, Slovak opposition parties, fractured and ineffectual throughout the 1990s, succeeded in overturning Vladimír Meˇciar’s illiberal nationalist government in 1998. An examination of these tools suggests that the happy precedent of ethnic politics may not provide the best guidance for understanding the current wave of antigay politics. Even before accession, neither conditionality nor public criticism was applied with the same stringency to sexual as to ethnic intolerance. None of the Commission’s progress reports explicitly mentions sexual minorities. After accession, conditionality and criticism are weaker tools, as even optimistic Europeanizers anticipated: the Commission can no longer demand good behavior in return for membership.17 Since accession, EU-level criticism has been more evident, but has provoked defiant responses. In January 2006, the EP condemned the upsurge of homophobia in the EU, as evidenced by “a series of worrying events . . . ranging from banning gay prides or equality marches to the use by leading politicians and religious leaders of inflammatory or threatening language or hate speech, failure by police to provide adequate protection or even breaking up peaceful demonstrations, violent demonstrations by homophobic groups, and the introduction of changes to constitutions to

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

121

explicitly prohibit same-sex unions.”18 While no member state was mentioned by name, Poland and Latvia were clearly the primary targets of concern. A second EP resolution passed in June censured Poland for “an increase in intolerance caused by racism, xenophobia, anti-Semitism, and homophobia.” The Polish parliament reacted defiantly: Speaker Marek Jurek (PiS) stated that the resolution harmed Poland while “promoting an ideology of homosexual communities.”19 Parliament then approved a PiS-sponsored resolution refuting the empirical basis of the EP’s charges. In Latvia, similarly undaunted by EP censure, officials proceeded to flout the EU directive on labor discrimination and to ban the 2006 Pride march. The contrast with ethnic politics is instructive here. Throughout the many years of tense conflict between ethnic Latvians and Russianspeaking minorities, Latvian politicians refrained from using ethnic hate speech in public. “Occupiers” was the derogatory term of choice, and no violent, unsanctioned mass protests against Russian speakers took place. Yet, since the 2005 Pride ban, government officials have employed antigay hate speech and denied constitutionally guaranteed and internationally mandated freedoms of speech and assembly on patently flimsy grounds, even under the scrutiny of visiting European dignitaries and media. Finally, our cases offer little evidence that party competition leads to more liberal government in the area of antigay politics. It is hard to imagine more intensely competitive party systems than Poland’s or Latvia’s. In Poland, every election since 1989 has brought defeat for the incumbent parties. The vote difference between the most popular party and its nearest competitor has been very small.20 In Latvia, each election since 1991 “has been won by a party formed less than one year before the poll and at least half of all parliamentary deputies have lost their seats.”21 In each election a different party has won a plurality, ranging from 15 to 32 percent vote share. AntiGay Politics as Europeanization Blowback?

If antigay politics is not just a roadbump on the return to Europe, is it an unintended consequence of the EU accession process itself, a case of “Europeanization blowback”? Some have argued that the EU’s use of conditionality, its take-it-or-leave-it negotiating stance with applicant states, its preference for bureaucratic coordination over democratic deliberation, and its interventions in support of favored political parties helped cause the illiberal turn in postcommunist politics.22 Two causal pathways are usually advanced in “Europeanization blowback” arguments. First, there is “reform fatigue”: the EU’s demanding accession conditions produced a euroskeptic electorate, which now elects illiberal elites because they

122

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

are also euroskeptic. A rival argument allows that voters may not be particularly euroskeptic but that the accession process itself advantaged euroskeptic political elites. To establish their credentials as responsible Europeanizers, mainstream parties ignored ideological debates over controversial issues like LGBT rights, opening space for extreme parties. These extreme parties scored electoral successes on the basis of social issues despite being much more euroskeptic than the public.23 Each hypothesis can offer a partial explanation for one of our two cases, but neither can explain both. While postcommunist publics view the EU less favorably after accession than at the beginning of the process, euroskepticism remains low throughout the region. Table 7.1 offers a rough assessment of public-level euroskepticism leading up to accession in Poland and Latvia compared with the “old” EU-15 and the other accession states. Between 2003 and 2004, support for membership fell by 10 percent in Poland and 13 in Latvia, even as it remained level at 48 percent among the EU-15. Though this suggests a certain reform fatigue, it is insufficient to explain the success of the antigay agenda. In Poland, a comparison of the combined vote share of PiS and LPR (35 percent in 2005) with the euroskeptic share of the population (18 percent) shows that voters

Table 7.1 Support for EU Membership According to Eurobarometer Public Opinion Surveys Generally speaking, do you think that (Country’s) membership in the European Union would be a good thing?

Poland Latvia EU-15 Accession States-13

Autumn 2001

Autumn 2002

Autumn 2003

51 33 48 59

52 35

52 46 48 63

61

Spring 2004 42 33 48

Generally speaking, do you think that (Country’s) membership in the European Union would be a bad thing?

Poland Latvia EU-15 Accession States-13

Autumn 2001

Autumn 2002

Autumn 2003

11 17 13 10

11 21

13 16 15 10

10

Source: European Commission, Eurobarometers (2001–2004), http://ec.europa.eu/public_opinion/cceb_en.htm) Note: The category “Accession States-13” includes Romania, Bulgaria, and Turkey.

Spring 2004 18 22 17

123

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

were less euroskeptic than illiberal elites. Hence, illiberals were tapping more than anti-EU sentiment, and social conservatism was not simply a by-product of popular euroskepticism. In Latvia, the share of euroskeptics (22 percent) outnumbers the vote share of the leading social conservatives, LPP (5–10 percent), but Latvia presents another problem for the “Europeanization blowback” argument: LPP is one of Latvia’s more pro-EU parties. Despite their antigay agenda and the Brussels-bashing rhetoric that often accompanies it, the preachers unequivocally supported EU accession in their 2002 platform and have voted accordingly on most matters. This disconnect between social conservatism and euroskepticism in Latvia is supported by recent data on European political parties from Kenneth Benoit and Michael Laver,24 who used expert surveys to compute party policy scores along multiple issue dimensions. Figure 7.1 plots party positions on the issues of euroskepticism and social conservatism.25 LPP is by far Latvia’s most socially conservative party, but it is relatively pro-EU. For Poland, arguments about elite-led euroskepticism find greater, but still only qualified, support. Benoit and Laver’s data show that LPR is both strongly socially conservative and strongly euroskeptic, but the correlation is weaker for PiS. It earns the relatively high score of 15 on social conservatism but is moderate on EU membership, with a

Euroskepticism

Latvia 20 18 16 14 12 10 8 6 4 2 0

(Latvian section) PCTVL

Party Acronym

TSP ZZS TB/LNNK JL

0

2

4

6

8

LPP

TP

10 12 14 16 18 20

JL LPP PCTVL TB/LNNK TP TSP ZZS

Party Name New Era Latvia’s First Party For Human Rights in a United Latvia Alliance Fatherland and Freedom - LNNK People’s Party People’s Harmony Party Green and Farmers Union

Social conservatism

Euroskepticism

Poland 20 18 16 14 12 10 8 6 4 2 0

LPR S

(Polish section) PSL PiS

UP

0

2

4

SLD

6

PO

8

10 12 14 16 18 20

Party Acronym LPR PO PSL PiS S SLD UP

Party Name League of Polish Families Citizens’ Platform Polish Peasant Party Law and Justice Self Defense Alliance of the Democratic Left Labour Union

Social conservatism

Figure 7.1 Party Positions on Euroskepticism and Social Conservatism, by Country

124

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

score of 12. Even in Poland, where elite euroskepticism and social conservatism overlap, most elites tend to moderate their euroskeptic rhetoric while remaining uncompromising about gay rights. While more helpful than the “roadbump on the return to Europe” perspective in explaining antigay politics in Poland and Latvia, the blowback hypothesis relies on contradictory premises about public- and elite-level euroskepticism for different cases, falling short of a consistent theory of how EU-level institutions structure national-level politics. Moreover, this hypothesis has difficulty explaining variation among new member states. Since all faced the same accession requirements and entered the EU concurrently, why should illiberal populists have appeared in some countries but not others? For example, despite its widespread euroskepticism, the Czech Republic has not seen antigay mobilization or illiberal populism of any other variety. To the contrary, in 2006 it became the first postcommunist country to legalize same-sex partnerships. AntiGay Politics as a Return to (Illiberal) Diversity The surge of antigay politics shows the renewed importance of nationallevel differences in postcommunist Europe and the analytical costs of top-down perspectives. EU membership helped raise the issue in Poland and Latvia by emboldening local gay-rights activists, but EU-level institutions lack the resources to influence domestic politics as they did before accession. Two factors offer the most leverage in explaining antigay mobilization and the breadth of representation of antigay elites: party system development and constructions of national identity. Both countries have weakly institutionalized party systems and politically potent exclusionary discourses of national identity. Only in Poland, however, is national identity linked to conservative religiosity, which explains the stronger representation of antigay elites in parliament and government. The Role of Party System Under-Institutionalization

Poland and Latvia’s party systems are both highly competitive, but competition has not made them more liberal. Instead, under-institutionalization has benefited outsider parties, enabling them to hold center parties ransom to their radical views. Both countries lack stable parties that form predictable coalitions. Parties’ vote shares fluctuate widely across elections, which means that center parties are fragile and that low barriers to entry open the system to radical newcomers. Government coalitions lack programmatic coherence and, more damaging, rely on smaller, more extreme coalition partners to stay in power.26

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

125

Poland’s 2005 elections demonstrated the persistence of electoral volatility with the near collapse of the postcommunist Democratic Left Alliance (SLD), a stronger (but not strong enough) showing by the new center-right Civic Platform (PO), and the disappearance of the former coalition partner Union of Labor. Radical-populist newcomers benefited as the center-right and center-left declined. In this regard, 2005 was a watershed year: for the first time, center parties polled less than populist and outsider parties.27 Of parties active in the 1990s, only SLD and the Peasants (PSL) remained in parliament, collectively polling 18 percent. The 2005–7 PiS-led government was the product of this party system’s persistent under-institutionalization. All three coalition partners were relative newcomers to politics, first entering parliament in 2001. In Peter Mair’s terminology,28 the coalition was based on an “innovative governing formula,” comprising nationalist-social conservatives (PiS and LPR) and left-leaning populists (Self-Defense). Even if elements in PiS aspired to center-right moderation, keeping together such a coalition granted radical junior partners outsized influence. At root, these developments reflect a failure of the center parties to institutionalize—to establish stable organizational structures and robust links to social constituencies. In an institutionalized system, the barriers to entry in parliament and government would be much higher. In Latvia, too, under-institutionalization plays a central role in the success of the antigay agenda, allowing a small party to exert an influence over government comparable to that in Poland. Unlike Poland, social conservatives have not scored a major electoral victory, but LPP has leveraged the weaknesses of the party system—the fragility of governing coalitions and center parties’ weak social roots and lack of programmatic definition— to exert disproportionate influence. According to Daunis Auers, most Latvian parties are best understood as “potemkin parties” characterized by “tiny membership, extreme wealth, catch-all ideology, and professional media-oriented campaigning techniques.”29 The centrist Latvia’s Way, which led every coalition from 1993 to 2002, established this model: “The party claimed to be ideologically liberal, but downplayed its ideological identity. Indeed, the party program was a hodge-podge of populist policies, promising both a rapid transition to a privatized market economy, while maintaining previous Soviet levels of social welfare.”30 The success of Latvia’s Way led most other parties to imitate the “potemkin” model, and electoral competition is now driven largely by personality politics and expensive campaigns financed by private donors. The ideological indistinctness of Latvia’s “potemkin parties” stems from the fact that the primary cleavage since independence has been not

126

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

a left-right but an ethnic one.31 Virtually every governing party has been labeled “centrist” or “center-right,” but these labels do not reflect a programmatic profile other than a more-or-less nationalist stance on ethnic policies and relations with Russia. The ideological flexibility of coalitional politics makes for innovative coalition-building formulas, opening government access to parties, such as LPP, with extreme positions on a few chosen issues. Exploiting its kingmaker role, in 2002 LPP joined a four-party coalition led by the center-right New Era, which as the frontrunner had only 26 seats. LPP has stayed in government—with brief interruptions—through three subsequent turnovers and has held a total of 17 ministerial portfolios since 2002. In contrast to Poland, the problem is not that Latvia’s centrists have been displaced by populist outsiders but that under-institutionalization grants disproportionate influence to a small grouping like LPP, even though its preoccupation with opposing LGBT rights is an exception in Latvian politics. National Identity and the Scope of AntiGay Politics

Party system institutionalization does much to explain the inclusion in mainstream politics of antigay elites in Poland and Latvia. Yet the extent of inclusion differs between the two. In Latvia, the antigay agenda is championed by one small party with disproportionate influence; in Poland, it was the domain of two government parties, one of which remains a major political player. This difference can be explained by the relationship between religiosity and national identity. As Figure 7.2 shows, in Poland nationalism and social conservatism are strongly linked, with LPR and PiS at the upper end on both dimensions.32 In Latvia, in contrast, the most socially conservative party, LPP, falls only at the middle of the nationalism dimension. In both countries highly exclusionary constructions of national identity are dominant, which lend themselves to vilifying homosexuals as a dangerous internal other even without a religious component. Exclusionary nationalism serves to define the “essential” traits of authentic members of the imagined community and to police the nation’s boundaries. It is also typically concerned with propagating and strengthening the national “family” and is thus pro-natalist and (implicitly or explicitly) heteronormative. Still, religious conservatives have proved to be the most ardent opponents of homosexuality in Poland and Latvia, as they so often are elsewhere. When nationalism is religiously defined, as in Poland, the perception of homosexuality’s challenge to the nation is more acute. The implicit homophobia of ethnonationalism combines with the explicitly homophobic moralizing of a conservative religious tradition

127

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

Nationalism

Latvia 20 18 16 14 12 10 8 6 4 2 0

TB/LNNK TP ZZS

(Latvian section)

JL LPP

Party Acronym TSP

0

2

4

6

8

PCTVL

10 12 14 16 18 20

Social conservatism

JL LPP PCTVL TB/LNNK TP TSP ZZS

Party Name New Era Latvia’s First Party For Human Rights in a United Latvia Alliance Fatherland and Freedom–LNNK People’s Party People’s Harmony Party Green and Farmers Union

Nationalism

Poland 20 18 16 14 12 10 8 6 4 2 0

LPR S

PSL PiS

(Polish section) Party Acronym

UP

0

2

4

SLD

6

PO

8

10 12 14 16 18 20

Social conservatism

LPR PO PSL PiS S SLD UP

Party Name League of Polish Families Citizens’ Platform Polish Peasant Party Law and Justice Self Defense Alliance of the Democratic Left Labour Union

Figure 7.2 Party Positions on Nationalism and Social Conservatism, by Country

to intensify the popular resonance of antigay politics. When religious conservatives cannot or choose not to define themselves in nationalist terms, as in Latvia, their popular appeal is more limited. Understanding why national and religious identities are so tightly bound in Poland but not Latvia requires attention to particularities of national historical development. Populist parties in Poland have successfully manipulated historically rooted discourses of national identity, bringing them to bear on gay rights, which, needless to say, did not much concern the first theorists of Polish nationalism. The roots of the current discourse trace back to the interwar period and to Roman Dmowski, the chief ideologue of modern Polish nationalism, who declared in 1927, “Catholicism is not an appendage to Polishness . . . it is embedded in its essence, and in a large measure it is its essence. To attempt to dissociate Catholicism from Polishness, and to separate the Polish nation from its religion and the church, means to destroy the very essence of that nation.”33 Dmowski outlined an illiberal program to “make the Polish state the exclusive property of Catholic Poles.”34 Catholicism as a marker of Polishness was politically useful in ethnically and religiously heterogeneous interwar Poland; it set “true Poles” apart from the sizable German (Lutheran), Ukrainian (Orthodox), and Jewish

128

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

minorities. Catholic elites were called “to exercise ‘moral dictatorship,’ ” and “formal equality of citizens was to be abolished—rights to political participation made dependent on the place of the respective individuals in the hierarchically organized nation.”35 These ideas continued to influence political discourse after World War II, even under Communism.36 They also proved central within the Solidarity movement, from which the present-day Polish right descends. As Michael Carpenter describes, from its inception Solidarity brought together a largely liberal leadership, which emphasized human rights and saw the movement as a means of “civic emancipation,” and a nationalist rank and file, which emphasized struggle against Soviet occupation, demanding “ethnic recognition” of the nation’s “ethnocultural, and especially religious, identity.”37 Recalling Dmowski, the more extreme elements of the latter called themselves “true Poles,” a term that excluded non-Catholics from the movement. When Solidarity broke apart after 1989, a primary cleavage divided the leadership, whose party organizations took a liberal view of national identity, from more nationalist, Catholic-oriented groups.38 While electoral support for the former has dwindled since 1989, that for the latter has remained consistent and, with the rise of LPR and PiS, even grown. Poland’s current antigay backlash demonstrates the discursive and organizational continuity of an exclusionary, religiously defined conception of national identity, which continues to animate much of the right.39 PiS and LPR’s antigay rhetoric, combining religious piety and nationalism, marks them as the descendants of nationalist movements of the interwar period. LPR claims not only an intellectual link to Poland’s interwar years, but also an organizational one: its leader Roman Giertych is the grandson of one of Dmowski’s close associates. The All-Polish Youth, which has played a central role organizing counterdemonstrations to Pride parades, was founded by Dmowksi40 and reestablished by Giertych in 1989. Both PiS and LPR receive enthusiastic support from this and other social organizations and from media outlets such as the popular, conservative Catholic radio station Radio Maryja. Underscoring Dmowski’s enduring legacy, in 1999, on the sixtieth anniversary of his death, an overwhelming majority of the Polish parliament voted to commemorate him for his contributions to independence, omitting reference to his illiberal policies and celebrating his linkage of religion and national identity.41 As Polish historian Andrzej Walicki wrote at the time, “We are witnessing numerous attempts to create and consolidate a right-wing fundamentalism and inward-directed nationalism, sharply distinguishing between good, Catholic Poles and different kinds

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

129

of de-nationalized groups—Polish-speaking, but alien to Polish national values.”42 In contrast to Poland, Latvia is a largely secular nation-state, albeit nominally Christian and predominantly Lutheran. National identity is linked primarily to notions of rootedness in the land: since the interwar independence period, Latvians have imagined themselves as a “nation of farmers.”43 Latvian nationalism is similar to Polish nationalism, however, in its social conservatism and ethnic exclusivism. Interwar Latvia was ethnically and religiously diverse, and the capital city, Riga, was cosmopolitan and bohemian. But the cultural climate shifted after the 1934 authoritarian coup of K¯arlis Ulmanis, leader of the Farmers’ Union party, who enshrined an exclusionary notion of Latvianness rooted in conservative peasant values.44 Since independence from Soviet rule, mainstream political discourse has sanctified the “Ulmanis days” as a golden age, and conservative agrarianism remains the dominant discourse of national identity. Since the mid-nineteenth century, moreover, mainstream Latvian nationalists have worried about the demise of the numerically small Latvian ethnos through assimilation by one or another hegemonic power: first Germany, then Soviet Russia, and now the EU. Under Soviet rule, russification policies reduced the ethnic Latvian share of the population to just over half. Before Latvia’s accession to NATO and the EU, ethnic Russians were the primary focus of Latvian demographic fears and target of nationalist ire. Aggressive homophobia was largely the domain of extreme nationalists such as Aivars Garda, a publisher notorious for organizing essay contests on both anti-Russian and antigay themes.45 With some prominent exceptions,46 before July 2005 homosexuality was a peripheral concern for mainstream nationalists, who were preoccupied with the dual threat of Russia and Latvia’s Russophone minorities. This changed with the decision by LGBT activists to hold a Pride parade, thereby providing Latvia’s first religiously focused political party, LPP, an opportunity to bring its antigay agenda center stage. In Latvia, as in much of Eastern Europe, the destabilization wrought by the fall of Communism provided fertile ground for the expansion of transnational evangelical denominations.47 LPP’s founders hoped to reach out to this small but previously unmobilized niche. Because evangelicals in Latvia are predominantly Russophone, LPP defined itself as Christian rather than nationalist. Hoping to woo Russophone voters in 2002, LPP endorsed multiculturalism and ethnic integration. While the effort failed to garner many Russophone votes, it did incense many Latvian nationalists, who remain outraged by the party’s particularly close

130

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

ties to New Generation, a Riga-based transnational mega-church with a primarily Russian-speaking membership. Its pastor, the ethnic Russian Aleksey Lyedyaev, not only advocates official bilingualism but is something of a Russian chauvinist.48,49 Many Latvians, moreover, view evangelical churches with skepticism, often pejoratively labeling them “sects.” Unlike Poland’s conservative Catholic nationalists, thus, LPP has succeeded in advancing its antigay agenda despite the party’s religious orientation rather than because of it. Why have so many mainstream nationalist politicians, churches, and media outlets supported this agenda? Even without the reinforcement of conservative religious doctrine, homophobia resonates with secular Latvian nationalism. While the “preachers” most often invoke “Christian values” to justify their agenda, they also regularly invoke the demographic threat ostensibly posed by homosexuality to the Latvian nation. This resonance helps explain why the antigay campaign drew together two previously implacable enemies, national extremists and Russophone evangelicals, making the 2005 anti-Pride protest arguably the first ethnically integrated demonstration in this deeply segregated society.50 As the extremist group Everything for Latvia remarked approvingly: “This time Russians and Latvians are standing shoulderto-shoulder [. . .] because everyone is standing up against a common enemy.”51 The following year another extreme nationalist organization, National Power Unity, amicably shared space with pastor Lyedyaev’s flock in demonstrating against Pride events and harassing participants. Conclusion During and after the accession process, the EU facilitated assertions of sexual diversity in postcommunist candidate countries. Perceiving this diversity as threatened, LGBT activists have sought to “benefit from the expansion of EU rules of non-discrimination.”52 Socially conservative political actors, perceiving sexual diversity as a threat, have resisted these assertions, and nowhere more aggressively than in Poland and Latvia. We have argued that neither of the dominant, top-down explanations of postcommunist trends can adequately explain this resistance. On the one hand, EU institutions clearly failed to promote liberal value convergence on the issue of LGBT rights during the accession process, and the leverage of these institutions has greatly diminished after accession. On the other hand, antigay politics is not primarily driven by elite or popular euroskepticism. A bottom-up focus on national-level factors is more useful in making sense of antigay resistance in Poland and Latvia. These cases demonstrate the importance of party system development—in both cases, competitive

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

131

party systems failed to prevent an upsurge of illiberalism, and the weak institutionalization of these systems in fact facilitated it—and of exclusionary nationalism. The differences between the two cases are as revealing as their similarities: the stronger political representation of antigay elites in Poland indicates that conservative religious appeals to homophobia have greater popular resonance when religious and national identities are linked. These findings suggest avenues for future research. Is there systematic variation in the character of antigay resistance across postcommunist Eastern Europe? If so, is it correlated with the degree of party system institutionalization and the nature of national identity? Cases such as the Czech Republic—which has a secular national identity and a more institutionalized party system than Poland and Latvia and which recently legalized same-sex unions—may lend support to our hypothesis. What role, if any, might EU-level institutions conceivably play in reversing the illiberal “return to diversity” in Poland and Latvia? Given the weakening of leverage in the post-accession context, this goal can probably best be pursued through efforts at social learning and persuasion.53 The EU should use all available resources to support the growing transnational network of LGBT activists that links beleaguered groups in postcommunist countries with EU-level organizations such as ILGA-Europe. And it should continue to use the “bully pulpit” of official censure to draw attention to postcommunist governments’ divergence from the liberal European embrace of diversity.

Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

ILGA-Europe 2006, 44–45. Piotr Kaczynski, quoted in “Pride Marches”, Associated Press 2006. Schimmelfennig 2007; Vachudova 2005; Kelley 2004. Grzymała-Busse and Innes 2003; Raik 2004. Bell 2001, 88. O’Dwyer and Schwartz 2010. “Rada Warszawy”, Gazeta Wyborcza, 2004. Krzyz˙aniak-Gumowska 2005; Kosc 2005. Amnesty International 2006. Krzyz˙aniak-Gumowska 2005; Kitlinski and Leszkowicz 2005. ‘Poland’, BBC News, 2008. The president returned the bill to parliament for reconsideration, and in October 2006, the sexual orientation language was finally enacted into law. Sloga 2003. Schimmelfennig 2007; Vachudova 2005; Grabbe 2003; Kelley 2004. Vachudova 2005, 162–163, 186–190. Ibid., 13–18.

132

CO N O R O’DW Y E R A N D KAT R I N A S C H WA R T Z

17. Ibid., 236–242. 18. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+ TA+P6-TA-2006-0018+0+DOC+XML+V0//EN#_jmp0_ 19. Quoted in “Commotion over EP Resolution”, Warsaw Voice 2006. 20. The exception here was the postcommunist SLD’s 2001 landslide victory. 21. Auers 2002/2003, 106. 22. Larrabee 2006; Grzymała-Busse and Innes 2003; Raik 2004. 23. Grzymała-Busse and Innes 2003, 64, 69–70. 24. Benoit and Michael Laver, 2006. 25. Country experts located parties on these issue spectrums using the following guidelines. On the social conservatism scale, parties favoring “liberal policies on matters such as abortion, homosexuality, and euthanasia” could receive a minimum score of 1; while parties opposing liberal policies could receive a maximum score of 20. To make it more intuitive we reversed the “EU joining” scale, coding the most euroskeptic parties—those who “oppose joining the European Union”—with a score of 20 and the most europhilic—those who “favor joining the European Union”—with a score of 1. 26. For further discussion of party system institutionalization, see Mainwaring 1999; Mair 1997; and O’Dwyer 2006. 27. Of the six parliamentary parties, outsider-populists (PiS, LPR, and SelfDefense) collectively polled 46.4 percent, while the rest (SLD, PO, and PSL) polled 42.4 percent. 28. Mair, 2007. 29. Auers 2006, 3. 30. This pattern of “partial turnover,” in which some government parties remain while others change, is one of Mair’s criteria for an unconsolidated party system (1997, 207–209). 31. Auers 2002/2003, 108. 32. Nationalistic parties—those “strongly promot[ing] a _______ national rather than a cosmopolitan consciousness, history, and culture”—receive a minimum score of 1. Non-nationalistic parties—those “strongly promot[ing] a cosmopolitan rather than a _______ national consciousness, history, and culture”—receive a maximum score of 20. The scale for social conservatism is the same as in Figure 7.1 (Benoit and Laver 2006). 33. Quoted in Walicki 2000, 32. 34. Walicki 2000, 32. 35. Ibid. 36. Ibid., 35–37. 37. Carpenter 2002, 137–143. 38. Ost 2005. 39. Starnawski 2003; McManus-Czubi´nska, Miller, Markowski, and Wasilewski 2003a. 40. Prazmowska 1995, 201–202. 41. Walicki 2000, 44. 42. Ibid., 42.

RE T U R N T O (IL L I B E R A L) DI V E R S I T Y?

43. 44. 45. 46. 47. 48.

49.

50. 51. 52. 53.

133

Schwartz 2006. Purs 1998. Muižnieks 2002. The leaders of the Lutheran and Catholic churches, for example, contributed chapters to Garda’s book Homosexuality: Humanity’s Shame and Ruin. Wanner 2003. Birze, Viktors (ND). “Pazin¸ojums par sektas ‘Jaun¯a paaudze’ un LPP destrukt¯ıvo darb¯ıbu.” Translation: “Regarding the destructive activities of the New Generation sect and LPP.” Note: this is a press release by the former leader of the ultra-nationalist party National Power Unity; it was published on the internet but is no longer posted. “Sarunas ar sektas “Jaun¯as paaudzes” l¯ıderi Alekseju L¸edjajevu fragmenti,” DDD 13 (61), 2004. Translation: “Fragments from a conversation with New Generation sect leader Aleksey Lyedyaev.” Note: DDD is the name of a newspaper (published by the ultra-nationalist Latvian National Front); the article has no author. Schwartz 2005. Visu Latvijai n.d. Thiel and Prugl, this volume. Schimmelfennig and Sedelmeier 2005.

This page intentionally left blank

CHAPTER

8

Diversity Before the European Court of Justice: The Case of Lesbian, Gay, Bisexual, and Transgender Rights∗ Gabriel N. Toggenburg

A century ago Sigmund Freud was of the opinion that nothing would astonish an extraterrestrial creature visiting our planet earth more than the fact that humankind exists in two forms of sex.1 But one century on, E.T. and his kin would rather be astonished by the variety of inter-, intra-, and transsexual phenomena of contemporary societies. Sexuality offers through its subcategories of heterosexuality, bisexuality, homosexuality, and various transgendered identities a very diverse picture of human behavior. This leads to a remarkable diversity within the 27 societies of the European Union (EU). At the same time the legal responses to this diversity vary across member states, and in that sense sexuality also stands for a remarkable diversity between the 27 states. And there is overall consensus that the EU should not do entirely away with this legal pluralism. However, at the level of the EU, different institutions might have different perceptions as to which degree this legal pluralism has to be preserved. When it comes to minorities—be they of national, cultural, sexual, or

136

GA B R I E L N. TO G G E N B U R G

linguistic nature—the European Parliament (EP) calls for strengthening diversity within the member states.2 This of course requests a stronger federal intervention from the EU level, which again can result in a reduction of the differences between the member states’ legal systems. In this sense diversity is a self-restrictive value: maintaining diversity between the member states reduces the potential flowering of diversity within (some of ) the member states just as—the other way round—the fostering of diversity within the states by means of the EU reduces the diversity of approaches between the states.3 It is only natural that the Council of the European Union, representing member states’ interests, will—in contrast to the federal institution of the EP—rather defend national approaches and thereby the diversity between the states.4 The same applies in the field of sexual minorities. Already back in 1994 the EP not only argued for equal treatment of homosexuals with regard to employment and pay but also called on the member states and the European Commission to end barring lesbians and homosexual couples from marriage or from an equivalent framework.5 Recently, when intersexual relations where an issue at the level of European legislation, the EP pressed—in the context of the Free Movement Directive6 —for an obligation of the host member states to recognize same-sex spouses and registered partners in accordance with the rules of the state of origin. This, however, was not acceptable for the Council. As a consequence a Union citizen will be entitled to move with his or her registered partner (who does not him- or herself hold EU citizenship) across state borders only if the host state “treats registered partnerships as equivalent to marriage and in accordance with the conditions as laid down in the relevant legislation of the host member state.”7 The Council also argued for a restrictive approach when it came to the definition of family in the Family Reunification Directive.8 The directive does recognize the existence of partnerships outside marriage but grants member states a maximum of discretion. They “may” (or may not) authorize entry and residence of unmarried partners in a “duly attested long-term stable relationship.”9 With this overall constitutional background of two diverging institutional interests and the two mentioned readings of what European diversity is about (namely, diversity between the member states and diversity within the member states), the European Court of Justice has to find a position vis-à-vis lesbian, gay, bisexual, and transgender (LGBT) rights. So far the Court has proved to be more ready to accommodate the needs of transsexuals than those of gay and lesbian persons. The very recent judgment in the case of Maruko sends, however, new (though

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

137

not unambiguous) signals in this context.10 The case Maruko can be considered a landmark decision concerning same-sex partnerships. The judgment is the first one addressing the issue of sexual discrimination as laid out in the Framework Directive 2000/78 and is already hailed by some as a major breakthrough toward a more fair society. Others might rather view it with suspicion as part of an EU-driven domino effect, which is going to pull down the concept of the traditional family in Europe. Given this background special emphasis will be given in the following to this recent judgment.

What the Court so Far Had to Say on LGBT Rights P. v. S. and Cornwall County Council (1996): The Prohibition to Discriminate on the Basis of Sex Extends to Transgender Issues—But How Far?

In P. v. S. and Cornwall County Council the applicant P. used to work as a manager in an educational establishment operated by the local administrative authority, the Cornwall County Council, UK.11 A year after being taken on, P. informed S., the director of the establishment, of his intention to undergo gender reassignment. The latter began with a “life test,” a period during which P. behaved and dressed as a woman, followed by surgery to give P. the physical attributes of a woman. At the beginning of September 1992, after he had undergone minor surgeries, P. was dismissed from work. The final surgical operation was performed before the dismissal took effect, but after P. had been given notice. It appears from the proceedings that the true reason for the dismissal was P.’s proposal to undergo gender reassignment, although the County maintained that the reason for the dismissal was redundancy. P. brought an action against S. and the County Council before the Industrial Tribunal on the ground that she had been a victim of sex discrimination. The Tribunal found that the situation at hand is not covered by the Sex Discrimination Act 1975, in as much as the latter only applies to cases in which a man or a woman is treated differently because he or she belongs to their specific sex. If P. had been female the employer would still have dismissed her on account of the operation. However, the Tribunal was not sure whether Article 1(1) of the Council Directive 76/207/EEC on the implementation of equal treatment for men and women with regard to access to employment (including promotion), vocational training, and working conditions12 might not be wider in this context than the Sex Discrimination Act 1975. It therefore stayed the proceedings to ask the Court

138

GA B R I E L N. TO G G E N B U R G

whether the Directive prohibits discrimination on the basis of a reason related to a gender reassignment. Not only the United Kingdom, but also the Commission submitted in this procedure before the Court that a dismissal on the basis of a gender reassignment does not constitute sex discrimination for the purpose of the Directive. The Court, however, came to the conclusion that the scope of the Directive “cannot be confined to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned.”13 To tolerate such discrimination would be tantamount, so the Court continues, “to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.”14 Methodologically the Court explains this reading by underlining that the discrimination at hand is “essentially if not exclusively” based on the sex of the person concerned. Where a person is dismissed on the ground of gender reassignment, he or she “is treated unfavorably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.”15 So in a way one could say that the Court applies a dynamic reading of sex. It compares the treatment of a female person with that of a male-to-female transsexual. The biological sex of origin is thereby equated to the transgender sex of choice. To which degree the concept of sex remains in the context of EU equality law determined by biology remains open. In any event the Court clearly says that it does constitute a discrimination on the basis of sex not only if transgender people are dismissed on the ground that they have undergone gender reassignment surgery, but also if they are dismissed because he or she “intends to undergo” gender reassignment. But what about such transgender people who neither have undergone nor “intend to undergo” reassignment surgery?16 This is an important question since it seems nowadays scientifically recognized that a considerable percentage of transsexuals do not undertake final reassignment surgery and do not even see such an operation as a compulsory step on their way toward their “right sex.” In fact the German Constitutional Court recently quoted in a prominent order the number of “20 up to 30” percent of transsexual persons who are permanent transsexuals but never undergo reassignment surgery.17 It remains unclear whether and to which degree European Community law provides protection to this group of transsexuals. So far this has not been an issue before the Court.18

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

139

Lisa Jacqueline Grant v. South-West Trains Ltd. (1998): Gays and Lesbians are Left Outside the Protective Shield of the Prohibition to Discriminate on the Basis of Sex

Lisa Grant is an employee of the South-West Trains Ltd. (SWT), a company operating railways in the Southampton region, UK. Her employer provides not only for the spouse and dependants certain travel concessions but also for non-married partners of staff “subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more.”19 Ms. Grant applied in early 1995 for travel concessions for her female partner with whom she declared she had a meaningful relationship for over two years. SWT refused to allow the benefit sought, on the ground that for unmarried persons travel concessions could be granted only for a partner of the opposite sex. Ms. Grant made an application against the SWT to the Industrial Tribunal arguing that this refusal constituted discrimination based on sex, contrary to the Equal Pay Act 1970, Article 119 EC, and/or Directive 76/207. In fact, when referring to the Court, the Industrial Tribunal made reference to P. v. S. and Cornwall County Council as constituting “persuasive authority for the proposition that discrimination on the ground of sexual orientation [was] unlawful.”20 Furthermore, the General Advocate identified a discrimination on the basis of sex, which was in violation of Article 119 EC and which could not be justified by the moral conceptions of the employer, since these are “a purely subjective reason as opposed to objective circumstances.”21 The Court examined two separate issues, namely, whether the case at hand constitutes a discrimination on the basis of sex—which it answers in the negative—and whether discrimination on the basis of sexual orientation is covered by Community law (a question which, again, it answered in the negative). With regard to the issue of sex discrimination, Ms. Grant submitted that her employer’s decision would have been different if the benefits at stake would have been claimed not by her but by a man living in her condition (i.e., living with a woman). In her submission, if a female worker does not receive the same benefits as a male worker, all other things being equal, she is the victim of discrimination based on sex. The Court to the contrary did not compare her situation with that of a man who (just like Ms. Grant) lives with a woman, but with a man who (unlike Ms. Grant) lives with a man. Hence, the Court did not compare an individual of a certain sex with one of another sex, nor did it compare the situation of Ms. Grant and her partner (a lesbian couple) with that of a heterosexual couple. It compared the lesbian context of Ms. Grant with a hypothetical gay context. This approach allowed the Court

140

GA B R I E L N. TO G G E N B U R G

to conclude that “since the condition imposed by the undertaking’s regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination based on sex.” The Court’s assumption that same-sex partners are not “in the same situation” as heterosexual partners—and are therefore not comparable—is based on its finding that “in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex.”22 With regard to the question as to whether or not the prohibition to discriminate on the basis of sex covers also the notion of sexual orientation (a reading the applicant advocated) the Court remained equally dismissive. The Court made clear that the P. v. S. line of thinking remains limited to the “case of a worker’s gender reassignment and does not therefore apply to differences of treatment based on a person’s sexual orientation.”23 Regarding the references to the UN Human Rights Committee, which have been used as arguments by the applicant, the Court showed itself not at all impressed. It underlined that the findings of that international body have no binding force in law. And further, although fundamental rights form an integral part of European Community law, “those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the Competences of the Community.”24 The Court clearly states that “Community law as it stands at present does not cover discrimination based on sexual orientation . . . It should be observed, however, that the Treaty of Amsterdam . . . will allow the Council . . . to take appropriate action.”25 In other words the Court retreated in emphasizing that it is up to the European legislator to design the role of EU law in the area of sexual orientation. The latter argument has its value. One should not expect the Court to develop its own hidden policy agenda in the area of LGTB besides or beyond the European legislator. Such a tendency would undermine the Union’s legitimacy in this politically charged and highly sensitive area. What is, however, clearly open to criticism is the Court’s methodological approach to the question: that is, whether a different treatment of homosexual and heterosexual couples may constitute discrimination based on sex. Of course, at first glance what makes the treatment at hand seem less discriminatory is the fact that SWT was obviously not concerned by the specific sex of Ms. Grant. SWT was concerned by the combination of the two sexes, namely, the sex of Ms. Grant on the one hand and her partner on the other. This, however, does not diminish with the fact that the decision of SWT was based on sex. Even if one would argue that it is not the sex of Ms. Grant that motivated the dismissive decision of SWT, but

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

141

rather the sex of her partner, this remains discrimination by association based on sex.26 The consequence of the Court’s reductionist approach to sex as developed in Grant v. SWT is that employers are “not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married or who has a stable relationship outside marriage with a partner of the opposite sex.”27 The argument used by the Court is that member states hardly treat homosexual relationships as equivalent to marriage (which is true) and that stable homosexual relationships are only partly treated as equivalent to heterosexual relationships or are “not recognized in any particular way” (which is also true).28 It is, however, not clear at all how this assessment can serve as a compelling argumentative basis for ignoring the discriminatory character of a system that entitles stable (not married) heterosexual couples to travel concessions—a household benefit, which in the concrete case was worth around 1,500 Euro a year29 —while denying this same benefit to equally stable homosexual couples. D and Kingdom of Sweden v. Council of the European Union (2001): Even Within the Center of the EU, Namely, its own Institutions, Homosexual Life Partners May Remain Excluded from Marriage-Related Benefits

Of Swedish nationality, D is an official of the Council of the European Union. He registered a partnership with another Swedish national of the same sex in Sweden in 1995. In 1996 he applied to the Council for his status as a registered partner to be treated as equivalent to marriage for the purpose of obtaining the household allowance provided for in the Staff regulations of the Council. The latter rejected the application, and D, supported by the Kingdom of Sweden, brought an application to the Court of First Instance. His application was dismissed, and D and the Kingdom of Sweden (supported by the Kingdom of Denmark and the Kingdom of the Netherlands) brought an appeal before the Court of Justice. The Staff regulations of the Council foresee that household allowances shall be granted to married officials only (or unmarried with dependent children).30 On the other hand, the Swedish law on registered partnership provides that a partnership shall have the same legal effects a marriage has. The Council rejected the application of D on the ground that the provisions of the Staff regulation could not be read as allowing a registered partnership to be treated as being equivalent to marriage. The Court of First Instance said that the concept of “marriage” must be understood

142

GA B R I E L N. TO G G E N B U R G

as a relationship based on civil marriage within the traditional sense and that reference to the law of the member states is not necessary where the relevant provisions of the Staff Regulations are capable of independent interpretation. Moreover the Court of First Instance held that the Council was under no obligation to regard, for the purpose of the Staff Regulations, stable same-sex partnerships as equivalent to marriage. It would be for the Council as legislator and not as employer to make any necessary amendments to the Staff Regulations. D and the Kingdom claimed that the Court of Justice should set aside the contested judgment and the Council’s decision dismissing D’s application. The Court, however, remained dismissive. Where the Council has said it could—as employer—not disregard the clear wording of the Staff Regulation, the Court now acts in a comparable way: it argues that it can—as a Court (and therefore, by definition, a nonpolitical organ)—not interpret that wording in a way that “legal situations distinct from marriage are treated in the same way as marriage.”31 The Court stressed that it was the intention of the Community legislature to grant the household allowance only to married couples and that only the legislature can alter that situation. The fact that “in a limited number of member states, a registered partnership is assimilated, although incompletely, to marriage cannot have the consequence that, by mere interpretation, persons whose legal status is distinct from that of marriage can be covered by the term married official as used in the Staff Regulations.”32 With regard to the allegation of a discrimination based on sex, the Court used a similar argumentation as was used in Grant v. SWT. It stressed that it is irrelevant for the purpose of granting the household allowance, whether the official is a man or a woman. Whether or not an applicant gets a household allowance depends on the “legal nature of the ties between the official and the partner.”33 The Court concurred with the Court of First Instance that the term “marriage” as it is used in the provisions of the piece of EU administrative law at hand is “capable of being given an independent interpretation”: whether or not a specific national legal form of partnership is to be regarded as marriage is up to the Court.34 At the same time, however, the Court indicated that its independent reading of the Community term of “marriage” does somehow depend on the readings of the legal term of “marriage” in the various member states. The Court recognized that there are increasingly arrangements for registering same-sex partnership, but stressed that these arrangements are characterized by a “great diversity” and are “regarded in the member states concerned as being distinct from marriage.” In light of “such circumstances,” the Court felt unable to interpret the Community term of “marriage” as encompassing also a homosexual partnership officially registered according

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

143

to Swedish law.35 Note that the staff regulation was subsequently changed. K.B. v. National Health Service Pensions Agency and Secretary of State for Health (2004): “With a Little Help from my Friend” the Court Declares De Facto Prohibition of Transsexual Marriages Illegal under EC Law

K.B. is a member of the UK National Health Service (NHS), for which she has been working for approximately 20 years, inter alia as a nurse. She is a member of the NHS Pension Scheme. K.B. had for a number of years a relationship with R., who was born as a woman and registered as such in the Register of Births and has, following surgical gender reassignment, become a man. However R. was not allowed to amend his birth certificate to reflect this change officially. As a result, and contrary to their wishes, K.B. and her (now) male partner, R., have not been able to marry. Therefore, when K.B. claimed a widower’s pension for her partner (for the case she would pre-decease), the NHS Pension Agency replied dismissively since “widower” in the sense of the Pension Scheme Regulation refers to a person married to the scheme member. K.B. brought proceedings in the Employment Tribunal arguing that Article 119 EC and the Directive 75/117 require that in her context “widower” should be interpreted in such a way as to encompass the surviving member of a couple, who would have achieved the status of a widower had his sex not resulted from surgical gender reassignment. The case finally came before the Court of Appeal, which halted the proceedings and asked the Court of Justice whether indeed the exclusion from the benefit at hand constituted discrimination in the sense of European Community law. In their respective statements, K.B. referred to the line of thinking as exposed in P. v. S., whereas the UK government made reference to Grant v. SWT. The Commission, rather salomonically, found that in this specific case P. v. S. is not applicable since the unfavorable treatment at hand (denial of widower pension) did not directly result from R.’s gender reassignment but rather indirectly from the fact that it was impossible for the couple to marry and the definition of marriage remains—as recognized by the Court—a matter of national family law (remember that in P. v. S., P. was dismissed in consequence of his reassignment surgery). It does not seem implausible that the Court would have followed this line of thinking had the Strasbourg Court not just sent new signals into the European Fundamental Rights Space at the time when the Luxembourg Court was dealing with the K.B. case. In the Goodwin case, decided in 2002, the European Court of Human Rights (ECtHR) departed from its earlier case law in which it had

144

GA B R I E L N. TO G G E N B U R G

consistently held that there was no positive obligation on the UK government to alter the existing national system for the registration of births, which does not allow for a later change of status and therefore de facto bars transsexual couples from marrying.36 The Court made reference to the changing conditions within the Contracting States and underlined that a failure to maintain a dynamic and evolutionary approach would indeed risk rendering the ECtHR a bar to reform or improvement.37 Therefore, the Court did away with its prior opinion that the continued adoption of biological criteria in domestic law for determining a person’s sex for the purpose of marriage was encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry. The Court labels the argument that post-operative transsexuals have not been deprived of the right to marry since by law they remain able to marry a person of their former opposite sex as an “artificial” one (which it indeed is).38 In conclusion the Court in Strasbourg established that whereas it is for the Contracting State “to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages,” there is “no justification for barring the transsexual from enjoying the right to marry under any circumstances.”39 The Court in Luxembourg made wide reference to this timely help from Strasbourg and declared that legislation that “prevents a couple such as K.B. and R. from fulfilling the marriage requirement” in order to gain the benefit at stake (widower pension) “must be regarded, in principle, incompatible with the requirements of Article 141 EC.” Since it is, however, for the member states “to determine the conditions under which legal recognition is given to the change of gender of a person in R.’s situation . . . it is for the national court to determine whether in a case such as that in the main proceedings a person in K.B.’s situation can rely on Article 141 EC in order to gain recognition of her right to nominate her partner as the beneficiary of a survivor’s pension.”40 Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen (2008): Only Once National Legal Systems Set Spouses and Same-Sex Partners in a Comparable Legal Situation, EU Antidiscrimination Applies—adieu effet utile? The Legal and Factual Background of the Case

In 2000 the EU issued the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation,

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

145

which lays down “a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the member states the principle of equal treatment.”41 Thereby the Framework Directive is the first Community law document that rules out discrimination based on sexual orientation. So far the European Court of Justice has released only three judgments interpreting the substance of the Framework Directive, and none of these dealt with the issue of sexual orientation. At the national level, 2001 witnessed an important event in German legislation: Germany introduced a law on registered partnerships, the Lebenspartnerschaftgesetz (LParG), which provides same-sex couples with a legally protected form of partnership.42 The law, which was revised in 2004, creates a family institution that resembles marriage. Paragraph 1(1) provides that, to register such a union, it is necessary to demonstrate the desire to set up a life-long partnership. For the duration of the relationship, the partners must support and care for one another (Paragraph 2). They must contribute to the common needs of the partnership and, with regard to maintenance obligations, they are bound by the provisions of the Civil Code applicable to spouses (Paragraph 5). Moreover, like spouses, the partners are subject to the financial system of common ownership of property acquired ex post facto, although they are free to agree to a different system (Paragraph 6). In addition, each partner is regarded as a member of the other partner’s family (Paragraph 11). In a further similarity to the provisions of the Civil Code, should the partners separate, the maintenance obligation remains (Paragraph 16), and there must be an equalizing apportionment of pension entitlements (Paragraph 20). Finally, according to the German Social Security Code, registered partnerships are placed on an equal footing with marriage for the purposes of old-age pension schemes. Mr. Maruko is the life partner of a costume designer. He and his partner, Hans Hettinger, entered into a registered partnership pursuant to the LParG in autumn 2001. On January 12, 2005, Mr. Hettinger died. The pay scheme for Germany’s theatres provides that all employers must take out an old-age pension and a survivor’s pension for the artists they engage. The body responsible for administering the insurance is the Versorgungsanstalt der deutschen Bühnen (VddB), which is a legal person governed by public law. Paragraphs 32 and 34 of the pay scheme provide that a “wife” or a “husband” is entitled to a widow’s or a widower’s pension.43 Mr. Maruko’s partner had been affiliated with the VddB continuously since September 1, 1959. In February 2005 Maruko applied for a widower’s pension—a request the VddB refused in the same month

146

GA B R I E L N. TO G G E N B U R G

on the ground that the regulations mentioned make no provisions for survivor’s benefits to be paid to registered partners. After appealing unsuccessfully against that decision, the claimant brought an action before the Court arguing that the terms “widow” and “widower” have to be interpreted broadly so as to include partners in the sense of a registered partnership. The Bavarian Administrative Court stayed the proceedings and referred five questions to the Court of Justice regarding the interpretation of the Framework Directive. Most importantly, the Bavarian Administrative Court wanted to know whether the Directive precludes a national regulation like the one at hand that excludes registered partners from a widower’s pension. Moreover the local Court raised the question whether discrimination based on sexual orientation is permissible by virtue of Recital 22 in the preamble to the Framework Employment Directive (the latter states that the Community rules are “without prejudice to national laws on marital status and the benefits dependent thereon”). The Judgment of the Court

With regard to the status of the Recital 22 in the Framework Directive, the VddB and the United Kingdom had submitted in the proceedings that the latter determines the scope of the Directive and that the Directive, therefore, does not apply to provisions of law related to civil status or to benefits dependent on that status. The Court responded that, admittedly, these matters fall within the competence of the member states “and Community law does not detract from that competence.” However, in the exercise of that competence member states “must comply with Community law and in particular, with the provisions relating to the principle of non-discrimination.”44 This led the Court directly to the question of whether Article 1 and Article 2(2) (a) of the Framework Directive preclude national provisions such as the ones at hand. According to the VddB there is no obligation to treat marriage and life partnership identically, since life partnership is an institution sui generis. The Court, however, referred to the Bavarian Administrative Court, which had explained that the conditions of the life partnership have been gradually made equivalent to those applicable to marriage. The referring Court had explained to the Court of Justice that a life partnership, while not identical to marriage, places persons of the same sex in a situation comparable to that of spouses as far as it concerns the survivor’s benefit at issue. And “if the referring Court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue on

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

147

the main proceedings must, as a consequence, be considered to constitute direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78.”45 In other words the Framework Directive precludes national legislation “under which, after the death of his life partner, the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the VddB.”46

Comment

At first glance this judgment looks rather revolutionary. For the first time the Court ruled against discrimination based on sexual orientation. Moreover, the Court provided in concretu rights that the national system did not foresee: a homosexual “widower” is granted a pension that national law had denied him. The benefit at stake was not denied on the basis of his sexual orientation (that would have amounted to direct discrimination) but on the basis of the fact that he had been living in a registered partnership and not in a marriage. Since marriage is open only to heterosexual couples, the refusal to grant a survivor’s benefit to a surviving life partner constitutes indirect discrimination. Interestingly—and in contrast to the Advocate General, the European Commission, and Mr. Maruko, who all argued for the existence of an indirect discrimination—the Court of Justice identified legislation such as that at issue as being a direct discrimination on the basis of sexual orientation contrary to Articles 1 and 3 of the Framework Directive.47 A closer look reveals, however, that the Court remains rather restrictive in its approach toward gay rights, for the judgment boils down to a rather demure statement communicating little more than the obvious: once member states place same-sex couples via the institution of a “life partnership” in a situation that is legally speaking comparable to that of spouses, they have to provide both institutions (life partnership and marriage) with comparable benefits. Germany delineates in its Social Security Code that widower pensions are paid also to a partner surviving his life partner. However, such a treatment was precluded in the concrete case at hand. This exclusion was found in violation with the Framework Directive. But the result would have been very different if Germany would

148

GA B R I E L N. TO G G E N B U R G

not provide life partners with a “comparable situation so far as concerns that survivors benefit”—in this case the exclusion of Maruko would be perfectly legal under Community law.48 In essence this means that the member states themselves frame the comparability between homo- and heterosexual situations and thereby indirectly decide upon the applicability of EU law. How did this come about? The opinion of the Advocate General reads that the main proceedings “concern the inequality between married couples and people who form partnerships governed by different legal arrangements”. True, but the Advocate General continues, “Accordingly, the dispute does not turn on access to marriage but rather on the effects of the two types of union. It is therefore necessary to establish whether those two types of union warrant equal treatment.”49 Here, the tracks are laid, which inevitably lead toward a station dominated by national law. The Court’s approach applied in Maruko has two major weaknesses. First, it provides no protection against discrimination where it is most needed, namely, in national systems where homosexual relationships find no legal recognition. Second, the definition and identification of the point at which EU law steps in is entirely left to the member states. The latter point raises doubts as to whether the Court will prove efficient to bring the (after all, Community law) prohibition of discrimination on the basis of sexual orientation into life. Whereas in the case at hand the Bavarian Administrative Court in Munich had considered the German situation as one characterized by a dense harmonization between marriage and life partnership, which places same-sex couples in a situation comparable to that of spouses and which, therefore, raises the question of potential discrimination, the German Constitutional Court in Karlsruhe recently depicted a quite different scenario in its decision on the so called Verheiratetenzuschlag. According to the Federal Law on Salaries this special financial benefit is to be granted unconditionally only to those civil servants who are married, divorced, or widowed (thus not to homosexual people living in a Lebenspartnerschaft). The German Constitutional Court established in this context that the different treatment of life partnership and marriage emanates from and is justified by Article 6 of the German constitution. (Article 6 Paragraph 1 reads that “marriage and family enjoy the special protection of the state.”) With regard to the reach of the EU Framework Directive the constitutional court does not, just as the lower courts did not, see a necessity to refer the case to the European Court of Justice. The constitutional court arrived at the remarkable conclusion that a difference in treatment based on whether the applicant is living in a marriage or in life partnership cannot amount to discrimination since spouses and life partners differ in the very legal nature of the relationship

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

149

they live in!50 If this reading prevails, the Maruko line of argumentation will, in terms of EU law, not prove very useful. German courts would in the future simply follow Germany’s highest court, deny the comparability between marriage and life partnership and thereby preclude the application of the EU directive. While Maruko might be an elegant example of judicial subsidiarity, it could also turn out to be a slap in the face of any effet utile reasoning so commonly used by the Court of Justice. Conclusion: Family Law as National Fortress Versus Taking LGBT Rights Seriously—Is it Either/Or? “Marriage” is a traditional institution belonging exclusively to the member states’ family law systems. Admittedly, the courts in both Strasbourg and Luxembourg underlined that it is illegal to bar postoperative transsexuals from enjoying the right to marry under any circumstances. This, however, is not an intrusion into the concept of heterosexual marriage. It remains up to the member states to redefine the sex of transsexual persons. And only once the two persons are considered by the respective state to be of the opposite sex may they marry. The terms and the design of marriage under national law remain untouched. Most importantly, there are no signs on the horizon that European Union law would push the member states in the direction of opening the institution of marriage to homosexual couples. It is true that the Strasbourg Court noted en passant that Article 9 of the EU’s Charter of Fundamental Rights (which will become legally binding with the Treaty of Lisbon) “departs, no doubt deliberately” from the wording of Article 12 of the ECtHR “in removing the reference to men and women.”51 It is nevertheless clear from the Charter itself that the right to marry and the right to found a family “shall be guaranteed in accordance with the national laws governing the exercise of these rights.”52 Furthermore, the explanations elaborated by the convention drafting the Charter state that this article “neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex.” In the words of General Advocate Colomer one can say that “Community law accepts each Member State’s definition of marriage, singleness, widowhood, and the other forms of ‘civil (marital) status.’ ”53 At the same time the Court made clear that the exercise of the member states’ competence in the field of civil status and the benefits flowing there from must be exercised in a way that complies with “Community law and, in particular, with the provisions relating to the principle of nondiscrimination.”54 This Community limit on domestic family law implies that certain national rules denying specific entitlements to non-married

150

GA B R I E L N. TO G G E N B U R G

couples have to be justified in order to be legal. If they cannot be justified, member states have to provide for alternative means and forms in order that non-married partners can profit from comparable benefits. Thus, the central question is whether benefits linked to the institution of marriage can be ex-ante and pro toto reserved to married persons only. The Court so far has staunchly defended the member states’ right to reserve marriage-related benefits to spouses exclusively, first in Grant v. SWT in 1998 and then again three years later in the context of an EU institution (D. and Sweden v. Council). The 1998 case is worrying in that the Court not only allowed a different treatment of married and nonmarried couples but it even gave its sanctus to a treatment that, outside marriage, differentiated—without any plausible justification—between homosexual and heterosexual couples. What should also be critically assessed is how the Court arrived at its restrictive conclusions in the cases at hand. The Court has looked to the “present state of the law”55 as defined by the member states in order to ascertain whether homosexual relationships “are regarded in the member states concerned as being distinct from marriage.”56 In the case of Maruko it became especially evident that such an approach leads to a situation where the question of applicability of EU law is entirely left in the hands of the national legislators. Now that the Framework Directive clearly forbids discrimination based on sexual orientation, the European Court of Justice should adopt a more sophisticated approach. The Treaty of Lisbon will not only make the prohibition to discriminate on the basis of sexual orientation a principle applying in the whole range of EC law, it will also place all EU institutions—the Court included—under an obligation to combat discrimination based inter alia on sexual orientation “in defining and implementing” their activities.57 These new provisions could be motivation enough to change the course. If the Court were to build on its Maruko line of thinking, it will place at risk—for the sake of preserving diversity between the states—the very unity of EU law. The motivation for the Court’s approach in the Maruko case presumably derived from the fact that family law is an area falling in the most inner circle of the member states’ competences. This, however, should not imply that the Court does not take its own caveat seriously (namely, the duty to exercise national competence in a way that respects Community law and, in particular, the principle of nondiscrimination). When the Court, for instance, was confronted with national norms addressing linguistic minorities, it found itself equally in a context legally and politically dominated by the member states. However, when deciding whether or not those who are excluded from a certain right are comparable to those who are granted it, the Court did not make reference to the overall set of rights the two groups of people are granted under

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

151

national law (which would render the identification of a discrimination impossible). It instead referenced whether or not “they are in the same circumstances”58 (and thus equating in the specific context to the question whether “their language is the same”).59 Those who are de facto in the same situation should also de jure be granted the same rights and benefits, unless a restriction can be justified. This approach should not only be applied in the context of discrimination based on nationality, but also in that of discrimination due to sexual discrimination. Where member states distribute benefits and do in that context differentiate between marriage and non-marriage (potentially an indirect discrimination) or between heterosexual relations and homosexual relations (potentially a direct discrimination), the Court should not make the application of the Framework Directive dependent on the de iure existence or the specific legal design of a life partnership in those states. The comparability of hetero- and homosexual situations should depend on whether their de facto situation (needs, vulnerability, stability) is comparable in the very concrete context.60 Of course, under such an approach EU law steps in very early when compared with the Maruko approach, where EU law applies only once a member state provides for a marriagelike form of partnership. Nevertheless, the approach proposed here does not imply that family law is harmonized. Member states would in any event remain free to design their family institutions. Admittedly, those that have not yet established legally protected forms of same-sex partnerships will have to do so in the long run, since otherwise same-sex couples can hardly prove that they indeed are in a comparable life situation with regard to stability, mutual obligations, commitment, and the like. In the eyes of some this might be indirect harmonization dictated by the Framework Directive, which so reduces diversity between the states. But this is the price to pay if sexual diversity is to be protected in all EU societies and if the duty not to discriminate on the basis of sexual orientation is to be taken seriously. Notes ∗

This contribution is partly based on an article published in the European Law Reporter 5/2008: 174–185. 1. 2. 3. 4.

Freud 1905. See Toggenburg 2009. See Toggenburg 2004a, 2004b. Of course, the picture of European diversity management is even more complex since this horizontal dimension (Parliament—Council— Commission—Court) is complemented by a vertical dimension (EU institutions—member states). See Toggenburg 2005.

152

GA B R I E L N. TO G G E N B U R G

5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

European Parliament 1994. Council Directive 2004/58/EC. Article 2(2) (b) Council Directive 2004/58/EC. Council Directive 2003/86/EC. Article 4, paragraph 3, Council Directive 2004/86/EC. European Court of Justice 2008. European Court of Justice 1996. Council Directive 76/207/EEC. European Court of Justice 1996, paragraph 20. Ibid., paragraph 22. Ibid., paragraph 21. Confronted with the question, whether Article 13 EC covers “transgender discrimination” the European Commission says that what can be deduced from the case law of the Court of Justice is (only) that “discrimination on grounds of the gender reassignment of a person” would be covered by the ban on discrimination on grounds of sex (see European Commission 2003). See Beschluss des ersten Senates 2005, paragraph 66. Ten years after P. v. S. the Court decided another case involving a transsexual person, Sarah Margaret Richards, also a postoperative transsexual. The Court applied the principle as developed in P. v. S. and ruled that the scope of Directive 79/9 (on the progressive implementation of the principle of equal treatment for men and women in matters of social security) precludes different treatment arising from the gender reassignment of a person: a maleto-female transsexual has in the context of pension entitlements to be treated as a person of the same age who was a female from her birth. See European Court of Justice 2006. European Court of Justice 1998a, paragraph 5. Ibid., paragraph. 10. European Court of Justice 1998b, paragraph 39. European Court of Justice 1998a, paragraph 28. Ibid., paragraph 42. Ibid., paragraph 45. The Human Rights Committee established under Article 28 of the Covenant that the term “sex” includes sexual orientation (communication No 488/1992, Toonen v. Australia, March 31, 1994, 50th session, point 8.7). Ibid., paragraph 48. Note that General Advocate Elmer was already arguing in this direction: “The provision must further, in order to be effective, be understood as prohibiting discrimination against employees not solely on the basis of the employee’s own gender but also on the basis of the gender of the employee’s child, parent or other dependent.” See Ibid., paragraph 16. Compare Toggenburg 2008. Ibid., paragraph 35. Ibid., paragraph 32. Ibid., paragraph 23.

17. 18.

19. 20. 21. 22. 23. 24.

25. 26.

27. 28. 29.

DIVERSITY BEFORE THE EUROPEAN COURT OF JUSTICE

153

30. Article 1(2) of Annex VII to the Staff Regulation. This provision was amended in 2004 and does now provide for an equal treatment of marriages and partnerships (see Council Regulation 723/2004/EC, 1). 31. European Court of Justice 2001, paragraph 37. 32. Ibid., paragraph 38. 33. Ibid., paragraph 47. 34. Ibid., paragraph 11. 35. Ibid., paragraphs 36 and 37. 36. European Court of Human Rights 2002. 37. See the quotations in European Court of Justice 2004, paragraphs 73 and 74. 38. Ibid., paragraph 101. 39. Ibid., paragraph 104. 40. Ibid., paragraphs 35 and 36. 41. Council Directive 2000/78/EC, Article 1. 42. Gesetz über eingetragene Lebenspartnerschaften 2001. 43. Tarifordnung, 1080. 44. European Court of Justice 2008, paragraph59. 45. Ibid., paragraph72. 46. Ibid., paragraph73. 47. Ibid., paragraphs 63 and 72; Opinion of AG Ruiz-Jarabo Colomer 2007, paragraph 96. 48. European Court of Justice 2008, paragraph 72. 49. Opinion of AG Ruiz-Jarabo Colomer 2007, paragraphs 99 and 100. 50. Bundesverfassungsgericht 2007, paragraph 33. 51. European Court of Human Rights 2002, paragraph 100. Note that Poland felt it necessary to attach a declaration to the Lisbon Treaty underlining that the Charter does not affect “in any way” the right of member states to “legislate in the sphere of public morality, family law as the protection of human dignity and respect for human physical and moral integrity.” Declaration 61 (Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union). 52. Article 9 of the Charter of Fundamental Rights. 53. Opinion of AG Ruiz-Jarabo Colomer 2007, paragraph 77. 54. European Court of Justice 2008, paragraph 59. 55. European Court of Justice 1998a, paragraph 35. 56. European Court of Justice 2001, paragraph 36. 57. See Article 10 of the Treaty on the Functioning of the European Union (Official Journal 2008 C 115: 47–201). 58. European Court of Justice 1985, paragraph 18. 59. European Court of Justice 1998b, paragraph 31. 60. This is not necessarily so. To give the most obvious example, a rule sustaining couples on the basis of pregnancy has obviously not to be extended to homosexual couples.

This page intentionally left blank

CHAPTER

9

Intersectionality, Inequality, And EU Law R. Amy Elman

Over the last decade, the European Union (EU) has expanded the definition of illegal discrimination to include race, ethnicity, religion, disability, and sexual orientation. Does the added recognition of these discriminations to sex discrimination confront the manifold dimensions of oppression that women experience? The assertion that women are not a monolithic group may now be common, but what (if any) are the material implications of this insight? This chapter seeks to answer these queries by focusing on lesbians and their potential for redress against discrimination. We begin with a consideration of the European Court of Justice’s (ECJ) decision in Grant, a ruling made after the Treaty of Amsterdam was signed but before it took effect.1 In Grant, the ECJ denied a lesbian plaintiff ’s contention that her employer deprived her of equal pay and equal treatment, violations under Community law. Following this case, the chapter considers whether, in the aftermath of considerable reform and emphasis on multiple discrimination, lesbian plaintiffs are any better positioned to obtain legal redress. Background A decade ago, few cases of discrimination before the ECJ seemed more compelling than Lisa Grant’s case. Her employer (Britain’s Southwest

156

R. AM Y EL M A N

Trains) denied Grant travel benefits for her woman partner while providing the same concessions (worth approximately $1,500 per year) to the woman partner of her unmarried male colleague. The Court had previously recognized that concessions fall within the definition of pay.2 Invoking EU equality law, Grant insisted that the company’s denial of travel benefits breached the Treaty’s equal pay and equal treatment provisions. If, after all, Lisa Grant was a man living with a woman, married or not, her partner would have received a travel concession. Because Ms. Grant is a woman, her partner did not receive this benefit.3 In an advisory opinion, the Advocate General held that the denial ran counter to Community law. Elated by his opinion and in anticipation of a favorable ruling, lesbian and gay activists and associations (like Britain’s Stonewall) urged employees to prepare additional cases, and employers raced to adopt new policies.4 Years later, this expectation of rapid and significant change may strike some as naïve and overly optimistic. Grant’s case was the first the Court considered involving a lesbian challenge to sexual orientation discrimination, and Grant further insisted that this prejudice constitutes sex discrimination, a long-standing position among many activists and social theorists. As the British legal scholar Virginia Harrison explains, “Discrimination against a person for having a partner of the same sex is discrimination on the ground of gender” and thus could be prohibited under existing equality law (e.g., Article 141).5 Grant’s lawyers reasoned that “the mere fact that the male worker who previously occupied her post had obtained travel concessions for his female partner, without being married to her, is enough to identify direct discrimination based on sex.”6 The ECJ was not persuaded. Instead, it held that because travel benefits are “refused to a male worker if he is living with a person of the same sex, just as they are refused to a female worker living with a person of the same sex,” there was no sex discrimination.7 The Court’s comparison of Grant (a lesbian) with an imaginary gay man, both of whom would be equally ill-treated, concealed the favored treatment that Grant’s employer extended to her actual heterosexual colleague and his partner—conduct the Court refused to address as discriminatory. In addition to affirming the employer’s position and its own inaction, the Court’s reasoning perpetuated its position that “stable relationships between persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of the opposite sex.”8 This aspect of the judgment is especially damaging as it bestowed a doctrinal legacy of flagrant inequality in the midst of myriad member state and EU reforms that, by contrast, suggested progress against heterosexism.

I N T E R S E C T I O N A L I T Y, I N E Q U A L I T Y, A N D E U L A W

157

Few cases better illustrate the persistence of pernicious precedent than D v. Council and the appeal that followed from it.9 After the Council chose to ignore its own 1998 staffing regulations prohibiting sexual orientation discrimination by denying a household allowance to a Swedish union official whose same-sex “marriage” it refused to recognize, the official (Sven Englund) sought legal redress from the EU’s Court of First Instance (CFI). The CFI endorsed the Council’s defiance and, in 1999, the Swedish government appealed on behalf of Mr. Englund. In D and Sweden v. Council, the ECJ adopted a position reminiscent of Grant when it reasoned that the Council’s denial of a household allowance to Mr. Englund did not violate equal treatment because that principle applies only to those in comparable situations.10 Invoking Grant, the Court held, in 2001, that because same-sex and opposite-sex relationships are incomparable, no discrimination occurred. As I have noted elsewhere,11 the Court’s denial of Mr. Englund’s claim by affirming the sovereignty of those states that supported his case provides the most remarkable aspect of D and Sweden v. Council. After all, when the governments of Sweden, Denmark, and the Netherlands insisted upon stipulating their own notion of marriage, the Court agreed and then exposed their hypocrisy in defining marriage as exclusively heterosexual. At the time of the Court’s decision, all three had codified their recognition of same-sex partnerships, albeit as relationships distinct from “real” marriage. In short, the Court emphasized what many, until then, may have wished to keep implicit. To be either a domestic or a registered partner in Sweden (and throughout the EU) is not to be a married one, though Sweden in 2009 began recognizing same-sex marriages. More challenges are inevitable as some states (i.e., Belgium, the Netherlands, and Spain) extend marriage to same-sex couples and others refuse to recognize them. If during its deliberations for Grant, the Court could dismiss the Amsterdam Treaty’s promise of sexual orientation equality by observing that the Treaty had been signed but was not yet in force, this excuse was no longer available to it for D and Sweden v. Council. Amsterdam was, by then, in force. For this reason, the allegedly progressive influence of Amsterdam is conspicuous for its absence in the later ruling. Indeed, the Treaty appears to have had as little effect as the EU’s own staffing regulations had on the Council. Whether the Treaty’s implementation would have, thus, benefited Grant is doubtful because its equality provisions ultimately rest on the political will of the EU and its constituent states. Article 13 of Amsterdam only allows that the Community “may” take action to combat sex, race, ethnic, religious, disability, age, or sexual orientation discrimination.

158

R. AM Y EL M A N

When Grant was before the Court, none of the member states chose to support her application, though seven of them had already granted legal measures recognizing same-sex relationships. Note the difference. When Mr. Englund approached the Court, his own country (Sweden) and two others backed him. While the support he received likely derived from the concerns of these three states over sovereignty, the seven states that granted legal recognition to same-sex couples could have been similarly inspired— but they were not. The fact that dominant society often reacts differently to lesbians and gay men, and the relative priority placed on gay men’s suffering, has been widely observed and cannot be overlooked. Grant’s own country, Britain, sided with her employer to oppose her claim of sex discrimination. They insisted that the denial of an employment-related benefit to a lesbian employee did not violate the EU’s provision for equal pay. As for the Commission, what it gave with one hand, it took with the other. Although the Commission agreed with Grant that discrimination against gay men and lesbians constitutes sex discrimination, it refrained from extending the support she needed to combat it. Instead, after suggesting that Grant desired to have her lover treated like a spouse, the Commission insisted that a favorable ruling would trump the rights of member states to determine their own family laws. The fact that neither Grant nor her male colleague were married and that she sought only those benefits extended to heterosexual cohabitants mattered little. Moreover, what seemed to matter even less at the time is whether employers should extend benefits to employees for the composition of their households as opposed to the performance of their work, a practice that potentially undermines the promise of equal pay for equal work. The Commission’s position in Grant typifies the EU’s way of challenging only certain subordinating practices (e.g., some sex discrimination) while maintaining existing hierarchies (like spousal rights and family benefits). This approach can further marginalize those subjected to multiple and overlapping discrimination and foster confusion and even conflict among social justice advocates.12 This is especially the case for lesbians, whose vulnerability to oppression is often concealed by their social invisibility among women (who are presumed to be heterosexual) and homosexuals (who are presumed to be men). Thus, a decade after the European Parliament’s 1994 Resolution on Equal Rights for Lesbians and Homosexuals, Europe’s International Lesbian and Gay Association (ILGA) continues to insist that “LGBT [lesbian, gay, bisexual, and transgendered] people as well as women, jews [sic] and migrants suffer from discrimination and violence.”13 If such statements give pause, it is because they insinuate that, regardless of sexual orientation (and, in this case,

I N T E R S E C T I O N A L I T Y, I N E Q U A L I T Y, A N D E U L A W

159

anti-Semitism and xenophobia), women are unaffected by and uninterested in discrimination other than gender discrimination. Put differently, such injustices affect only other people (i.e., not women). Grant is compelling precisely because it explicitly rebuffs a dogmatic construction of sexual orientation and sexism as mutually exclusive, but this strength might also explain its failing. Lisa Grant was, after all, up against an ideology of equality that failed to recognize lesbians (and, for the ECJ, gay men) as human beings, deserving of the equal treatment extended to their heterosexual counterparts. Judith Butler’s insights about the cruelty inherent in gender norms that deny the existence of marginalized others captures this dilemma. As Butler puts it, “To find that you are fundamentally unintelligible (indeed, that the laws of culture and of language find you to be an impossibility) is to find that you have not yet achieved access to the human.”14 Thus, Grant stood before the Court as if she were human and found the EU’s language of sexual equality hollow; no recognition was forthcoming because the norms by which such identification takes place were not in her favor. The Court found that the Community’s prohibitions on sex discrimination did not extend to the multiple discrimination she suffered. Rather, the Court found Grant a victim of a prejudice it insisted it could not yet prohibit—Amsterdam was not in force. Multiple Discrimination at an Intersection Might the Community’s recognition of additional discriminations (in Amsterdam) and the initiatives adopted to tackle them (e.g., the Race and Framework Equality Directives15 ) offer redress for lesbian plaintiffs (like Grant) alleging multiple discrimination? That is, does EU law cover claimants of two or more grounds of discrimination? In its initial assessment, the Commission was optimistic. Its Green Paper found the new laws “represented a quantum leap forward” and insisted that they provide “more effective bases for addressing situations of multiple discriminations.”16 Is such faith misplaced? Both the Race and Framework Directives stipulate that “in implementing the principle of equal treatment, the Community should, in accordance with Article 3(2) of the Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination” (my emphasis).17 Yet, as Sandra Fredman notes, the directives do not contend with multiple discrimination based on other factors such as sexual orientation.18 While in theory the member states’ transposition of new legislation could address multiple discrimination (particularly with regard to racism

160

R. AM Y EL M A N

and sexism), the EU’s legislation on antidiscrimination and equal treatment makes no express provision to prohibit it. At the national level, only Austria, Germany, and Spain adopted legislation that specifically addresses multiple discrimination. However, both Germany and Spain fail to provide explicit provisions on how to deal with these claims. Still, for all three, the Commission suggests that it is too early to assess their success (European Commission 2007, 20),19 a point to which we will return. At present, for the EU and most member states, “anti-discrimination law conceives of claimants as possessing a singular set of social characteristics: for example, inclusion in the category of ‘black’ or inclusion in the category ‘woman.’ ”20 This conception posed an insurmountable obstacle for Kamlesh Bahl, a former chairwoman of Britain’s Equal Opportunities Commission. After she asserted that she had been subjected to simultaneous race and sex discrimination as vice president of the Law Society of England and Wales, both the Employment Appeal Tribunal and Court of Appeal insisted that each element of prejudice had to be disaggregated and considered separately. Unable to identify which aspect of her claim related to only one characteristic, the Court of Appeal subsequently dismissed her claim of discrimination.21 That a former chair of Britain’s Equal Opportunities Commission failed in advancing her own claim of (multiple) discrimination underscores the difficulties that others (who are less educated and aware of the legal system) will likely confront. For lesbians (regardless of race or any other ground), the emphasis on singular and separable characteristics is no less problematic than it is for women of color presumed to be heterosexual. After all, while not all women are lesbians, all lesbians are women. The “intersectional discrimination,”22 that is, heterosexism pivots on the often-inseparable elements of gender and sexual orientation discrimination in ways that are typically unrecognizable in antidiscrimination law (e.g., Grant) and equality institutions. That equality institutions often replicate the various shortcomings of EU law is clear from the Commission’s recent study Tackling Multiple Discrimination. It found that “it is not uncommon, for example, that one Ministry deals with gender issues, another Ministry with race and ethnic origin and a third Ministry with disability—often without any cooperation between the three.”23 Consider, as well, the Commission’s acknowledgment that while a majority of formal complaints made to Britain’s Commission for Racial Equality came from women who “had to decide” to “underline the racial discrimination rather than the gender dimension of their cases,” the report’s authors attribute this coercive process to the existence of separate equality bodies.24 They neglected to consider, among other problems, the inadequacies of gender mainstreaming, which holds that the relations between men and women have to be

I N T E R S E C T I O N A L I T Y, I N E Q U A L I T Y, A N D E U L A W

161

taken into account in every field of policy, not least antidiscrimination policy.25 Yet, according to the details of the report, Britain’s Commission for Racial Equality appears to have violated the principle of gender mainstreaming by forcing claimants to disregard the role gender played in their claims.26 Not surprisingly, the European Commission’s appraisal of antidiscrimination practices echoes an earlier assessment of gender mainstreaming, which revealed that officials charged with promoting equality often contradicted EU policy. For instance, such administrators wondered whether “priority should be given to equality between women and men, given the other urgent need of other population groups.”27 Without a greater willingness to confront the contexts where gender converges and/or collides with other identities, those tasked with implementing equality will continue to wonder how to balance the needs of women with everyone [sic] else. In addition to implying inadvertently that women (and men) are unconnected to “other population groups,” the above-noted musings (however inadvertent) generate the common fallacy that women hold no stake in “other population groups.” A related myth surfaces in the equally repugnant and conventional proposition that women are their own worst enemies. The discourse of multiple inequalities and intersectionality is so replete with assertions that heterosexism divides women, one rarely interrogates the ways in which an emphasis on sexual orientation marginalizes lesbians. For instance, consider Mieke Verloo’s observation that “heteronormativity is part and parcel of gender inequality, which means that the position of lesbians is very different from the position of heterosexual women.” She then asks, “how and where do gender equality policies marginalize lesbians?”28 This question, though important, is insufficient. With little or no attention to the different social and economic positions that lesbians and gay men occupy, one typically presumes that sexual orientation legislation and related reforms extend to the entire “LGBT community,” although the legal changes trumpeted as improvements for this group may not in fact represent gains for lesbians. This is especially evident in liberal discourses that emphasize the socioeconomic benefits of same-sex marriage29 while ignoring both the practical disadvantages30 and political objections that lesbians and heterosexual feminists have long raised against the institution. In addition to the oppressive nature of marriage contracts, which historically denied rights to women (regardless of their sexual orientation), today’s critics find that even the most seemingly promising reforms can threaten lesbian solidarity by reinforcing conservative (heteronormative) discourses on marriage and family.31 This pressure, in turn, divides lesbians between those

162

R. AM Y EL M A N

whose relationships conform to conventional (and increasingly codified) expectations and those that do not, a worrying development epitomized by several rulings that offered greater protection to transsexuals at the expense of (i.e., by distinction to) gay men and lesbians. After lesbian identified couples stood repeatedly before various European courts and endured rulings that held that their “private” lives were incomparable to and inconsistent with “family life,” the European Court of Human Rights (ECHR) accommodated one couple in which a partner had altered her “appearance” so drastically that her relationship conformed to conventional notions of a heterosexual union. Such was the case in X, Y, and Z v. UK 32 when the ECHR accepted a former lesbian couple as “family” once one of the women became a postoperative transsexual and insisted on being recognized as the social father of his partner’s child.33 Years later, the ECHR legalized transsexuals entering into (conventional) marriage. In 2004, in KB v. National Health Service Pensions Agency, the ECJ ruled that Britain’s failure to allow KB to marry her transsexual male partner (and thereby allow him the inheritance of a widower’s pension) was in principle a breach of EU law.34 Continuously rebuffed in their efforts to end discrimination, lesbians (qua registered lesbian partners) may find the ECJ’s ruling on pension schemes encouraging. Consider the 2008 case of Tadao Maruko, a 65year-old German gay man.35 Following the death of his registered partner, in 2005, the German theatre pension fund informed Maruko that only married couples have a right to a widower’s pension. The German theatre had employed Maruko’s partner since 1959. Maruko appealed to a German court, which, in turn, asked the EU tribunal whether civil partnerships should be treated similarly to marriage and, if not, whether the case qualified as discrimination. The Court responded that the refusal of survivor benefits to a life partner is direct sexual orientation discrimination if, according to (national) courts, “surviving spouses and surviving life partners are in a comparable situation as regards that pension.”36 At the same time that this 2008 ruling affords relief to lesbians and gays partnered in those member states that either offer same sex marriage or treat civil unions and marriages similarly, it holds no promise for those living in countries (like France and Luxembourg) where civil unions are explicitly distinguished from marriage or where only heterosexual marriage exists (as in Malta and Poland). A Commission spokesperson offered the following clarification: “The right to a survivor’s pension exists only if the two regimes [marriage and same sex partnership] are analogous.”37 With rhetorical dexterity, the Commission thus emphasized the Court’s deference to member states (which determine whether to recognize or deny legal recognition to same-sex couples) and then embraced the seemingly progressive character of the ruling. The spokesperson also said,

I N T E R S E C T I O N A L I T Y, I N E Q U A L I T Y, A N D E U L A W

163

“It strengthens the principle of non-discrimination on grounds of sexual orientation and further specifies the right of registered homosexual partners in the area of employment and occupation.”38 For those aware of the circumscribed realm of these rights, the celebration was short lived and much work remains. With its mosaic of national laws and different discriminations deriving varied levels of protection (e.g., only race and gender discrimination are recognized outside employment and only some sexual minorities can access particularized privileges), a hierarchy of oppression has developed throughout the EU. The EU’s institutionalization of this hierarchy is clear when one considers, for example, that only the Race Directive (and not the Framework Directive) requires that member states establish a body for the promotion of equal treatment. In response to this climate, legal advisors handling cases involving multiple discrimination frequently insist that their clients “choose the strongest ground” of discrimination and leave out others that may be more difficult to prove.39 Under such circumstances, and despite gender mainstreaming, the Commission’s 2006 annual report on equal opportunities “showed reduced visibility and a loss of momentum of gender issues,”40 a finding resonant with the Commission’s more recent study.41 This conclusion clearly matters for all women and not least for lesbians who, like Grant, are often unable to identify which aspect of their discrimination relates to only one characteristic—gender or sexual orientation. Unable to assert single claims that straddle more than one statute, numerous victims of multiple discrimination surrender before even trying. Aware of this predicament, the Commission delivered recommendations that it contends will strengthen its antidiscrimination framework. Improving Redress According to the Commission’s survey of ministries, equality bodies, and NGOs, multiple discrimination remains an “obscure concept.” Because of this, “most institutions and organizations concerned with antidiscrimination policy are still focused on the single ground approach.”42 Having attributed the circumscribed focus of these players to their lack of knowledge, the Commission stresses further investigations and investment in education. Indeed, of the seven specific recommendations it makes, only two transcend this emphasis. The recommendations are as follows: 1. Research: “Research institutions should develop the conceptual tools to analyse the experience, situation and identity of intersectional groups and investigate how and where Institutional Multiple

164

2.

3.

4.

5.

6.

7.

R. AM Y EL M A N

Discrimination manifests itself.”43 Such research should encourage the development of legal frameworks to address the problem. Legislation: Recognizing that the scope of existing legislation is ineffective, the Commission calls for new legislation. The “legislation should cover age, disability, religion/belief and sexual orientation in the fields of: (a) social protection, including social security and healthcare; (b) social advantages; (c) education; (d) access to and supply of goods and services that are available to the public, including housing.”44 Raised Awareness: “The European Commission should ensure a continued and consistent focus on Multiple Discrimination through supporting a legacy from the ‘European Year for Equal Opportunities for All’. Moreover, Multiple Discrimination must be factored into all equality mainstreaming and impact assessment tools in EU policies, strategies, action plans and provision of financial support for activities. A further recommendation is that NGOs establish forums and networks to promote understanding, dialogue and cooperation across the various grounds.”45 Promoting Best Practice: “Social Partners and National Equality Bodies should encourage innovation among service providers and employers in responding to Multiple Discrimination by, for example, funding pilot projects. Case studies of good practice in employment and service provision must also be developed and promoted.”46 Data Collection: “Member States should develop strategies to collect equality data taking into account, as a minimum, all protected grounds in the fields of social life where discrimination is prohibited.”47 Training and Education: “Member States should encourage and promote National Equality Bodies to develop integrated approaches to their work. Staff at National Equality Bodies must be trained in both recognising and handling cases of Multiple Discrimination.”48 Multiple-ground NGOs: “To address the needs and represent the interests of intersectional groups, the European Commission should develop funding sources for multiple-ground NGOs.”49

Although a detailed analysis of the ways in which these recommendations might resolve the challenges faced by victims of multi-discrimination is beyond the scope of this chapter, it is worth pondering how these proposals address those problems that this analysis has already raised. These

I N T E R S E C T I O N A L I T Y, I N E Q U A L I T Y, A N D E U L A W

165

difficulties include the denial of harm through the equality of misery, an assumed similarity of inequalities, different levels of protection offered to those whose discrimination is recognized, and the political competition that can result. Recall that Lisa Grant’s chief obstacle involved proving that she suffered discrimination within a legal framework that regards equal treatment as meaning no more than the claim that likes should be treated alike. Hence, Grant’s first problem was that she and the Court differed over whether she is like her heterosexual unmarried male colleague, in a cohabiting relationship and equally deserving of a partner-related benefit. After siding with the employer to deny Grant’s claim of heterosexual equivalence, the Court invoked an imaginary gay comparator to insist that, because he would have been treated like Grant (which is to say poorly), she had no cause for complaint. The comparator conundrum is nowhere addressed in the one legal reform that the Commission requests. This omission is crucial because, while locating an appropriate comparator for plaintiffs alleging discrimination on a single ground has already generated heated debate, the complexities increase in cases of multiple discrimination.50 For this reason, the Commission’s emphasis on extending legal coverage beyond the workplace is worthy, but it will likely prove insufficient. What appears to have troubled the Court in Grant, and what may be troubling the Commission now, is less that people are treated poorly than that they are treated differently. Even in Maruko, the Court affirmed rights against discrimination only for those whose same-sex relationships are, according to their member states, comparable to marriages. Moreover, although the process of demonstrating unlawful discrimination appears similar for varied plaintiffs, the fact that separate laws remain (e.g., the Race and Framework Directives) suggests otherwise. Again, the Framework Directive covers many more grounds than the Race Directive, but its scope is more limited, applying only to employment. By proposing a single antidiscrimination statute that might replicate the breadth of the Framework Directive and the Race Directive’s depth, the Commission solves two problems at once. First, it diminishes competition between groups over coverage. As Sarah Hannett explains, “A single statute provides a focus for links and solidarity between groups facing discrimination.”51 Second, it acknowledges the problems that the demarcations pose for those at the intersection of more than one social group, offering relief from the existing conceptual and practical barriers entailed in pleading multiple discrimination across statutes.

166

R. AM Y EL M A N

As with reforms in general, the proposed law may increase expectations of equality, but without increasing the consciousness of those whose job it is to implement it, there are bound to be problems. On the one hand, the Commission’s emphasis on soft measures (like research and training) is commendable, though there is limited evidence to suggest that previous such efforts have succeeded (particularly regarding gender mainstreaming). On the other, those whose consciousness the Commission aims to improve are few. It recommends (in 3) “NGOs establish forums and networks to promote understanding, dialogue and cooperation across the various grounds” and asks “Social Partners and National Equality Bodies” to “encourage innovation among service providers and employers in responding to Multiple Discrimination” (in 4). Yet, the Commission limits this request (in 6) for training and education to “National Equality Bodies.” Thus, while the Commission missed an enormous opportunity to reach the very EU-level practitioners whose deficiencies it previously recognized, it extends funding (and thus influence) to national advocates whose legal efforts it will later claim to accommodate. If public opinion offers any guide about the wisdom of such efforts, it is this: progressive national legal reforms appear to have a liberalizing effect. In 2006, a Eurobarometer of nearly 30,000 Europeans enquired whether “homosexual marriages should be allowed in Europe” and if child adoption “should be authorized for homosexual couples throughout Europe.”52 A strong pattern emerged. Acceptance of these rights was highest in member states (such as the Netherlands, Belgium, and Spain) that already had such laws for lesbian and gay couples on the books. Still, the largely heteronormative dimension of these two questions— concerning marriage and adoption (for couples)—also has implications, not least for lesbians, who, as women, have long been tangentially defined through marriage and motherhood. If, to date, lesbians are socially and legally recognizable only through nationally codified partnerships, they remain fundamentally unintelligible as individual citizens in European law and, thus, removed from the panoply of rights that the EU insists it affords. Notes 1. The European Union’s ratification of the 1997 Amsterdam Treaty marked a significant change in equality politics. Ratification signaled European recognition of hitherto unaddressed responsibility to mitigate discrimination. In addition to elevating the status of sex equality to a “fundamental principle” of Community activity, the revised Treaty incorporated a general nondiscrimination clause. See Treaty of Amsterdam, Article 13. This clause expands the legal community’s capacity to intervene against unlawful discrimination

I N T E R S E C T I O N A L I T Y, I N E Q U A L I T Y, A N D E U L A W

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

27. 28. 29.

167

based on race or ethnic origin, religion or belief, disability, age, and sexual orientation. Previously the EU had chosen to leave such matters entirely to its member states to resolve. European Court of Justice 1982. European Court of Justice 1998. Lindberg 1998. Harrison 1996, 275. European Court of Justice 1998, paragraphs 16–17. Ibid., paragraph 27. Ibid., paragraph 35. European Court of First Instance 1999. European Court of Justice 2001. Elman 2007, Chapter 9. Crenshaw 1993. Simon 2004, 5; my emphasis. Butler 2004, 30. The Race Directive aims to implement the “principle of equal treatment between persons irrespective of racial or ethnic origin” (Council Directive 2000/43/EC). The Framework Directive extends the principle of equal treatment on the grounds of “religion or belief, disability, age or sexual orientation” (Council Directive 2000/78/EC). European Commission 2004, 9–10. Article 3(2) states, “In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.” Fredman 2001, 159. European Commission 2007. Hannett 2003, 66. UK Court of Appeal 2004. Intersectional discrimination “refers to a situation where several grounds interact with each other at the same time in such a way that they are inseparable” (European Commission 2007, 17). Ibid., 33. Ibid., 46, my emphasis. Holzleither 2005. Gender mainstreaming is defined as “the integration of the gender perspective into every stage of policy processes—design, implementation, monitoring and evaluation—with a view to promoting equality between women and men. It means assessing how policies impact on the life and position of both women and men—and taking responsibility to re-address them if necessary” (European Commission 2008). OPTEM 2002, 8. Verloo 2006, 231. These benefits include, but are not limited to, tax considerations, social security, and employer benefits, as well as access benefits such as immigration preferences, and inclusion in housing regulations.

168

R. AM Y EL M A N

30. For instance, these may include increased tax liability, decreased financial aid including public assistance, and the costs of any separation or divorce. For lesbians unaccustomed to soliciting professional advice or thinking in legal terms, the consequence of these and other disadvantages are especially cumbersome. 31. Robson 1994; Stychin 2006; Young and Boyd 2006; Platero 2007. Raquel Platero notes that although Spain’s activists and politicians represented samesex marriage as a gender-neutral contract, it has the potential for differential impacts on lesbians and gay men. 32. European Court of Human Rights 1997. 33. Toner 2004, 82–83. 34. European Court of Justice 2004, paragraph 34; my emphasis. 35. European Court of Justice 2008. 36. Ibid., paragraph 72, my emphasis. 37. Goldirova 2008. 38. Ibid. 39. European Commission 2007, 21. 40. European Commission 2006b, 6. 41. European Commission 2007. 42. Ibid., 5. 43. Ibid., 7. 44. Ibid. 45. Ibid. 46. Ibid. 47. Ibid. 48. Ibid. 49. Ibid. 50. Hannett 2003, 82. 51. Ibid., 85. 52. European Commission 2006a, 42–43.

CHAPTER

10

Intersectional Discrimination: Difficulties in the Implementation of a European Norm Snjezana Vasiljevic´

People are frequently disadvantaged as a result of more than one cause, so discrimination is very often complex. A person may be disadvantaged because she is a black woman; another may suffer discrimination because he is a disabled gay man; yet another because she is a Muslim woman. The multiplicity of possibilities is obvious. These multiple identities are part of the diversity of our society. Recognizing this kind of diversity is now understood to be the next step in promoting social inclusion of the most disadvantaged.1 With Article 13 of the Amsterdam Treaty and two groundbreaking directives, the European Union (EU) has significantly advanced the visibility of multiple and intersectional discrimination. However, the capability of EU legislation in addressing multiple and intersectional discrimination is still questionable. While multiplying “discrimination grounds,” that is, the personal ascriptions for which discrimination is prohibited, there are conceptual problems with implementation of European equality law. At the same time, the challenge of achieving substantive equality (as opposed to formal equal treatment) and inclusion (in contrast

170

S N J E Z A N A V A S I L J E V I C´

to avoiding marginalization) is formidable when addressing disadvantages in several dimensions. The uncoordinated nature of initiatives has produced a hierarchy of equality, where the right to nondiscrimination is well established in some areas, but weak and fragmented in others. Moreover, there is no recognition of intersectionality between two or more different kinds of discrimination. The consequence of overlapping two forms of discrimination is usually double discrimination, which significantly strikes the most vulnerable groups. In this chapter, I discuss some of these conceptual difficulties and probe the ways in which EU norms have been transposed in European domestic contexts. I focus in particular on EU legislation in the field of race and gender. I review national legislation throughout the EU and specifically explore legislation and jurisprudence in two European countries, the United Kingdom and Croatia. While the United Kingdom is a long-time member of the EU, Croatia is a candidate country still dealing with the aftermath of a war and transition from communism to democracy. The EU’s 1993 Copenhagen criteria defined a new set of rules for European countries applying for EU membership.2 Human rights, the rule of law, and protection of ethnic minorities suddenly appeared as major preconditions for joining the EU. These preconditions in conjunction with the EU’s focus on gender and racial equality have opened up a space for new debates and changes of the Croatian legal system. The two countries illustrate contrasting experiences of the complex interactions between national patterns of governance on the one hand and Community judicial politics on the other. The aim of the study is to detect possible gaps within the EU and national legal systems that lead to insufficiencies in cover intersectional discrimination and therefore offer limited access to justice for those suffering double discrimination. Defining Multiple Discrimination In the literature the phenomenon of multiple discrimination has been given several meanings. Here I use the term in an encompassing manner. However, most scholars suggest that the term describes the first of three situations where a person can be subjected to discrimination on more than one ground. The other two situations are compound discrimination and intersectional discrimination. Compound discrimination,3 in contrast to multiple discrimination, describes a situation where a person suffers discrimination on the basis of two or more grounds at the same time and where one ground adds to discrimination on another ground—in other words one ground gets compounded by one or more other discrimination grounds. Discrimination against women who belong

IN T E R S E C T I O N A L DI S C R I M I N AT I O N

171

to multiple disadvantaged groups is worth noting. Even though women are directly or indirectly subject to sex discrimination, they often suffer from additional forms of discrimination. The discrimination that women are subject to because they are women is compounded by additional factors such as refugee or ethnic minority status, a disability, and/or sexual minority orientation. Intersectional discrimination refers to a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable. Intersectionality is a conceptualization of the problem that attempts to capture both the structural and dynamic consequences of the interaction between two or more axes of subordination. It specifically addresses the manner in which racism, patriarchy, class oppression, and other discriminatory systems create background inequalities that structure the relative positions of women, races, ethnicities, classes, and the like. Moreover, it focuses on the way that specific acts and policies create burdens that flow along these axes constituting the dynamic or active aspects of disempowerment. Focusing on the situation of black women, Kimberle Crenshaw has pointed out how difficult it is to identify intersectional discrimination “in contexts where economic, cultural or social forces quietly shape the background in a manner that places women in a position where they are then impacted by some other system of subordination.”4 Typically only one dimension of discrimination becomes visible, as minorities are stereotyped along other dimensions of difference. Thus, “in race discrimination cases, discrimination tends to be viewed in terms of sex or class-privileged Blacks; in sex discrimination cases, the focus is on race or class privileged women. This focus on the most privileged group members marginalizes those who are multiply burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.”5 Crenshaw argues that this privileging of some group members distorts analyses of racism and sexism more broadly. Thus, the subordination of Black women cannot be understood as the sum of racism and sexism; understanding the particularity of Black women’s subordination requires an intersectional analysis. The invisibility of multiple and intersectional discrimination identified by Crenshaw also is a problem in the current legal framework of the EU and European countries. The Courts do not usually identify claims based on the intersection of two or more grounds, but leave it to the victim of discrimination to decide the ground on which the case is to be reviewed. As a consequence, the complainant will have to choose between the different grounds of discrimination relevant for the case or submit two or more separate claims.6

172

S N J E Z A N A V A S I L J E V I C´

Multiple Discrimination in the EU While multiple discrimination happens in all spheres of social life, legislation in the EU focuses in particular on the labor market. In many member states, the scope of antidiscrimination legislation outside employment and occupation is limited to only gender and race or ethnic origin. This could be the reason for the lack of visibility of multiple discrimination in sectors such as education, access to goods and services, and social protection. A dearth of research, registered complaints, and cross-sectional data contributes to the continued invisibility of the phenomenon for disadvantaged groups such as migrant women, older ethnic minorities, or black persons with a disability. Although the EU directives do not expressly provide for the consideration of multiple discrimination, they do not prohibit it, and they do expressly recognize that different grounds may intersect. Recital 14 of the Race Directive, for instance, states, In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.

Empowered by Article 13 of the Amsterdam Treaty, the Council of the European Union in 2000 adopted two groundbreaking directives, which aim to ensure that everyone living in the EU can benefit from effective legal protection against discrimination. The Racial Equality Directive bans direct and indirect discrimination, as well as harassment and instructions to discriminate, on grounds of racial or ethnic origin. It covers employment, training, education, social security, health care, housing, and access to goods and services. The Employment Equality Directive focuses on discrimination in employment and occupation, as well as vocational training. It deals with direct and indirect discrimination, as well as harassment and instructions to discriminate, on the grounds of religion or belief, disability, age, or sexual orientation. It includes important provisions concerning reasonable accommodation, with a view to promoting access of persons with disabilities to employment training. Many of the definitions and legal concepts used in the two directives have been inspired by gender equality legislation and/or the case law of the European Court of Justice (ECJ) in the field of gender equality. In turn, the further development of gender equality legislation in the EU has made use of some of the innovations introduced by the Racial Equality and Employment Equality Directives.

IN T E R S E C T I O N A L DI S C R I M I N AT I O N

173

The directives have raised significantly the level of protection against discrimination across the EU. As a consequence, when it comes to legislation in this area, the EU has one of the most advanced legal frameworks to be found anywhere in the world. The directives have required significant changes to national law in all member states, even those that already had comprehensive antidiscrimination legislation. Member states had different levels of equality legislation already in place, but the Equality Directives set a new minimum benchmark to be met by all EU members. In many member states the directives have introduced protection against discrimination on certain grounds for the first time. They have required the introduction of new definitions and legal concepts. They have also led to the establishment of new specialized equality bodies, as well as the reinforcement of the powers of certain existing bodies. The principle of equal treatment between men and women appears to have been implemented in all national legal systems. The majority of member states prohibit direct and indirect discrimination on the grounds of sex. Difficulties, however, occur in providing an adequate definition of both these concepts. For example, in Germany and Malta the concept of indirect discrimination is unclear. In Poland, the concept of direct discrimination is inconsistent with EU law as it only refers to behavior in the past and fails to take into account the actual treatment of a person. Further difficulties are found regarding shifting the burden of proof and protection against sexual harassment and harassment based on gender in accordance with Directive 2002/73/EC. The required explicit protection against both these forms of harassment remains generally unsatisfactory. To date, the Cypriot, Hungarian, and Slovakian legislators have failed to adopt a specific prohibition of sexual harassment. Further, in Poland, Malta, and Sweden, the definition of sexual harassment and harassment based on gender remains unclear. On the positive side, in some member states such as the Czech Republic, Latvia, Hungary, and Slovakia, the legislator has adopted provisions regarding the prohibition of instruction and incitement to discrimination on the grounds of sex that go beyond the requirements of the directive. In addition, some countries have extended the scope of the principle of equal treatment to areas outside of employment. Sex discrimination is, for example, prohibited in the area of education in Estonia, Finland, Liechtenstein, and Slovenia and in access to goods and services in Ireland, Hungary, and the United Kingdom.7 While there is a consensus that in order to understand Community gender and race policies, it is necessary to “bring the courts back in,” there is hardly any work addressing the forms and variations of judicial politics in the field of gender and race equality in the EU.8 It is symptomatic

174

S N J E Z A N A V A S I L J E V I C´

that divergent national reactions toward these new Community norms have not been subjected to systematic inquiry. Obviously, both theoretical and empirical research on this issue needs to be conducted. Considering an equal treatment approach in the EU within its legal framework and policy, there is a need to move beyond the constraints of focusing on equality only. The only possible solution to overcome difficulties mentioned is drafting a new directive. There are some holistic approaches toward equality that are particularly well suited to moving beyond an equal treatment approach and accommodating multiple identities. Such legal perspectives should overcome essentialist positions and embrace the concept of intersectional discrimination. Multiple discrimination as a phenomenon has received academic attention in the United States, Canada, the United Kingdom, and Ireland where research from a legal perspective has concentrated on criticizing the single ground approach. This approach emerged in a historical context where different issues such as gender, disability, and race were considered separately by single-issue movements. These movements “have kept considerable distance from each other” and therefore given birth to separate treaty bodies and conventions.9 In turn, judges and lawmakers have been fearful of opening Pandora’s box by allowing claims of multiple discrimination. Courts in the United States remain concerned about the possibility of a flood of claims by numerous subgroups. This led the courts to hold that cases including multiple grounds should be restricted to a combination of only two grounds. The impact of other grounds was thus ignored with the paradoxical result that the “more a person differs from the norm, the more likely she is to experience multiple discrimination, the less likely she is to gain protection.10 In theory all EU member states that have transposed EU antidiscrimination and equal treatment legislation could address multiple discrimination, at least in the field of employment. However, as EU legislation does not include an explicit provision, most member states do not address multiple discrimination. Only Austrian, German, Spanish, and Romanian law contains specific provisions on how to handle multiple discrimination. The German Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), which was adopted in 2006, provides in paragraph 4 that where discrimination is based on several of the grounds “it is only justified . . . if the justification applies to all the grounds liable for the difference of treatment.” This appears to assume that claims of multiple discrimination will be admissible. However, there are no further explicit provisions, and it is still too early to assess how cases based on this statute will develop. The Austrian Disability Equality Act of 2006 stipulates that authorities have discretion to take account of multiple discrimination when assessing the

IN T E R S E C T I O N A L DI S C R I M I N AT I O N

175

award of damages, although it does not have any further provisions that deal with multiple discrimination. The Spanish Law on Equal Treatment between Women and Men of 2007 provides in Article 3 that “the principle of equal treatment between treatment between women and men is defined as a lack of any and all discrimination grounds of sex or any other condition or circumstance personally or socially linked to sex, whether directly or indirectly. This includes maternity, family obligations, and marital or familiar status as well as any other ground that may give rise to additional discrimination, such as disability.” Spanish law does not include specific guidelines on how to deal with claims of multiple discrimination, although it does introduce a duty of cross-sectional equality mainstreaming. Spain even established an equality ministry in 2008. The Romanian Equal Treatment Act (2002) covers the grounds of age, disability, race and ethnic origin, religion and belief, and sexual orientation. The act provides that discrimination on the basis of two or more grounds is to be treated as an “aggravating circumstance.” While other member states have no language on multiple discrimination, some case law has emerged on the issue. Cases from Denmark, Latvia, Sweden, Ireland, and the United Kingdom demonstrate that multiple discrimination cases are identified and do reach dispute resolution bodies. However, it should be noted that in processing cases each ground is often handled separately. The United Kingdom’s Approach to Multiple Discrimination The 1991 Census was the first to collect comprehensive information on the ethnic composition of the population in the United Kingdom. Based on census data the Equal Opportunities Commission (EOC) published research in June 1994 that showed the “double discrimination” ethnic minority women faced in the workplace: Women from ethnic minorities face discrimination because of their race and gender. For example, they tend to be in lower status jobs within occupations such as nursing and medicine. “Double discrimination” may take the form of longer hours, lower pay, and poor working conditions. White women earn on average 20 percent less than white men, but women from ethnic minorities tend to earn up to 25 percent less again. Overall, ethnic minority women earn a staggering 63 percent less than the male weekly wage. Future job losses are predicted in urban areas where the majority of the ethnic minority population live, and in sectors which traditionally employ ethnic minority women—the textile industries, manufacturing and

176

S N J E Z A N A V A S I L J E V I C´

catering. Ethnic minority women are twice as likely to be unemployed as white women. Many more ethnic minority women are unemployed despite the fact that they are much more likely to continue in higher education after school-leaving-age than are white women, and they are therefore better qualified.11

While such multiple discrimination is now widely recognized as a serious problem by those working in the equality field in the United Kingdom, little has been done to create coherent legal rights to address it. One problem is under-inclusion, which refers to situations where gender analysis is underplayed or ignored altogether in what is perceived to be a problem of racial discrimination. So, for example, the forced nonconsensual sterilization of black and other marginalized women has been perceived to be a problem of racial discrimination rather than one of sexual abuse. Also, in the United Kingdom, in the 1970s and early 1980s, immigration laws and practice sanctioned the practice of virginity testing of South Asian women. The aim was to ascertain whether Asian women who came to join their husbands were bona fide fiancées. Underpinning this test was the assumption that Asian women do not have premarital sex: if a woman was not virgin then she could not be a genuine bride and therefore ineligible to enter the country. A public outcry and campaign led to the practice being stopped. Those who were appalled by the practice decried it as racist, but few articulated the way in which it also amounted to a violation of Asian women’s bodies. Aside from such extreme illustrations, the issue becomes more complicated if an ethnic minority woman is disabled or lesbian or old, or any combination of these. Current national and EU laws will only focus on one of these factors at a time. Thus, her treatment as an ethnic minority person is compared with that of a white person; her treatment as a woman is compared with the treatment afforded to a man. The question appears if this is the right way to approach her situation, and if not, what is? It is often not possible to separate out different aspects of a person’s identity. The discrimination that a black woman may experience may be wholly different from that experienced by a black man or a white woman. The issue of multiple discrimination has been increasingly on the legal agenda in the United Kingdom, and it seems that legislation is slowly changing to accommodate it. Although claims of multiple discrimination are often watered down to claims of a single ground, there have been moves toward the recognition of multiple discrimination. In fact, even the failed attempts to claim multiple discrimination in the Pearce12 and Coker and Osamor cases13 of 2001 have brought the issue of multiple

IN T E R S E C T I O N A L DI S C R I M I N AT I O N

177

discrimination to the notice of claimants, the legal community, and public interest groups. So it seems clear that legal change is indeed on the horizon. Claims of additive multiple discrimination have occasionally been made before an employment tribunal. In Khanum v. IBC Vehicles Ltd.,14 a Muslim woman who suffered discrimination in the workplace after she started to wear a hijab (veil) brought a successful claim of discrimination on the grounds of both race and sex. The tribunal in this case considered the aspects of race discrimination suffered in isolation from sex discrimination suffered and vice versa, and so adopted an additive approach. Although such cases have no binding effect, they may well have a persuasive effect if, in the future, cases clearly involving additive multiple discrimination are brought before the higher courts. Despite this positive step concerning additive discrimination, there have been no such positive signs involving cases of intersectional multiple discrimination as the current statutes are unable to deal with any claim that alleges intersectional discrimination based on an indivisible combination of multiple social characteristics. Prior to the Equality Act 2006, the issue of double discrimination against ethnic minority women fell into the remits of two different bodies: the Equal Opportunities Commission (EOC) and the Commission for Racial Equality. The commissions were discrete institutions, tasked with applying different pieces of antidiscrimination legislation, and unable to communicate or share expertise with each other. Thus, according to Diamond Ashiagbor, “claimants alleging race and sex discrimination [could not] appeal to a one-stop agency which would adopt a ‘holistic’ approach to multiple discrimination.”15 The recognized need to address multiple identities became one of the primary reasons for moving from separate equality commissions to a single new Commission for Equality and Human Rights (CEHR). Since a single commission will now be responsible for assessing the effectiveness of antidiscrimination legislation and for recommending ways to tackle all varieties of discrimination, it is highly likely that the commission will spearhead a move toward altering the existing legislation. Despite these positive signs for recognizing multiple discrimination, recent jurisprudence has shown that there is still no effective method under UK law for dealing with claims of multiple grounds. In Bahl v. the Law Society in 2004 the House of Lords considered whether, and if so how, current legislation could be used to address claims of multiple discrimination. Bahl was an Asian woman, who alleged that she had been discriminated against on the grounds of her race and her sex. In the case Bahl v. the Law Society before the Employment Appeal Tribunal on July 31, 2003, the questions whether, and if so how, equality legislation could

178

S N J E Z A N A V A S I L J E V I C´

be used to address alleged multiple discrimination were critical to the ultimate resolution of the case. The result was not positive and certainly did not reflect the kinds of analysis of interaction set out above. In this case, an Asian woman claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and that she was a woman. At first instance, the employment tribunal ruled that she could compare herself to a white man, so that the combined effect of her race and her sex could be considered. However, both the Employment Appeal Tribunal and the Court of Appeal ruled that this was not possible and was indeed an incorrect interpretation of the law.16 Thus, the Court of Appeal judgment made it clear that each ground had to be disaggregated, separately considered, and a ruling made on it, even if the claimant had experienced them as inextricably linked. For this purpose it is necessary to consider the role of a comparator. A comparator can be either a real person or hypothetical comparator. If there is no exact comparator but there is evidence as to how others in not entirely dissimilar circumstances have been treated, this evidence may explain why the complainants have been treated in the way that they have. The evidence helps the tribunal to extrapolate what would happen to someone in the same circumstances as the complainant but lacking their particular characteristics.17 In cases of multiple discrimination it may not be easy to construct a hypothetical comparator who does not share any of the prohibited characteristics with the claimant. In such cases a fully relevant direct comparator is very unlikely to be found. So in such cases it may be preferable to simply ask why the claimant was treated the way she was instead of expending much intellectual effort to little purpose trying to hypothesize whether a person has been treated less favorably than some other because of the entirety of the multiple grounds on which he or she relies.18 Croatia’s Approach to Multiple Discrimination Is the Western European approach to antidiscrimination policy different from the one existing in Eastern European countries? Concerning the current equality legal framework in Eastern European countries and the state of implementation of EU directives, the answer is positive. I will discuss the issue using the case of Croatia, currently a candidate country. Compared with other countries that comprised the former Yugoslavia, Croatia is relatively unified in religious and cultural terms. Discrimination in Eastern Europe, as in other parts of the world, can seem pervasive. However, Eastern Europe is not immune to change. After 70 years of Communism, it may in fact seem that way, but slowly, the

IN T E R S E C T I O N A L DI S C R I M I N AT I O N

179

value of diversity may be realized on a broad basis. This part shows the influence of Western European approach on shaping the Eastern European antidiscrimination legislation. Croatian history and traditions tie it closely to countries in Western Europe. As a result, Croatian society is quite modern, and women live under relatively favorable conditions. However, antidiscrimination policy shaped by national governments in Croatia has proven to be ineffective and lacking in important monitoring and evaluation mechanisms. Croatia first adopted its Gender Equality Act (GEA) in 2003 and revised it in 2008.19 The GEA regulates the prohibition of gender-based discrimination and promotes equal opportunities for women through affirmative action and gender equality education. It was the first Croatian law to prohibit direct and indirect discrimination as well as sexual harassment. After the law entered into force, the Office for Gender Equality and an Ombudsperson’s Office for Gender Equality were established. The Office for Gender Equality monitors the implementation of the gender equality law and drafts gender equality policy. However, these specialized bodies have not been consistent and effective in implementing measures defined by existing legislation, nor have they proven to be coherent with new standards introduced by European Community law. What is more significant and worries those who established the antidiscrimination framework is that Croatia, like other Eastern European countries, has failed to harmonize domestic laws in the field of race and gender with each other. In July 2008 the Croatian Parliament adopted a General Antidiscrimination Law to combat all forms of discrimination despite strong opposition from religious communities, including the powerful Catholic Church, which had demanded the exclusion from the legislation of discrimination based on “sexual identity, expression and orientation.”20 A total of 117 deputies in the 153-seat parliament backed the bill on fighting discrimination on racial, ethnic, political, religious, gender, sexual, or any other grounds. The law also prohibits multiple discrimination. It is aimed at bringing Croatia’s legislation in line with the standards of the EU. The law has not been enforced so far. The real results of its implementation will be visible in the near future if victims will be encouraged to bring claims before courts. Although there is a growing tendency of forbidding all grounds of discrimination by a single act, legislative antidiscrimination measures alone do not work. Equality cannot be realized without positive duties and proactive strategies aimed at eradicating stereotypes and promoting equality as a human right. Thus, Croatia continues to see a significant

180

S N J E Z A N A V A S I L J E V I C´

under-representation of women in almost all realms of social life. Furthermore, there are difficulties in fighting prejudice and stereotypes due to deficient legislative solutions and rather low interpretation capabilities of a large proportion of judges, as well as their weak educational background not only in the field of European law, but also in the majority of international sources ratified by the Republic of Croatia, which protect basic individual and collective human rights and freedoms. Finally, it is common to treat women de facto differently, depending on political trends, which prevents their uniform representation.21 Other reasons for the lack of implementation of EU law include a misunderstanding of recently adopted concepts and standards, a lack of political will to support implementation of these legal norms, and a lack of statistics and case law in the field of discrimination. Croatia does not currently satisfy all the criteria for membership of the EU. Apart from the 1993 Copenhagen criteria, Croatia still needs to meet the additional political conditions related to the return of refugees, media freedom, combating of corruption, cooperation with the International Criminal Tribunal for former Yugoslavia, and regional cooperation. As part of its reporting under the Stabilization and Association Agreement (SAA), the EU is monitoring whether Croatia meets the criteria for EU membership in different areas, including the judiciary and fundamental rights. Croatia has bound itself to respect the norms of international law through a constitutional provision according to which international laws that have been ratified and published are ipso facto a part of the internal legal system. But Croatia is still quite a long way behind fulfilling accession criteria, including the stability of its institutions, rule of law, and respect for human rights and minority rights. It lacks proper laws to protect the rights of individuals and has ineffective courts and an inadequate number of properly educated experts, especially lawyers familiar with European law.22 The existing constitutional framework of the Republic of Croatia does not have any major drawbacks that would prevent the country from joining the EU. The final arbiter in the area of the protection of fundamental constitutional rights and liberties is the Constitutional Court. Like this body, the Croatian legislature accepts that the protection of rights in a material sense at a national level must be in line with the standards stipulated by international treaties. Nevertheless, in practice it turns out that victims are deprived of their rights because the national courts apply in their proceedings only the national statutes and usually ignore the standards laid down in international documents. There is a lack of proper laws to protect the rights of individuals because the process of harmonization of Croatian law with the EU law has not been fully completed. Moreover,

IN T E R S E C T I O N A L DI S C R I M I N AT I O N

181

there is a problem of mutual inconsistency of laws at both horizontal and vertical levels.23 It is obvious that certain adjustments will be needed; they can be done either through legislative regulation (the most likely approach), or through interpretations of the Supreme and the Constitutional courts. The choice between these two approaches will depend on the inclinations of the political body.24

Conclusion European equality legislation does not yet contain a clear concept of multiple discrimination. The pursuit of harmonizing discrimination provisions at the level of the EU provides a challenge, for several reasons. In most national legislation, provisions forbidding discrimination can be found in many different laws, and the totality of provisions is often complex and not transparent. Lacking a systematic, generally accepted legal theory of discrimination, the ideas for discrimination provisions in Community law flow from different directions. The significance given to different sources of law varies between member states. Moreover, the style of writing laws varies, as well as the law-drafting process. The British experience probably shows best that isolation of only one ground of discrimination is insufficient to stop multiple discrimination. In contrast, the Croatian case shows that antidiscrimination policy shaped by national governments is often inefficient and lacks in important monitoring and evaluation mechanisms. Croatia lacks proper laws to protect the rights of individuals and has ineffective courts and an inadequate number of properly educated lawyers. The question then is, what can be done? EU and national antidiscrimination and equal treatment legislation should cover the grounds of age, disability, religion/belief, and sexual orientation both in and outside employment and occupation. New legislation must also provide provisions to address intersectional discrimination. There should be an expressed recognition of the ground of gender identity as part of equality policy and legislation through the addition of gender identity to the ground of gender, thus reading “gender and gender identity.” National equality bodies should have a mandate to assist victims of discrimination on all grounds and within and outside employment, and they should have the appropriate financial and human resources to assist victims of multiple discrimination. Finally, institutions in the public and private sectors should promote and develop positive duties and equality mainstreaming taking into account multiple grounds of discrimination.

182

S N J E Z A N A V A S I L J E V I C´

Notes 1. Moon 2006, 86–102. 2. The Copenhagen criteria are the rules that define whether a country is eligible to join the European Union. The criteria require that a state has the institutions to preserve democratic governance and human rights, has a functioning market economy, and accepts the obligations and intent of the EU. These membership criteria were laid down at the June 1993 European Council in Copenhagen, Denmark, from which they take their name. 3. Makkonen 2002, 20. 4. Crenshaw 2000, 10. 5. Crenshaw 1989, 150. 6. Hewitt 2004, 3. 7. European Commission 2005, 1. 8. Volcansek 1986; Leibfried and Pierson 1995; Fredman 2001; Bell 2002. 9. Makkonen 2002, 21. 10. Fredman 2005, 15. 11. Leonard and Hunter 1997, 45–46. 12. Pearce v The Governing Body of Mayfield Secondary School EAT, 7 April 2000 (675/99). 13. Coker and Osamor v The Lord Chancellor and the Lord Chancellor’s Department [2002] IRLR 80 (Court of Appeal). 14. EAT/685/98, 2000. 15. Ashiagbor 1999, 45. 16. In the Court of Appeal, Lord Justice Peter Gibson held, “In our judgment, it was necessary for the ET to find the primary facts in relation to each type of discrimination against each alleged discriminator and then to explain why it was making the inference which it did in favor of Dr. Bahl on whom lay the burden of proving her case. It failed to do so, and thereby, as the EAT correctly found, erred in law” (Law Society v. Kamlesh Bahl [2003] IRLR, 640). 17. Ashiagbor 1999, 50. 18. Moon 2006, 1–19. 19. Originally adopted in July 2003, the Constitutional Court nullified the GEA in January 2008 because of infringement of constitutional procedures required for its entering into force within the Parliament (Official Gazette 82/08). The new GEA entered into force on 15 July 2008. 20. Glas Koncila (2009) Zakon o suzbijanju diskriminacije je opasan presedan. http://www.glas-koncila.hr/portal.html?catID=2&conID=8666& act=view. 21. Vinkovic 2005, 203–211. 22. Vasiljevi´c 2003, 273–290. 23. Vasiljevi´c 2008. 24. Rodin 1997, 15.

Part

4

National and Cultural Minorities

This page intentionally left blank

CHAPTER

11

Let Freedom Reign: The Impress of EU Integration on Minority Survival Colin H. Williams

The fate of smaller nations within Europe has been a history of subordination, conquest, and periodic resurgence as the international political and economic system opens and closes in terms of minority recognition. A flowering of sorts followed the Versailles Treaties of 1918–19, which established a new European order only for that brief recognition of national self-determination to be crushed by successive impulses of Fascism and virulent state communism, and of course, we live with some of the postwar consequences to this day in various forms. A few nations have regained their independence, while many others have experienced some degree of sub-state autonomy and regional devolution of power. This chapter is concerned with this second, albeit halting, flowering of minority national freedom today. Both European integration and the devolution of responsibilities to regional-level governments within parts of the European Union (EU) are designed to improve economic performance and bring government closer to the citizens. In terms of autochthonous minority cultures and language policy, both trends, in their various ways, have changed the tone and the context of democratic deliberations. I acknowledge that in many respects the condition of regional minority languages (RML) and related cultures now receives

186

CO L I N H. WI L L I A M S

more “official” attention than hitherto, but argue that the promise of robust, rooted governance and enhanced deliberative democracy has not yet been realized. In part this is because of the continued need to build greater capacity within the devolved regional administrations, but it also reflects deep-seated ideological differences about the nature of EU integration, political representation, decision making, and the role of civil society in agenda setting and evidence-based policy. I also acknowledge that a further set of minority issues, namely, those related to immigrant languages (IML) have not fared as well, despite the huge geostrategic significance of the changing balance and composition of European citizenry. A great deal of work is now being undertaken on such issues in a variety of contexts.1 However, in this contribution I want to restrict my attention to an examination of the nature of the recent RML debates that have sought to reorient thinking and policy choices related to five issues: (1) the various discourses related to minority representation, (2) the degree to which existing language legislation serves the interests of the citizens, (3) the extension of language plans into the private and voluntary sector, (4) the calls for the establishment of Language Commissioners in certain regions, (5) the implication of incorporating language clauses into the mainstream equality legislation. These questions, in turn, relate to a more fundamental issue, what model of society best serves the interests of recognized minorities? Within the plethora of examples two broad contrasting models exist, which turn on the nature of the relationship between the state and its citizens. In Jacobin-inspired states, such as Spain, formal language rights are discussed in constitutional terms, whether at state or sub-state level (Catalonia and the Basque Country), and this gives rise to a discourse on the nature of human rights, language promotion, and constitutional guarantees and stretches the variable geometry of powers exercised at the state’s core and within the national autonomous regions. Individual citizens are aware of their language rights qua individuals and may exercise such rights in clearly defined areas, especially in dealing with formal education, the local state, and in some aspects of the private sector. Within an alternative model, applicable in states that do not have a written constitution, such as the United Kingdom, the onus is on public authorities to provide language-related services and few individual or citizen-based rights are exercised. Here the conventional approach, underscored by the Welsh Language Act 1993 and the Gaelic Language Act 2006, is to identify key institutions within the public sector and to charge them with the preparation of Language Schemes that outline the nature of bilingual services to be provided. The individual is not always clear what rights, if any

LET FREEDOM REIGN

187

obtain, outside the Court System (which according to the Welsh Courts Act 1942, allowed participants to choose to use Welsh within the legal system). In general this leads to a degree of uncertainty, frustration, and demands for a more specific recognition of the rights of the individual as a citizen rather than as a customer, client, or employee within the system. Given the increasing tendency within the EU to seek uniformity the intriguing question becomes whether or not those language policy initiatives that are predicated on the responsibilities of bodies to deliver services, should now be amended so that the rights of citizens and of employees within public bodies and other organizations should be specified more clearly. These elements will be discussed below in relation to current debates within the United Kingdom and Spain. These issues reflect the changing role of the language under review within the EU as a dynamic and increasingly multilingual context. Their analysis reveals significant tendencies, for example, regarding how public policy is formulated and the relationship between majorities and minorities, between citizens and the state, and between the various levels of authority within a hierarchically ordered political system. The middle section of the chapter will thus illustrate some of the more progressive examples of such holistic language planning, especially in relation to health care provision and tease out some of the dilemmas facing responsible regional/national governments seeking to impose their policies within an increasingly multilingual diverse citizenry. The final part will discuss developments within broader European contexts where the professional lobbying for language promotion seeks to influence the contours of linguistic diversity and presses for the adoption of more holistic perspectives in policy formation and implementation. Discourse on Minority Representation Within the discourse on language rights it is common to assert that the promotion of the so-called lesser-used languages is a classic example of interest group politics. Special pleading by historically disadvantaged linguistic minorities has led to the gradual wresting of concessions and rights from a disinterested central state and a quiescent international legal order. So long as the inhabitants of the Basque Country, Catalonia, Scotland, Wales, and Northern Ireland did not possess a measure of self-rule with their own national decision-making bodies, this was an understandable position. The supplicant subject rather than the empowered citizen was a comfortable position for many to adopt, because ultimate responsibility for the fate of one’s own language lay outside the immediate political context.

188

CO L I N H. WI L L I A M S

But with the transfer of selected powers to devolved national parliaments and assemblies, responsibility for language policy and all the attendant props that sustain various networks of speakers and institutions were now capable of being embedded within civil society and its elected representatives. The principles of deliberative democracy, where reasonableness and partnership would seek to render political solutions publicly acceptable, could now obtain. In consequence, the nature of the debate over the relationship between the minority and multilevel governance and the self-presentation of the minority itself is slowly changing along lines that I have summarized in Table 11.1. I argue that language issues are directly related to questions of citizenship, identity, education, socialization, and participation in the public sphere. Both in political and organizational terms there is tremendous pressure on institutions within the EU to simplify and harmonize the range of services offered within a particular suite of languages. Countering such measures by formal language planning for smaller language communities becomes increasingly difficult. This is because assumptions of an undifferentiated society comprising equal citizens are breaking down as a result of separate interest groups being empowered by their own dynamic activities and by of the effects of market segmentation. This leads to a basic tension between commonality and fragmentation, between the basic needs of state socialization, including communicative competence in state-designated languages, and the reality of individual choices and the community orientation of many interest groups. Added to this is the

Table 11.1 The Changing Nature of the Debate From Discrimination Current equality Protect unique language “Nationalist” ideology Marginal dependency Minority special pleading Language as a divisive issue Cultural justification Preoccupation with education Para-public employment Compensation-deficit Reactive policy Historical orientation Source: Williams 2008, p. 179.

To Struggle Normalization Promote bilingualism or multilingualism Inclusive pluralism Self-reliance/governance Equal opportunity Language as integral Socio-economic rationale Holistic thinking Economic marketing Structure and planning Purposive growth Future prospects

LET FREEDOM REIGN

189

post-enlargement issue of grappling with the sheer diversity of competing claims for recognition, rights, and resources on behalf of those beleaguered groups who hitherto have not benefited from the institutional arrangements constructed by sovereign states in pursuit of plurinational democracy. Until the advent of devolved regional governments most of the international promotional work related to the lesser-used languages had been undertaken by bodies such as the Council of Europe and loose affiliates comprising the European Bureau for Lesser Used Languages (EBLUL), the Federal Union of European Nationalities (FUEN), and the Mercator network, composed of three research centers devoted to education (Louvarden, Friesland); the media (Aberystwyth, Wales); and legislation (Barcelona, Catalonia). Each of these have made significant contributions to the recognition of language diversity and to various agendas related to bilingual and multicultural education; language rights; the role of lesserused languages within the economy, especially tourism; the mass media; and agro-business.2 EBLUL in particular has a long and distinguished history of lobbying government and international organizations and from my perspective has been the single most important factor in highlighting minority language representation within the international community and allowing various members of lesser-used language groups to engage with each other, from school children to journalists, to educationalists and local government officials. However, none of these organizations spoke with the authority of the host government at whatever level, and consequently their message and access to real decision-making power was limited. Some governments, especially in Spain and the United Kingdom, had established agencies to promote the interests of what they euphemistically called “regional languages,” such as Catalan, Galician, Basque, and Welsh. Initially these language promotional bodies and their sponsoring government departments were preoccupied by their grant disbursement responsibilities and very rarely operated as genuine language planning and policy units.3 Insufficient resources were made available to develop language planning and language policy functions as the larger part of the budgets of Language Agencies/Boards were targeted to social partners and staffing costs. This made it difficult to mainstream language issues into political economic schemas, regional development programs, and the like. However, these language agencies have now matured, and since 2007 they have established a coordinated network of responsible government language planning agencies together with representative bodies promoting the interest of linguistic minorities, such as Mercator, EBLUL, FUEN, and the Youth of European Nationalities. As discussed immediately below,

190

CO L I N H. WI L L I A M S

this Network to Promote Linguistic Diversity (NPLD) is now the prime instrument for the promotion of such languages within an international frame. But it will have only a limited effect on the larger, often unresolved, questions that characterize the linguistic diversity of Europe.4 Three questions were particularly germane to this venture: • Will the strategies advanced by the European Language Boards Network garner sufficient support among their social partners and key actors within the economy to enable the specific initiatives proposed to be realized? • What sorts of structures are envisaged to promote dialogue and partnership and to secure credence for this new network and its initiatives? • What mechanisms need to be created to allow RML and IML representatives to both speak to each other and liaise with the majoritarian language interests, which structure the limits of their freedom? Network to Promote Linguistic Diversity The Network to Promote Linguistic Diversity (NPLD) was established in 2007 following a series of meetings between various governmental language boards and NGOs specializing in the development and revitalization of Europe’s less widely used languages. The network has received its first funding from the Commission’s Lifelong Learning Programme. The NPLD is a pan-European network that encompasses regional, minority, indigenous, cross-border, and smaller national languages to promote linguistic diversity in the context of a multilingual Europe. Some 50 million EU citizens, 10 percent of the EU population, speak a regional or minority language. Many of them are served by language boards or departments established by government to promote linguistic policies. The boards have attracted, or more often nurtured, high-caliber staff who display an impressive array of language-related skills, and NPLD seeks to provide a forum for these professionals to gain from the considerable benefits of working together. Further cooperation between official bodies that promote the use of minority languages is vital for the development of a coherent strategy for the future survival of these languages. The network has a considerable presence within the new member states of the EU and includes a much wider range of languages than the previous networks. It involves two levels of membership—full members, who fund and govern the network, and associate members, who can discuss and participate in the network.5 The linguistic needs of the languages included

LET FREEDOM REIGN

191

in the network vary considerably, from the languages with a legislative basis and full governmental support, to languages that are in imminent danger of extinction. Better protected language groups can offer support and guidance to languages in a more precarious situation and can provide invaluable expertise and partnerships for projects. The network’s aim is to facilitate the sharing of best practice and the development of innovative ideas across the field of language planning in education, the home, the workplace, legislation, and the media in the contexts of regional, minority, indigenous, smaller national languages, and lesser-used languages. Given that many of the issues will be similar, the main focus is on providing information about and easy access to a large network of organizations that can share ideas, information, and best practice. The network will find partners for projects and provide information on sources of funding across Europe. It will seek to ensure that the needs of speakers of all languages are fully respected, that the existing diversity of languages and cultures be publicized and used to good effect in promoting opportunities to hear and see languages and cultures, so helping to improve language awareness, learning opportunities, and best practice. The network will also contribute to a language friendly environment by exchanging best practice in second language and third language provision, teacher training provision, and public sector language training and awareness. The priority areas identified by the network relate to essential elements within language reproduction and use; thus, the first joint projects are in the field of intergenerational language transmission and preschool learning, motivation to learn, and increasing usage of target languages and the RMLs in health care.6 Let me illustrate the virtues of comparative work in the latter area by reference to recent practice in Catalonia. Catalan Health care Issues Catalonia is often cited as a source of good practice within European language planning circles, but it must be remembered that although it is not independent, it bears all the hallmarks of a medium-sized nation-state in several respects and can be compared favorably to countries like Denmark, Norway, and Finland. Thus, Catalonia’s attempts to promote and secure the Catalan language are reinforced by the full panoply of the local state apparatus, the business community, and the overwhelming majority of its native-born citizens. Yet, even the Catalan authorities feel that their language is under threat by a number of deleterious forces, which hamper the promotion of Catalan within, for example, the world of work or the education and health care delivery system. Tackling each of these issues is

192

CO L I N H. WI L L I A M S

compounded by increased globalization, persistent in-migration, greater multilingualism, and the growth of English as a lingua franca. In 2004 the Catalan Secretary for Language Policy (SPL) produced an Action Plan that contained six goals to (1) make it easier for everyone to learn Catalan, especially for newcomers; (2) promote the informal use of the language; (3) guarantee a wide range of goods, products, and services in Catalan; (4) guarantee the right of Catalan speakers to live their lives through the Catalan language; (5) increase the collaboration between all Catalan-speaking territories to advance the status and use of the language; and (6) enhance the status of Catalan both within Spanish and European institutions.7 In contrast to France, Germany, and the United Kingdom, which experienced significant periods of immigration from either former colonies or poorer regions within Europe, Catalonia has experienced two quite distinct periods of population movements. The first in the 1950s and 1960s drew Spanish speakers from other poorer parts of Spain. This mass migration had halted by the early 1970s, and by the early 1980s the migratory balance was negative. Successive generations born to Spanish “internal” migrants have largely been socialized within a burgeoning and progressive Catalan society where the formal education system and sheer demolinguistic weight of Catalan has transformed them into functional bilingual citizens, even if many of them constitute a permanent Spanish-speaking community within Catalonia.8 A second migratory flow, whose origins are in North Africa, Latin America, and parts of Asia, is more recent and ongoing. The language of social integration of these migrants is Spanish, while the range of issues such migrants face in terms of housing, employment, and health are acute. In consequence, there is a de facto recognition that interactions dealing with such immediate issues will be in Spanish, even if the desired long-term goal is to socialize these immigrants into functional Catalan speakers. The fear, of course, is that numerically such migrants will serve to weaken the increased dominance of Catalan as a default language of social interaction, especially within urban areas. The other related fear is that calls for the primacy of Catalan, in contexts where even a modicum of Spanish would be a major achievement for many migrants, can be interpreted as a cover for social exclusion and incipient racism. This is why the question of immigration is so sensitive and is analogous to the earlier experience of Quebec where non-Francophone immigrants from the developing world were accused by some of constituting a Trojan Horse– like presence in the heart of greater Montreal. Clearly issues of class, race, deep culture, and religion are heavily intertwined with broader issues of social cohesion and of the delicate balance of forces ranged by the often

LET FREEDOM REIGN

193

competing nature of Spanish and Catalan as each of the respective speakers seeks to “normalize” their preferred language as the default language of social interaction. One very practical illustration of this challenge is the necessity to serve multilingual patients within the Catalan health system. Differences of languages, lifestyles, cultures, traditions, religions, ways of interpreting health and illness can all create barriers and hinder effective treatment from within the health service.9 Consequently, the Catalan Health System established the Directive Plan of Immigration to devise and administer new strategies for dealing with its increasingly plural population. Welcoming, mediation, and training were given special attention. The Welcoming Plan seeks to ease access and understanding of the services on offer by the extensive use of translated material and documentation. The Intermediation Plan employs mediators within the health system to establish communicative confidence and maximize the amount of information exchanged between patient and the professionals. The Training Plan seeks to impart to professionals a higher degree of competence (especially in cross-cultural matters) in dealing with the immigrant population. These initiatives, derived largely from long-established practice within the UK National Health System, improve the quality of Health Service-Patient Care relationship. Three significant themes emerge from the Catalan experience. They are access to, and engagement with, the health system, the training of personnel, and the appointment of specialist cultural mediators. Let me illustrate each in turn. At a conference in Barcelona in October 2006, representatives of the Catalan Health Service identified several problems that such initiatives have yet to overcome.10 The most fundamental issue, as reported by Tona Lizana of the Department of Health, is engaging with the health system in the first place. Increased bureaucracy, the needs for accurate and updated data all require personal identification records to be established. Far too often some migrants shun the health service for they fear that such contact will lead to official recognition, police action, and possibly deportation or a prison sentence. Thus, the first barrier to overcome is that of accessing the health care system in order to be registered, to be given an ID and a Health Card. The second issue is establishing trust between patient and professional caregivers. The third is overcoming several cultural filters that prevent the patient from presenting the exact nature of an illness or a medical condition. This is why the appointment of cultural mediators, adopted in both Catalonia and the United Kingdom, is so vital—for they can often interpret, literally, both the language being used and the nuanced cultural connotations that accompany the reporting of ailments and the diagnosis. The fourth is

194

CO L I N H. WI L L I A M S

the issue of language itself and the need for accurate translation in all steps of the diagnostic, treatment, and post-treatment stages. Understandably, perhaps, patients tend to access the services of a mediator at the point of initial contact with the medical experts, but once the treatment is progressing, particularly within a hospital environment, the patient may or may not understand the exact requests made upon him/her, and this obviously increases stress all round. The fifth issue is the attitude of the health professionals themselves. Specialists often resent the presence of the mediator, and although they recognize that without such intermediaries, mutual understanding would not be achieved, they nevertheless feel that the presence of mediators hinders the medical nature of the proceedings. At other levels in the health system, medics, nurses, caregivers, ancillary staff, cleaners, caterers were as representative of normal Catalan society as any other group of workers, and thus, there was likely to be an element of cynicism, intolerance, and racism at the presence of foreign patients within the system displayed by some. This is why the training program for all staff was so important, not just the acute medical staff.11 Some measure of the success and failures of these policy initiatives may be gauged from real-world examples. The issue of training is fundamental both in terms of language awareness and in working with other specialists within the health service. Drawing on her experience in working at the Hospital del Mar, Barcelona, Tai Mooi Ho argued at the conference that the authorities were conscious that unless a great effort was made by all concerned, the language difficulties would result, unintentionally, in inappropriate treatment and a resultant diminution in the standards of health care received by the patient. The prime response was to improve the training for health professionals to make them far more competent in this field and to establish an effective and mutual way of communication. Training also involved consciousness raising and reflected a new framework whereby the patient became a more empowered actor in the process. Thus, Sid Ahmed Baba El Hebli (The Health and Family Association, Barcelona), a cultural mediator in the Lleida region, reported on marked improvement that he attributed to a new framework, which gave attention to the following maxims: (1) that the immigrant is not deprived from the symbolic interaction with others; (2) that suitable access to different public services is made easy to guarantee an optimal inclusion-integration within the host society; (3) that the immigrant is allowed to express his or her doubts, sorrows, beliefs, traditions, habits, and cultural values; (4) that he or she is assisted in understanding and make him or herself understood, facilitating a mutual approach between him or her and the health professionals in order to ensure a suitable care without misunderstandings and/or cultural transgressions; (5) that necessary information/training is

LET FREEDOM REIGN

195

given to foster personal autonomy. This overall increase in competence is attributable, in part, to the fostering of the role of cultural mediators within the system. Differing European approaches to cultural mediation are closely linked to interpretations of patient rights and general policies of integration. Jacob Als Thomsen (Copenhagen University) reported at the Barcelona conference on his comparative study of four “national” models of cultural mediation and argued that the main benefits were as follows: (1) there was more equality of treatment regardless of the origin of the patient, (2) better recovery rates, (3) more satisfied patients, and (4) more satisfied professionals who felt that they experienced less frustration and fewer conflicts with their patients. But the study also revealed some unintended consequences. Thus, in one unidentified city with four hospitals, only one of which employed cultural mediators, a large proportion of the “ethnic,” “foreign,” or “immigrant” population attended that one hospital and shunned the other three. In another case where a Chinese cultural mediator was employed, a significant number of patients of Chinese extraction presented themselves for treatment, even though in most cases they were not physically ill. The explanation given was that such people felt lonely or lost or sought expert advice on some aspect of their new life in the city, but that rarely, if ever, did these concerns have a medical foundation. I would add that in many cases if the role of the cultural mediator is widened to counter depression, dissonance, or lack of self-worth, then that is a very positive illustration of preventative medicine. However, the hard-pressed cultural mediators are not, by and large, charged with such duties. A persistent political implication drawn from these examples was whether or not the provision of additional services for an increasingly multilingual population necessarily undermined the attempts to normalize Catalan (or any other official “national” languages).12 It was evident that unless and until an adequate and robust strategy for dealing with such patients in Catalan was established, then inevitably Spanish would be the default language. A move to labeling prescription drugs, signage, information packs, and general medical orientation in five languages had improved matters, but there was still considerably inconsistency in the system with regard to the ability of patients to access all services in the language of their choice. It was recognized that the challenge would increase as both the rate and source area of immigration would change and as Catalonia became a more multicultural society. However, it was very evident that within the more advanced current practices in Catalonia there was both a concern for personal dignity and the attention to the whole person, not to just the clinical diagnostic ailments or conditions. When

196

CO L I N H. WI L L I A M S

one adds to the normal concerns of an indigenous patient (and his or her family) undergoing treatment the additional issue of language difficulties or language incomprehension, then it becomes even more of a test of a humane society, as to how such people are treated in the most dignified way possible. Too often in our concern with language as system or language as practice, we can forget the very real human needs that are put at risk by adopting too strident a linguistic policy that favors some at the expense of others.13 Catalonia demonstrates several of the more innovative and sympathetic ways in which to manage the linguistic diversity of its residents, many of whom may serve to undermine its attempts at normalizing Catalan alongside Spanish as a language of public services. Nevertheless, there is at work a tension between the need to promote Catalan as the “national” language and the respect for the linguistic diversity of its residents. At this level, Catalonia reflects in microcosm the larger scale EU issue of how to manage diversity without limiting freedom and how to guarantee equality of output of services without unduly interfering in the mechanisms by which such services are offered. Implications of Managing Diversity and Future Developments The European Commission has yet to face up to the difficulties of managing such linguistic diversity. In 2008 the Commission’s second “Communication on Multilingualism” was published. It reaffirmed the Commission’s position in terms of actively supporting linguistic diversity, encouraging new member states as they seek to improve language learning, and additional support for RML languages. A more specific aim for supporters of the NPLD is to ensure Commission funding for worthwhile projects to promote regional and minority languages from its Lifelong Learning Programme 2008–13. However, as in all such matters there are varying interpretations as to how minority languages should fit into the broader EU language strategy. Thus, over the years, the EU and other bodies, which it has encouraged and funded, have produced many admirable, detailed reports, the latest of which reads like a scholar’s manifesto on the issue. I refer to the Group of Intellectuals’ report on the multiplicity of languages and the challenges offered by linguistic diversity. The report itself, “A Rewarding Challenge, how the multiplicity of languages could strengthen Europe,” is full of fine rhetoric, which is hard to refute. The core of its recommendations is that a two-pronged approach to managing linguistic diversity be adopted throughout the EU:

LET FREEDOM REIGN

197

The bilateral relations between the peoples of the European Union should hinge by way of priority on the languages of the two peoples involved rather than on another language. This means that every European language should have, in each of the countries of the European Union, a substantial group of proficient and highly motivated speakers. Numbers would of course vary substantially depending on the language concerned, but the number should everywhere be large enough for its speakers to be able to cater for all aspects-economic, political, cultural etc. of the “binary” relations between the two countries concerned. In order to allow cohorts of speakers to be formed, the European Union should advocate the idea of personal adoptive language. The idea is that every European should be encouraged to freely choose a distinctive language, different from his or her language of international communication. As we see it, the personal adaptive language would in no way be a second foreign language, but, rather, a sort of second mother tongue. Learned intensively, spoken and written fluently, it would be part and parcel of the school and university curriculum of every European citizen, and of everyone’s occupational curriculum.14

This type of approach is designed both to increase familiarity with other languages and cultures and to overcome the current rivalry between English and other languages, “a rivalry which results in the weakening of the other languages and which is also detrimental to the English language itself and its speakers.” The report seeks to encourage individuals to make two separate decisions with regard to language learning, “one dictated by the needs of the broadest possible communication, and the other guided by a whole host of personal reasons stemming from individual or family background, emotional ties, professional interest, cultural preferences, intellectual curiosity.” It is anticipated that the overwhelming majority of students will choose one of English, French, Spanish, Portuguese, German, Russian, Mandarin, or another language. As for personal adoptive languages the same list may well apply as would several of the more robust languages not ranked among the foremost Languages of Wider Communications (LWC); this could well include forms of Arabic and in some contexts modern Turkish or one of the Asian languages. The report is careful to suggest that “at the same time, the languages which have fewer speakers, including those which are very much minority languages, would get an unprecedented boost.” It also posits that “one of the big advantages of the approach we propose is that every European language would have a special place in the bilateral exchanges with all European partners, that none would be condemned to disappearance, none would be reduced to the status of local dialect. Accordingly, the native speakers

198

CO L I N H. WI L L I A M S

of that language, however few they may be, would no longer have to feel belittled, excluded or overwhelmed.” These are very fine sentiments, but run counter to the lived reality of thousands, if not millions, of minority language speakers. The dominant feeling among far too many of such speakers is that, despite the international agreements, fine policy statements and democratic intent, their actual capacity to use their indigenous language in their dealings with the national or local state is capricious at best and malevolent at worst. Inconsistency of quality of service, imprecision in the monitoring and regulation of agreed language rights, and a deep suspicion of the hollowing out of the state, all characterize their relationship as minority language residents with the host state. Yet, a robust language policy and more pragmatic language planning programs could contribute to an amelioration of this situation especially if they followed two sets of agendas as detailed below. The first agenda would contribute holistically derived theoretical and practical elements to Language Planning and Language Policy in Europe. It would assess the character, quality, and success of the institutional language policies of the European Parliament, European Commission, and related para-public agencies. It would investigate the complex nature of bilingual educational, administrative systems in the constituent regions of the European Language Board Network. It would integrate the needs of linguistic minorities within the broader equality and rights agenda as it relates to bilingual education, civil rights, and group equality issues. And it would finally, strengthen the expertise of language planning agencies as they develop realistic cooperation in key areas, such as language transmission within the family, community language planning initiatives, adult language teaching methods, software developments, Internet, mobile phones, and interactive communication systems. But to avoid the pitfalls of sound ideas being driven from above in a classic top-down managerial approach, a second agenda for the realization of empowering language policy should seek to contain elements of good practice from the ground-up as follows: It would involve the target speakers/users of services as much as possible in the language planning decision-making process. It would engage the participation of interdepartmental agencies to realize language planning aims and programs. It would seek to introduce horizontal forms of governance where feasible, but expect only partial success given the tendency to centralize and bureaucratize language-related activity.15 Finally, it would anticipate and resolve to overcome the barriers, vested interests, traditional thought and practice that arise from interdepartmental turf-wars and boundary disputes.

LET FREEDOM REIGN

199

Conclusion Linguistic diversity is a growing not a shrinking feature of contemporary Europe. The powerful language groups comprising of first and second language speakers of English, French, Spanish, German, and Russian will dominate the agenda for demographic, educational, commercial, and strategic reasons, and this is quite understandable in an evolving quasi-federal system. However, RML and IML groups pose different challenges and reflect different orientations toward the main contours of European integration. I have offered a number of reasons as to why the EU has adopted a radically different stance toward integrating RML and to a lesser extent IML language groups into its diversity portfolio.16 The most pressing is that the threat posed to the state system by linguistically tinged, antipathetic, and hostile separatist political movements has waned. In previous decades, violence and political dissent within the Basque Country, Corsica, and Northern Ireland, for example, were considered evidence of the failure of state integration. Today a degree of national recognition and sub-state autonomy has resulted in a lessening of violence as a movement tactic, and indeed, so-called minority language recognition is now an established fact, as is the right to be different, both politically and culturally. Second, the maturation of sub-state responsible governments, for example, in Flanders, Catalonia, and Wales, has not only witnessed the establishment of alternative language regimes, but has also turned these governments and administrations into active players on the European stage, well capable of influencing policy and demonstrating proven ways of enhancing both democracy and the delivery of linguistically specific services to citizens. Third, the successive enlargements of the EU, especially the integration of sovereign states such as Estonia, Malta, and Slovenia, have forced EU policy makers to devise more inclusive and innovative pan-European policies that do not consciously discriminate against the smaller “official” national communities that are now ostensibly equal partners in the European project.17 There is a delicate balancing act at work, which in principle seeks to not undermine the sovereignty of the smaller national states while simultaneously harmonizing EU policies in disparate fields, based in large part of the input and agendas of the more hegemonic actors within the system. Fourth, in an attempt to redefine Europe, and to widen and deepen its own legitimacy, the EU has recognized the great wealth of common European experience represented by the historically disadvantaged political subunits that are now being given a voice. This is undertaken both to strengthen the commonality of economic, religious, social, and linguistic roots and for “fear of something worse,” namely, the

200

CO L I N H. WI L L I A M S

rise of non-European faith communities and their own increasingly strident demands to be recognized as permanent constituents of Europe, qua Europeans, and not as geographical extensions of Islam or Sikhism. Far better, it is argued, to allow some element of Basque sub-state “ethnic” or Catalan “national” representation within common European structures and thereby incorporate their energies and drive into a common purpose, than to risk alienation and obfuscation by trying to tackle the demands of both RML and IML communities simultaneously.18 It has been fashionable to argue that the development of sub-state minority politics and the enlargement and further integration of the EU are two separate trends pulling in opposite centrifugal and centripetal directions. I want to argue that both trends are intimately related, the one to the other. Far from being seen as fissiparous the progressive consensus that is emerging in Catalonia, Wales, and other polities actually reinforces the intensity of European integration and networking across many policy fields, it is just that this is a different reconfiguration from that which was anticipated by the framers of EU policy in the 1970s and 1980s. Consequently, the democratic agendas of many minorities to increase their freedom of decision making, what has been termed an expression of “glocalism,” is well capable of enhancing and making more profound the contours of EU integration, at least as far as civic engagement and deliberative democracy are concerned. A critical issue, of great current concern in the United Kingdom, is the extent to which existing legislation, which is predicated on the responsibilities of bodies to deliver services, should be amended so that the rights of the individual and the rights of the employees within public bodies and organizations should be specified more clearly in keeping with a normative EU approach to individual rights. In Wales this would involve the passage of new language legislation within the National Assembly, following the acceptance of a Legislative Competence Order on the Welsh Language, the establishment of the Office of a Language Commissioner, and the mainstreaming of language issues within the equalities agenda. Within Scotland, there are calls to strengthen the powers of the language regulatory agency and to build capacity so that the Gaelic Language Act of 2006 can have real purchase. In Northern Ireland recent attempts to introduce an Irish Language Act were initially supported by the UK government and its partners at the St. Andrew’s Agreement, October 13, 2006, only to be rejected and set to one side later by the Executive of the Northern Ireland Assembly. These long-term aims and reforms have a considerable gestation period and are not undertaken in a vacuum. Conventionally they were seen as being subject to a state’s sovereign responsibility for policy development

LET FREEDOM REIGN

201

and the enactment of particular rights. By today such issues are increasingly subject to EU harmonization measures and legislative reform. The EU now provides a legislative and policy framework for myriad social and political impulses. If this international organization is seen only in terms of the interests of its member states, rather than also its regional governments and all its citizens, a limited view of linguistic diversity will be propounded. If, however, the organization can be seen as a facilitator for the development of common structures and expectations regarding its lesser-used languages, and in due time, its so-called immigrant languages, then a more realistic and positive set of policies will be advanced. As I have tried to show, there may be alternative trajectories at work here, but we cannot, and should not, speculate about such issues in the abstract. For freedom to reign, quite diverse rights have to be respected and defended in real-world contexts, not just on the statute book. The local hospital bed may be just as much a test case of the value of diversity as the court of international law.

Notes 1. I would recommend the Babylon Centre website at Tilburg University and the work of Barni and Extra (2008) as an excellent starting point. Visit http://www.tilburguniversity.nl/babylon/. 2. Agro-business, namely, nonconventional farm and land-related products, has been utilized by promotional bodies in the Basque Country, Catalonia, and Wales to promote the mutually beneficial efforts of sustaining linguistic landscapes; producing high-quality food products, such as organic yoghurts, specialized cheeses, and “pure” water; and seek to produce value added economic diversification. This has much to do with the selling of unique places, cherished cultural resources and seeking to provide additional employment for the young and talented of an area, so they are not necessarily lost to the local networks and by extension to the sociocultural vibrancy of a rural community. 3. Williams, 1991. 4. Williams, 2007. 5. Full members include the Irish Government, Foras na Gaeilge; Estonian Government, Department of Education; Welsh Government, Bwrdd yr Iaith Gymraeg; Scottish Government, Bòrd na Gàidhlig; Finnish Government, Folktinget; Breton Regional Council, Department of Education and Culture; Frisian Government, Department of Education and Culture; European Bureau for Lesser Used Languages; Linguamón, Barcelona. Associate members include the Council of Europe; the Mercator Centres; Åbo Akademi, Finland; Cardiff University, Wales; the Cultural Council of Brittany; Meän Akateemi, Sweden; ADUM, Catalonia; Institute for Ethnic

202

6.

7. 8. 9. 10. 11.

12.

13.

CO L I N H. WI L L I A M S

Studies, Ljubljana, Slovenia; Mälardalen University; Wales Arts International. Other individual members are drawn from NGOs, universities and research centers. In time cofunded projects related to existing schemes will be developed, such as those currently focused on E-Content plus; Interreg IIIa, Cross Border, north west Europe, Convergence; Forward Planning 7 for R&D; Agricultural fund for rural development. The Action Plan was inspired by two campaign slogans, “make it easier to live in Catalan” and “also in Catalan, in Catalan first”. For an incisive account of Catalan language initiatives see Puigdevall i Serralvo 2005. Gardner et al. 2000, 352. The urgent challenge is how to cope with the integration of such a diverse population increase without simultaneously loosing sight of the need to promote Catalan as the language of social inclusion. The excellent conference Linguistic Rights as a Social Inclusion Factor was organized by Mercator/Ciemen and held on October 19–21, 2006, in Barcelona. For a full report visit www.ciemen.org/mercator website. I believe that these issues are germane to other multicultural societies whose health service is serious about respecting the integrity and human dignity of each of its patients qua individuals and not just as a representative category of patient type. A number of issues were raised by the audience in response to these presentations. A key question was why were the medical professionals so reluctant to take the assistance offered by the cultural mediators? A second was to what extent this investment in Catalan speaking cultural mediators served only the upper echelons of the medical service. For once the patient was on the ward, or dealing with the auxiliary staff, so much of the conversation would be conducted in Spanish. A third was that if a patient registered in either Catalan or in Spanish to what extent could that respective language choice be guaranteed at all stages in the medical treatment process? On June 18, 2006, 48 percent of the Catalan electorate voted in a referendum to renegotiate Catalonia’s relationship with Spain. The package negotiated between Madrid and Barcelona was one further act in the evolving functional federalism of contemporary Spain. The powers of the autonomous communities are largely determined by statutes that are negotiated by Madrid and the respective community rather than by constitutional reform. In the 2006 negotiations a large part of the new deal related to the further devolution of power to Catalonia within certain subject areas, such as agriculture, water, banks, trade, external relations, and most sensitively of all, language and identity. The Catalan government had proposed a text that explicitly recognized the “Catalan nation” and asserted Catalonia’s uniqueness and the precedence of its laws. In the end Barcelona accepted a heavily negotiated, nonjudiciable, preambular clause that takes note of two different views, namely, that Catalonia’s Parliament has defined its territory as a “nation,” while the Spanish constitution “recognises the national reality of

LET FREEDOM REIGN

14. 15.

16. 17.

18.

203

Catalonia as a nationality” (Anderson 2006, 15). The agreement declares, “Catalan is the official language of Catalonia,” while that of Spain is Spanish. It declares that each individual in Catalonia has the “right to use and the right and duty to know the official languages.” Group of Intellectuals 2008. Horizontal forms of governance may be contrasted with vertical forms of governance which is the classic top-down form of political representation and management. Horizontal governance incorporates a greater degree of participation by local authorities, civil society, and NGOs and is increasingly linked to aspects of participatory democracy as discussed by Cardinal (2007) and Williams (2006, 2008). Williams 2008. It was the recognition of the smaller languages in Estonia, Latvia, Slovenia, and Malta as EU official languages that prompted the civic campaign in Ireland to have Irish recognized as an official EU language, which came into force on January 1, 2007. I have argued that in a darker, more cynical mood, one can be forgiven for concluding that the RM experience and agencies will be used as both an exemplar and as the responsible partners for aiding the transition of some IM groups, thus shifting the burden of responsibility, if not of tolerance and cooperation, from majoritarian shoulders! (Williams 2008).

This page intentionally left blank

CHAPTER

12

European Integration and Ethnic Mobilization in Newly Admitted Countries: The Case of the Hungarian Minority in Romania Lavinia Bucsa

Our goal is territorial autonomy, not just cultural autonomy . . . . From now on, the European Parliament will become an important arena for our efforts aimed at gaining Hungarians’ rights. Marko Bela, President of the Democratic Union of Hungarians in Romania1

The territorial autonomy of Transylvania has been a recurrent issue in postcommunist Romanian politics. Since the 1990s, nationalist rhetoric was heard constantly, and both minority and majority elites played the “ethnic card” for electoral gains. However, what might be surprising for some observers is the persistence and the relevance of the “autonomist” message in the new context of Romania’s European Union (EU) membership. Furthermore, the way this message has been framed by the Hungarian political elites—by using European themes such as minority

206

L AV I N I A B U C S A

rights, regionalization, Europe of the Regions—and the diversification of arenas in which this message has been delivered, particularly after 1996 (e.g., local/regional, national, and EU), raises an important question: is there a link between European integration and the radicalization of ethnic discourse? Does European integration affect ethnic mobilization in newly admitted countries and if so, how? This chapter aims to address these questions by examining the case of the Hungarian minority in Romania. It explores the behavior and the discursive practices of its political organizations—the Democratic Union of Hungarians in Romania (UDMR)2 and the National Council of Ethnic Hungarians in Transylvania (CNMT)3 —in the period from 1990 to 2008. I analyze Hungarian discourses and rhetorical practices in speeches and interviews with major Hungarian leaders in Romania, their political platforms, and news coverage.4 As will be shown, the behavior of the Hungarian minority in Romania, particularly in the last four years, suggests that there is indeed a link between EU membership and ethnic mobilization. To appeal to their constituency, the leaders of the Hungarian minority, both moderates and hard-liners, framed their demands using European themes and standards. At the domestic level, territorial autonomy became a powerful rhetorical device for ethnic mobilization by elites in their struggle for winning electoral contests (both minority-majority and, later, intra-organizational contests). At the supranational level, through membership in European parliamentary party groups (i.e., the European People’s Party) and other transnational organizations (e.g., Unrepresented Nations and Peoples Organization), the ethnic Hungarian leaders have tried, and continue to try, to influence the European discourse and policies in the field of minority rights and regionalization, and, therefore, to make them more compatible with Hungarians’ “historical aspiration”: the territorial autonomy for the Szekler Region. My research suggests that the “multilevel games” or discursive strategies adopted by the Hungarian leaders, despite being influenced by domestic circumstances and intra-organizational competition, were facilitated and mediated by the EU accession and integration processes. The complexity of the EU and the existence of competing views for the future of Europe— that is, the fact that neither the meaning of “Europe” nor the meaning of “governance” has been firmly established—have enabled minority leaders to take “a flexible approach to Europe.” The chapter develops as follows: the next section draws on insights from various strands of literature and creates a theoretical framework for analyzing the link between European integration and minority mobilization in newly admitted countries from Eastern Europe. The

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

207

following section provides a brief discussion of the historical context of interethnic relations in Transylvania (Romania). The results of the discourse analysis and the link between EU accession/integration processes and Hungarian minority mobilization are discussed in section four. The last section briefly summarizes the findings and advances some questions for future research. Theoretical Framework The link between European integration and minority mobilization in the newly admitted EU countries has received relatively little scholarly attention.5 Although research on ethnic politics in Western Europe has led a number of scholars to argue that there is a growing link between European integration and minority mobilization,6,7,8 there is still little systematic research on whether and how “Europe” has affected political discourses (or repertoires) and actions of ethnic minority movements in Central Eastern Europe (CEE).9 In the context of Western Europe, a growing literature has emerged around what has been termed “sub-national mobilization.”10−14 More recent studies have analyzed the impact of European integration on ethno-regionalist parties15 and whether the EU may actually encourage subnational autonomy movements.16 By contrast, scholarship on CEE’s postcommunist democratization pays much attention to the role of Western (especially European) institutions, norms, and actors in persuading governments and minority groups to reach agreements on divisive issues, or to the evolution of state policies toward ethnic minorities.17−20 This research has focused mostly on the EU’s conditionality mechanism and has documented how (and to what degree) the Union has offered frameworks for the regulation of ethnic relations in the postcommunist CEE countries. Although the ultimate effectiveness of the conditionality mechanism in influencing the adoption and implementation of minority rights in accession countries is still considered “an issue of debate,”21 as some recent research presents a more nuanced picture,22 most work in this field has acknowledged the generally positive role played by the EU in maintaining the “ethnic peace” in those CEE countries eager to join the “Western club.” Recent literatures on Europeanization,23,24 regionalism25,26 and the “new nationalism,”27−30 however, have suggested that the EU, through its minority rights provisions, regional policy, and the tendency toward “multilevel governance,”31 has created a new, transnational space for discourse and action in which minorities can now advance (and legitimize?) claims for self-determination and territorial autonomy.32,33 According

208

L AV I N I A B U C S A

to this line of reasoning, beside its beneficial impact on democratization processes in CEE, the EU provides new political opportunities for both “nations without states” and “national minorities”34 to project their identities within a wider political space, to operate within multiple arenas (local, regional, transnational/EU), and, consequently, to try to influence the EU decision-making process. Moving this argument further, other studies35 have noticed that, in the new Europe, where the proposed constitutional arrangement suggests increased respect for cultural diversity, and the evolving system of multilevel governance has recognized the value of regions36 (whether selfadministering or self-governing, etc.) for creating a more democratic EU and has expanded the principle of subsidiarity, a redefinition of minority political space and a greater mobilization of national minorities may actually take place. In the CEE region, where national minorities often possess strong regional identities, these sub-state groups will be determined to be represented in the EU arena as actors in their own right and will, thus, further mobilize politically.37 A somewhat similar argument coming from the literature on nationalism in CEE posits that, although irredentist tendencies became inconceivable within the EU, regional integrative processes “significantly change domestic and international opportunity structures for the nationalist pursuit of political-cultural coherence.”38 There are many factors that can have a direct impact on ethnic mobilization, and they are generally classified in the literature in two broad categories: internal and external/environmental. For example, structural factors such as group size, location, and territorial compactness are determinant of the nature of claims a group can advance.39,40 However, scholars have shown that it is the ongoing process of interaction between the movements and the larger sociopolitical context that also plays an important role in the development and the evolution of the movement.41 Insights from the social movement literature show that the prospects of ethnic mobilization are dependent on changes in the institutional political system, the availability of organizational structures around ethnic identity, and the presence of powerful schemes of interpretation conducive to ethnic mobilization. This strand of literature regards as important the activities of minority leaders, their resources, and their ability to make public claims in the name of the minority. Two elements have been identified as most relevant: “political opportunity structure,”42 and “framing.”43 Political opportunity theorists draw our attention to such matters as leadership, networks,44 allies, and political and institutional opportunities as central elements for ethnic mobilization. Another area of influence in the study of ethnic movements, one that has attracted less attention, is the international environment. In general,

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

209

much of the literature takes domestic states as the principal referents. However, in the CEE context, ethnic mobilization cannot be understood without taking the international (i.e., EU) context into account. In this respect, Jenne (2007) has suggested that the EU indirectly plays an important role in ethnic mobilization. By altering the preferences of the group’s host and lobby states, the EU informs minority calculations as to whether to radicalize. In the CEE context, the EU—seen as political opportunity structure—has empowered minorities and, thus, has become itself a potent motive for group radicalization. Other illuminating arguments come from the literatures on regionalism and Europeanization, which is vast and, in general, signals the role of regions and other subnational actors in European politics,45 or the importance of political opportunities at the transnational level.46 Overall, this body of work concludes that, although we should not take the supranational European level as the predominant realm of influence on minority mobilization, it is important to notice that domestic ethnic mobilization in the CEE was, at particular times, determined by the attention devoted to it in the realm of European politics. Before I turn to the examination of the practice of this linkage, the next section presents a brief discussion of the historical context of interethnic relations in Transylvania.

Ethnic Relations in Context: History, Democratization, and European Integration Transylvania, the western part of Romania that comprises the Hungarian minority, has been historically regarded as a homeland by both Romanians and Hungarians (Magyars). The beginning of the eighteen century found Transylvania integrated into the Hapsburg Empire, as a self-governing unit, and from 1867 the province belonged to Hungary within the framework of Austro-Hungarian Monarchy. After the First World War (with the provisions established by the Treaty of Trianon), Romania acquired Transylvania and, with it, a sizable Hungarian population, which became a “national minority.” Thus, as some scholars have pointed out, Transylvania entered the age of nation building facing the consequences of competition between two “parallel discourses of legitimacy”47 —the Hungarian and the Romanian ones—both of which have claimed state-building rights. Unlike other smaller ethnic minorities in Transylvania, the Hungarian community does have a strongly developed sense of regional national identity, including the perception of its own historically constituted territorial basis,48 which for Hungarians legitimates the claims for cultural and political autonomy.

210

L AV I N I A B U C S A

The breakdown of the Romanian communist regime in 1989 and the subsequent transition to democracy has been accompanied by an active mobilization of the Hungarian minority. In fact, ethnic parties were created in the entire CEE region and, as in the case of UDMR in Romania they have participated, since the mid-1990s, in governmental coalitions. The process of democratization also created a new environment for the different processes of national institutionalization. While the Romanian state defended the internationally recognized principle of sovereignty and defined Romania as a centralized, unitary state, Hungarian leaders used the discourse of minority rights and self-determination to assert their rights for cultural and territorial autonomy. Minority claims and demands have been implicitly or explicitly defended (and promoted as a condition for membership) by European organizations, such as the Council of Europe, seeking to diffuse nationalist tensions and prevent conflicts. It follows that the Hungarian minority’s assertion and politicization after 1990 was not only made possible by democratization, but has also been encouraged by the emerging European human rights and minority protection regime. In addition, the regional administrative reforms required by the EU in the context of its structural/ cohesion policy, have opened up a greater space for and revitalized mobilization among local and regional actors, including ethnic parties. The new members of the EU face a dilemma (i.e., how to accommodate the principles of sovereignty in a multinational context) that is not unique to postcommunist societies; however, the divisiveness of this dilemma is more apparent in the CEE context, and this makes the Hungarian elites’ discourse radicalization even more salient. Although EU gives countries a new framework within which issues of nationality, selfgovernment, self-determination can be negotiated, it does not provide a (definitive) answer to the “nationalities questions.” Europe still lacks a clear normative basis that applies in similar ways to both parts of the continent (east and west), and some fear that it thus might become an arena for group competition. EU Opportunity Structures According to Keating,49 at the EU level there are “opportunities for minorities” to enhance their position vis-à-vis majorities and to influence European decisions. For example, by gaining representation in the national parliaments, as happened with most ethnic parties after 1990 in CEE, minorities gain direct access to the supranational level through their delegates in the Parliamentary Assembly of the Council of Europe. Two major types of European-level opportunities and instruments that could

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

211

be used by minorities have been identified as (1) opportunities for regions in Europe and (2) minority rights regimes.50 Regarding the first type of opportunities, in the early 1990s there was a lot of interest in the concept of Europe of the Regions, as propagated by the EU. Although the concept of region still does not have a universally accepted meaning (e.g., should it be constituted on ethnic or historic basis?) and the Europe of the Regions idea was never clearly specified, it seemed to refer to “an order in which regions were recognized as a third level of government alongside with states and the EU itself.”51 Thus, Europe of Regions evolved into a series of opportunities to intervene in EU policy making, either by direct links to Brussels or via the member states.52 In practice, while European policy making remains largely intergovernmental, the treaties do provide mechanisms whereby regions can become actors—provided that they succeed in enforcing their demands in domestic constitution building.53 By frequently citing similar examples from the western part of the EU, the leaders of ethnic Hungarians in Romania are militating for the creation of a “Hungarian region” (the Szekler Land ) and, implicitly, for becoming actors on their own in the European arena. Other mechanisms established by the Treaty of EU include the Committee of the Regions and the Alliance of Constitutional Regions. Neither initiative corresponds to cultural or national minorities, but they overlap enough as to make common cause in asserting the need for a third, regional level within the EU.54 The chairman of CNMT, Laszlo Tokes, often appealed to the Committee of the Regions to support Hungarians’ efforts for autonomy. In addition, the Structural Funds have received a lot of attention, as a means of giving regions direct access to Brussels, a partnership with the Commission, and a source of funding independent of the member states.55 Although in practice the management of the funds is largely dominated by the states,56 it is the EU regional and cohesion policy and the accent being put on the role of regions that now present the Hungarian minority with the biggest “discursive opportunity” to advance their claims for autonomy. As for the second type of instruments and opportunities, the EU in conjunction with the Council of Europe (CoE) has emphasized a variety of methods for protecting minority cultural and political rights in the process of integrating CEE states. The CoE Recommendation no. 1201 of 1993 advocated that regionally concentrated minorities have the right to special status of local autonomy. In addition, throughout the 1990, EU economic assistance, cooperation, and trade preferences vis-à-vis CEE

212

L AV I N I A B U C S A

have regularly been linked, directly or indirectly, to respect for human rights and minorities. With the signing of association agreements between the EU and CEE candidate states in 1997–8, the European Commission gave considerable attention to minority rights in its assessments and opinions.57 In its Regular Reports on Progress toward Accession, the Commission devoted sections to issues such as minority languages, education, and political discrimination in reference to minorities in Romania, Slovakia, and Bulgaria. Nonetheless, as scholars have pointed out, the lack of a firm foundation in EU law and concise benchmarks for minority protection means that what constitutes minority and minority rights remains unclear. Similarly, there are different interpretations of what implementation and protection of minorities may mean.58

The EU’s Impact on the Political Strategies of the Hungarian Minority Democratization and EU Accession: 1990–2003

In analyzing ethnic movements, scholars59 often focus on concrete organizations (i.e., ethnic parties) that are the main protagonists of an activated ethnic minority, in my analysis, the Democratic Union of Hungarians in Romania (UDMR). However, at least two other actors became visible after 2003: the National Council of Hungarians from Transylvania (CNMT) and the Civic Alliance of Hungarians (UCM). Founded immediately after the fall of the communist regime, UDMR is the interest protection alliance of the various territorial and political organizations of the Hungarian minority in Romania. Ethnic Hungarians represent its only electoral base and, for that matter, the Hungarian group is renowned for its disciplined electoral behavior. Unlike the Hungarians in Slovakia, the Hungarians in Romania, from the beginning of the postcommunist transformation until recently, have overwhelmingly supported a single Hungarian political organization. In part due to the political abilities of its leader, Marko Bela (who takes a moderate, flexible, gradual approach to the “ethnic issue” and territorial autonomy), and in part due to the Romanian regime’s adversarial nationalism before 1996, UDMR was remarkably successful in commanding the majority of Hungarian minority votes in every parliamentary election since 1990, and so it remained the only Hungarian political organization until 2003. A center-right party, linked to the Christian Democratic Movement and European People’s Party, UDMR articulated in its discourses the view of “Europe of the Regions” while, at the same time, emphasizing its “European mission.” This allowed Bela to claim that Hungarians are

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

213

both a constituent element of the Romanian state and “an organic part of a wider Hungarian nation.”60 As such, UDMR leaders have always claimed the right to cultivate relations with the “mother country” across the border, and this affirmation led Romanian nationalists to call into question Hungarians’ loyalty to the Romanian state. From the beginning of the 1990s, UDMR challenged the unitary, centralized state model by defining the Romanian state as “multinational” and the Hungarian minority as a “national community” entitled to an equal partnership with the titular nation. Based on this concept, from 1993 on the UDMR demanded constitutional guarantees of collective political rights, which centered on the right to use the Hungarian language in the institutions of self-government and those of cultural reproduction. The aim was “to establish the institutions in which Hungarians could live their social and public life in Hungarian.”61 Hungarians also demanded political (territorial) autonomy, not only cultural and linguistic rights. However, the claim for territorial autonomy was not voiced with the same intensity over time. The issue of signing the Romanian-Hungarian Bilateral Treaty contributed to the radicalization of claims for territorial autonomy. As talks threatened to repeatedly stall over minority issues (it took more than five years of negotiations before the Treaty was signed in 1996), Marko Bela escalated demands for territorial autonomy of the region where “compact Hungarian population lives.”62 He called on Hungary to insist that provisions for such arrangements be included in the Treaty and received assurance from the Hungarian prime minister that Budapest would continue to support autonomy for ethnic Hungarians in Romania. Laszlo Tokes, chairman of CNMT, went even further, proposing that Romania devolve power to Hungarian regions “along the lines of South Tyrol.”63 Although this is a very rough description, the period from 1990 to 2000 centered mostly on issues of multilingualism and education in the native tongue, that is, cultural autonomy. International (EU, OSCE) influences were sifted through domestic lenses, and elite domestic calculations and discourses changed according to international opportunity structures. European norms themselves evolved in the process and European officials that took part in debates over language use represented the EU as an evolving institutional framework with its own dilemmas regarding multilingualism.64,65 Although the dominant political elites in Romania and Hungary as well as the Hungarian minority sought membership in the EU, they had different expectations from membership. The Hungarian minority wanted to weaken the control of the state over minority cultural reproduction and aimed at internationalizing and “Europeanizing” minority policy. Partly with the help of the Hungarian government as a mediator

214

L AV I N I A B U C S A

and partly by taking advantage of the absence of clear EU-level policies, the Hungarian elites pressed for a comprehensive European legal regime that would recognize minority rights and enforce them throughout EU. However, the primacy of stability and security concerns limited EU opportunities for the Hungarian minority’s institutional autonomy. As other studies have shown,66 on the one hand, EU officials called on postcommunist governments to weaken centralized control over their societies and allow regional and local self-government. At the same time, they were hesitant about empowering national minorities to make institutional claims against the state and thereby avoided advocating federalism or other sub-state versions of territorial autonomy available to minorities in several western states. This ambiguity circumscribed the way in which the Hungarian minority could use opportunities offered by the EU. For instance, when in 1993 the CoE issued Recommendation no.1201,67 which included an article encouraging states to allow the formation of self-governments, Hungarian minority elites regarded it as a legitimization of their demands for collective rights, while majority (Romanian) elites vehemently rejected it. The flexibility of Western norms allowed minority (and majority) political actors to choose from different institutional designs and policy alternatives and thus to frame and promote them discursively as they saw fit. While Romanian elites were interested in examples of a “minimalist” interpretation of “European norm” on minority accommodation, the Hungarian minority elites looked to examples of minority institutional autonomy, such as the case of Catalans in Spain. Hungarian leaders, especially the “radical wing” lead by Tokes, embraced these models and used them in political debates over minority rights that took place in both domestic and international arenas. These models gained particular salience after they radical wing separated from the UDMR in 2003. Renewed Hopes for Territorial Autonomy: 2003 to 2008

In 1996, UDMR became part of the governmental coalition and moderated its demands for autonomy. In contrast, Bishop Laszlo Tokes, the Catholic priest who sparked the Romanian Revolution of 1989 and who represented the radical voice in UDMR, forcefully demanded a separate Hungarian University in the City of Cluj (Transylvania), new property law, and territorial autonomy for the Szekler Region. But UDMR continued its moderate line following the adoption by the Romanian parliament, in 2001, of the Law on Local Administration, which granted minorities the right to use their tongue in relationship with authorities. As a result, the radical faction constituted its own organization, the so-called

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

215

Reformist Bloc. It proposed changing the Constitution (particularly the abolition of Article 1, which defines Romania as “national unitary state”), arguing that the term “absolute sovereignty” of the state be replaced by the term “limited sovereignty”; this would have meant the recognition of the multinational character of the Romanian state (denied by most of the Romanian political elites), in accordance with the EU’s general discourse on multiculturalism.68 By adopting an EU-like language the president of the Reformist Bloc declared at a Hungarian forum that territorial autonomy for regions inhabited by ethnic Hungarians is “the only solution” for settling the problem of this minority. In his view, autonomy could be achieved through the establishment of “Euro-regions” on the territory of the three counties that compose the Szeckler Region. The reformist movement culminated in 2003, when Tokes constituted a separate Hungarian organization—the National Council of Ethnic Hungarians in Transylvania. The evolution of minority behavior in the period from 2004 to present can be understood as a continuation, by similar means, of the “multilevel games” (or discursive strategies) played in the past in multiple political arenas (local/regional, national, EU). However, our major actors found themselves in a new context, which posed both new opportunities and constraints. First, Hungary joined the EU in 2004, three years before Romania. Second, as the prospects for the 2007 accession became favorable, Romanian elites continued to be under EU pressure to fulfill the pre-accession requirements, which included better minority rights. In these circumstances, Tokes was determined to continue promoting the goal of territorial autonomy. He made numerous visits to Hungary, met and lobbied with representatives of different European parties, and declared at every occasion (domestic and international arenas) that “the autonomy of the ‘Szekler Region’ is the key to safeguard Hungarians.”69 Tokes stressed that this would be in accordance with prevalent views within the EU regarding the future shape of the Union, in which diversity and the principles of multilingualism and collective minority rights should be encouraged and supported. On June 16, 2004, Tokes created another Hungarian political organization—the Hungarian Autonomy Council in Carpathian Basin, a sort of transnational body including Hungarian minority organizations from six neighboring countries—with the purpose of promoting the idea of autonomy from below. The Council does not have a single conception of autonomy but represents at European forums all the Hungarian communities’ concepts of autonomy. The intention is to obtain “Euro-region” status and, according to Tokes, the same competencies and institutions as possessed by those “autonomous communities in the EU

216

L AV I N I A B U C S A

that enjoy territorial autonomy, Catalonia in Spain, for example.”70 For this purpose, in 2004 the representatives of the Council requested that the European Parliament make the creation of an autonomous Szekler Region a precondition for Romania’s accession to EU.71 For Romanian elites, territorial autonomy on an ethnic basis is unconceivable as it contradicts the Constitution and, according to Romanian political elites’ interpretation of EU policies, it is no longer on the European agenda. There is indirect pressure from the EU, however, to reform the old administrative divisions of the country for a more efficient management of the structural funds. In fact, in order to comply with the EU’s pre-accession requirements, eight “development regions” were created in 1998, which Hungarian politicians have contested ever since. They advocate the redrawing of these regions on an ethnic basis, and, recently, the representatives of the Council of the Szekler Region referred to the Recommendation 1811 of the Council of Europe’s Parliamentary Assembly of which they said, “It gives us hope that we can count on Europe in our struggle for autonomy.”72 Obviously, intra-party competition and domestic politics have been an inseparable part of the minority (and majority) rhetoric. Months before the EP elections, and having now a strong political adversary (Bishop Laszlo Tokes), Marko Bela radicalized his discourse declaring that the Hungarian minority needs to use the EU’s minority rights regime and regionalization policy as vehicles for promoting Hungarian aspirations.73 In October 2007, the UDMR proposed a new draft law on Romania’s territorial-administrative reform and, since then, has argued that the reorganization of the economic development regions on an ethnic basis might even set up a network of regional parliaments following (Western) European examples and patterns.74 After his victory in the EP elections, Tokes declared that the claim for territorial autonomy of the Szekler Region is now even more legitimate at both domestic and EU levels. As a deputy in the EP, representing the Hungarian minority in Romania, Tokes has taken the struggle for the territorial autonomy of the Szekler Region directly into the EU arena. He opened two offices in Hungary and according to his website plans to open a lobbying office in Brussels. His vision on the future of Europe is clear: “The Union will become a confederacy of regions and national communities.” And it provides opportunities for minority politics: “If we take advantage of the opportunity given by the representation in the EP, we may find protection in Brussels against Bucharest’s homogenizing and centralizing politics.” Following such politics, the entire Carpathian Basin can become, according to Tokes’ views, “an authentic European macro-region.”75

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

217

Conclusions After the fall of communism in Eastern Europe, many Western theorists and policy makers expected that the desire for democratization and European integration would help weaken the traditional appeal of nationalism and that, in an integrated “Europe without borders,” minorities’ demands for territorial autonomy will become superfluous. Yet, as the case of the Hungarian minority in Romania shows, reality confronts us with a more nuanced picture: while the EU’s conditionality mechanism has contributed to undermining violent nationalism, claims for self-determination and territorial autonomy are still being voiced in CEE, now from within EU. This chapter has suggested that, by leveraging minorities through the conditionality mechanism in the accession period and, subsequently, by emphasizing regional policies, the EU has fueled ethnic mobilization and the radicalization of demands in some CEE countries. Thus, the legal and political framework created by the EU (a political opportunity structure) has empowered the Hungarian minority in Romania and has influenced domestic policies (e.g., the adoption of more accommodating minority rights by the Romanian government) and politics (e.g., the creation of a new, more radical Hungarian political party, the election of a radical Hungarian leader to the EP). More specifically, this analysis shows that, mostly from 1996 to 2003, the Hungarian minority was able to use the political opportunities created by the EU accession process to press for institutionalized language rights. Moreover, the kin-state, Hungary, has promoted the interests of Hungarians living abroad by “Europeanizing” Hungarian minority’s issues. In addition, the ambiguities and the dual standards of the EU’s minority rights regime, as well as the emphasis on regionalization policies have enabled the Hungarian ethnic minority in Romania to use “Europe” and “integration” as rhetorical devices or vehicles for advancing their domestic demands. It is perhaps in this “discursive capacity” that the EU, acting as a frame of reference, contributed most to discourse radicalization of the Hungarian minority. To appeal to their constituency, the leaders of the Hungarian minority—both the moderates and the radicals—have used European themes as framing devices, thereby projecting their identities and group interests within a wider, European political space. Since 2004, and particularly after Romania’s admission into EU, both the moderate and radical factions of the Hungarian minority have framed their domestic discourse in terms of EU regionalization policy and have pressed for decentralization and territorial autonomy. However, as the Hungarian minority seeks to create new territorial hierarchies (the recent UDMR’s proposal for territorial restructuring is relevant) and thus, to

218

L AV I N I A B U C S A

escape the control of the central government, the Romanian state considers these demands as illegitimate. Romanian politicians invoke the country’s legal right to sovereignty and territorial integrity and, therefore, seek to maintain the present form of the political unit. It is unclear how far the autonomist aspirations of Hungarian minority under the decentralizing influence of the EU would be regarded by the Romanian majority as electoral politics without creating conflict in the future. At the same time, the final destination of the European integration process is still a matter of contention among those who favor a federal European state and those who would prefer a more “communitarian type of polity.”76 Therefore, in an enlarged Europe of 27, it remains to be seen how successful the strategies of ethnic minorities will prove, and how EU policy making and the future shape of the Union will be affected. As discussed, many incentives exist for national minorities in the CEE to further mobilize for “third-level politics” and, thus, to become distinct actors in the European arena. Consequently, the recent empowerment of the CEE ethnic groups presents the EU with a number of challenges and poses new research questions related to integration. The majority of the new EU members from the CEE have traditionally been strongly centralized states; however some, including Romania, are now faced with sub-state actors pushing for a greater role of their “region” in Europe through both state governments and European institutions. By drawing on long-term histories and self-identifications as sub-state identities, these national minorities may show particularly strong abilities to continue to mobilize politically. Therefore, one possible avenue for future research, would be to document whether, how, and with how much success, ethnic groups from the CEE have begun to mobilize together across member state borders (e.g., Hungarians in the entire Carpathian Basin) and/or to create East-West minority coalitions (e.g., Hungarians in Carpathian Basin together with Catalans, for instance) in an attempt to influence the EU policy making.

Notes 1. Bela 2007b. 2. The chapter uses the Romanian version of party acronyms. 3. On March 14, 2008, the CNMT, which split from UDMR in 2003, became a political party (the Hungarian Civic Party or PCM). Its main political objective is to achieve the autonomy of the Szekler Land, a region in the eastern part of Transylvania consisting of three counties (Harghita, Covasna, Mures) in which ethnic Hungarians represent the majority of the population (about 70 percent).

E U R O P E A N IN T E G R AT I O N A N D E T H N I C M O B I L I Z AT I O N

219

4. Data has been collected by accessing the news section of Lexis-Nexis Academic and NewsBank and also Romanian-language sources (major newspapers and official web-sites). 5. An exception is Anagnostou and Triandafyllidou 2006. 6. Jones and Keating 1995. 7. Keating 1998. 8. Ibid., 2003. 9. For an exception see Harper and Vermeersch 2006. 10. Hooghe 1995. 11. Ibid., 1996. 12. Jeffrey 1997. 13. Keating 1998. 14. Le Gales and Lequesne 1998. 15. De Winter 2001. 16. Jolly 2007. 17. Hughes and Sasse 2003. 18. Kelly 2004. 19. Vachudova 2005. 20. Vermeersch 2006. 21. Sasse and Thielemann 2005. 22. Diez et al. 2006. 23. The concept of Europeanization has been used in the literature with a variety of meanings (see Bache 2008; Cowles et al. 2001; Radaelli 2004). For a bibliographical survey of different dimensions along which Europeanization has been applied see Featherstone and Radaelli 2003. 24. Schimmelfennig and Sedelmeier 2005. 25. Jones and Keating 1995. 26. Le Gales and Lequesne 1998. 27. Csergo and Goldgeier 2004. 28. Keating 2003. 29. Keating and McGarry 2001. 30. Lynch 1996. 31. The term has become commonplace in EU studies in recent years and is usually used to capture the peculiar qualities of the EU’s political system (i.e. the existence of several tiers of authority, the fluidity between these tiers). See Hooghe and Marks 2001; Schmitter 1996. 32. Harper and Vermeersch 2006. 33. Keating 2003. 34. Ibid. 35. Malloy 2005. 36. See The Laeken Declaration, adopted by the European Council in December 2001. 37. Malloy 2005. 38. Csergo and Goldgeier 2004, 22. 39. Jenne 2007.

220

L AV I N I A B U C S A

40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53.

Mikesell and Murphy 1991. McAdam 1982. Eisinger 1973. McAdams et al. 1996. Risse and Sikkink 1999. Jones and Keating 1995. Vermeersch 2006. Flora 2001. Ibid. Keating 2003. Ibid., 10. Ibid. Keating 2003. A clause in the 1992 Treaty on European Union allows regional ministers to represent member states in the Council of Ministers where domestic law provides for this, as in the case of some west European countries: Germany, Belgium, the United Kingdom, Austria (see Keating 2003). Keating 2003. Ibid. Bache 2008. See EU, “Agenda 2000”, Vol. 1, at: http://ec.europa.eu/enlargement. Anagnostou and Triandafyllidou 2006. Esman 1994. UDMR Party Platform 1998. Jenne 2007. UDMR 1994. Jenne 2007. Csergo 2007. Jenne 2007. Hughes and Sasse 2003. The Text of Report on CEE Recommendation No.1201 available at: http://www.venice.coe.int UDMR Reformist Bloc 2001. BBC Global News January 24, 2004. BBC July 7, 2004. BBC September 7, 2004. DIVERS, November 8, 2007. Bela 2007a. UDMR doreste, 2007. Tokes 2007. Zielonka 2007.

54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76.

CHAPTER

13

European Norms, Local Interpretations: Minority Rights Issues and Related Discourses in Lithuania after EU Expansion Dovile˙ Budryte˙ and ˙ Vilana Pilinkaite-Sotirovi cˇ

During the 1990s, national (also known as “traditional”) minorities and their rights in pre—European Union (EU), postcommunist Europe were the focus of academic research, international activism, and domestic debates. The European organizations, such as the European Union, the Conference on Security and Cooperation in Europe (CSCE), and the Council of Europe (CoE), attempted to internationalize relations between the “host” states and national minorities. They tried different approaches, including publicizing best practices, identifying the most efficient ways to manage diversity, promoting minimum standards of minority rights, and pursuing “case-specific interventions,” engineered to prevent ethnic

222

D O V I L E˙ B U D R Y T E˙ A N D V I L A N A P I L I N K A I T E˙ - S O T I R O V I Cˇ

conflict.1 However, by and large, these initiatives received a cold shoulder from the intended norm takers (the postcommunist governments and societies) because, as Kymlicka argues,2 two main conditions—human rights guarantees and “desecuritization” of minority rights, understood as the ability to detach national security from minority issues—were missing in the postcommunist contexts. In the postcommunist area there has been a clear tendency to pay lip service to supporting national minority rights. In fact, instead of promoting tolerance and diversity, minority rights policies in postcommunist Europe tend to focus on cultural activities and education, which may result in the marginalization and division of people associated with traditional minority groups. At the same time, on the governmental level, there is an increase in awareness about “nontraditional” minorities (such as sexual minorities, immigrants, the disabled). This awareness is related to several recent directives issued by the EU (specifically, the EU Council Directives 2000/43/EC and 2000/78/EC), which highlight categories such as racial identity, sexual orientation, and disability. Before expansion in 2004 and 2007, the EU used conditionality to communicate expectations about minority rights to the countries aspiring to EU membership. Although this tactic came under scrutiny3 for stimulating candidate governments to fake “geopolitical tolerance,” the EU was able to create conditions, raise demands, and set up hurdles. Currently there is a widespread perception that the likelihood of ethnic conflict in the new EU member states is very low; thus, the European organizations limit themselves to promoting dialogic relations involving active minority groups and “mother” states as well as encouraging ethnic and linguistic minorities to participate in pan-European networks. By and large, the European organizations support vague norms for tolerance and minority rights. Even soft political pressure is rarely applied. Nevertheless, even in the absence of a sustained, firm commitment to minority rights, the impact of Europeanization, understood (broadly) as spreading European norms and social practices, should not be ignored. New EU members are expected to fully incorporate the EU directives into their legal systems. The introduction of these norms can spark public discussions and draw attention to the principles behind the norms. Integration into the European space (culturally, geographically, politically) introduces new public discourses and creates social practices that are essential for a diffusion of international norms associated with minority rights. Therefore, to understand the ways in which international norms are internalized, it is crucial to analyze emerging discourses, sources of

E U R O P E A N N O R M S , L O C A L IN T E R P R E TAT I O N S

223

resistance, and social practices related to these norms instead of merely tracing the behavior of the governments in response to international pressure. Following this line of inquiry, our chapter sets out to assess the ways in which European expectations about nondiscrimination and minority rights have affected social and political practices in one postcommunist EU member—Lithuania. We are interested in domestic socialization to liberal norms related to nondiscrimination and equal treatment, as set out in the EU Council Directive 2000/43/EC of 29 June 2000, also known as “the Race Equality Directive” (“implementing the principle of equal treatment between persons irrespective of their racial or ethnic origin”), as well as the EU Council Directive 2000/78/EC of November 27, 2000, establishing a “general framework for equal treatment in employment and occupation” and referring to age, disability, religion or belief, and sexual orientation. Norms prohibiting discrimination based on gender, age, disability, ethnicity, race, religion, and sexual orientation were introduced and incorporated into legislation during the process of Lithuania’s accession to the EU (1995-2004). However, the principle of equal opportunities was not discussed in-depth during the negotiation process as Lithuanian politicians emphasized economic and social issues, separating them from gender equality and antidiscrimination questions.4 Therefore, questions about the ways European norms on nondiscrimination have been integrated into the body politic and social practices remain pertinent in current politics. One goal of this chapter is to shed light on the processes of socialization. That is, what happens after a state accepts and institutionalizes international agreements with norms intended to empower minorities? How do domestic actors interpret the meanings of the norms identified in the documents? What are the sources of resistance to these norms? Does the introduction of the European norms help to empower and mobilize different minority groups? To gain insight into these questions, we will trace how European norms (implied in the directives identified above) were integrated into the body politic and how they entered related public debates and sparked actions of nongovernmental organizations (NGOs). Our working hypothesis is that the process of transposition will result in different interpretations of the European norms at the national level—that is, domestic actors are likely to reconstruct the norms in ways that they were not intended by those who created those standards. We will start out with a survey of conditions affecting the implementation of European liberal norms meant to empower minorities.

224

D O V I L E˙ B U D R Y T E˙ A N D V I L A N A P I L I N K A I T E˙ - S O T I R O V I Cˇ

Legacies of the Past and Minority Rights In contrast to the other post-Soviet states, Lithuania is relatively ethnically homogenous. According to the 2001 census, 6.7 percent of Lithuania’s residents identified themselves as Polish, 6.3 percent as Russian, 1.2 percent as Belarusian, and 0.12 percent as Jewish. Approximately 2,571 (or 0.07 percent of respondents) identified themselves as Roma.5 Ethnic categories presented in the census correspond with the language spoken at home. As we have argued elsewhere,6 Lithuania’s national minority rights regime is rooted in the Soviet nationalities policy which, despite several attempts at russification, favored the compliant Lithuanians—the “titular” nation—and allowed for limited cultural rights of the two largest minority groups, ethnic Poles and ethnic Russians. Overall, the current minority rights policies follow this pattern. During the deliberations before EU expansion in 2004, Lithuania’s policies related to minorities were often evaluated as exemplary primarily because, unlike neighboring Latvia and Estonia, in 1989 Lithuania chose the so-called zero-option in its citizenship law, offering citizenship to all permanent residents interested in obtaining citizenship in this post-Soviet country.7 The Constitution of Lithuania adopted in 1992 guarantees cultural minority rights and prohibits discrimination based on ethnicity. It allows Lithuania’s ethnic minorities to foster their language, culture, and customs, and grants minorities the right to administer independently of the state the affairs of their ethnic culture, education, and organizations. A 1997 European Commission Opinion described the situation of minorities in Lithuania as “satisfactory” and referred to the 1991 Law on Citizenship as a “major contribution” to this, since it granted citizenship to all persons resident in Lithuania. The Opinion also noted that Lithuania’s minorities had the right to manage their cultural and educational affairs, and that almost 15 percent of school children attended state-supported schools in which all subjects were taught in minority languages. The Opinion pointed out that Lithuania’s minorities had the right to use their languages for “official communication” in the areas where they were in the majority.8 Overall, the Opinion approved the minority rights model embraced by the Lithuanian government. The monitoring reports in the following years, before the country became an EU member in 2004, maintained that Lithuania’s ethnic communities had “well-established rights.”9 Following the 1989 Law on Ethnic Minorities, the Lithuanian government allowed ethnic minorities to “develop their culture freely,” providing

E U R O P E A N N O R M S , L O C A L IN T E R P R E TAT I O N S

225

some financial support for their cultural and educational activities, including teaching the official state language in minority schools. Revisions to the Law on Ethnic Minorities were initiated twice, in 1997 and 2002. During these processes, the definition of what constitutes an ethnic minority was disputed. As of 2009, there is no agreement yet on how to proceed with the final draft of the bill. There is no political will to return to the discussion of this draft, and there are very few active ethnopolitical actors capable of exerting pressure in this direction. Meanwhile, the Department of National Minorities and Lithuanians Living Abroad (a government agency created to implement minority policies and establish a dialogue with the public) continues to focus on the cultural activities of Lithuania’s ethnic minorities. Although the Law on Ethnic Minorities has not attracted international attention, the new Law on Citizenship did. Adopted in 2002, this law allowed ethnic Lithuanians living abroad to keep their Lithuanian citizenship as well as accept the citizenship of their new country of residence. In 2005, the Council of Europe’s Commission against Racism and Intolerance recommended that the Lithuanian authorities ensure that the provisions regulating Lithuanian citizenship would not discriminate against ethnic minorities by granting dual citizenship only to ethnic Lithuanians.10 The concern of the Council was that dual citizenship was not extended to Lithuanian minorities (nonethnic Lithuanians). In 2008, the law was discussed by the Lithuanian parliament again, and in July this body of government passed a bill allowing “dual citizenship” for ethnic Lithuanians living abroad. In July 2008, President Adamkus vetoed this bill, which discriminated in favor of ethnic Lithuanians living outside of Lithuania, as unconstitutional. There was a heated public reaction accusing the government of “weakening” the ethnic Lithuanian nation and “giving in” to the international pressure. On July 18, 2008, defending his decision to veto the revised bill on citizenship, President Adamkus made a reference to the “principle of equal rights,” which is consistent with European nondiscrimination norms.11 President Adamkus’s position illustrates two trends that have shaped Lithuania’s minority rights and nondiscrimination discourse since the early 1990s. On the one hand, the Lithuanian government followed EU requirements in the field of equal opportunities and created minority— friendly laws and programs (such as incorporating EU antidiscrimination directives into its legal system). On the other hand, there have been constant attempts to pass laws and adopt policies to strengthen Lithuania’s “ethnic core” (associated with “traditional” family values), which is perceived as endangered, primarily due to memories about Soviet

226

D O V I L E˙ B U D R Y T E˙ A N D V I L A N A P I L I N K A I T E˙ - S O T I R O V I Cˇ

nationalities policies and emigration to the West before 2008. However, attempts to pursue this “dual track” did not help to address issues related to ethnic and cultural intolerance and establish robust social practices supporting nondiscrimination.

The Changing Face of Intolerance? Funding by international actors aimed at empowering NGOs supporting minority rights as well as raising awareness about issues related to intolerance could be seen as mechanisms promoting Europeanization. Do these initiatives affect social norms? Social scientists have noticed that society started to view tolerance and nondiscrimination of minorities as “positive” ideals; however, the profound value structure has not been affected by these new social norms related to Europeanization.12 This is particularly evident in the society’s attitudes about sexual minorities and Roma. For example, a public survey, conducted in 2006, demonstrated that 70 percent of the respondents would “never” approve of any discrimination related to sexual orientation. But 61 percent acknowledged that they would “never” want to belong to any organization that includes homosexuals as its members, and 56 percent of people admitted that they do not want to live in the same neighborhood as homosexuals.13 Another public survey, which assessed discrimination in the labor market, showed that almost 90 percent of Lithuania’s employers described themselves as “tolerant.” This suggests that they do not support discrimination against minorities. However, the majority of respondents confessed that they would not agree to employ Roma, ex-convicts, addicts, or individuals with mental health disabilities. Forty percent said that they were afraid that other workers would express dissatisfaction with their decision to employ minorities, and 74 percent expressed doubts about the abilities of people belonging to these groups to perform well in workplace.14 The powerful stereotype linking the Roma to criminal behavior is still prevalent. Recent public opinion surveys suggest that the percentage of residents of Lithuania with anti-Roma attitudes increased from 59 percent in 1990 to 69 percent in 2008, but dropped down to 49 percent at the end of the year 2008. Negative attitudes toward Chechens and other refugees decreased from 55 percent in 2005 to 31 percent in 2008. In the same manner, anti-Muslim attitudes initially increased from 34 percent in 1990 to 45 percent in 2008 and dropped to 31 percent at the end of 2008. However, the hierarchy of the most unpopular groups remains unchanged—Roma, Muslims, and homosexuals are likely to experience social exclusion, although society is less likely to reveal its prejudices in

E U R O P E A N N O R M S , L O C A L IN T E R P R E TAT I O N S

227

public opinion surveys.15 In sum, it appears that the Lithuanian public is learning some kind of a “political correctness” discourse without changing its core beliefs, retaining antagonism toward certain minority groups. Consequently, social exclusion of certain minority groups and securitization of minority rights remain intact. As argued in the introduction, “desecuritization” of minority rights implies the ability to detach perceptions about national security and national well-being (including the preservation of traditional values) from minority rights. However, several recent developments suggest that the presence of and especially political activism of “nontraditional” minority groups are still likely to be seen as a threat to traditional values. For example, in 2007, touted as the European Year of Equal Opportunities, the City Council in Vilnius banned the entry of the promotional bus of the EU’s campaign For Diversity against Discrimination. Moreover, citing “security reasons,” the City Council voted unanimously to deny permission for a request to fly a gay flag for the first time in Vilnius’ city center. Responding to this decision, the European Commission proclaimed that “the decision by the city authorities shows how much still needs to be done to change behavior and attitudes towards discriminated groups and to promote awareness of diversity.”16 Similarly, the Roma are seen as a group that will never be able to assimilate into the Lithuanian nation and continue to be a security threat (related to drug trafficking). In 2004, to fight this “security threat,” the municipal government of Vilnius ordered the destruction of numerous “illegally” built houses inhabited by Roma residents in a settlement close to Vilnius. Although this action was condemned by the European Commission against Racism and Intolerance, it received wide public support. To address the international pressure, the municipal government of Vilnius created a program to foster “the development of Roma community.” On paper, the main goal of this program was to reduce the segregation of Roma.17 However, this program did not create additional employment opportunities for the Roma nor did it outline ways to reduce social segregation.18 Numerous studies have tried to hypothesize about the ways in which marginalized groups, such as the Roma or homosexuals, could integrate (or at least gain recognition) into “mainstream” Lithuanian society.19 Public discussion and socialization to liberal international norms could open new spaces for tolerance of marginalized groups. The following section analyzes the process surrounding the attempts of the national government to address international concerns and incorporate European norms related to nondiscrimination into domestic social and political structures. Arguably, the Law on Equal Opportunities is one of the

228

D O V I L E˙ B U D R Y T E˙ A N D V I L A N A P I L I N K A I T E˙ - S O T I R O V I Cˇ

most important pieces of legislation attempting to change a social structure supporting traditional values and discrimination against minority groups.

The European Directives and Local Responses Responding to the directives 2000/43 and 2000/78, in 2003 the Lithuanian government passed the Law on Equal Opportunities (Lygiu˛ galimybiu˛ ˛istatymas), which came into force in 2005. The Law mandated that government institutions, educational establishments, and employers had to observe equal rights. Among other things, the law defined what was to be considered a violation of equal rights by employers, educational establishments, and businesses.20 Most provisions of the directives were incorporated into Lithuania’s legal system when this law was adopted in 2003, except the provisions on burden of proof, NGOs’ authorization to defend the public interest in court proceedings, and mechanisms to compensate for discrimination. In December 2006, the European Commission attempted to exert soft political pressure on the Lithuanian government to fully incorporate the provisions of the directives into its political and legal systems. In September 2007, this prompted public and parliamentary debates of the Law on Equal Opportunities. During that month, Lithuanian parliamentarians discussed the proposed amendments to the law and then voted to postpone the vote on the revised law, because the language employed in the European directives made references to sexual orientation. During the discussion of the amendments, the government, dominated by the Social Democrats, advocated for the nondiscrimination principle identified in the EU directives and supported by other international actors, such as the UN (Parliament of Lithuania 2007). However, these propositions were met with resistance from parliamentarians who claimed that they wanted to protect “traditional Lithuanian family values.” Thus, they could not tolerate the inclusion of “sexual orientation,” a concept they argued is “alien” to the “traditional” Lithuanian society. For example, MP Rytas Kupˇcinskas of the right-wing party T˙evyn˙es Sajunga (Lithuanian for Homeland Union), argued that “Lithuania is a Catholic country, where traditional family values are respected.” MP Egidijus Klumbys of populist party “Už tvarka˛ ir teisinguma” ˛ (Lithuanian for For Order and Justice) argued that including the term “sexual orientation” in the text of the revised law would be unconstitutional because the Lithuanian Constitution provides protection against discrimination only on the basis of gender.21

E U R O P E A N N O R M S , L O C A L IN T E R P R E TAT I O N S

229

Resistance to the term “sexual orientation” is nothing new in Lithuanian politics. Since accession to the EU in 2004, many Lithuanian politicians have felt that they have to criticize “wrong sexual orientations” on a regular basis. On December 3, 2005, Respublika, a popular daily newspaper, published the viewpoints of all parliamentarians regarding homosexuality. Eighty-nine (out of 141) parliamentarians across the political spectrum expressed their “support for the position of the Catholic Church regarding homosexuality” and argued that it was “against human nature” as well as “family values” to support sexual minorities. Only 14 parliamentarians expressed their support for sexual minorities. Sixteen remained “neutral.”22 To protect what they consider family values, some politicians went as far as to question the decisions of the Ombudsperson for Equal Opportunities, a position that was created in 1999 to protect equal rights. In April 2006, a parliamentarian Commission on Family and Child Affairs warned the Ombudsperson for Equal Opportunities against interfering in the conflict over the exhibition Life Together: Modern Traditional/Nontraditional Families. This exhibition included photographs of homosexual couples taken by students from the Institute of Art. A curator in a small town decided to ban these photographs from being exhibited in public, arguing that she was “protecting family values.” Citing the Law on Equal Opportunities, the Ombudsperson issued a warning to the curator. The chair of the parliamentary commission challenged the Ombudsperson, saying that she was not satisfied with the way in which the principle of nondiscrimination was interpreted in this case. According to the parliamentarian, when dealing with culturally sensitive issues such as homosexuality, the Lithuanian government should always place “traditional values” above the rights of “nontraditional” minorities.23 Preoccupied with “traditional” family values, policy makers excluded other categories, such as disability (included in EU directives), from relevant debates. In the end, in June 2008, amendments to the Law on Equal Opportunities were adopted by importing the traditional categories of gender, race, nationality, language, origin, social status, and belief from the Constitution of 1992 into the text of the revised law. The first article excluded the “European” categories—sexual orientation and disability. However, they were included in the other articles of the revised law, which defined discrimination, equal opportunities, direct and indirect discrimination, and sexual harassment. Taking the European Commission criticism into account, the revised law integrated the provision of the EU Directive demanding that “the burden of proof must shift back to the respondent when evidence of such discrimination is brought.” However, the government diluted the bill by adopting an amendment at the urging

230

D O V I L E˙ B U D R Y T E˙ A N D V I L A N A P I L I N K A I T E˙ - S O T I R O V I Cˇ

of the Catholic church. The amended Article 3 exempted Lithuania’s religious organizations from complying with the provisions outlined in the bill, arguing that such organizations embraced a certain “ethos” (a set of ethical values) that warranted a different treatment of believers, especially in matters such as education and employment.24 The proposed draft prompted protest from ten nongovernmental human rights organizations, including the Association of Tolerant Youth, the Center for Equality Advancement, the Association “Liberal Movement,” and Lithuania’s Liberal Youth. In July 2007, these organizations wrote a petition to the president of Lithuania, the parliament, and the Constitutional Court, arguing against the proposed draft. The petition argued that Directive 2000/78/EC (Articles 23-26), which allows for special national provisions regarding the status of churches and religious associations, could not be applied verbatim in the case of Lithuania. Since there was no appropriate legislation regulating the establishment of religions institutions and their membership in Lithuania, anyone could claim “membership” in a religious organization.25 There was no response to this petition from the state authorities. Although after numerous acrimonious debates, the Law on Equal Opportunities was amended in 2008, a lot of work remains to be done to develop effective mechanisms to stop public displays of racism and intolerance. There are numerous legal acts against fomenting discord on racial, religious, or similar grounds; however, their implementation is a problem. Most crimes that can be described as “racist” in everyday situations are not treated as such in the legal system. For example, if a perpetrator uses racial slurs while beating his/her victim, the Lithuanian police is unlikely to record this incident as an attack related to racial hatred; instead, such incidents will be classified as “hooliganism”.26 Until 2009, the government failed to amend the article of Penal Code that established racism as an aggravating circumstance, even though this was the government’s commitment under the National Antidiscrimination Program 2006–8. There is little if any education about human rights and tolerance in public schools; educational programs tend to focus on patriotism. There is a lack of political will to acknowledge prejudice as a serious social problem and address it immediately. Concluding Thoughts Despite relatively high levels of intolerance and discrimination in Lithuania after EU expansion in 2004, there is no outspoken, politically active social movement uniting minorities. Most political actions

E U R O P E A N N O R M S , L O C A L IN T E R P R E TAT I O N S

231

against discrimination are pursued by civil society organizations which do not describe themselves as “minority rights” groups and do not have wide membership or broad public support. The Lithuanian Centre for Human Rights, the Human Rights Monitoring Institute, and the Center for Equality Advancement are examples of the most visible and vocal NGOs supporting European antidiscrimination norms and monitoring the actions of the government. By and large, they tend to employ the human rights (not minority rights) discourse and quote EU directives related to nondiscrimination to support their case. They tend to be treated as “experts” on issues related to nondiscrimination, not agents of social change. Quite often, the national government asks the members of these organizations for their opinions on draft policies and bills. However, this does not mean that the norms supported by these NGOs are likely to be integrated into the final drafts of the bills and implementation of policies. It is unrealistic to expect that strong movements for minority rights and/or related issues will emerge any time soon. It is also unrealistic to expect more outside intervention because internationally Lithuania has the reputation of a stable, consolidated democracy. However, locally there are multiple sources of resistance to international influences at different government levels. In addition, there are strong cultural barriers, as demonstrated by the section of this article describing discussions related to the Law on Equal Opportunities. Paradoxically, after Lithuania’s entry into the EU, there was a backlash against equality policies and nondiscrimination norms. By and large, this reaction came from socially conservative politicians across the political spectrum who claimed to support traditional national values and used different strategies, such as questioning the meaning of “sexual orientation” and scrutinizing the decisions of the Ombudsperson for Equal Opportunities. Their instinct to protect “traditional values” was stronger than the inspiration to “Europeanize” by incorporating norms of tolerance and nondiscrimination. Our case study supports Kymlicka’s insight that two important conditions—human rights guarantees and “desecuritization” of minority rights—are missing in the postcommunist contexts. The case of Lithuania suggests that “securitization” of newly visible minorities’ rights, such as gays and lesbians, is taking place. Categories such as “sexual orientation” are interpreted as a “threat” to traditional values. Our analysis highlights the importance of cultural variables, such as the politicization of “traditional national values,” which influence the processes of integration of the standards spelled out in European directives meant to promote nondiscrimination. It appears that nascent civil society organizations,

232

D O V I L E˙ B U D R Y T E˙ A N D V I L A N A P I L I N K A I T E˙ - S O T I R O V I Cˇ

using “human rights” and “liberal values” discourses are the most likely to oppose the securitization of minority rights, although their influence is very limited. In addition, our case study suggests that international interventions, such as soft political pressure to integrate the prescriptions of EU Council Directives 2000/43/EC and 2000/78/EC are likely to attract the attention of politicians and the public at large to issues related to nondiscrimination. This is true even in light of the fact that these interventions do not include the threat of punitive actions. However, international interventions are unlikely to prevent noncompliant local actors from finding different ways to minimize the impact of the norms promoted by the documents. The tension between the “traditionalist” narratives and discourses supporting the concepts associated with the European nondiscrimination and equal opportunity norms is unlikely to disappear any time soon. Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

Kymlicka 2007, 174. Ibid., 187. e.g., see Deets 2002; Tesser 2003. Reingardien˙e 2004. Department of Statistics 2001. Budryte and Pilinkaite-Sotirovic 2009. The Citizenship law was revised in 1991, after Lithuania declared itself independent from the USSR, and later in 1993 and 1996. A new Law on Citizenship was passed in 2002. European Commission 1997 Commission of the European Communities 2000; 2001; 2002; 2003. ECRI 2006, 8. Lietuvos radijas 2008. Reingard˙e and Zdaneviˇcius 2006. Reingard˙e and Zdaneviˇcius 2006; Digryt˙e 2008. BNS 2008. Darbo ir Socialiniu˛ tyrimu˛ institutas, Etniniu˛ tyrimu˛ institutas, 2008. Amnesty International 2008. Vilnius Municipality 2005. Leonˇcikas 2007. e.g., Leonˇcikas 2007, Zdaneviˇcius 2007. Parliament of Lithuania 2003. Parliament of Lithuania 2007. Razmait˙e 2005. A 2006 session of the Commission of the Family and Child Affairs investigated the complaints of the Catholic Bishopric Conference and the decision

E U R O P E A N N O R M S , L O C A L IN T E R P R E TAT I O N S

233

of the Ombudsperson of equal opportunities to punish the director of the exhibition hall who cancelled the exhibition on tradition/nontraditional relationships. See http://www3.lrs.lt/pls/inter/w5_show?p_r=5126&p_d= 53899&p_k=1 24. Parliament of Lithuania, June 17, 2008. See http://www3.lrs.lt/pls/inter3/ dokpaieska.showdoc_l?p_id=324132. 25. Visuomenin˙es organizacijos ir jud˙ejimai 2007. 26. Saukien˙e 2008.

This page intentionally left blank

Part

5

Conclusion

This page intentionally left blank

CHAPTER

14

Theorizing Diversity in the European Union Markus Thiel and Elisabeth Prügl

Classical European integration theories provide us with limited knowledge about the interaction of diverse minority groups with and within the European Union (EU), as they tend to be teleologically wedded to the furthering of unity by way of integration. In contrast, as pointed out in our introduction, research programs exploring multilevel politics, identity, and citizenship can provide insight into understanding diversity in the EU. In this conclusion, we discuss the findings of our contributors in light of these research agendas and point to some areas worthy of further analysis. The approaches taken by our contributors are strongly influenced by sociological and constructivist ideas. Those who take a legal approach to exploring the influence of EU legislation on the valuing of diversity (Swiebel, Toggenburg, Elman, Vasiljevic) emphasize the relevance of European norms, assess their value, and judge them in their application. The topic of diversity in the EU pushes them to consider the ways in which EU policies and directives convey rights on those subject to discrimination. Their considerations lead them to the complications of intersectionality, that is, of the fact that different axes of identity often intersect to form unique constellations of experience. Like all lived experiences, intersectional identities are unstable, produced in everyday lives and through state and EU policies. In this way, intersectionality is a

238

MARKUS THIEL AND ELISABETH PRÜGL

profoundly social phenomenon and a challenge for legal approaches that operate on the basis of generalized principles. Those of our contributors who focus on multilevel politics and minority activism similarly employ constructivist ideas. Martin Schain emphasizes the central relevance of national models to explaining different approaches to migrant integration, Connor O’Dwyer and Katrina Schwartz argue that national culture helps explain homophobia, Dovile Budryte and Vilana Pilinkaite-Sotirovic similarly point to a political culture of intolerance as the source for homophobia and discrimination against Roma. Other authors draw on social movement theory, focusing on political opportunities that have enabled the passage of the Race Directive (Uçarer) and encouraged ethnic mobilization (Bucsa). Indeed, Bucsa argues that understanding the way in which the EU has made possible ethnic mobilization in Romania requires a discursive analysis of language deployed in Romanian minority politics. Social constructivism is particularly well suited to emphasizing the significance of diverse political actors, each with their own interests, ideas, and identity, and in connection with European integration, the norm development that occurs as these actors use political opportunity windows to create nontraditional policy solutions and norms for many of the challenges of the European integration process. Jeffrey Checkel distinguishes between conventional constructivists and radical, critical ones, the latter emphasizing power and discourse.1 Because it is self-reflexive and often takes a considered standpoint, critical constructivism can provide unique insight into the marginalization of minorities. Indeed, some of our contributors provide such a critical perspective and develop prescriptions from their critique. Most explicitly, Colin Williams not only traces the discursive shift toward a stronger regard for minority languages but, based on the situated perspective of Catalan health care, develops prescriptions for a European language policy. Similarly, Helen Schwenken probes the political effects of various EU equality instruments from the perspective of minority women, identifying problems and strengths and pointing to the importance of political organization. And finally, Murat Somer and Gönül Tol provide an engaged analysis of the relationship of Turkey and Turks with the EU and its member states, suggesting that Turkish EU membership would prove beneficial for democracy in both the EU and Turkey by providing a pluralist platform for Muslims that avoids essentializing Islam. The interpretive approaches employed by our authors thus lead them to prescribe better policies and strategies. As a social sciences approach, constructivism remains too unspecific to become a substantive European integration theory, but it provides a

THEORIZING DIVERSITY IN THE EUROPEAN UNION

239

fruitful ontology for the development of new theorizations of European integration sensitive to issues of diversity. In reflecting on the findings of our authors through the lenses of multilevel politics and activism, identity and citizenship studies, we draw the initial contours of what such theorizations could look like. Multilevel Politics and Activism This perspective argues that the EU, in its multinational outlook and multilevel governance structure, enables civic groups, epistemic communities, and other civil society actors to lobby on behalf of their causes, while European rules in turn influence local politics and activism. Two sets of questions emerge from the chapters in this book when looked at through the lens of this approach. The first set of questions pertains to activism targeting policy making at the European level. The second set focuses on the way in which European rules are received domestically, the processes typically described by the label “Europeanization.” The salience of activism in policy making at the EU level is particularly visible in the chapters on language politics, migrant and gender politics. Colin Williams shows that networks on the ground, such as the European Bureau for Lesser Used Languages or the Network to Promote Linguistic Diversity, lobby on behalf of regions, using the EU’s legal provisions for the recognition of regional languages. Similarly, Emek Uçarer stresses the role of nongovernmental advocacy groups in the development of migrant policy at the EU level. Despite the limited input of migrant rights organizations in the law-drafting process, they constitute an increasingly vocal nexus between the EU institutions and migrants. Helen Schwenken, in her chapter on women migrants, agrees and complicates the matter. She argues that migrants are represented through multiple venues, from selforganization and inclusion in other organizations to electoral politics and administrative advisory bodies. This multiple representation combined with the fact that advocacy organizations rarely collaborate along intersections of discrimination makes it difficult to judge whether the EU has been responsive to the demands of migrant women. All three cases show that activist organizations have limited power in influencing or directing EU integration. The cases also illustrate the degree to which the Commission itself has enabled networks and how close these are to European and state institutions—particularly in the case of language and gender politics. This raises important conceptual questions. First, it calls for a differentiation of institutionalized civil society actors: not all may have the same degree of influence on EU policies. Second, it calls for an investigation of issues of legitimacy.

240

MARKUS THIEL AND ELISABETH PRÜGL

How do transnational interest group associations and peak civil society organizations add legitimacy to the integration process—if at all, if one considers the powerful role of business lobbyists and public interest organizations? How does the closeness of activists to institutions affect their legitimacy? In a related manner, what indeed is the link between national organizations and their transnational interest representations in Brussels? Is their activism a Brussels-initiated reactive response (as perhaps in the case of cultural minorities), or do these nongovernmental organizations build transnational coalitions based on the neofunctional insight that there exists a new power center that may better address existing issues, thus creating an interactive relationship with EU institutions (as perhaps in the case of gender; lesbian, gay, bisexual, and transgender [LGBT]; and minority rights activism)? A number of our cases deal with the domestic impact of European rules. They find significant differences in such repercussions ranging from the encouragement of cultural minorities to backlash against gays and lesbians to little impact at all. Lavinia Bucsa argues that for the Hungarian minority in Romania, the EU’s legal and political framework, particularly its border-crossing Euro-region program, constituted an opportunity structure that allowed it to formulate political demands for territorial autonomy at home and abroad. In contrast, Dovile Budryte and Vilana Pilinkaite-Sotirovic’s study of Lithuania did not find a similar sort of empowerment effect for minorities there. Precisely because the EU pushes for civil rights and upon accession attests the member states a sufficient level of these, there has been a normative backlash directed against minorities perceived as threatening Lithuanian identity. Conor O’Dwyer and Katrina Schwartz find similar limits to EU norm diffusion in the cases of Poland and Latvia but doubt that backlash alone provides the explanation. Like Budryte and Pilinkaite-Sotirovic, they find domestic discourses to be relevant to understanding antigay agitation. In addition, they suggest that different degrees of party institutionalization explain why some polities are more susceptible to extremist gay bashing than others. Martin Schain similarly cautions against overemphasizing the degree of EU influence on domestic policies toward migrants. Instead, he argues that national policy models guide the way in which member states have responded to migrants, color-blind policies of nondiscrimination in the French case and multiculturalism in the United Kingdom. The different findings in our cases suggest the need to more systematically address the question of when EU norms of nondiscrimination and equal rights matter and why they produce different results in different circumstances. This involves more clearly delineating the relationship of activists to European and national institutions—including parties—in

THEORIZING DIVERSITY IN THE EUROPEAN UNION

241

order to explain their impact on the outcomes of institutional choices as expressed in policy legacies, legislative outputs, and discourses. It is fair to say that most of the societal actors examined here work in response to regulations and declarations initiated by the EU, or are at times, as Della Porta reminds us, sustained by “the galvanizing potential of a shared antagonist”2 as some of the EU-directed criticism depicted by Budryte and Pilinkaite-Sotirovic or O’Dwyer and Schwartz have shown. Finding out to what extent reactive protest and a projected enemy contribute to the emergent activism of nongovernmental actors as opposed to the activist participation based on civic understandings of European solidarity and input legitimacy remains a challenge for future research. Identities and Difference The recognition of diversity intersects with questions of European identity construction and adds a new dimension to debates over what it means to be European. Joke Swiebel emphasizes that identity politics in the EU, as expressed in the language of valuing diversity, initially pertained to national diversity only. It was extended to encompass subnational diversity and regional minorities in successive enlargement waves. Furthermore, the nationalist and culturalist framings of diversity were profoundly challenged in the extension of individual rights to populations typically considered “different” and sometimes threatening in nationalist discourse, including Roma, LGBT people, and migrants. To the extent that the EU has positioned itself as a champion of the rights of these “others,” European identity becomes associated with a valuing of a different kind of diversity, and European integration has been portrayed as a challenge to homogeneous national and subnational identities. Several of our chapters illustrate the clashes that the recognition of difference has produced for national identifications. Illustrating the conflict between subnational group rights and national constructions of identity, Bucsa argues that the empowerment of the Hungarian minority entailed a challenge to the understanding of Romania as a unitary nation as codified ˘ extend this argument in its constitution. Budryt˙e and Pilinkait˙e-SotiroviC to individual rights in addition. Although Lithuania enacted minority legislation, as required by the EU, the relationship between the ethnic majority and the Russian, Polish, and Roma minorities remained problematic, and sexual minorities became an additional target of contention. While not using the language of identity politics, the case can be read as a struggle over Lithuanian identity in a context of integration that required the

242

MARKUS THIEL AND ELISABETH PRÜGL

adoption of European norms. Schain’s exploration of migrant integration policies in France and the United Kingdom documents the tension between European norms of protecting migrants’ rights and national aspirations in a different way. Schain shows that the two countries have developed different national models, arguably reflecting their distinct national identities. The difficulty that the EU has had in developing a common migration and integration policy, as described by Uçarer, is no doubt a reflection of anxieties over the preservation of uniform national identities. Several of our chapters seek to break through the solidification of identities that is apparent in the way the conflicts between various groups are constructed and in political approaches to minorities in general. They introduce the notion of intersectionality, which disturbs essentialist formulations of identity and clean boundaries between categories of minorities. They also point out that the resulting destabilization of identity provides a challenge to legal and policy interventions. Helen Schwenken’s discussion of migrant women shows how easily this population is marginalized both in feminist and migrant contexts. Although it encounters problems in practice, Schwenken finds the strategy of gender mainstreaming most suitable to addressing complex inequalities. Legal approaches and diversity management have more difficulty with the issue. The two chapters by Snjezana Vasiljevic and Amy Elman support Schwenken’s contention. Vasiljevic finds considerable conceptual difficulties and an expectations-capabilities gap in legal cases dealing with multiple discrimination, which becomes particularly pronounced in her account of Croatia. Typically, courts think of such discrimination in an additive fashion and ignore the detrimental interaction between axes of discrimination, which leads to profoundly unjust outcomes. The practice of using a comparator only aggravates the issue in Amy Elman’s case study. Deploying gay men rather than unmarried heterosexual partners as a comparator in a discrimination case brought by a lesbian woman in the United Kingdom failed to yield her justice. But the question of comparators becomes increasingly difficult the more courts abandon additive reasoning and take seriously intersectionality, as Vasiljevic and Elman argue. As identities emerge as multiple and unstable, abstract principles are more difficult to apply. The inclusion of diversity into the project of constructing a European identity that values difference thus encounters practical problems and fierce political contestation, especially when such diversity is extended to populations traditionally excluded or marginalized in nationalist projects, that is, when a valuing of diversity encompasses a valuing of difference.

THEORIZING DIVERSITY IN THE EUROPEAN UNION

243

One question arising from an exploration of European identity focuses on the connection between transnational identity formation and institutional change in European governance. Such an exploration encounters operational problems concerning how to best track interrelated changes in European identity, EU policy making, and public discourses. They also encounter epistemological issues related to the causal relationship between identity and policy changes. These are compounded by the question whether a European identity consisting of unique, specifiable values and attitudes can coexist with an increasingly pluralistic concept of EU integration. As some of our contributors show, European identity is a moving target and possibly has become more so under conditions of increased pluralism, differentiation to the outside, and the coexistence of nationalized European identity-lenses according to which each country perceives of European identity in a slightly different manner. A second implication in considering diversity through the lens of identity arises from the shift of the scholarly focus to popular imaginations and political discourses that bring into view the social correlate of political integration. This focus invites interdisciplinary investigations that are currently underdeveloped in the study of the EU. The location of such research may be Brussels or national capitals, but also situated events and local contexts that can illustrate contestations over Europeanness in the encounter of EU norms of equality and nondiscrimination with efforts of identification and boundary construction. It investigates European society as a site of integration and sketches out new constructions of reality in social spaces that spill beyond national and nationalist boundaries. Such situated inquiry could provide insight into the way in which individuals and communities negotiate intersecting identities (as European, national, or regional; as LGBTs, Muslims, or cultural minorities in the EU and/or nationally; as migrants or Muslims in the EU and/or nationally). It could show how people labeled differently find ways to coexist in concrete circumstances and problematize essentialist constructions of their difference. It could bring into broader view the issue of intersectionality—not only as a problem for legal and policy intervention but as a challenge and enrichment of everyday life in Europe. Citizenship Contestations over identity are closely linked to debates over European citizenship. A postulated increase in identification with the process and values of European integration, termed European civic identity, has been

244

MARKUS THIEL AND ELISABETH PRÜGL

at the heart of recent debates over a constitutionalization of the EU that includes respect for human rights, the development of solidarity among citizens, and the formation of a common identity.3 Recognitions of difference and diversity provide tests as to the inclusiveness of such formulations and ultimately about the type of democracy the EU is able to construct alongside national governments. Our authors acknowledge that EU equality and antidiscrimination legislation has helped to secure rights for a broader range of populations in the member states. At the same time, they find flaws in this legislation and argue that it often does not go far enough. The issue is particularly salient in the case of third-country migrants. Uçarer shows that the Race Directive is a strong instrument for ensuring the rights of third-country nationals (TCNs). However, subsequent efforts to improve the status of long-term residents and regulate family unification practices are long on restrictions and exclusions. Somewhat less pessimistically and looking at intersections of discrimination, Schwenken finds a “European equality patchwork” that activists have employed creatively to improve the situation of migrant women. Yet, she also recognizes that large groups of TCNs lack the rights provided through EU citizenship. National security and identity considerations still outweigh the need for a uniform approach to the issue of (im)migration. European citizenship implies both legal guarantees and socially conducive provisions of belonging and norms of recognition that could address some of the tensions in an increasingly diverse polity. The broad adoption of such norms domestically is highly contested, as many of our chapters illustrate. Gabriel Toggenburg shows how the European Court of Justice’s reluctance to interfere with member states’ prerogative to regulate matters pertaining to civil status and family law has prevented it from issuing forceful judgments ensuring nondiscrimination against gays and lesbians, as codified in the EU’s Framework Directive. Vasiljevi´c describes a gap in implementation in Croatia, which may be reduced as the country continues to prepare for membership. The literal transposition of laws may be less problematic in current member states, but existing legal practices clash with EU norms here as well. Moreover, there often are discrepancies between laws and social norms prevalent in society. Budryte and Pilinkaite-Sotirovic as well as O’Dwyer and Schwartz show a continuing disparity between civil rights legislated during the process of membership negotiations and actual civic attitudes in Lithuania, Latvia, and Poland. Finally, European citizenship entails empowerment, the ability to participate on equal terms politically, socially, and economically. Clearly, in Bucsa’s case study, the Hungarian minority in Romania has been

THEORIZING DIVERSITY IN THE EUROPEAN UNION

245

empowered through European citizenship norms that value cultural and regional diversity. The same is true for Catalans and other linguistic minorities as described by Colin Williams. The case of Catalonia— which has secured possibly the most extensive set of rights of any European region—provides an interesting laboratory for exploring the practical aspects of integration with diversity, the formation of a democracy that makes possible the participation of all. Williams’s starting point is a practical context, that is, the health care system. Rather than seeing immigrants, who tend to be much more likely to speak Spanish than Catalan, as a threat to the preservation of the local language, authorities have adopted mechanisms—such as cultural mediators—that enable an accommodation of minority cultural rights with the rights of immigrants. Williams also considers the preservation of regional minority languages and immigrant minority languages as related matters. The multicultural constitution of the Union provides, in his view, for a transformation of the perception of linguistic rights as integrated in mainstreaming and “holistic” policy planning across Europe, rather than a parochial invocation of national and subnational rights. According to Murat Somer and Gönül Tol, democracy also is at the heart of debates over the integration of Turkish migrants in Europe and Turkish membership in the EU. Their discussion brings into view a new axis of diversity, that is, religion, and challenges us to develop approaches that do not a priori define religion (Islam in particular) as a threat to democracy. Indeed, a stronger appreciation of Turkish secular democracy and its handling of Muslim pluralism could prove instructive for European citizenship based on a pluralistic understanding of democracy. Vice versa, admitting Turkey into the EU would help it uphold its identity as a secular democracy. Somer and Tol remind us that empowering Muslims, including fundamentalists, to participate in democratic processes is likely to yield superior outcomes than their exclusion from institutional mechanisms of political participation. European citizenship has been constructed as a source of rights for the protection of minorities. Looking at diversity in the EU through the lens of citizenship raises questions about inclusion and exclusion. Debates over minority rights thus amount to debates over the boundaries of European citizenship—over who can claim its benefits and who will be allowed to participate in European democracy. The rights of migrants and Muslims, sexual minorities, and cultural minorities in the EU differ, and their claims are considered legitimate to different degrees. Looking at European practices through the lens of citizenship, researchers are able to explore flaws in current legal practice and

246

MARKUS THIEL AND ELISABETH PRÜGL

contribute to constructing a more robust European citizenship regime. By implication, such scholarship may entail a normative component. Indeed, the ongoing construction of European citizenship and democracy calls for empirically grounded, practical knowledge that can guide the project.

Toward a Scholarship Recognizing Diversity in the EU Questions related to equality and the backing of an increasingly diverse European integration project have become more important in public discourse and supplied feedback to decision makers in Europe. However, even significant synopses of the current state of integration submit that theories dealing with norms, equality, and identity have received fairly little attention in integration theory.4 Such an undertaking should not be considered minor, but actually could provide a blueprint for the accommodation of diverse populations while offering new interpretations of integration beyond economic and statist-institutionalist or economic models. Our comparative synopsis of the experiences of diverse groups at the national and supranational level makes a beginning in outlining the issues that emerge from a consideration of diversity in the European integration project. We have highlighted a few avenues for future scholarship recognizing diversity in the EU that can contribute to developing new theorizations of European integration. They encompass problem-solving research interests about the domestic effects of European norms—when do they matter and how; when do they attract activism and when backlash. They also include practical research interests geared toward producing knowledge that offers understandings beyond “othering” and envisions inclusive forms of citizenship. Such research needs to employ a range of methodologies and, we argue, would be well advised to draw from the richness of various sociological and constructivist approaches. The EU’s emphasis on an inherent value of diversity, coupled with transnational solidarity and respect for minorities and human rights, represents a fairly high ethical benchmark. Assimilationist models may have worked at one time on a national level, but the nationally, culturally, ethnically, and socially diverse constitution of the EU precludes such a model. Images of unitary national communities may have informed the European state system at the Union’s founding, but are proving increasingly elusive. In this context, scholars are called upon to produce better

THEORIZING DIVERSITY IN THE EUROPEAN UNION

247

knowledge about the way the EU lives with diversity—about the interaction of the EU’s diversity politics with the politics of minority groups, about constructions of European and other collective identities in multiple contexts, and about the meaning of citizenship in a diverse European polity. Notes 1. 2. 3. 4.

Checkel 2006. Della Porta 2007, 212. Rittberger and Schimmelfennig 2005. Wiener and Diez 2005, 237.

This page intentionally left blank

Bibliography Chapter 1 Works Cited Balibar, Etienne. 2003. We, the People of Europe? Reflections on Transnational Citizenship. Princeton: Princeton University Press. Bugdahn, Sonja. 2008. Travelling to Brussels via Aarhus: Can transnational NGO networks impact on EU policy? Journal of European Public Policy 15 (4) (June): 588–606. Charter of Fundamental Rights of the European Union (2007/C 303/01). Official Journal of the European Union C 303/1 (14.12.2007). http:// eur-ex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0001:0016: EN:PDF. Checkel, Jeffrey and Katzenstein, Peter, eds. 2009. European Identity. New York: Cambridge University Press. Council Directive 2000/43/EC of 29 June 2000. Implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Official Journal of the European Union L 180/22, 19.7.2000. http://ec.europa. eu/employment_social/fundamental_rights/pdf/legisln/2000_43_en.pdf. Delanty, Gerard. 1995. Inventing Europe: Idea, Identity, Reality. New York: St. Martin’s Press. ——. 2000. Citizenship in a Global Age: Society, Culture, Politics. New York: McGrawHill. Della Porta, Donatella. 2007. The Europeanization of protest: A typology and empirical evidence. In Debating the Democratic Legitimacy of the European Union, ed. Beate Kohler-Koch and Berthold Rittberger, 189–208. New York: Routledge. European Commission. 2000. Regular Report from the Commission on Lithuania’s Progress towards Accession. Online http://ec.europa.eu/enlargement/ archives/pdf/key_documents/2000/lt_en.pdf ——. 2001. Regular Report from the Commission on Lithuania’s Progress towards Accession. Online http://ec.europa.eu/enlargement/archives/pdf/ key_documents/2001/lt_en.pdf ——. 2002. Regular Report from the Commission on Lithuania’s Progress towards Accession. Online http://ec.europa.eu/enlargement/archives/pdf/ key_documents/2002/lt_en.pdf

250

BIBLIOGRAPHY

——. 2003. Comprehensive Monitoring Report on Lithuania’s Preparation for Membership. Online http://ec.europa.eu/enlargement/archives/pdf/ key_documents/2003/cmr_lt_final_en.pdf ——. 2007. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Third Annual Report on Migration and Integration. Brussels, 11.9.2007, COM 512 final. http://ec.europa.eu/justice_home/fsj/ immigration/docs/com_2007_512_en.pdf. —–. 2007. Europe for Citizens Programme Guide 2007. http://eacea.ec.europa.eu/ citizenship/guide/documents/programme_guide.pdf. European Parliament and Council of the European Union. 2006. Decision No 1983/2006/EC of 18 December 2006 concerning the European Year of Intercultural Dialogue (2008). Official Journal of the European Union L 412/44, 30.12.2006. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L: 2006:412:0044:0050:EN:PDF. European Union Agency for Fundamental Rights. 2009. Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States. Part II: The Social Situation. Summary Report. Website of the European Union Agency for Fundamental Rights at http://fra.europa.eu/ fraWebsite/attachments/hdgso_part2_summary_en.pdf. Favell, Adrian. 2006. The sociology of EU politics. In Handbook of European Union Politics, ed. Jorgensen et al., 122–139. New York: Sage. Geddes, Andrew. 2000. Immigration and European Integration: Towards Fortress Europe? New York: St. Martin’s Press. Greenwood, Justin. 2007. Interest Representation in the European Union. New York: Palgrave. Guerrina, Roberta. 2002. Europe: History, Ideas, Ideologies. London: Arnold. Habermas, Jürgen. 2001. The Postnational Constellation. New York: MIT Press. Helfferich, Barbara and Felix Kolb. 2001. Multilevel action coordination in European contentious politics: The case of the European Women’s Lobby. In Contentious Europeans: Protest and Politics in an Emerging Polity, ed. Doug Imig and Sidney Tarrow, 143–161. Lanham, MD: Rowman and Littlefield. Heritier, Adrienne. 1999. Policy-making and Diversity in Europe. New York: Cambridge University Press. Herrmann, Richard, Thomas Risse and Marilynn Brewer. 2004. Transnational Identities. Becoming European in the EU. Lanham: Rowman and Littlefield. Hoskyns, Catherine. 1996. Integrating Gender: Women, Law and Politics in the European Union. London: Verso. Imig, Doug and Sidney Tarrow, eds. 2001. Contentious Europeans: Protest and Politics in an Emerging Polity. Lanham, MD: Rowman and Littlefield. Karolewski, Ireneusz. 2006. Citizenship and collective identity in Europe. In European Identity. Theoretical Perspectives and Empirical Insights, ed. Ireneusz Karolewski and Victoria Kainer, 1–23. Berlin: Lit Verlag. Klausen, Jytte. 2007. The Islamic Challenge. Politics and Religion in Western Europe. New York: Oxford University Press.

BIBLIOGRAPHY

251

Kraus, Peter A. 2008. A Union of Diversity: Language, Identity and Polity-Building in Europe. Cambridge, UK: Cambridge University Press. Kymlicka, Will. 2006. The evolving basis of European norms of minority rights: Rights to culture, participation, autonomy. In European Integration and the Nationalities Question, ed. John McGarry and Michael Keating, 35–57. New York: Routledge. Locher, Birgit. 2005. Trafficking in Women in the European Union: Norms, Advocacy Networks, and Policy Change. Wiesbaden: VS Verlag für Sozialwissenschaften. Maas, Willem. 2007. Creating European Citizens. New York: Rowman & Littlefield. Marks, Gary and McAdam, Doug. 1996. Social movements and the changing structure of political opportunity in the European Union. In Governance in the European Union, ed. Gary Marks, Fritz W. Scharpf, Philippe Schmitter, and Wolfgang Streeck, 95–120. New York: Sage Publications. Mazey, Sonia. 1998. The European Union and women’s rights: From the Europeanization of national agendas to the nationalization of European agendas? Journal of European Public Policy 5 (1) (March): 131–152. Modood, Tariq. 2006. Multiculturalism, Muslims and Citizenship: A European Approach. New York: Routledge. Neumann, Iver B. 1999. Uses of the Other: “The East” in European Identity Formation. Minneapolis: University of Minnesota Press. Prügl, Elisabeth. 2010. Feminism and the postmodern state: Gender mainstreaming in European rural development. Signs: Journal of Women in Culture and Society 32 (2) (Winter). Risse, Thomas and Matthias Maier. 2003. Europeanization, Collective Identities and Public Discourses. IDNET Thematic Network Report. Florence, Italy: Robert Schuman Center for Advanced Studies, http://www.iue.it/ RSCAS/Research/Tools/IDNET. Schmidt, Vivien. 2006. Democracy in Europe: The EU and National Polities. New York: Oxford University Press. Sifft, Stefanie. 2003. Pushing for Europeanisation: How British feminists link with the EU to promote parental rights. In Gendering Europeanisation, ed. Ulrike Liebert, 149–186. Brussels: P.I.E.-Peter Lang. Sissenich, Beate. 2008. Cross-national policy networks and the state: EU social policy transfer to Poland and Hungary. European Journal of International Relations 14 (3): 455–487. Stratigaki, Maria. 2004. The cooptation of gender concepts in EU policies: The case of “reconciliation of work and family”. Social Politics 11 (1): 30–56. Taras, Ray. 2008. Europe Old and New: Transnationalism, Belonging, Xenophobia. New York: Rowman and Littlefield. Toggenburg, Gabriel N. 2009. The European Union vis-à-vis minorities: A play in three parts and an open end. In Pro Minoritate Europae—Minorities of Europe Unite, ed. Csaba Tabajdi, 162–205. Study book for the 25th anniversary of the Minorities-Intergroup of the European Parliament.

252

BIBLIOGRAPHY

Van der Vleuten, Anna. 2007. The Price of Gender Equality: Member States and Governance in the European Union. Aldershot, Hampshire: Ashgate Publishing. Verloo, Mieke. 2006. Multiple inequalities, intersectionality and the European Union. European Journal of Women’s Studies 3: 211–229. Wiener, Antje. 2006. European Integration Theory. New York: Oxford University Press. ——. 1998. European Citizenship Practice. New York: Westview. Woodward, Alison. 2003. Building velvet triangles: Gender and informal governance. In Informal Governance in the European Union, ed. Thomas Christiansen and Simona Piattoni, 76–93. Cheltenham, UK and Northampton, MA: Edward Elgar. Zippel, K. 2004. Transnational advocacy networks and policy cycles in the European Union: The case of sexual harassment. Social Politics 11 (1): 57–85.

Chapter 2 Works Cited Bell, Mark. 2002. Anti-Discrimination Law and the European Union. Oxford: Oxford University Press. Bogdandy, Armin von. 2007. The European Union as situation, executive and promoter of the international law of cultural diversity: Elements of a beautiful friendship, Jean Monnet Working Paper 13/07. New York: NYU School of Law. http://www.jeanmonnetprogram.org/papers/07/071301.pdf. Charter of Fundamental Rights of the European Union, Official Journal C 303/01, 14.12.2007. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Official Journal C 115/01, 09.05.2008. Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment on grounds of racial and ethnic origin. Official Journal L 180/22-26, 19.07.2000. Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Official Journal L 303/16-22, 02.12.2000. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. Official Journal L 16/4453, 23.1.2004. Council of Europe 1998. Gender Mainstreaming: Conceptual Framework, Methodology and Presentation of Good Practices. Final report of Activities of the Group of Specialists on Mainstreaming, EG-S-MS (98) 2. Council of the European Union (Justice and Home Affairs), Brussels, 19 November 2004, Presidency Conclusions, Press Release No. 14614/04. Council of the European Union (Justice and Home Affairs), Luxemburg, 12–13 June 2007, Presidency Conclusions, Press Release No. 10267/07. Council of the European Union. 24 September 2008. European Pact on Immigration and Asylum. Doc. 13440/08.

BIBLIOGRAPHY

253

Council Framework Decision 2008/913/JHA of 28 November 2008, on combating certain forms and expressions of racism and xenophobia by means of criminal law. Official Journal L 328/55–58. Due, Johnita P. 1996. European Union anti-discrimination policy reaches turning point. The Human Rights Brief 3 (2) (Winter). http://www.wcl.american. edu/hrbrief/v3i2/euro32.htm. European Council (Brussels) 2008. Presidency Conclusions. 15–16 October 2008. No. 14368/08. European Council (Copenhagen) 1993. Presidency Conclusions, 21–22 June 1993. No. 180/1/93. European Council (Tampere) 1999. Presidency Conclusions, 15–16 October 1999. No. 200/1/99. European Parliament resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004–2008, P6_TA(2009)0019, also available online at: http://www.europarl.europa.eu/. Framework Convention for the Protection of National Minorities, CETS No. 157, available online at: http://conventions.coe.int. Impact Assessment Guidelines, SEC(2005) 291, 15 June 2005. Henrard, Kristin. 2007. Equal rights versus special rights? Minority protection and the prohibition of discrimination. Luxembourg: Office for Official Publications of the European Communities. http://ec.europa.eu/employment_social/ fundamental_rights/pdf/legnet/ervsr07_en.pdf. Kate, Mary-Ann and Jan Niessen. 2008. Guide to Locating Migration Policies in the European Commission. 2nd ed. Brussels: Migration Policy Group 2008. Also available online: http://www.migpolgroup.com/documents/4202.html. Kochenov, Dimitry. 2007. Commission’s approach to minority protection during the preparation of the EU’s eastern enlargement: Is 2 better than the promised 1? European Diversity and Autonomy Papers 02/2007. http://www.eurac.edu/documents/edap/2007_edap02.pdf. ——. 2008a. EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law. Austin etc: Wolters Kluwer. ——. 2008b. A summary of contradictions: An outline of the EU’s main internal and external approaches to ethnic minority protection. Boston College International and Comparative Law Review 31: 1–51. Mazey, Sonia. 2001. Gender Mainstreaming in the EU: Principles and Practice. London: Kogan Page. Official EU languages [2009], http://ec.europa.eu/education/languages/languagesof-europe/doc135_en.htm. Olsen, Johan P. 2007. Europe in Search of Political Order: An Institutional Perspective on Unity/Diversity, Citizens/their Helpers, Democratic Design/Historical Drift and the Co-Existence of Orders. Oxford/New York: Oxford University Press. Open Society Institute. 2001. Monitoring the EU Accession Process: Minority Protection; Country Reports. Budapest/New York: Central European University Press.

254

BIBLIOGRAPHY

Open Society Institute 2002. Monitoring the EU Accession Process: Minority Protection, Volume II: Case Studies in Selected Member States. Budapest/New York: Open Society Institute. Outshoorn, Joyce and Johanna Kantola. 2007. Assessing changes in state feminism over the last decade. In Changing State Feminism, ed. Joyce Outshoorn and Johanna Kantola, 266–285. Basingstoke/New York: Palgrave Macmillan. Padoa-Schioppa, Fiorella K. 2005. The Principle of Mutual Recognition in the European Integration Process. Basingstoke/New York: Palgrave Macmillan. Peers, Steve. 2004. “New” minorities: What status for third-country nationals in the EU system? In Minority Protection and the Enlarged European Union: The Way Forward. ed. Gabriel N. Toggenburg, 149–162. Budapest: Open Society Institute. Platform for Action. 1995. In Report of the Fourth World Conference on Women (Beijing, 4-September 15 ), A/CONF.177/20, United Nations, New York. Also available online: http://www.un.org/womenwatch/daw/beijing/ index.html. Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age and sexual orientation, COM(2008) 426, 2.7.2008. Richardson, Jeremy ed. 1996. European Union: Power and Policy-Making. London/New York: Routledge. Sasse, Gwendolyn. 2004. Minority rights and EU enlargement: Normative overstretch or effective conditionality? In Minority Protection and the Enlarged European Union: The Way Forward, ed. Gabriel N. Toggenburg, 59–84. Budapest: Open Society Institute. Schendelen, Rinus van. 2002. Machiavelli in Brussels: The Art of Lobbying in the EU. Amsterdam: Amsterdam University Press. Schutter, Olivier de. 2008. Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part 1-Legal Analysis. Wien [Vienna]: European Union Agency for Fundamental Rights, also available online at: http://fra.europa.eu/fra/index.php. Shaw, Jo. 2004. Mainstreaming Equality in European Union Law and Policymaking. Brussels: European Network against Racism. Squires, Judith. 2007. The New Politics of Gender Equality. Basingstoke/New York: Palgrave Macmillan. Swiebel, Joke. 1988. The gender of bureaucracy: Reflections on policy-making for women. Politics 8: 14–19. ——. 2004. From Rome to Amsterdam and Beyond: Reinforcement of Protection. Speech delivered at the seminar ‘The Fight against discrimination: the race and framework employment directive’, March 5, 2004, Trier: Europäische Rechtsakademie. Also available online: http://www.era.int/web/en/resources/ 5_2341_846_file_en.1077.pdf ——. 2009. Lesbian, gay, bisexual and transgender human rights: The search for an international strategy. Contemporary Politics 15: 19–35.

BIBLIOGRAPHY

255

Thirty years of EU sex equality law: Looking backwards, looking forwards 2005. Ed. Tamara K. Hervey. [Special Issue of the] Maastricht Journal of European and Comparative Law. 4: 307–493. Toggenburg, Gabriel N. ed. 2004a. Minority Protection and the Enlarged European Union: The Way Forward. Budapest: Open Society Institute. ——. 2004b. Minority protection in a supranational context: Limits and opportunities. In Minority Protection and the Enlarged European Union: The Way Forward, ed. Gabriel N. Toggenburg, 1–36. Budapest: Open Society Institute. ——. 2005. Who is managing ethnic and cultural diversity in the European condominium? The moments of entry, integration and preservation. Journal of Common Market Studies, 43: 717–738. ——. 2006. A remaining share or a new part? The Union’s role vis-à-vis minorities after enlargement. EUI Working Papers 2006/15. Fiesole (Italy): European University Institute. http://cadmus.iue.it/dspace/bitstream/1814/ 4428/1/LAW%202006.15.pdf. Treaty establishing a Constitution for Europe (TCE). Official Journal C 310/01, 16.12.2004. Treaty establishing the European Community (TEC), consolidated text. Official Journal C 325/23, 24.12.2002. Treaty of the European Union (TEU), consolidated text. Official Journal C 325/5, 24.12.2002. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007. Official Journal C 306/01, 17.12.2007. Verloo, Mieke and Maro Pantelidou Maloutas eds. 2005. Differences in the framing of gender inequality as a policy problem across Europe. (Special issue of the) Greek Review of Social Research 117: 1–249. Verloo, Mieke ed. 2007. Multiple Meanings of Gender Equality: A Critical Frame Analysis of Gender Policies in Europe. Budapest/New York: Central European University Press. Witte, Bruno de and Enikö Horváth. 2008. The many faces of minority policy in the European Union. In Synergies in Minority Protection: European and International Law Perspectives, ed. Kirsten Henrard and Robert Dunbar, 365–384. Cambridge: Cambridge University Press.

Chapter 3 Works Cited Alba, Richard and Nancy Foner. 2009. Entering the precincts of power: Do national differences matter for immigrant minority political representation? In Bringing Outsiders in: Transatlantic Perspectives on Immigrant Political Incorporation, ed. Jennifer Hochschild and John Mollenkopf, Ithaca: Cornell University Press: 277–294. Barou, Jacques. 1994. Processus de segregation et ethnicisation de l’espace, final report to DPM. Benton, Michael. 1985. Promoting Racial Harmony. Cambridge: Cambridge University Press.

256

BIBLIOGRAPHY

Bleich, Erik. 2003. Race Politics in Britain and France: Ideas and Policymaking Since the 1960s. New York: Cambridge University Press. Body-Gendrot, Sophie. 1993. Ville et violence: l’irruption de nouvaux acteurs. Paris: PUF. Body-Gendrot, Sophie. 1995. Models of immigrant integration in France and the U.S.: Signs of convergence? In The Bubbling Cauldron, ed. Smith, Michael and Fagen, Joe, Minn: University of Minnesota Press, 244–262. Brighton, Shane. 2007. British Muslims, multiculturalism and UK foreign policy: Integration and “cohesion” in and beyond the state. International Affairs 83 (1) (January): 1–17. Caron, Michel. 1990. Immigration, intégration et solidarité. Regards sur l’actualité, No. 166, December. Costa-Lascoux, Jaqueline. 1989. De l’immigré au citoyen. Paris: La Documentation Française. Cowell, Alan. 2006. Islamic schools at the heart of British debate on integration. International Herald Tribune, October 16. Dustmann, Christian,and Nikolous Theordoropoulos. 2006. Ethnic Minority Immigrants and their Children in Britain. London: University College, CreAm Discussion Paper 10 (6), 20. Eade, John. 1996. Nationalism, community, and the Islamization of space in London. In Making Muslim Space in North America and Europe, ed. Barbara Daly Metcalf. Berkeley: University of California Press: 217–33. Eurostat. 2005. European Community Labour Force Survey. Brussels: European Commission. Feldblum, Miriam. 1993. Paradoxes of ethnic politics: The case of FrancoMaghrebis in France. Ethnic and Racial Studies 16 (1): 52–74. Grillo, R. D. 1985. Ideologies and Institutions in Urban France. London: Cambridge University Press. Hall, Peter A. 1993. Policy paradigms, social learning and the state: The case of economic policy-making in Britain. Comparative Politics 25 (3) (April): 275–296. Hansen, Randall. 2000. Citizenship and Immigration in Post-War Britain. Oxford: Oxford University Press. Hargreaves. 1995. Immigration, “race” and Ethnicity in Contemporary France. London: Routledge Historical Association (UK). 2007. Teaching Emotive and Controversial History 3–19 (April), reported by BBC News on 2 April 2007: http://news.bbc.co.uk/2/hi/uk_news/education/6294643.stm. Home Office. 2001. Community Cohesion: A Report of the Independent Review Team Chaired by Ted Cantle. London: Stationery Office. Howard, Marc Majoré. 2005. Variation in dual citizenship policies in the countries of the EU. International Migration Review 39 (3) (Fall): Jazouli, Adil. 1992. Les années banlieues. Paris: Seuil. Institute National de la Statistique et des Etudes Economiques. 2005. Enquête emploi de 2005. Paris: INSEE.

BIBLIOGRAPHY

257

IPSOS Public Affairs (2006). Associated Press International Affairs Poll, May: http://surveys.ap.org/data/Ipsos/international/2006–06%20AP%20Globus% 20topline_060606.pdf. Joppke, Christian. 2000. Immigration and the Nation State: The United States, Germany, and Great Britain. New York: Oxford University Press. ——. 2004. The retreat of multiculturalism in the liberal state: Theory and policy. British Journal of Sociology 55 (2): 237–257. ——. 2007. Transformation of immigrant integration: Civic integration and antidiscrimination in the Netherlands, France and Germany. World Politics 59 (January): 243–272 Kastoryano, Riva. 2002. Negotiating Identities: States and Immigrants in France and Germany. Princeton: Princeton University Press Katznelson, Ira. 1973. Black Men, White Cities: Race, Politics, and Migration in the United States and Britain, 1948-1968. London, New York: Published for the Institute of Race Relations by Oxford University Press. Klausen, Jytte. 2005. The Islamic Challenge: Politics and Religion in Western Europe. Oxford: Oxford University Press. Laurence, Jonathan. 2005. Managing transnational Islam: Muslims and the state in Western Europe. Paper prepared for the workshop on Comparative Immigration Policies after 9/11 at the Ford Institute, University of Pittsburgh, on September 9 and 10, 2005. Lorcerie, Francoise. 1994. Les ZEP 1990-1993 pour mémoire. Migrantsformation, 97, June. Lowi, Theodore. 1969. The End of Liberalism. New York: WW Norton. Martiniello, Marco. 1997. Sortir des ghettos culturels. Paris: Presses de Sciences Po. McKesson, John. 1994. Concepts and Realities in a Multiethnic France, French Politics and Society 12 (1), Winter: 28–42. Miles, Robert. 1984. The Riots of 1958: Notes on the Ideological Construction of ‘Race Relations’ as a Political Issue in Britain. Immigrants and Minorities, 3 (3): 262–4. Modood, Tariq. 2006. Multiculturalism, ethnicity and integration: Contemporary challenges. Paper presented at the Leverhulme Programme on Migration and Citizenship conference, ‘Ethnicity, Mobility and Society’, University of Bristol. Money, Jeannette. 1999. Fences and Neighbors: The Political Geography of Immigration Control. Ithaca: Cornell University Press. Noiriel, Gérard. 1988. Le creuset français. Paris: Ed, du Seuil. Organization for Economic Cooperation and Development. 2005. OECD in Figures. Paris: OECD Publications. Perlez, Jane. 2007a. Britain aims to isolate Muslim extremists, official says. The New York Times, April 6. Perlez, Jane, 2007b, “New Civics Class Asks, What Would Mohammad Do?” New York Times, August 21. Pew Research Center. 2006. The Great Divide: How Westerners and Muslims View Each Other. Washington DC: Pew Global Attitude Project, June. Phillips, Trevor. 2004. Multiculturalism’s legacy. Guardian, 28 May.

258

BIBLIOGRAPHY

Schain, Martin. 1985. Immigrants and politics in France. In The French Socialist Experiment, ed. John Ambler, 166–191. Philadelphia: ISHI Press. ——. 1994. Ordinary politics: Immigrants, direct action and the political process in France. French Politics and Society, No. 2–3 (Spring-Summer): 65–84 —–. 1999. Minorities and Immigrant Incorporation in France: The State and the Dynamics of Multiculturalism. In Multiculturalism Questions, ed. Christian Joppke and Steven Lukes, 199–224. Oxford: Oxford University Press. Schnapper, Dominique. 1994. The Debate on Immigration and the crisis of national identity. West European Politics 17 (2) (April): 127–140. Schnepf, Sylke. 2004. How different are immigrants? A cross-country and cross survey analysis of educational achievement. IZA (Institute for the Study of Labor)/ Bonn, DP# 1398, November. Silverman, Maxim. 1992. Deconstructing the Nation. London, New York: Routledge. Swann, Lord. 1985. Education for All: The Report of the Committee of Inquiry into the Education Children from Ethnic Minority Groups. London: Cmnd 9453, HMSO. Vertovec, Steven and Ceri Peach, eds. 1997. Islam in Europe: The Politics of Religion and Community. New York: St. Martin’s Press. Wacquant, Loïc. 1992. Banlieues françaises et ghetto noir américain: de l’amalgame à la comparaison. French Politics and Society 10 (4): 81–104 Weil, Patrick and John Crowley. 1994. Integration in theory and practice: A comparison of France and Britain. In The politics of immigration in Western Europe, ed. Martin Baldwin-Edwards and Martin A. Schain, 110–127. London: Cass. Wihtol de Wenden, Catherine. 1992. Les associations “ beur“ et immigrés, leurs leaders, leurs stratégies. Regards sur l’actualité, No. 178 (February): Williamson, Hugh. 2006. EU six consider introduction of “integration contracts” for immigrants. The Financial Times, March 24. Zolberg, Aristide. 2004. The Democratic Management of Cultural Differences: Building Inclusive Societies in Western Europe and North America, Human Development Report. United Nations Development Program.

Chapter 4 Works Cited Ackers, Doede. 2005. The negotiations on the asylum procedures directive. European Journal of Migration and Law 7 (1): 1–34. Bendel, Petra. 2005. Immigration policy in the European Union: Still bringing up the walls for fortress Europe? Migration Letters 2 (1): 20–31. Benhabib, Seyla. 2004. The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press. Bigo, Didier. 2002. Security and immigration: Toward a critique of the governmentality of unease. Alternatives 27 (Supp/1): 63–92. Boeles, Pieter. 2001. Directive on family reunification: Are the dilemmas resolved? European Journal of Migration and Law 3 (1): 61–71.

BIBLIOGRAPHY

259

Brinkmann, Gisbert. 2001. Family reunion, third country nationals and the Community’s new powers. In Implementing Amsterdam: Immigration and Asylum Rights in EC law, ed. Elspeth Guild and Carol Harlow, 241–266. Oxford: Hart Publishing. Carrera, Sergio. 2005. “Integration” as a process of inclusion for migrants? The case of long-term residents in the EU. In Migration, Integration and Citizenship: A Challenge for Europe’s Ruture, ed. Hildegard Schneider, 109–137. Maastricht: Forum Maastricht. Castles, Stephen and Mark J. Miller. 2003. The Age of Migration: International Population Movements in the Modern World. 3rd ed. New York: The Guilford Press. Cholewinski, Ryszard. 2002. Family reunification and conditions placed on family members: Dismantling a fundamental human right. European Journal of Migration and Law 4 (3): 271–290. Chopin, Isabel. 1999. The Starting Line Group: A Harmonised Approach to Fight Racism and to Promote Equal Treatment. The Hague: Kluwer Law International. Churches Committee for Migrants in Europe. The new EU directive on family reunification: right for families to live together or right for EU member states to derogate from human rights? Brussels, 2003. Council Directive 2000/43/EC of June 29 Implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Official Journal of the European Communities L180: 22. ——. 2003a. Council Directive 2003/86/Ec of 22 September 2003 on the right to family reunification. Official Journal of the European Communities L251: 12. ——. 2003b. Council Directive 2003/109/Ec of 25 November 2003 concerning the status of third-country nationals who are long-term residents. Official Journal of the European Communities L16 (44). Council Directive 2004/38/Ec of the European Parliament and of the Council of April 29 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states amending Regulation (EEC) No 1612/68 and Repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/ EEC, 90/365/EEC and 93/96/EEC. Official Journal of the European Communities L 158 (77). Council of the European Union. 1968. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. Official Journal of the European Communities L 257 (19.10.1968): 2–12. European Council Presidency Conclusions: Tampere, 15 and 16 October 1999. European Council Presidency Conclusions: Thessaloniki, 19 and 20 June 2003. ECRE. ECRE Information Note on the Council Directive 2003/86/Ec of 22 September 2003 on the right to family reunification. Brussels, 2003.

260

BIBLIOGRAPHY

European Commission. 1994. Communication from the Commission to the Council and the European Parliament on Immigration and Asylum Policies. Brussels: European Commission. ——. 1999. Proposal for a Council Directive on the right to family reunification. Brussels: European Commission. ——. 2000. Amended Proposal for a Council Directive on the right to family reunification. Brussels: European Commission. ——. 2001. Proposal for a Council Directive Concerning the status of third-country nationals who are long term residents. Brussels: European Commission. ——. 2002. Amended Proposal for a Council Directive on the right to family reunification. Brussels: European Commission. ——. 2005. Proposal for a council decision establishing the european fund for the integration of third-country nationals for the period 2007–2013 as part of the general programme ‘Solidarity and Management of Migration Flows’. Brussels: European Commission. European Court of Justice. 2006. Judgment of the Court (Grand Chamber). Treaty on European Union (Consolidated Text). Official Journal of the European Communities C340. Geddes, Andrew. 2000. Immigration and European Integration: Towards Fortress Europe? Manchester: Manchester University Press. Geddes, Andrew and Virginie Guiraudon. 2004. Britain, France, and EU anti-discrimination policy: The emergence of an EU policy paradigm. West European Politics 27 (2): 334–353. Groenendijk, Kees. 2001. Security of residence and access to free movement for settles third country nationals under community law. In Implementing Amsterdam: Immigration and Asylum Rights in EC Law, ed. Elspeth Guild and Carol Harlow, 225–240. Oxford: Hart Publishing. ——. 2004. Legal concepts of integration in EU migration law. European Journal of Migration and Law 6 (2): 111–126. Groenendijk, Kees and Elspeth Guild. 2001. Converging criteria: Creating an area of security of residence for Europe’s third country nationals. European Journal of Migration and Law 3: 37–59. Halleskov, Louise. 2005. The long-term residents directive: A fulfillment of the Tampere objective of near-equality? European Journal of Migration and Law 7 (2): 181–202. Hammar, Tomas. 1985. European Immigration Policy: A Comparative Study. Cambridge: Cambridge University Press. Huysmans, Jef and Alessandra Buonfino. 2006. Politics of exception & unease: Immigration, asylum and insecurity in parliamentary debates on terrorism in the UK. Paper presented at the Annual Convention of the International Studies Association. San Diego, CA. Lavenex, Sandra. 2006. Towards the constitutionalization of aliens’ rights in the European Union? Journal of European Public Policy 13 (8): 1284–301.

BIBLIOGRAPHY

261

Niessen, Jan. 2000. The starting line and the promotion of EU antidiscrimination legislation: The role of policy oriented research. Journal of International Migration and Integration 1 (4). Nussbaum, Martha C. 2006. Capabilities, human rights, and the universal declaration. In Human Rights in the World Community, ed. Richard Pierre Claude and Burns H. Weston, 27–39. Philadelphia: University of Pennsylvania Press. Peers, Steve. 1999. Raising minimum standards or racing to the bottom?: The Commission’s proposed migration convention. In The Legal Framework and Social Consequences of Free Movement of Persons in the European Union, ed. Elspeth Guild. The Hague: Kluwer. ——. 2004. Key legislative developments on migration in the European Union. European Journal of Migration and Law 6 (1): 67–91. Schneider, Hildegard. 2005. Towards a European migration policy: From Maastricht to Amsterdam, from Tampere to the Hague. In Migration, Integration and Citizenship: A Challenge for Europe’s Future, ed. Hildegard Schneider, 7–33. Maastricht: Forum Maastricht. Theele, Tessa. 2005. Rights of Turkish workers on the basis of the EEC/Turkey Association Agreement. In Family Rights and Immigration Law: A European Perspective, ed. Hildegard Schneider. Maastricht: Forum Maastricht. Tyson, Adam. 2001. The negotiation of the European Community directive on racial discrimination. European Journal of Migration and Law 3 (2): 199–229. Uçarer, Emek M. 2006. Burden-shirking, burden-shifting, and burden-sharing in the emergent European asylum regime. International Politics 43 (2): 219–240. ——. 2007. Justice and home affairs. In European Union Politics, ed. Michelle Cini, 304–319. Oxford: Oxford University Press. ——. 2008. Safeguarding asylum as a human right: NGOs and the European Union. In Transnational Activism in the UN and EU: A Comparative Study, ed. Jutta Joachim and Birgit Locher, 121–139. London: Routledge. UNHCR. 2003. New EU rules may keep refugee families apart, warns UNHCR. Geneva.

Chapter 5 Works Cited AGG. 2006. Allgemeines Gleichbehandlungsgesetz, zuletzt geändert durch Artikel 15 Abs. 66 des Gesetzes vom 5. February 2009 (BGBl. I S. 160). BGBl 1, no. 14.08.2006 (2006): 1897. Arbeitsgruppe Migration und Gender. 2007. EQUAL, aber fremdbestimmt. Über die Situation von MigrantInnen/AsylbewerberInnen und Roma am österreichischen Arbeitsmarkt. Eine Bestandsaufnahme mit Empfehlungen. http://www. zeitraum.co.at/media/downloads/35_Migration_Gender_Thesenpapier.pdf. Baer, Susanne. 2006. Chronologie Antidiskriminierungsgesetz – Allgemeines Gleichbehandlungsgesetz. http://baer.rewi.hu-berlin.de/wissen/antidiskriminierung srecht/antidiskriminierungsgesetzgebung. Braunmühl, Claudia von. 2007. Diverse gender—gendered diversity: Eine Gewinn- und Verlustrechnung. In Transformation des Politischen durch Gender

262

BIBLIOGRAPHY

Mainstreaming? Eine kritische Revision aus frauenpolitischer Sicht, ed. Heinrich Böll Stiftung Grüne Akademie, 39–48. Berlin: Heinrich Böll Stiftung. CLIP, European Network of Cities for Local Integration Policies for Migrants. 2009. Info sheet. http://www.eurofound.europa.eu/pubdocs/2008/105/en/1/ EF08105EN.pdf. Council of Europe. 1950. The European Convention on Human Rights and its Five Protocols. Rome, 4 November 1950. http://conventions.coe.int/Treaty/ en/Treaties/Html/005.htm. Council Directive (EU-Council) 2000a/43/EC of June 29 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Official Journal of the European Communities L 180, no. 19/07/2000: 22–26. ——. 2000b. (EU-Council) Council Directive establishing a general framework for equal treatment in employment and occupation. Council Directive 2000/78/EC of 27 November 2000. Official Journal of the European Communities L 303, no. 2.12.2000: 16–22. ——. 2004. (EU-Council) 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. Official Journal of the European Communities L 373, no. 21/12/2004: 37–43. ——. 2007. Council Regulation (EC), No. 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights. Official Journal of the European Communities L 53: 1–14, http://fra.europa.eu/ fraWebsite/attachments/reg_168-2007_en.pdf. European Commission. 2000. Towards a Community Strategy Framework for Gender Equality 2000-2005. Com (2000) 335 final. 7.6.2000. Brussels. ——. 2005. The Business Case for Diversity. Good Practices in the Work place. http://ec.europa.eu/employment_social/fundamental_rights/pdf/events/ busicase_en.pdf. ——. 2005a. COM/2005/0389 final. A common agenda for integration. Framework for the integration of third-country nationals in the European Union. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM(2005):0389: FIN:EN:PDF. ——. 2005b. Report on Equality Between Women and Men, 2005. COM(2005)44 final, 14.02.2005. http://ec.europa.eu/employment_social/news/2005/feb/ gender_equality_2005_report_eu.pdf. ——. 2006. A Roadmap for Equality Between Women and Men. 2006-2010 (also: COM(2006)92 final, 01.03.2006). Luxembourg: EC. ——. 2008. Continuing the Diversity Journey. Business Practices, Perspectives and Benefits. Luxembourg: EC. ——. 2008. 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. Brussels. European Commission and Centre for Strategy & Evaluation Services CSES. 2008. Evaluation of the European Business Test Panel—Final Report. DG Internal Market and Services. http://ec.europa.eu/yourvoice/ebtp/evaluation/ report-2008_en.pdf.

BIBLIOGRAPHY

263

European Court of Justice. Case C-13/05. Sonia Chacón Navas v Eurest Colectividades SA. Directive 2000/78/EC. http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:62005J0013:EN:HTML. ENIE, European Network of Independent Experts in the non-discrimination field. 2005. Developing Anti-Discrimination Law in Europe. The 25 EU Member States Compared. Utrecht, Brussels: Human European Consultancy, Migration Policy Group. European Parliament and Council of the European Union. 2006. Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). Official Journal of the European Communities L 204, no. 26.07.2006: 23–36. European Parliament and Council of the European Union. 2002. Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Official Journal of the European Communities L 269, no. 05/10/2002: 15–20. European Communities. 1997. Treaty of Amsterdam. www.europarl.europa. eu/topics/treaty/pdf/amst-en.pdf. ENAR, European Network Against Racism. 2005. Commission Communication on Non-Discrimination and Equal Opportunities for All. Fact Sheet 23. www.enar-eu.org. EWL, European Women’s Lobby. 1995. Confronting the fortress. Black and migrant women in the European Union. External Study, European Parliament, Directorate General for Research. Luxembourg. ——. 1999. Overcoming Discrimination: Selected Strategies Empowering Black, Ethnic Minority and Migrant Women. Brussels. ——. 2007. Equal Rights, Equal Voices: Migrant Women in the European Union. Brussels, 19–21 January 2007. Brussels. ——. 2008. Incorporating Gender in Integration Policies: The Way Forward. Invitation to a Seminar.www.efc.be/ftp/public/MigrationIG/EWL%20integration %event_011208_Brussels.doc. Florida, Richard. 2002. The Rise of the Creative Class. And How it’s Transforming Work, Leisure and Everyday Life. New York: Basic Books. Fluchtort Hamburg. 2005. Entwicklungspartnerschaft Fluchtort Hamburg: Berufliche Qualifikation für Flüchtlinge. Handlungskonzept Diversity Management. www.themenpool-migration.eu/download/dgende05.pdf. Fraser, Nancy. 2001. Social Justice in the Knowledge Society: Redistribution, Recognition, and Participation. www.wissensgesellschaft.org/themen/orientierung/ socialjustice.pdf. Freedman, Jane and Euro-Mediterranean Human Rights Network EMHRN. 2008. Violence Against Migrant Women in the Euro-Med Region. www. mawgfra.unblog.fr/files/2008/04/violenceagainstmigrantwomenintheeuromed region.ppt.

264

BIBLIOGRAPHY

Gültekin, Nevâl. 2006. Differenz, Gleichberechtigung und gesellschaftliche Widersprüche—Der fehlende Blick auf EinwanderInnen. Zeitschrift für Frauenforschung und Geschlechterstudien 23 (3): 102–115. Hancock, Ange-Marie. 2007. When multiplication doesn’t equal quick addition: Examining intersectionality as a research paradigm. Perspectives on Politics 5 (1): 63–79. Kantola, Johanna and Kevät Nousiainen. (2009) Institutionalising intersectionality in Europe: Legal and political analyses. International Feminist Journal of Politics 11 (4) forthcoming. Kantola, Johanna and Judith Squires. 2008. From State Feminism to Market Feminism? Paper presented at the International Studies Association Annual Convention, 26-March 29. Lorber, Judith. 2000. Using gender to undo gender: A feminist degendering movement. Feminist Theory 1 (1): 79–95. McCall, Leslie. 2005. The complexity of intersectionality. Signs: Journal of Women in Culture and Society 30 (3): 1771–1800. Nagel, Andreas and Olga Drossou, eds. 2008. Politics of Diversity: Dossier. Berlin: Heinrich Böll Stiftung, http://www.migration-boell.de/web/diversity/ 48_1712.asp. Nagel, Helga. 2008. Diversity in der Integrationspolitik von Frankfurt am Main. In Politics of diversity. Dossier, ed. Andreas Merx and Olga Drossou, 30–36. Berlin: Heinrich Böll Stiftung, http://www.migration-boell.de/web/ diversity/48_1712.asp. Outshoorn, Joyce and Johanna Kantola, eds. 2007. Changing State Feminism. Houndsmill, Basingstoke, New York: Palgrave Macmillan. Politics & Gender. 2007, Critical Perspectives on Gender and Politics: Intersectionality 3 (2). Ruß, Sabine and Helen Schwenken. 2008. Institutionelle Arrangements politischer Repräsentation von MigrantInnen im Ländervergleich: Wie reagieren alte und neue Einwanderungsländer auf Migration? Unpublished Manuscript. Schiek, Dagmar. 2008. Über den Umgang mit Mehrfachdiskriminierungen: Die Anti-Diskriminierungsrichtlinien und das AGG. In Frauen verändern EUROPA verändert Frauen, ed. Ulrike Schultz, 115–126. Düsseldorf: MGFFI. Schwenken, Helen. 2006. Rechtlos, aber nicht ohne Stimme. Politische Mobilisierungen um irreguläre Migration in die Europäische Union. Bielefeld: Transcript Verlag. Shaw, Jo. 2005. Mainstreaming Equality and Diversity in European Union Law and Policy. www.enar-eu.org. Smykalla, Sandra and Sandra Lewalter. 2007. Zur Relevanz von Wissen zu Gender, Diversity und Intersektionalität am Beispiel des Allgemeinen Gleichbehandlungsgesetzes. Presented at Wissenschaftliches Vernetzungstreffen: “Gender und Diversitätsmanagement”, Wien, 3–4.05.2007. http://www.wuwien.ac.at/gender/vernetzungstreffen/vortrag_gkompz_intersek._agg_040507. pdf.

BIBLIOGRAPHY

265

Squires, Judith. 2005. Is mainstreaming transformative? Theorizing mainstreaming in the context of diversity and deliberation. Social Politics 12 (3): 366–388. Stiegler, Barbara. 2006. Gender Mainstreaming, Frauenförderung, Diversity oder Antidiskriminierungspolitik – was führt wie zur Chancengleichheit¿‘ Zeitschrift für Frauenforschung und Geschlechterstudien 23 (3): 9–21. Stratigaki, Maria. 2005. Gender mainstreaming vs. positive action: An ongoing conflict in EU gender equality policy. European Journal of Women’s Studies 12 (2): 165–186. Verloo, Mieke. 2007. Wie muss Gender Mainstreaming umgesetzt werden, damit es ein politisches Instrument ist, das die Geschlechterhierarchie transformieren kann? In Transformation des Politischen durch Gender Mainstreaming? Eine kritische Revision aus frauenpolitischer Sicht, ed. Heinrich Böll Stiftung Grüne Akademie, 9–16. Berlin: Heinrich Böll Stiftung. Walby, Silvia. 2005. Gender mainstreaming: Productive tensions in theory and practice. Social Politics 12 (3): 321–343. Wetterer, Angelika. 2002. Strategien rhetorischer Modernisierung: Gender mainstreaming, Managing Diversity und die Professionalisierung der GenderExpertinnen. Zeitschrift für Frauenforschung und Geschlechterstudien no. 3: 129–148. Woodward, Alison. 2004. Building velvet triangles: Gender and informal governance. In Informal Governance and the European Union, ed. Simona Piattoni and Thomas Christiansen, 76–93. London: Edward Elgar.

Chapter 6 Works Cited Ahmad, Feroz. 1993 The Making of Modern Turkey. New York: Routledge. Apter, David E. ed. 1964. Ideology and Discontent. New York: The Free Press of Glencoe. Ayubi, Nazih H. 1997. Islam and democracy. In Democratization, ed. David Potter, David Goldblatt, Margaret Kiloh, and Paul Lewis, 345–366. Cambridge: Polity Press. Baban, Feyzi and Fuat Keyman 2008. Turkey and postnational Europe challenges for the cosmopolitan political community. European Journal of Social Theory 11 (1): 107–124. Banchoff, Thomas, ed. 2007. Democracy and the New Religious Pluralism. Oxford: Oxford University Press. Berkes, Niyazi. 1998. The Development of Secularism in Turkey. New York: Routledge. Berger, Peter L. 2007. Pluralism, protestantization, and the voluntary principle. In Democracy and the New Religious Pluralism, ed. Thomas Banchoff. Oxford: Oxford University Press. ˙ Bozan, ˙Irfan. 2007. Devlet ile Toplum Arasında, Bir Okul: Imam Hatip Liseleri. Bir ˙sleri Ba¸skanlı˘gı (Between state and society, a school: ˙Imam Kurum: Diyanet I¸

266

BIBLIOGRAPHY

Hatip Schools. An Institution: Directorate of Religious Affairs). ˙Istanbul: TESEV Yayınları. Bozdo˘gan, Sibel and Resat Kasaba, eds. 1996. Rethinking Modernity and National Identity in Turkey. Seattle: University of Washington Press. Bu˘gra, Ay¸se. 2002. Political Islam in Turkey in historical context: Strengths and weaknesses. In The politics of permanent crisis: Class, Ideology and State in Turkey, ed. Nesecan Balkan and Sungur Savran, 107–144. New York: Nova Science Publishers, Inc. Buttigieg, Joseph A. and Thomas Kselman, eds. 2003. European Christian Democracy. Notre Dame: University of Notre Dame Press. Casanova, Jose. 2004. Religion: European secular identities, and European integration. Eurozine. www.eurozine.com Cavatorta, Francesco. 2006. Civil society, Islamism and democratisation: The case of Morocco. Journal of Modern African Studies 44 (2): 203–222. Çarko˘glu, Ali and Binnaz Toprak. 2006. De˘gi¸sen Türkiye’de Din, Toplum ve Siyaset (Religion, society, and politics in the changing Turkey). Istanbul: TESEV Yayınları. Da˘gı, ˙Ihsan. 2006. The justice and development Party: Identity, politics, and discourse of human rights in the search for security and democracy. In The Emergence of a New Turkey: Democracy and the AK Parti, ed. M. Hakan Yavuz, 88–106. Salt Lake City: The University of Utah Press. Davie, Grace. 2000. Religion in Modern Europe: A Memory Mutates. New York: Oxford University Press. Eickelman, Dale F. and James Piscatori. 1996. Muslim Politics. Princeton, NJ: Princeton University Press. Esposito, John L. 1999. The Islamic Threat: Myth or Reality? New York: Oxford University Press. Esposito, John L. and Azzam Tamimi eds. 2000. Islam and Secularism in the Middle East. London: Hurst & Company. European Stability Initiative. 2005. Islamic Calvinists: Change and Conservatism in Central Anatolia. Berlin/Istanbul: European Stability Initiative. Filali-Ansary, Abdou. 2005 Muslims and democracy. In World Religions and Democracy, ed. Diamond, Larry, Marc F. Plattner and Philip J. Costopoulos, 153–167. Baltimore: Johns Hopkins University Press. Fox, Jonathan. 2006. World separation of religion and state into the 21st century. Comparative Political Studies 39 (5): 537–569. Gellner, Ernest. 2000. Religion and the profane. Eurozine. www.eurozine.com German Federal Ministry of the Interior. 2005. Annual Report on the Protection of the Constitution. Göle, Nilüfer. 2005. Europe: An identity or a project? Eurozine. www. eurozine.com. Greeley, Andrew. 2003. Religion in Europe at the end of the second millennium. New Brunswick, NJ: Transaction Publishers.

BIBLIOGRAPHY

267

Habermas, Jürgen. 2008. Notes on a post-secular society, Eurozine. www.eurozine.com. Hawthorne, Amy. 2004. Middle Eastern democracy: Is civil society the answer? Carnegie Paper 44, March: 4–18. Hurd, Elizabeth. 2006. Negotiating Europe: The politics of religion and the prospects for Turkish accession. Review of International Studies 32: 402, 404, 406. Inglehart, Ronald and Norris, Pippa. 2005. Sacred and Secular: Religion and Politics Worldwide. Cambridge: Cambridge University Press. Kalaycıo˘glu, Ersin. 2005. The mystery of the Türban: Participation or revolt? Turkish Studies 6 (2): 233–251. Kalyvas, Stathis N. 2003. Unsecular politics and religious mobilization. In European Christian Democracy, ed. Thomas Kselman and Joseph Buttigieg. Notre Dame: University of Notre Dame Press: 293–320. Kalyvas, Stathis N. 1996. The Rise of Christian Democracy in Europe. Ithaca, NY: Cornell University Press. Karpat, Kemal H. 2001. The Politicization of Islam: Reconstructing Identity, State, Faith, and Community in the late Ottoman State. Oxford: Oxford University Press. Kettler, Karl. 2002. Letter to the editor. The Economist, December 21: 12. Küçükcan, Talip. 2003. State, Islam and religious liberty in modern Turkey: Reconfiguration of religion in the public sphere. Brigham Young University Law Review. Laurence, Jonathan and Justin Vaisse. 2006. Integrating Islam: Political and Religious Challenges in Contemporary France. Washington, D.C.: Brookings Institution Press. Lavenex, Sandra. 2005. Politics of exclusion and inclusion in the wider Europe. In Soft or Hard Borders? Managing the Divide in an Enlarged Europe, ed. De Bardeleben, Joan, 123. Aldershot: Ashgate. Lewis, Bernard. 1988. The Political Language. Chicago and London: The University of Chicago Press. Mandeville, Peter. 2007. Global Political Islam. London and New York: Routledge. Mardin, Serif. 2005. Turkish Islamic exceptionalism yesterday and today: Continuity, rupture and reconstruction in operational codes. Turkish Studies 6 (2): 145–165 Mehmet, Ozay. 1990. Islamic Identity and Development: Studies of the Islamic Periphery. London: Routledge. Müftüler Baç, Meltem. 2005. Turkey’s political reforms and the impact of the European Union. South European Society and Politics 10: 17–31. Nielsen, Jorgen S. 2004. Muslims in Europe in the Late Twentieth Century. In Christian-Muslim Encounters, ed. Yazbeck Haddad, Yvonne and Haddad, Wadi Z., Gainesville, FL: University Press of Florida, 314–327. Öni¸s, Ziya. 2009. Conservative globalism at the crossroads: The justice and development party and the thorny path to democratic consolidation in Turkey. Mediterranean Politics 14 (1): 21–40.

268

BIBLIOGRAPHY

——. 1997. The political economy of Islamic resurgence in Turkey: The rise of the Welfare Party in perspective. Third World Quarterly 18 (4). Öni¸s, Ziya and Umut Türem. 2001. Business, globalization and democracy: A comparative analysis of Turkish business associations. Turkish Studies 2 (2): 94–120. Pipes, Daniel. 1995. Political Islam is a threat to the West. In Islam: Opposing Viewpoints, ed. Paul A. Winters, San Diego: Greenhaven Press: 190–96. Radikal, September 21, 2004. Zirvede Laiklik Atı¸sması (Secularism Debate at the Summit). Sabah, June 14, 2004. Laiklik Tartı¸sması (Secularism Debate). Schwedler, Jillian. 2006. Islamist Parties in Jordan and Yemen. New York: Cambridge University Press. Schiffauer, Werner. 1997. Islamic vision and social reality: The political culture of Sunni Muslims in Germany. In Islam in Europe, ed. Steven Vertovec and Ceri Peach, New York: St. Martin’s Press: 156–176. Shadid, W. 1991. The integration of Muslim minorities in the Netherlands. International Migration Review 25: 355–375. Shaw, Stanford J. 1977. History of the Ottoman Empire and Modern Turkey. New York: Cambridge University Press. Somer, Murat. 2007. Moderate Islam and secularist opposition in Turkey: Implications for the world, Muslims and democracy. Third World Quarterly 28 (7): 1271–1289. Stepan, Alfred. 2000. Religion, democracy, and the “twin tolerations”. Journal of Democracy 11 (4): 37. Sturm, J., L. Groenendijk, B. Kruithof, and J. Rens. 1998. Educational pluralism: A historical study of so-called pillarization in the Netherlands. Comparative Education 34 (3): 288. Taylor, Charles. 1998. Modes of secularism. In Secularism and its Critics, ed. Rajeev Bhargava, 31–53. Oxford: Oxford University Press. ——. 2004. Modern Social Imaginaries. Durham: Duke University Press. Tol, Gönül. 2009. What type of Islamism for Europe? Islamism in Germany and the Netherlands, Insight Turkey 11 (1): 133–149. ——. 2008. The rise of Islamism among Turkish immigrants in Germany and the Netherlands. Ph.D. Dissertation, Florida International University. Toprak, Binnaz, Irfan Bozan, Tan Morgül, and Nedim Sener. 2008. Türkiye’de Farklı Olmak (Being different in Turkey). Istanbul: Bogazici University. Tunaya, Tarık Zafer. 2007. Islamcılık Akımı (The Islamist Movement). Istanbul: Bilgi Üniversitesi Yayınları. ˙ skileri Ba˘glamında Uluslararası Göç Tüsiad. 2006. Türkiye – Avrupa Birli˘gi Ili¸ ˙ Tartı¸smaları (International Migration Debates in the Context of Turkey-EU Relations). Istanbul: Tüsiad. Uyar, Canan. 2008. Phone interview with Gönül Tol, February 6. Van Houtum, H. and R. Pijpers. 2007. The European Union as a gated community: The two-faced border and immigration regime of the EU. Antipode 39 (2): 291–309. Warner, Carolyn M. 2000. Confessions of an Interest Group: The Catholic Church and Political Parties in Europe. Princeton, NJ: Princeton University Press.

BIBLIOGRAPHY

269

Yavuz, Hakan M. and John L. Esposito, eds. 2003. Turkish Islam and the Secular State the Gülen Movement. Syracuse: Syracuse University Press. Yavuz, Hakan M. 2003. Islamic political identity in Turkey. New York: Oxford University Press. Yükleyen, Ahmet. 2009. Compatibility of Islam and Europe: Turkey’s EU accession. Insight Turkey 11 (1): 115–131. Zakaria, Fareed. 2004. How not to win Muslim allies. Newsweek, September 27. Zürcher, Erik Jan. 2005. Sava¸s, Devrim ve Ulusalla¸sma (War, Revolution and Nation-Building). Istanbul: ˙Istanbul Bilgi Üniversitesi Yayınları.

Chapter 7 Works Cited Amnesty International. 2006. Lesbian, gay, bisexual and transgender rights in Poland and Latvia, web.amnesty.org/library/Index/ENGEUR010192006? open&of=ENG-375. Auers, Daunis. 2002/2003. Latvia’s 2002 elections-dawn of a new era? East European Constitutional Review 11/12 (4/1): 106–110. ——. 2006. The potemkin party: A new species? Unpublished manuscript. Bell, Michael. 2001. The European Union—a new source of rights for citizens in the accession countries? In ILGA-Europe, Equality for Lesbians and Gay Men. A Relevant Issue in the EU Accession Process, 80–89. Brussels: ILGA-Europe. Benoit, Kenneth and Michael Laver. 2006. Party Politics in Modern Democracies. London: Routledge. Birze, Viktors. N. D. Pazin¸ojums par sektas ‘Jaun¯a paaudze’ un LPP destrukt¯ıvo darb¯ıbu (Announcement on the destructive activities of the ‘New Generation’ sect and the LPP) http://www.reitingi.lv/index.php?act=jaun&jid=1441. Carpenter, Michael. 2002. The politics of identity and the breakthrough to liberal democracy in Poland. Ph.D. dissertation, Department of Political Science, University of California, Berkeley. Commotion over EP Resolution. 2006. Warsaw Voice, June 28. European Commission. 2001. Applicant Countries Eurobarometer 2001: Results Summary. ——. 2002. Candidate Countries Eurobarometer 2002: First Results. ——. 2003. Applicant Countries Eurobarometer 2003: Comparative Highlights. ——. 2004. Applicant Countries Eurobarometer 2004: Comparative Highlights. Grabbe, Heather. 2003. Europeanisation goes East: Power and uncertainty in the EU accession process. In The Politics of Europeanisation, ed. K. Featherstone and C. Radaelli, 303–330. Oxford: Oxford University Press. Grzymała-Busse, Anna and Abby Innes. 2003. Great expectations: The EU and domestic political competition in East Central Europe. East European Politics and Societies 17 (1): 64–73. ILGA-Europe. 2006. Prides Against Prejudice. A Toolkit for Pride Organising in a Hostile Environment. Brussels: ILGA-Europe. Kelley, Judith. 2004. Ethnic Politics in Europe: The Power of Norms and Incentives. Princeton: Princeton University Press.

270

BIBLIOGRAPHY

Kitlinski, Tomek and Pawel Leszkowicz. 2005. New anti-gay regime in Poland. The Gully, November 10, http://www.thegully.com/essays/ gaymundo/051110_poland_election.html. Kosc, Wojciech. 2005. Taking it to the streets. Transitions Online, June 13. Krzyz˙aniak-Gumowska, Aleksandra. 2005. Demonstracja przeciw Kaczy´nskiemu (Demonstration Against Kaczy´nski). Gazeta Wyborcza, June 10. Larrabee, F. Stephen. 2006. Danger and opportunity in Eastern Europe. Foreign Affairs (November/December): 117–131. Mainwaring, Scott. 1999. Rethinking Party Systems in the Third Wave of Democratization: The Case of Brazil. Stanford: Stanford University Press. Mair, Peter. 1997. Party System Change: Approaches and Interpretations. Oxford: Clarendon Press. McManus-Czubi´nska, Clare, William L. Miller, Radosław Markowski, and Jacek Wasilewski. 2003. Understanding dual identities in Poland. Political Studies 51: 121–143. Muižnieks, Nils. 2002. Extremism in Latvia. Riga: politika.lv. O’Dwyer, Conor. 2006. Runaway State-Building: Patronage Politics and Democratic Development. Baltimore: Johns Hopkins University Press. O’Dwyer, Conor and Katrina Z. S. Schwartz. 2010. Minority rights after EU enlargement: A comparison of antigay politics in Poland and Latvia. Comparative European Politics 8 (1), forthcoming. Ost, David. The Defeat of Solidarity: Anger and Politics in Postcommunist Europe. Cornell: Cornell University Press, 2005. Poland could face EU treaty vote. BBC News. March 18, 2008. Prazmowska, Anita. 1995. The new right in Poland: Nationalism, anti-semitism, and anti-parliamentarism. In The far right in Western and Eastern Europe, ed. L. Cheles, R. Ferguson and M. Vaughan, 2nd ed. New York: Longman: 198–214 Pride marches: Gay rights march in Warsaw comes amid intensified struggle. 2006. Associated Press, June 9. Purs, Aldis. 1998. Latvians as an imagined community. Paper presented at the Third Annual Convention of the Association for the Study of Nationalities. Columbia University. Raik, Kristi. 2004. EU accession of Central and Eastern European countries: Democracy and integration as conflicting logics. East European Politics and Societies 18 (4): 567–594. Rada Warszawy przeciwna Paradzie Równo´sci (Warsaw City Council Against the Equality Parade). 2004. Gazeta Wyborcza, May 14. Schimmelfennig, Frank. 2007. European regional organizations, political conditionality, and democratic transformation in Eastern Europe. East European Politics and Societies 21 (1): 126–141. Schimmelfennig, Frank and Ulrich Sedelmeier. eds. 2005. The Europeanization of Central and Eastern Europe. Cornell: Cornell University Press. Schwartz, Katrina Z. S. 2005. Gay Rights: United in Hostility. Transitions Online, September 21.

BIBLIOGRAPHY

271

——. 2006. Nature and National Identity after Communism: Globalizing the Ethnoscape. Pittsburgh: University of Pittsburgh Press. Sloga, Gunta. 2003. Turl¯a apvainojumi cit¯adajiem atg¯adinot nacistu valodu (Turlais’ insults against those who are different said to be reminiscent of Nazi language). Diena, May 30. Starnawski, Marcin. 2003. Nationalist discourse and the ultra-conservative press in contemporary Poland: A case study of Nasz Dziennik. Patterns of Prejudice 37, 1: 65–81. Vachudova, M. 2005. Europe Undivided: Democracy, Leverage, and Integration after Communism. Oxford: Oxford University Press. Visu Latvijai. n.d. Homoseksu¯alisti sl¯epjas aiz policijas muguras. http://www. visulatvijai.lv/index.php?kat=n&id=500. Walicki, Andrzej. 2000. The troubling legacy of Roman Dmowski. East European Politics and Societies 14 (1): 12–46. Wanner, Catherine. 2003. Advocating new moralities: Conversion to Evangelicalism in Ukraine. Religion, State & Society 31 (3): 273–287.

Chapter 8 Works Cited Beschluss des ersten Senates. December 5, 2005, 1 BvL 3/03. Bundesverfassungsgericht. 2007. 2 BvR 855/06, decision of September 20, 2007. Council Directive 1976/207/EEC of 9 February 1976. Official Journal L 39: 40. Council Directive 2000/78/EC of 27 November 2000. Official Journal L 303, December 2, 2000: 16–22. Council Directive 2004/58/EC of 29 April on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. Official Journal L 229: 35. Council Directive 2003/86/EC of 22 September on the right to family reunification. Official Journal L 251: 12. Council Regulation 723/2004/EC of 22 March 2004. Official Journal L 124: 1. European Commission. 2003. Reply to written question E-1842/02, Official Journal C 52, 106. European Court of Human Rights. 2002. Christine Goodwin v. The United Kingdom, Application no. 28957/95, judgment of 11 July 2002. European Court of Justice. 2008. Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, Case C-267/06, judgment of 1 April 2008, ECR I-01757. ——. 2006. ECJ, Sarah Margaret Richards v. Secretary of State for Work and Pensions, Case C-423/04, judgment of 27 April 2006, ECR I-3585. ——. 2004. K.B. v. National Health Service Pensions Agency and Secretary of State for Health, Case C-117/01, judgment of 7 January 2004, ECR I-541. ——. 2001. D. and Kingdom of Sweden v. Council of the European Union, Case C-122/99 P and C-125/99P, judgment of 31 May 2001, ECR I-4319. ——. 1998. Lisa Jacqueline Grant v. South-West Trains Ltd., Case C-249/96, judgment of 17 February ECR I-621.

272

BIBLIOGRAPHY

——. 1998b. Horst Otto Bickel and Ulrich Franz, Case C-274/96, judgment of 24 November 1998, ECR I-6, ——. 1996. P. v. S. and Cornwall County Council, Case C-13/94, judgment of 30 April 1996, ECR I-2143. ——. 1995. Robert Heinrich Maria Mutsch, Case C-137/84, judgment of 11 July 1985, ECR I-2681. European Parliament. 1994. Resolution on equal rights for homosexuals and lesbians in the EC. Official Journal C 61:40. Freud, Sigmund. 1905. Three contributions to sexual theory. Journal of Nerve and Mental Disorder, Monograph series No. 9, Vienna. German Constitutional Court, Beschluss des Ersten Senates, 5 December 2005, 1 BvL 3/03, Para. 66. Gesetz über eingetragene Lebenspartnerschaften of 16 February 2001, BGBl. 2001: 266. Opinion of AG Ruiz-Jarabo Colomer, 6 September 2007, Case C-267/06. Tarifordnung für die deutschen Theater, 27 October 1937, Reichsarbeitsblatt 1937, part IV: 1080 Toggenburg, Gabriel N. 2009. The European Union vís-à-vís minorities: a play in three parts and an open end. In Pro Minoritate Europae—Minorities of Europe Unite. (Study book for the 25th anniversary of the Minorities-Intergroup of the European Parliament), ed. Csaba Tabajdi, 162–205. ——. 2008. Discrimination by association: a notion covered by EU equality law? European Law Reporter 3: 82–87. —–. 2005. Who is managing ethnic and cultural diversity within the European Condominium? The moments of entry, integration and preservation.Journal for Common Market Studies 43 (4) (November): 717–737. ——. 2004a. The debate on European values and the case of cultural diversity. European Diversity and Autonomy Papers 2004/1. «http://www.eurac.edu/documents/edap/2004_edap01.pdf. ——. 2004b. Unification via diversification—what does it mean to be “united in diversity”? In EUMAP feature “Enlargement Day”, 1 May. http://www.eumap.org/journal/features/2004/bigday/diversity.

Chapter 9 Works Cited Butler, Judith. 2004. Undoing Gender. New York: Routledge. Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment on grounds of racial and ethnic origin. Official Journal L 180/22-26, 19.07.2000. Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. Official Journal L 303/16-22, 02.12.2000. Crenshaw, Kimberlé Williams. 1993. Beyond racism and misogyny: Black feminism and 2 Live Crew. In Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, ed. Mari. J. Matsuda, Charles. R. Lawrence

BIBLIOGRAPHY

273

III, Richard Delgado and Kimberlé Williams Crenshaw, 111–132. Boulder: Westview Press. Elman, R. Amy. 2007. Sexual Equality in an Integrated Europe. New York: Palgrave/Macmillan. European Commission. 2004. Equality and Non-Discrimination in an Enlarged European Union: Green paper. Luxembourg, Office for Official Publications of the European Communities. —–. 2006a. Eurobarometer 66. Brussels. —–. 2006b. Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on Equality Between Women and Men. 22.02.06: COM (2006) 71 Final. —–. 2007. Tackling Multiple Discrimination: Practices, Policies and Laws. Luxembourg, Office for Official Publications of the European Communities. —–. 2008. Gender Mainstreaming—General Overview. http://ec.europa.eu/ employment_social/gender_equality/gender_mainstreaming/general_overview_ en.html. European Court of Justice. 1982. Garland v British Rail Engineering, Case 12/81 [1982] ECR 359. ——. 1998 Grant v South-West Trains Ltd., Case C 249/96, ECR 621. ——. 2001. D and Sweden v Council, Cases C-122/99P and C-125/99P, ECR 4319. ——. 2004. KB v National Health Service Pensions Agency, Case 117/01, ECR 541. ——. 2008. Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, Case C-267/06, ECR I-01757. European Court of Human Rights. 1997. X, Y and Z v. UK, Application 21830/93 (1997) 24 EHRR 143. European Court of First Instance. 1999. D v. Council, Case T-264/97, Reports of European Community Staff Cases II-1. Fredman, Sandra. 2001. Equality: A new generation? Industrial Law Journal 30 (2): 145–168. Goldirova, Renata. 2008. Same-sex couples score victory on pension rights. EUobserver.com. Hannett, Sarah. 2003. Equality at the intersections: The legislative and judicial failure to tackle multiple discrimination. Oxford Journal of Legal Studies 23 (1): 65–86. Harrison, Virginia. 1996. Using EC law to challenge sexual orientation discrimination at work. In Sex Equality Law in the European Union, ed. Tamara Hervey and David O’Keeffe, 267–281. New York: John Wiley & Sons. Holzleither, Elisabeth. 2005. Mainstreaming equality: Dis/entangling grounds of discrimination. Transnational Law & Contemporary Problems 14 (3): 926–956. Lindberg, Caroline. 1998. Lisa Grant v South-West Trains: The limited utility of sex discrimination in securing lesbian and gay rights. Temple International and Comparative Law 12 (2): 403–422.

274

BIBLIOGRAPHY

OPTEM. 2002. Study on Integrating Gender Mainstreaming into Employment Policies: Covering Public-Authority Officials Responsible for Employment Policies and Social Partners in the 15 Member States of the European Union. http:// ec.europa.eu/employment_social/news/2002/nov/survey_gender_en.pdf. Platero, Raquel. 2007. Love and the state: Gay marriage in Spain. Feminist Legal Studies 15 (3): 329–340. Robson, Ruthann. 1994. Resisting the family: Repositioning lesbians in legal theory. Signs: Journal of Women in Culture and Society 19 (4): 975–996. Simon, Robert. 2004. NGO’s mobilisation against homophobic crime in France. ILGA Euro-Letter 113: 5. Stychin, Carl. 2006. Not (quite) a horse and carriage. Feminist Legal Studies 14 (1): 79–86. Toner, Helen. 2004. Partnership Rights, Free Movement and EU Law. Oxford and Portland: Hart Publishing. Treaty of Amsterdam. 1997. Official Journal C 340, 10.11.97. UK Court of Appeal. 2004. Bahl v the Law Society, IRLR 799. Verloo, Mieke. 2006. Multiple inequalities, intersectionality and the European Union. European Journal of Women’s Studies 13 (3): 211–228. Young, Claire and Susan Boyd. 2006. Losing the feminist voice? Debates on the legal recognition of same sex partnerships in Canada. Feminist Legal Studies 14 (2): 213–240.

Chapter 10 Works Cited Ashiagbor, Diamond. 1999. The intersection between gender and race in the labour market: lessons for anti-discrimination law. In Morris, Anne and O Donnell, Terese (ed) Feminist Perspectives on Employment Law. London: Cavendish Publishing: 139–160. Bell, Mark 2002. Anti-Discrimination Law and the European Union. Oxford: Oxford University Press. Council Directive (EC) 2000/43 of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Official Journal L 180/22. Council Directive (EC) 2002/73 of 23 September 2002 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. 2002/73/EC amending Council Directive 76/207/EEC. Official Journal L 269, 05/10/2002. Crenshaw, Kimberle. 1989. Demarginalising the intersection of race and sex: A Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum: 139–67. Crenshaw, Kimberle. 2000. Background Paper for the Expert Meeting on the Gender-Related Aspects of Race Discrimination, November 21–24, Zagreb, Croatia. European Commission. 2005. Equality and non-discrimination: Annual Report. Brussels: Directorate-General for Employment, Social Affairs and Equal Opportunities.

BIBLIOGRAPHY

275

—–. 2007. Tackling Multiple Discrimination: Practices, Policies and Laws. EC, Directorate-General for Employment, Social Affairs and Equal Opportunities. Fredman, Sandra 2001. Discrimination and Human Rights. Oxford: Oxford University Press. —–. 2005. Double trouble: Multiple discrimination and EU law. European Anti-Discrimination Law Review 2: 13–21. Hewitt, Patricia, 2004. Unfinished Business: The New Agenda for the Workplace. London: Institute for Public Policy Research. Leibfried, Stephan and Pierson, Paul. 1995. European Social Policy. Between Fragmentation and Integration. Washington DC: Brookings Institution. Leonard, Alice and Hunter, Rosemary. 1997. Sex Discrimination and Alternative Dispute Resolution: British Proposals in the Light of International Experience. Public Law, 42: 298–314. Lieberman, Leondard. 1997. Gender and the Deconstruction of the Race Concept. American Anthropologist 99: 545–558. Makkonen, Timo. 2002. Multiple, Compound and Intersectional Discrimination: Bringing the Experiences of the Most Marginalized to the Fore. Institute for Human Rights: Abo Akademi University. Moon, Gay. 2006. Multiple discrimination—problems compounded or solutions found? Justice Journal 2: 1–10. Rodin, Sinisa. 1997. European Integration and Constitutional Law. Zagreb: Institute for International Relations: 58–82. Vasiljevi´c, Snjezana. 2003. Equality between Men and Women: Challenges to Croatian Legislation. In Croatian Accession to the European Union: Economic and Legal Challenges, ed. Katarina Ott, 273–290. Zagreb: Institute for Public Finance,. Vasiljevi´c, Snjezana 2008. Legal Framework of Multiple Discrimination in Enlarged European Union. Zagreb: Faculty of Law, 250–300. Vinkovic, Mario 2005. Gender equality and the process of harmonization of the Croatian labor law. Croatian Yearbook of European Law and Policy 1: 203–211. Volcansek, Mary L. 1986. Judicial Politics in Europe: An Impact Analysis. New York: Peter Lang Publishers.

Laws Germany

Allgemeines Gleichbehandlungsgesetz (AGG), 2006. http://www.bmas.de/core media/generator/14606/agg__allgemeines__gleichbehandlungsesetz.html. Austria

Austrian Disability Equality Act, 2006. http://www.ictparliament.org/index.php? option=com_legislationlibrary&task=view&id=127&catid=72&Itemid= 99999999.

276

BIBLIOGRAPHY

Spain

Spanish Law on Equal Treatment between Woman and Man, 2008. http://www.freshfields.com/publications/pdfs/2007/apr30/18439.pdf. Romania

Romanian Equal Treatment Act, 2002. http://ec.europa.eu/employment_social/ fundamental_rights/legis/lgms_en.htm. Constitutional Law on Ethnic Minorities Protection, Official Gazette 155/02. Croatia

Law on Gender Equality, Official Gazette 116/03. Law on Gender Equality, Official Gazette 82/08. General Anti-discrimination Law, Official Gazette 85/08. Stabilization and Association Agreement, Official Gazette no. 15. International Agreements, 5 December 2001, http://www.mvpei.hr/ei/download/ 2001/08/02/SAACouncilProposal.pdf. United Kingdom CASE LAW

Coker and Osamor v. The Lord Chancellor and the Lord Chancellor’s Department [2002] IRLR 80 (Court of Appeal), http://www.springerlink.com/ content/p97v40g388060606/. Khanum v. IBC Vehicles [2003], EAT/685/98, 8.2.99: IRLB, http://www.thompsons.law.co.uk/ltext/l0610004.htm#05. Law Society v. Kamlesh Bahl [2003] IRLR 640. http://www.6kbw.co.uk/members/rdm.html. Pearce v. The Governing Body of Mayfield Secondary School EAT [2000], (675/99), http://www.thompsons.law.co.uk/ltext/l0650003.htm#03. Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003], IRLR 285. http://www.eoc-law.org.uk.

Chapter 11 Works Cited An Coimisinéir Teanga. 2007. Annual Report, 2006. Galway: An Coimisinéir Teanga. Anderson, George. 2006. Catalonia votes for more autonomy within Spain. Federations 5 (3): 15–20. Barni, Monica and Guus Extra, eds. 2008. Mapping Linguistic Diversity in Multicultural Contexts. Mouton de Gruyter, Berlin, Belfast Agreement. 1998. The Belfast Agreement. An Agreement Reached at the Multi-Party Talks on Northern Ireland. Cm. 3883, 1998. Belfast: Northern Ireland Office.

BIBLIOGRAPHY

277

Blair, Philip. 2002. Promotion of linguistic diversity through the European Charter for Regional and Minority Languages. Conference on creating a common structure for promoting historical linguistic minorities within the European Union, Finnish Parliament, Helsinki, Folktinget, October 11–12. Cardinal, Linda. 2007. New approaches for the empowerment of linguistic minorities: A study of language policy innovations in Canada since the 1980s. In Language and Governance, ed. Colin H. Williams, 434–459. Cardiff: University of Wales. Commissioner of Official Languages. 2007. Annual Report 2005–6. Ottawa: Office of the Commissioner of Official Languages. Dunbar, Robert. 2001. Minority language rights regimes: An analytical framework, Scotland and emerging European norms. In Linguistic Politics, ed. John Kirk and Donnall O Baoill, 231–254. Belfast: Queen’s University. European Commission. 2001. European Governance: A White Paper. Luxembourg: Office of Publications of the EC. European Cultural Foundation. 2000. Which Languages for Europe? Amsterdam, European Cultural Foundation. Extra, Guus and Durk Gorter, eds. 2001. The Other Languages of Europe. Clevedon, Avon: Multilingual Matters. Farràs i Farràs, Jaume., Torres i Pla, Joaquim, and Vila i Moreno, F. Xavier. 2000. El Coneixement del Català, 1996. Barcelona: Publicacions de l’Institut de Sociolingüítica Catalana. Gardner, Nick, Maite Puigdevall i Serralvo, and Colin H. Williams. 2000. Language revitalization in comparative context: Ireland, the Basque County and Catalonia. In Language Revitalization: Policy and Planning in Wales, ed. Colin H. Williams, 311–361. Cardiff: University of Wales Press. Generalitat de Catalunya. 2000. Catalunya-Quebec: Legislació i politiques lingüístiques, Barcelona: Publicacions de l’Institut de Sociolingüítica Catalana. Group of Intellectuals for Intercultural Dialogue. 2008. A Rewarding Challenge: How the Multiplicity of Languages Could Strengthen Europe. http://ec.europa.eu/education/policies/lang/doc/maalouf/report_en.pdf National Assembly for Wales. 1999. The National Assembly (Transfer of Function) Order 1999, (S.I. 1999/672). Cardiff: National Assembly for Wales. Puigdevall i Serralvo, Maite. 2005. The Challenge of Language Planning in the Private Sector: Welsh and Catalan Perspectives. Unpublished PhD thesis, University of Wales. Van Els, Theo J. M. 2001. The European Union, its institutions and its languages: Some language political observations. Current Issues in Language Planning 2 (4): 311–360. Wales Office. 2005. White Paper ‘Better Government for Wales’ by the Wales Office, part of the United Kingdom Government, June 15. Cardiff and London: Wales Office. http://www.walesoffice.gov.uk/2005/better_government_for_ wales_report.pdf Welsh Assembly Government. 2003. Iaith Pawb: National Action Plan for a Bilingual Wales. Cardiff: Welsh Assembly Government.

278

BIBLIOGRAPHY

——. 2006 Consultation by the Welsh Assembly Government on the Merger with the Welsh Language Board. Cardiff: Welsh Assembly Government. Welsh Language Board. 2006. Response by the Welsh Language Board to the Consultation by the Welsh Assembly Government on the Merger with the Welsh Language Board. Cardiff: Welsh Language Board. Williams, Colin H. 1991. Language planning and social change: Ecological speculations. In Language Planning: Focusschrift in Honor of Joshua A. Fishman, ed. David F. Marshall, 53–74. Amsterdam: John Benjamins. ——. 2002. The Importance of holistic language planning for the promotion of minority languages. Conference on creating a common structure for promoting historical linguistic minorities within the European Union, Finnish Parliament, Helsinki, Folktinget, October 11–12. ——. 2006a. The Role of para-governmental institutions in language planning. Supreme Court Law Review 31: 61–83. ——. 2006b. Indigenous language rights and legislation. In An Irish Language Act for Northern Ireland, ed. POBAL, 5–19. Belfast: POBAL. ——. 2008. Linguistic Minorities in Democratic Context. Basingstoke: Palgrave. Williams, Colin H. ed. 2007. Language and Governance. Cardiff: University of Wales.

Chapter 12 Works Cited Anagnostou, Dia and Anna Triandafyllidou. 2006. European Integration and Ethnic Minority Mobilization: A Theoretical Introduction and Literature Review. Paper presented in the context of the EUROREG research project “Changing interests and identities in European border regions: EU policies, ethnic minorities and socio-political transformation in member states and accession countries.” http://www. eliamep.gr/eliamep/content.Folder.aspx?. Bela, Marko. 2007a. “Minoritatile in Uniunea Europeana,” Statement presented at Targu-Mures Conference, June 23. http://www.udmr.ro ——. 2007b. Statement-Program for European Parliamentary Elections, March 3. http://www.udmr.ro Bache, Ian. 2008. Europeanization and Multilevel Governance: Cohesion Policy in the European Union and Britain. Lanham, Boulder: Rowman & Littlefield Publishers. Csergo, Zsuzsa and James M. Goldgeier. 2004. Nationalist strategies and European integration. Perspectives on Politics 2 (1) (March): 21–37 Csergo, Zsuzsa. 2007. Talk of the Nation. Language and Conflict in Romania and Slovakia. Ithaca and London: Cornell University Press. Cowles Green, Maria, James Caporaso, and Thomas Risse. 2001. Transforming Europe. Europeanization and Domestic Change. Ithaca and London: Cornell University Press. De Winter, Lieven. 2001. The Impact of European Integration on Ethnoregionalist Parties. http://www.recercat.net/bitstream/2072/1270/1/ICPS195.pdf. Diez, Thomas, Stephan Stetter and Mathias Albert. 2006. The European Union and Border conflicts: The transformative power of integration. International Organization 60: 563–593.

BIBLIOGRAPHY

279

DIVERS. Altfel despre minoritati entice. 43 (330), November 8, 2007; available on line at: www.divers.ro/actualitate_ro?wid=37455&func=view Submission&sid=7969. Eisinger, Peter K. 1973. The conditions of protest behavior in American cities. American Political Science Review 67 (1): 11–28. Esman, Milton J. 1994. Ethnic Politics. Ithaca and London: Cornell University Press. Featherstone, Kevin and Claudio M. Radaelli, eds. 2003. The Politics of Europeanization. Oxford: Oxford University Press. Flora, Gavril. 2001. Competing cultures, conflicting identities: The case of Transylvania. In Parallel cultures: Minority-Majority Relations in the Countries of the Former Eastern Bloc, ed. Christopher Lord and Olga Strietska-Ilina, 125–145. Aldershot and Burlington: Ashgate. Further bodies join Hungarian Autonomy Council in Carpathian Basin. 2004. BBC (from Duna TV), July 7. Harper, Krista and Peter Vermeersch. 2006. Great expectations? “Europe” in Romani activism in Hungary. Paper presented at the Workshop: “Ethnic mobilization in the new Europe,” Brussels, April 20–26. http://www.soc. kuleoven.be/iieb/ethnicmobilization/ Hooghe, Liesbet. 1995. Sub-national mobilization in the European Union. West European Politics 18 (3): 175–198. Hooghe, Liesbet. ed. 1996. Cohesion Policy and European Integration: Building Multi-Level Governance. Oxford: Oxford University Press. Hooghe, Liesbet and Gary Marks. 2001. Multi-Level Governance and European Integration. Boulder, Co: Rowman and Littlefield. Hughes, James and Gwendolyn Sasse. 2003. Monitoring the monitors: EU enlargement conditionality and minority protection in CEE. Journal of Ethno-politics and Minority Issues in Europe (1): 1–38. Jeffrey, Charlie, ed. 1997. The Regional Dimension of EU: Towards a Third Level in Europe? London: Frank Cass. Keating, Michael. 1998. The New Regionalism in Western Europe: Territorial Restructuring and Political Change. Aldershot: Edward Elgar. ——. 2003. European integration and the nationalities question. Politics and Society 31 (1): 367–388. Keating, Michael and John McGarry, eds. 2001. Minority Nationalism and the Changing International Order. New York: Oxford University Press. Jenne, Erin K. 2007. Ethnic Bargaining: The Paradox of Minority Empowerment. Ithaca and London: Cornell University Press. Jolly, Seth K. 2007. How the EU Fuels Sub-National Regionalism. Paper available on-line at: http://www.duke.edu/∼ skj3/HowEUFuels.pdf Jones, Barry and Michael Keating. eds. 1995. The European Union and the Regions. Oxford: Clarendon Press. Kelly, Judith. 2004. Ethnic Politics in Europe: The Power of Norms and Incentives. Princeton: Princeton University Press. Le Gales, Patrick and Christian Lequesne, eds. 1998. Regions in Europe. Routledge: London and New York.

280

BIBLIOGRAPHY

Lynch, Peter. 1996. Minority Nationalism and European Integration. Cardiff: University of Wales Press. Malloy, Tove H. 2005. National minority “regions” in the enlarged European Union: Mobilizing for third level politics? European Center for Minority Issues, Working Paper no. 24. McAdam, Doug. 1982. Political Process and the Development of Black Insurgency, 1930–1970. Chicago: Chicago University Press. McAdam, Doug, John D. McCarthy, and Zald N. Mayer. eds. 1996. Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures and Cultural Framings. Cambridge: Cambridge University Press. Mikesell Marvin W. and Alexander B. Murphy. 1991. A framework for comparative study of minority group aspirations. Annals of the Association of American Geographers 81 (4): 581–604. Radaelli, Claudio M. 2004. Europeanization: Solution or problem? European Integration Online Papers 8 (16), http://eiop.or.at/eiop/texte/2004-016.htm. Risse, Thomas and Kathryn Sikkink. 1999. The socialization of international human rights norms into domestic practices: Introduction. In The Power of Human Rights: International Norms and Domestic Change, ed. T. Risse, S. C. Ropp, and K. Sikkink, 1–38. Cambridge: Cambridge University Press. Sasse, Gwendolyn and Eiko Thielemann. 2005. A research agenda for the study of migrants and minorities in Europe. Journal of Common Market Studies 43 (4): 655–671. Schmitter, Philippe C. 1996. Imagining the future of euro-polity with the help of new concepts. In Governance in the European Union, ed. G. Marks, F. W. Scharpf, P. C. Schmitter and W. Streeck. London: Sage. Schimmelfennig, Frank and Ulrich Sedelmeier, eds. 2005. The Europeanization of Central and Eastern Europe. Ithaca and London: Cornell University Press. Secuii din Gheorghieni vor judetul “Tinutul Secuiesc.” 2007. Divers—Altfel despre minoritati nationale. 43 (330), November 8. http://www.divers.ro/ actualitate_ro?wid=37455&func=viewSubmission& sid=7969 Szecklers’ Council wants autonomy to become precondition for Romania’s EU entry. 2004. BBC September 7. Tokes, Laszlo. 2007. The Union – with Transylvania. The Transylvanian Interpretation of a European Platform. http://tokeslaszlo.ro/en/index.html UDMR Doreste Reinfiintarea Tinutului Secuiesc (UDMR wants to re-create the ‘Szekler Land’ region). 2007. Ziua Newspaper, October 29. UDMR Reformist Bloc head details proposals to amend Romanian Constitution. 2001. BBC Monitoring Europe, September 25. UDMR. 1994. Law on National Minorities and Autonomous Communities (Draft). http://www.udmr.ro UDMR Party Platform. 1998. http://www.udmr.ro Vachudova, Milada Anna. 2005. Europe Undivided: Democracy, Leverage and Integration after Communism. Oxford: Oxford University Press.

BIBLIOGRAPHY

281

Vermeersch, Peter. 2006. The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe. New York. Oxford: Berghahn Books. Zielonka, Jan. 2007. Plurilateral governance in the enlarged European Union. Journal of Common Market Studies 45 (1): 187–209.

Chapter 13 Works Cited Amnesty International. 2008. Latvia and Lithuania: Human Rights on the March? http://www.amnesty.org/en/library/asset/EUR53/001/2008/en/e62d308d1770-11dd-afd4-275ebb4793b1/eur530012008eng.html. BNS. 2008. Lietuvos ˛moniu i ˛ vadovai kratosi romu˛ ir buvusiu˛ kaliniu˛ (Lithuania’s enterprise leaders try to avoid hiring Roma and former prisoners). Balsas.lt, May 21. http://www.balsas.lt/naujiena/197103. Budryte, Dovile and Vilana Pilinkaite-Sotirovic. 2009. Lithuania: Progressive legislation without popular support. In Minority Rights in Eastern and Central Europe, ed. Bernd Rechel, BASEES/Routledge-Curzon Series on Russian and East European Studies: 151–165. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation http://ec.europa.eu/employment_ social/news/2001/jul/directive78ec_en.pdf. Darbo ir socialiniu˛ tyrimu˛ ir institutas, Etniniu˛ tyrimu˛ institutas (Institute of Labour and Social Research, Center for Ethnic Studies). 2008. Galimu˛ diskriminacijos apraišku˛, naujai numatytu˛ LR lygiu˛ galimybiu˛ ˛statyme i bei visuomen˙es tolerancijos ˛vairioms i socialin˙es grup˙ems ˛vertinimas i ir lyginamoji analiz˙e (Evaluation on possible forms of discrimination following the most recent revision of the Law on EqualOpportunities, and comparative analysis of public tolerance of various social groups) Vilnius. http://www. socmin.lt/index.php?1606775163. Deets, Stephen. 2002. Reconsidering East European minority policy: Liberal theory and European norms. East European Politics and Societies 16 (1): 30–53. Department of Statistics, Lithuania. 2001. Data of the 2001 Population Census. Vilnius: Department of Statistics. Digryt˙e, Egl˙e. 2008. Jaunimas paneig˙e, kad yra tolerantiškas kitiems (The young people dispelled a myth that they are tolerant toward other groups). Delfi.lt, June 11. http://www.delfi.lt/archive/article.php?id=17357998&categoryID European Commission Agenda 2000 – Commission Opinion on Lithuania’s Application for Membership of the European Union, Brussels: European Commission. Online. See http://ec.europa.eu/enlargement/archives/pdf/ dwn/opinions/lithuania/li-op_en.pdf=7&ndate=1213131600. ——. 2000. Regular report from the Commission on Lithuania’s progress toward accession. November 8. http://ec.europa.eu/enlargement/archives/ pdf/key_documents/2000/lt_en.pdf. ——. 2001. Regular report on Lithuania’s progress toward accession. http:// ec.europa.eu/enlargement/archives/pdf/key_documents/2001/lt_en.pdf.

282

BIBLIOGRAPHY

——. 2002. Regular report on Lithuania’s progress toward accession. http:// ec.europa.eu/enlargement/archives/pdf/key_documents/2002/lt_en.pdf. ——. 2003. Comprehensive monitoring report on Lithuania’s preparations for membership. http://ec.europa.eu/enlargement/archives/pdf/key_documents/ 2003/cmr_lt_final_en.pdf. European Commission against Racism and Intolerance. 2006. Third report on Lithuania.http://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Countryby-country_approach/Lithuania/Lithuania_CBC_3.asp. Kymlicka, Will. 2007. Multicultural Odysseys: Navigating the New International Politics of Diversity. Oxford: Oxford University Press. Leonˇcikas, Tadas. 2007. Kas ˛darbins i romus? (Who will Employ the Roma?) Alfa.lt, August 31. http://www.alfa.lt/straipsnis/148643. Lietuvos radijas. 2008. Valdas Adamkus: Dvigubos pilietyb˙es klausimas bus sprendžiamas (The Question of Dual Citizenship will be Addressed), July 18. http://www.lrt.lt/news.php?strid=5042&id=4703335. Parliament of Lithuania. 2003. Lygiu˛ galimybiu˛ ˛istatymas (The Law on Equal Opportunities). http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_ id=324132&p_query=&p_tr2=. Parliament of Lithuania. 2007. Record of Parliamentary Session on September 18. http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=304466. Parliament of Lithuania. 2008. Record of Parliamentary Session on June 16. http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=321696&p_ query=&p_tr2=. Razmait˙e, Inga. 2005. Homoseksualizmas: Bažnyˇcia jau pasmerk˙e, o Seimas dar svarsto, diskutuoja, tariasi (Homosexuality: condemned by the Church, analyzed and debated by Seimas (the parliament)). Respublika, December 3. Reingard˙e (Reingardien˙e), Jolanta, and Zdaneviˇcius, Arnas. 2006. Disrupting the (hetero)Normative: Coming-out in the Workplace in Lithuania. http://www. atviri.lt/index.php/conferences_researches/conferences/1679. Reingardien˙e, Jolanta. 2004. Lyˇciu˛ lygyb˙es strategija ir užimtumo politika Europos Sajungoje ˛ (Gender Equality Strategy and Employment Politics in the European Union). Vilnius: Center for Equality Advancement. http://www.gap.lt/jrll. Saukien˙e, Inga. 2008. Rasistiniai išpuoliai–socialin˙es nelygyb˙es veidrodis? (Racial Attacks—Mirror of Social Inequality?) Delfi.lt, May 12. http://www.delfi.lt/ archive/article.php?id=16995866&categoryID=7&ndate=1210539600. Tesser, Lynn. 2003. The geopolitics of tolerance: minority rights under EU expansion in East-Central Europe. East European Politics and Societies,17 (3): 483–532. Treaty of Amsterdam. 1997. www.europarl.europa.eu/topics/treaty/pdf/amsten.pdf. Vilnius municipality. 2005. Vilniaus romu˛ bendruomen˙es ir šalia taboro esanˇciu˛ teritoriju˛ prieži¯uros ir saugumo užtikrinimo bei romu˛ segregacijos mažinimo 2005–2010 metu˛ programa (2005–2010 Program to Reduce the Segregation of Roma and to Ensure Security in the Municipal Areas of Vilnius Inhabited by the Roma Community). Vilnius: Vilnius municipality.

BIBLIOGRAPHY

283

Visuomenin˙es organizacijos ir judejimai (Social organizations and movements). 2007. D˙el Lietuvos Respublikos lygiu˛ galimybiu˛ ˛statymo i pakeitimo (Lithuanian for “regarding Changing the Law on Equal Opportunities in the Republic of Lithuania”), July 25. http://www.gap.lt/index.php?cid=292. Zdaneviˇcius, Arnas, ed. 2007. Heteronormos Hegemonija: Homoseksualiu˛ žmoniu˛ socialin˙e atskirtis ir diskriminacijos patirtys (The Hegemony of Heteronormativity: Social Separation of Homosexuals and Experiences of Discrimination). Kaunas: Vytauto Didžiojo Universitetas.

Chapter 14 Works Cited Della Porta, Donatella. 2007. The Europeanization of protest: A typology and empirical evidence. In Debating the Democratic Legitimacy of the European Union, ed. Beate Kohler-Koch and Berthold Rittberger, 189–208. New York: Routledge. Checkel, Jeffrey. 2006. Constructivism and EU politics. In Handbook of European Union Politics, ed. Knud E. Jorgensen, Mark Pollack, and Ben Rosamond, 57–76. New York: Sage. Rittberger, Berthold and Frank Schimmelfennig. 2005. The constitutionalization of the European Union: Explaining the parliamentarization and institutionalization of human rights. Working Paper of the Princeton Workshop The State of the Union, www.princeton.edu/∼smeunier/ Rittberger&Schimmelfennig%20Princeton%20memo.pdf. Wiener, Antje and Thomas Diez. 2005. European Integration Theory. Oxford: Oxford University Press.

This page intentionally left blank

Index Note: Page numbers in bold refer to in-depth treatments of the indexed topic. accession, see enlargement activism, 9–10, 79, 96, 116, 227, 238, 239–41, 246 see also civil society antidiscrimination, 16, 27–8, 34, 62, 81, 86–8, 116, 144, 161, 163, 165, 177–81, 223–32 see also discrimination anti-Semitism, 158–9 autonomy, 2, 8, 25, 185, 195, 199, 205–18 territorial, 206, 212–16 awareness, 102, 222, 226–7 Charter of Fundamental Rights, 8, 29–33, 117–18, 149 citizenship, 13–15, 26, 48–50, 224–5 see also European Citizenship civil society, 9–11, 186, 188, 231, 239–40 see also activism communism, 21, 128–9, 170, 178, 210 Council of Europe, 8, 24, 120, 189, 210–12, 216, 221, 225 culture, 17, 22–3, 46, 105–6, 185, 191–3, 224, 238 democracy, 16, 96–104, 107–8, 119–20, 188–9, 199–200, 244–64 democratization, 97, 207–14 popular, 83, 97–101 see also pluralism; secular(ism)

directive(s), 6, 60, 64, 81, 87–8, 118 family reunification, 69–72, 136 on Long Term Residents, 66–9, 242 against Race Discrimination, 26–9, 64–6, 87 disability, 28, 65, 90–1, 157, 172, 175, 223, 229 discourse, 3–5, 12, 34, 81, 100–1, 106, 127–8, 186–7, 206–10, 213–18 discrimination, 65–6, 76–8, 81–4, 89–91, 102, 230–2 employment, 31–2, 51–2, 177, 226–8 intolerance, 194, 225–30, 238 sex, 33, 137–42, 145–8, 150–1, 156–7, 226, 228–9 see also intersectionality; directive(s) diversity management, 33, 77–86, 242 between member states, 1–8, 22, 73, 107, 135–6, 151, 227, 238, 240, 244 within member states, 23–5, 49–51, 116, 130, 241–43 see also pluralism education, 25–6, 43, 46–54, 100, 103–4, 189, 191, 198, 224–5 elections, 99–100, 118–21, 216 party system, 119–21, 124–6, 131 employment, 26–7, 31–2, 51–2, 62, 66, 87, 136–7, 143–6, 158, 160, 163–5, 172–4, 177–81 see also discrimination

286

INDEX

enlargement, 4, 23–4, 104–6, 189, 199–200, 206–7, 213, 215–16, 229, 241 candidate countries, 24, 170, 178, 180, 212, 222–3 conditionality, 24–5, 207, 217, 222 Copenhagen criteria, 23–5, 170, 180 equality, 10–12, 28–30, 33, 44, 62–3, 68, 82–90, 117, 159–61, 172–81, 198, 231 equality action programs, 79–81 patchwork, 89–91, 244 Estonia, 173, 199, 224 European citizenship, 13–15, 136, 243–46 European Commission, 24, 29, 31–3, 59, 62, 65, 68, 79–81, 119–20, 136, 138, 143, 147, 158–66, 190, 196, 198, 200, 212, 224, 227–9, 232 n8 European Council, 22, 26–9, 31, 41, 63–9, 136–7, 141–2, 157, 222–7 European Court of Human Rights, 120, 143, 153, 162 European Court of Justice, 34, 65, 88, 135–51, 242 D and Kingdom of Sweden. v. Council of the European Union (2001), 141–43, 157 K.B. v. NHS Pensions Agency & Secretary of State for Health (2004), 143–44, 162 Lisa Jacqueline Grant. v. South-West Trains Ltd. (1998), 139–43, 150, 155–60, 163, 165 P. v. S. and Cornwall County Council (1996), 137–40, 143 Tadao Maruko. v. Versorgungsanstalt der deutschen Bühnen (2008), 135, 137, 144–51, 162, 165

European integration, 1, 4–5, 9–10, 14–15, 199–200, 206–9, 217–18, 222, 237–9, 241, 243, 246 Europeanization, 11, 98, 207, 209, 222, 226, 237 European Parliament, 22–3, 28–9, 65, 71–2, 136, 158, 198, 205–6, 216 European Union Member(ship), 23, 60, 79, 98, 104–6, 170, 180, 190, 205–6, 210, 214, 222, 238, 244–5 exclusion, see discrimination France, 40–5, 87, 107, 162, 192, 242 funding, 46–7, 79–80, 164, 166, 190–1, 196, 211, 226 Gay, 117–25, 139, 147, 158, 227 Rights, 88, 136, 147, 162, 165–6, 242 see also LGBT gender, 7, 78–90, 160–3, 172–4, 179, 181 see also mainstreaming, women Germany, 87, 97, 101, 103–4, 145, 147, 149, 160, 173, 192 group rights, 42–4, 102, 108, 241 Human Rights, 4, 23, 47, 60, 69–72, 88, 99, 117–19, 170, 180, 182, 186, 210, 212, 222, 230–2, 244, 246 Hungary, 173, 209, 213–15, 216 identity, 11–14, 48–9, 77–8, 104–9, 181, 188, 243 (Ethno-)national and cultural, 25, 124–9, 208, 240–1 European, 4–5, 11–14, 241–43 regional, 202, 207 identity politics, 5 immigrant integration, 5–6, 25–7, 39–41, 44–6, 59–65, 79, 84–5, 97, 104–5, 192, 194–5, 245

INDEX

immigration, 6, 26, 40–3, 46–54, 62, 65, 77–81, 104–6, 158, 167, 172, 176, 186, 192–5, 201, 222, 237–9 integration, see European integration; immigrant integration intersectionality, see multiple discriminations Islam, 4, 12, 16, 95–109, 200, 238, 245 Islamic Extremism, 44–6, 48–50 Islamism, 95–8 Islamophobia, 6 Milli Görü¸s, 101–14 language, 23, 26, 40, 49, 120, 188–91, 194 immigrant minority, 245 multilingual, 187, 190, 192–3, 196, 213 regional minority, 185, 189–91, 224, 241, 245 rights, 186–7, 189, 198, 213, 215 Latvia, 116–31, 173, 175, 203, 224, 240, 244 legislation, see directive(s) Lesbian, 117, 136, 139, 155–63, 231 see also LGBT LGBT, 7, 115–16, 136–7, 149, 158, 161, 241 see also Gay; Lesbian Lithuania, 221–32 mainstreaming ethnic and cultural, 30–3, 175, 181, 200, 245 gender, 29–30, 83–4, 160–1, 163–4, 166–7, 175, 242 marriage, 118, 136, 140–51, 153, 156–7, 161–2, 165–8 migrant rights, 26, 60–4, 69–70, 78–91, 239 minorities, 4–8, 25–33, 53, 81, 175–6, 205–7, 211–12, 222–3, 238, 240 ethnic/religious, 96–7, 101–2

287

minority rights, 23–4, 34, 83, 210–11, 212–16, 224–7, 231, 245 national, 7–8, 208–10, 225 sexual, 120, 136, 163, 229 see also language mobilization, 11, 105 ethnic, 205–10, 217, 238 multiculturalism, 25–6, 42, 45–8, 102, 215, 240 multilevel politics, 9–10, 73, 237–9 multiple discriminations, 77–8, 80, 163–5, 169–78 see also intersectionality; discrimination nationalism, 14, 17, 98, 126–9, 208, 212, 217 Netherlands, 101–3, 141, 157, 166 networks, 88, 102, 164, 166, 188, 190, 201, 208, 222, 230 non-discrimination, see antidiscrimination non-governmental organization (NGO), 10, 59, 64, 72, 79, 164, 166, 190, 226, 231, 239–41 norms, 50, 96, 104, 109, 116, 159, 174, 180, 214, 222–3, 227, 231, 238, 240, 244 Organization for Security and Cooperation in Europe (OSCE), 8, 24, 213 pluralism, 77, 95, 97, 107–8, 135, 243, 245 see also democracy Poland, 115–31, 153, 162, 173, 240, 244 political opportunity structure, 11, 17, 209, 217 public opinion, 122–4, 166, 222, 225, 226–7 policy, 39, 46–7, 71, 84–5, 186–7 sphere, 13–14, 42, 103–8, 119–22

288

INDEX

racism, 27–9, 84, 88, 121, 171, 230 see also directive(s), against Race Discrimination religion, see Islam Catholicism, 103, 106, 127–8 see also secular(ism) rights, 23, 25, 79–80, 99, 117, 128, 137–40, 149–50, 158, 166, 176–7, 180, 186–9, 222–5, 227–32, 240, 241–2, 244–5 see also group rights; Human Rights; migrant rights Roma, 84, 224–7, 238, 241 Romania, 7, 205–19, 238, 240, 244–5 secular(ism), 95–101, 245 security, 43, 46, 70–1, 99, 104–5, 214, 222, 227, 244 (de-)securitization, 227, 231–2 social constructivism, 236 social movements, 9–11, 78, 88, 90, 101–4, 109, 128 see also activism; civil society Spain, 160, 166, 168, 175, 186–7, 189, 192, 202–3, 214, 216 Sweden, 141, 150, 157–8, 173, 175

third country nationals, 6, 27, 32, 59–61, 63, 244 transgender, 135–8, 158, 240 see also LGBT Transylvania, see Romania treaties (of the EU) Amsterdam, 30, 41, 59–63, 78, 80–1, 116, 140, 155, 157, 159, 166, 169, 172 European Communities (EC Treaty), 3, 87, 172 Lisbon, 22, 25, 118, 149–50, 153 Maastricht (Treaty on European Union, TEU), 22, 62–3 Turkey, 6, 16, 95–109, 238, 245 United Kingdom, 45–50, 79, 88, 138, 146, 170, 173–6, 185, 187, 189, 192–3, 200, 240, 242 unity, 3, 23, 26, 69–70, 237 women, 10, 29–34, 77–91, 108, 155, 158–61, 171–2, 175–7, 180, 239 see also gender