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Tag: Human Rights

Nothing About Us Without Us: Disability Rights in the European Union

  • December 2019
  • Hannah Bettsworth

Nothing About Us Without Us: Disability Rights in the European Union

 

A disability rights protest in IrelandSource: Flickr (Sinn Fein)

If someone cannot get upstairs, that may be the result of a ‘disabling’ condition. A more modern approach suggests that disability is not an individual issue, but a social one. The inability to get upstairs is a result of society’s failure to provide another way of accessing higher floors.

The International Day of Persons with Disabilities takes place every year on the 3rd of December. In 2019, it was themed around disabled people’s leadership in sustainable development action. That is relevant everywhere, regardless of the national level of economic development. The United Nations’ Sustainable Development Goals highlight disability. All countries have to include disabled people in their development plans.

 

The EU is no exception. The European Disability Strategy is one of the many policies which needs renewing. First, a brief note on terminology. The EU and UN refer to ‘persons/people with disabilities’. Many activists refer to themselves as ‘disabled people’. Different people prefer different terminologies. The author of this piece has dyspraxia, a condition which affects movement and coordination. In line with the author’s personal preference for the term ‘disabled person,’ this piece will also use that term when discussing public policy.

 

Secondly, a brief theoretical introduction. There are two prevailing ‘models’ of disability: the medical model, and the social model. The former sees the cause of disability as an individual’s impairment. The latter sees the cause of disability as society’s failure to include people. To take an example, under the social model, a wheelchair user is not disabled because of their inability to climb stairs. They are disabled because nobody has provided a ramp or a lift. In short: under the medical model, the impairment is the problem. Under the social model, society’s barriers are the problem.

 

Some inclusive reforms have taken place in the EU. The European Disability Strategy (EDS) 2010-2020 focused on eight main action areas. These are accessibility, participation, equality, employment, education and training. Many of these achievements are in the EDS 2017 Progress Report. Only some will be highlighted here. The European Accessibility Act was designed to harmonise accessibility requirements for particular products and services. It also defined how pre-existing accessibility obligations should be met.) New EU funding rules about accessibility and inclusion ensure respect for disability rights in EU aid projects.

 

Disability has also been mainstreamed in Erasmus+. Specific funding is available to help disabled students and staff take part. Calls for proposals now include accessibility criteria. Disabled young people are a target group for the Youth Guarantee education and training scheme. One of the main barriers to mobility is the lack of mutual recognition of disability status between the Member States. The EU disability card, piloted in 8 Member States, is a potential step towards EU-wide recognition.

 

However, there is still much work to do. The United Nations’ assessment of the EU’s compliance with the Convention on the Rights of Persons with Disabilities (CRPD) revealed some important shortcomings. The EU has not ratified the Optional Protocol to the CRPD. Doing so would create a powerful tool for disability rights activism. Individuals or groups under EU jurisdiction could complain of CRPD violations to the UN Committee on the Rights of Persons with Disabilities. It could then launch an investigation and request the EU act to avoid harming the victim(s). The Committee could also launch a full inquiry if the EU chose to accept its competence to do so. It may seem unlikely that the EU would mistreat disabled people. In reality, the first-ever country to be investigated in this way was the United Kingdom.

 

Indeed, institutionalisation persists in many Member States. The UN highlighted the issue of children living in institutions within the EU territory. They often lack access to quality, inclusive education within the mainstream state system. It was also concerned that the European Structural and Investment Funds were being used to support institutions rather than to support disabled people in the local community. Even worse, some Member States still engage in forced sterilisation and abortion: a human rights violation under the CRPD.

 

Some disabled people were also denied the right to vote in the 2019 European Parliamentary elections. This is due to inaccessible voting procedures or reduced legal capacity/guardianship. The European Economic and Social Committee estimates that the latter deprived around 800,000 EU citizens of their right to vote. It also highlights that blind voters in 18 Member States cannot cast a secret ballot. They are expected to receive help from another person. 8 Member States have no form of distance voting, disenfranchising anyone who cannot attend a polling station in person.

 

Looking to the next 10 years, the European Disability Forum passed a Resolution at the 2017 European Parliament of Persons with Disabilities. They call on the EU to ratify the Optional Protocol as mentioned above. The Structured Dialogue is an ongoing cycle of communication between young people and the EU institutions, and the EDF seeks to duplicate this process for disabled people. Adequate funding for disability-related projects is an overarching concern throughout the Resolution. The EU must be aware of this in planning its next budget.

 

The EDF also raised concerns about discrimination against disabled people who also belong to other marginalised groups. An integral part of the strategy for the next 10 years must be inclusion, respect for decision-making power, and de-institutionalisation. The UN asked the EU to act on the detention of disabled refugees and migrants. It did not do so, and this must now be a priority for upcoming migration reforms.

 

It would be all too easy to focus on things like the budget and migration at the expense of issues like the EDS. For the EU to drag its heels over the production of a 2030 European Disability Strategy would be an unacceptable dereliction of duty. Disabled over 16s form 24.1% of the European population. Disability issues are not only those linked to disability rights. All EU decisions affect us, and nothing should be done about us without us.

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Still fighting for equality: transgender recognition in Europe

  • October 2019
  • Hannah Bettsworth

Still fighting for equality: transgender recognition in Europe

 

Source: Pixabay

Many European states still have processes and policies that violate transgender people’s fundamental rights

 

Imagine a couple in England: Ben, who is a transgender man, and James, his husband. Ben has been going through the gender recognition process: he has been diagnosed with gender dysphoria, and has lived as a man for at least two years. When he applies for his Gender Recognition Certificate, James has the power to agree or disagree with the issuing of a full certificate. He could end up delaying Ben’s full gender recognition for years of divorce proceedings. Instead of dropping marriage restrictions for transgender people when legalising same-sex marriage, the UK government introduced this ‘spousal veto’.
Finland, as part of its EU Presidency, recently held a conference in Brussels on LGBTI (Lesbian, Gay, Bisexual, Trans, Intersex) equality in the EU, with the participation of several ministers and state secretaries from the Member States, members of the European Parliament, and even Justice Commissioner Věra Jourová. According to the findings of the conference, some advances have been made in Europe, but there remains a lot to do.

The recent Eurobarometer survey on social acceptance of LGBTI+ (the plus symbol is an additional marker of inclusion) people, as discussed at the conference, paints a mixed picture. The headline figures for the EU28 suggest that a majority of EU citizens believe that gay, lesbian and bisexual people should have the same rights as heterosexual people, and that they also accept sexual relationships and marriages between two people of the same sex. However, opinions vary greatly between member states. For example, agreement with all three of those statements is over 90% in the Netherlands, but in Bulgaria only 39% of those surveyed agreed with equal LGB rights, 20% with the acceptability of same-sex sexual relationships and 16% with same-sex marriage being allowed across Europe.

 

There are also disparities in attitudes to different groups within the LGBTI+ umbrella. Although 59% agree that transgender people should be able to change their documents to reflect their gender identity and 46% agree with a third gender option on official documents, social acceptance is far lower. 64% of respondents would be comfortable with an LGB prime minister, but only 53% with a transgender prime minister. This gap of around 10% persists in relation to whether respondents would be comfortable for their child to be in a romantic relationship with a same sex partner or a transgender partner.

In Finland itself, the situation on transgender rights is poor. It is one of the European countries which still forces transgender people to be sterilised in order to get legal gender recognition. In other words, some governments make transgender people choose between having the correct gender on their ID cards or being able to have children. Sadly, it is not alone. As of April 2018, 16 countries in Europe and Central Asia required sterilisation of transgender people seeking basic legal recognition for who they are.

This is a violation of Council of Europe standards, which require its Member States to review such requirements and remove abusive ones as well as to ensure that name and gender changes can be quickly and easily carried out and are reflected in state and non-state documents. If this is not the case, it deters transgender people from attempting to be legally recognised. The Belgian experience is a good example of this: until 1 January 2018, sterilisation was mandatory for gender recognition in Belgium. 10 years after the initial law was put in place, respondents to a government survey were asked whether they would still have had sterilisation surgery if it was not legally mandated at the time of their registration change. 28% of those assigned female at birth said they would not have had it, while 26.6% would have. Among those assigned male at birth, 48.1% would have had it while 24% would not. The remainder did not know. A sizeable fraction of the transgender community in Belgium, for seeking basic legal recognition, then, were forced into surgery they would not otherwise have had.

What is worse, some countries lack any kind of name change and gender recognition  process at all. As can be seen on the map linked above, their list includes some of the enlargement countries: Kosovo, Albania and North Macedonia. They are not the only culprits, though. Even within the EU and EEA, as noted in the European network of legal experts’ report, uncertain legal frameworks in some countries risk preventing transgender people from having their gender legally recognised. This is the case in Cyprus, Bulgaria, Latvia, Lithuania and Liechtenstein: they either lack dedicated, specific gender recognition laws or have not put the necessary regulations in place to allow applicants to fulfil the criteria.

Even where European countries have removed sterilisation requirements and enacted legal recognition measures, these remain an infringement of fundamental rights. It is still  common in Europe to force transgender people to get divorced in order to have their gender legally recognised. This is a legacy from a time where marriage was limited to only opposite-sex couples and is based in both anti-gay and anti-trans prejudice. That much is clear if we examine the UK’s same-sex marriage laws. In making a step forward for equality, it took a step back at the same time. The aforementioned ‘spousal veto’ enshrined homophobic and transphobic ideas in law. The civil service prioritised shielding James from a gay marriage over Ben’s human rights.
It is not all doom and gloom across Europe, however. Malta was held up as a model of best practices at the conference. Malta, alongside Belgium, Denmark, Ireland, Luxembourg, Norway, and Portugal, allows transgender people to gain legal gender recognition on the basis of statutory declaration, without having surgery, sterilisation or waiting periods forced on them.  Malta also allows for a non-binary ‘X’ marker on its passports and official documents.

This is the only solution that respects the fundamental rights of transgender people. In 2019, on our continent, forced sterilisation and surgery persist. People are forced to prove something as fundamental and as personal as their gender identity to the satisfaction of their state. Their partners are permitted to prevent them from accessing their fundamental legal rights.

We cannot move forward as a continent on LGBTI+ rights until there are simple, easy, and quick recognition procedures for transgender people in every European country. A large part of the backlash against equality has targeted transgender people. All those who support LGBTI+ rights need to stand with our trans friends, colleagues, neighbours and family members to ensure we keep moving forward together.

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A Zombie Proposal: the Recast Return Directive

  • September 2019
  • Hannah Bettsworth

A Zombie Proposal: the Recast Return Directive

This Directive would fast-track asylum cases at the expense of fundamental rights. The EU should not resurrect it.

Source: Pixabay

The previous Italian government blocked migration cooperation completely, out of a desire to block migration itself. It not only refused to take search and rescue ships into Italian ports, it sought to criminalise anyone who organised such rescue efforts.
With a new government in Italy, the Member States have sought to take the opportunity to deal with migration while it lasts. They formed a temporary agreement on disembarkations at a rotating series of EU ports.

 

The Finnish Presidency has also included migration in its programme, albeit not as a headline issue. They hint at resurrection of individual elements of the failed Common European Asylum System package.

 

That raises the spectre of the Recast Return Directive, a Commission proposal to reform the processes through which third country nationals who lack approval to stay are sent to other countries. Its reasoning was that the EU must act on migrant returns to maintain public confidence, and to reduce irregular migration. In 2018, of those ordered to leave the EU, 41.49% were physically returned (most of whom, but not all, were sent back to a third country.)

 

The Commission, therefore, decided they needed to change the law to improve the return rate. They, however, failed to carry out an impact assessment. The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) requested a substitute impact assessment from the European Parliamentary Research Service. This found that there was no clear evidence that the proposal would lead to more effective returns, while it would likely breach migrants’ fundamental rights. They highlight its effects on the right to liberty (through increasing use and length of detention) and the non-refoulement principle. The latter issue arises in cases where the reforms allow Member States to continue with deportations while appeals are in progress, leading to a clear risk of returning someone to face persecution.

 

It also explains the main changes to the Directive which can be found in the proposal. Primarily, it would create a wide-ranging, extensive list of factors that could determine the risk that an applicant will seek to evade the return process  – known as the ‘risk of absconding’. It would force third-country nationals to cooperate with the Member State authorities. Member States would have to issue a return decision right after rejecting or ending someone’s legal stay, losing their discretion. It seeks to remove the minimum 7-day grace period for voluntary departure, and cap it at 30 days with the potential for extension.
Where a risk of absconding is present, the application deemed as ‘manifestly unfounded‘ or fraudulent, or the applicant is deemed to be ‘a risk to public policy, public security or national security’, Member States would have to refuse a voluntary departure period. The proposal also allows handing out entry bans to irregular stayers discovered when they travel from their EU country of residence to a non-EU country. Member States would have to set up a national return management system linked to European Border and Coast Guard systems. They would also have to set up voluntary return programmes that could include support for reintegration in the return country.

 

The proposal also reduces the time limits for appeals against return decisions. It falls to 5 days in the case of a final rejection of an application for international protection. A rejected applicant at the border with a final decision would have a mere 48 hours. It also severely restricts the circumstances when return is suspended pending appeal. Finally, it establishes posing ”a risk to public policy, public security or national security’ as grounds for detention.

 

There are numerous potential human rights abuses which could arise from this Directive. The European Union Agency for Fundamental Rights (FRA) and the European Council on Refugees and Exiles (ECRE) explain this in detail. To take just one issue, both groups call for the deletion of Article 22 on the Border Procedure.

 

This procedure would permit Member States to enact speedy returns after a fast-tracked analysis of the person’s case at the border. In a fast-track process, vulnerable people may be unable to build an effective enough case for asylum or international protection. Their case will no longer always automatically be suspended pending appeal, unless they introduce new, significant, situation-changing material since the first assessment, or the asylum decision did not receive effective legal scrutiny. Such people face a serious risk of wrongful removal. If they can access legal help, that service will have only 48 hours to travel to the border and produce a case.

 

According to the ECRE, reports from “hotspots in Greece illustrate that such an approach is unworkable in practice and results in massive human rights violations”. The FRA adds “it is not possible to suggest solutions that would re-design the proposed border procedure in the Return Directive to ensure its fundamental rights compliance.”

 

Worryingly, the FRA also states that “[I]t is not yet known whether it will apply only to persons apprehended directly at the border or if it will be possible, for example, to channel into the border procedure also persons apprehended elsewhere in the territory of a Member State, or if it can apply to all categories of applicants for international protection, including vulnerable persons.” In other words, an exceptional procedure could become the standard assessment mechanism. It has already happened in Hungary, where those caught elsewhere are taken to border detention.

 

Migrants from particular, disadvantaged, backgrounds stand to be the worst hit by this proposal. It would particularly harm women who have experienced Gender Based Violence (GBV) and LGBT+ people. Asylum-seeking and refugee women may not recognise GBV as GBV at first, for a variety of different reasons: including, but not limited to fear of deportation or of ostracisation from their communities. They may not want to share their experiences with interviewers or other professionals such as lawyers and interpreters. LGBT+ African asylum seekers in the UK reported disbelief and accusations of lying when telling Home Office decision makers about their sexuality. Some of them struggled to come out as LGBT+ out of fear or did not know it was a basis for claiming asylum. Both groups need time and assistance to handle their situation and produce as effective a case as they can.

 

Fast-tracked decision-making and return procedures, by definition, seek to deprive applicants of that time and space. Such reforms should be left in the past with the last mandate. The European Union should refocus on ensuring that all arrivals on its territory are met with dignity and the utmost respect for their rights and humanity. Such respect must be upheld at every stage of the international protection process from application through to acceptance or return. The recast Return Directive, in its current form, fails that test.

 

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With Great Power Comes Great Responsibility

  • August 2019
  • Hannah Bettsworth

With Great Power Comes Great Responsibility: the EU and Trade Conditionality

The Amazon case reflects both the potential of the EU’s market power and how inconsistently it is exercised

Source: Pixabay

Most people online have probably seen the photos of the Amazon burning, as they spread rapidly across social media and developed into a hashtag. As with any online movement, it has suffered from its fair share of misleading content but has also pushed world leaders to act. The EU is no exception to this: its painstakingly negotiated trade deal with Mercosur (Argentina, Brazil, Paraguay and Uruguay) hangs in the political balance.

 

Emmanuel Macron spotted an opportunity. In threatening to block the deal, he was able to challenge Brazilian President Jair Bolsonaro who allowed people to set fires without having to worry about being punished. France, alone, would not have the economic weight to enforce environmental norms, but the sheer weight of the EU market gives it a potentially high level of impact. Chad Damro, an academic, described this phenomenon as Market Power Europe. In other words, the vastness of the single market means that access controls, EU regulations, and interest contestation within it naturally have a knock-on effect on other countries and foreign firms. As such, the EU can and does use its market in carrot and stick measures,  and deploys it to encourage its partners to adopt EU policies and norms.

 

The reality follows the theory to an extent, concerning EU action in Latin America. It shapes the environmental agenda through dialogues, development aid, Association Agreements and environmental programmes. Its Association Agreements and Free Trade Agreements with Latin American countries are conditional on upholding certain environmental positions. However, the EU’s influence levels in Latin America are weaker than in its neighbourhood. It is also hard to detach the impact of a specific EU contribution from similar measures by other countries and international organisations. Using its single market as an incentive is often a substitute for deploying sanctions. As described in Ian Manners’ concept of a Normative Power Europe, it is the EU’s different identity (derived from its history and governance) that leads it to seek consensus and convince rather than impose.

 

Shaming and pressure only work if domestic leaders are receptive to such input. The EU has similar mechanisms relating to human rights and trade, including a ‘human rights clause’ as an essential part of trade deals which can result in the suspension of the whole agreement. Such clauses have not yet been invoked, although the EU also has a Generalised System of Preferences+ (GSP+) scheme which provides additional trade benefits on developing countries and is conditional on ratification and implementation of particular international agreements. So far, the EU has inconsistently used withdrawal threats with varying degrees of success: it succeeded in convincing El Salvador to change its constitution to ratify an International Labour Organisation convention, but could not sufficiently pressure Sri Lanka to address rights violations.

 

In Cambodia, which has duty-free access to EU markets under the Everything But Arms scheme, preferential tariffs aimed at increasing land investment inadvertently also incentivised the state to seize land and evict people against their will to facilitate sales to agro-industrial developers. This led the EU to begin to consider preference removal, which is a long process and has no coercive impact in the meantime if the Cambodian government is not receptive. This is relevant to the current situation, as Bolsonaro has made repeated remarks about developing on indigenous land and integrating the people there (who wish to maintain their current system and culture) into mainstream Brazilian society.

Indeed, the European Parliamentary Research Service notes that some suggest the EU has the most power at the stage of negotiations it has currently reached with Mercosur: “when it can still withdraw the conclusion of the agreement unless the other party improves its commitment to human and labour rights.” It, sensibly, reminds us that the Commission has to weigh up all the potential impacts of a trade agreement as to the increased openness, dialogue, and contacts between the parties that come with economic liberalisation have the potential to lead to additional progress. Indeed, civil society can also benefit from the accompanying environmental and human rights dialogues in EU agreements and obtain more opportunities to mobilise for reform at home. Free trade should not be restricted at all: as part of an effective development package, it is a vital tool for reducing poverty, and the slowing growth in global trade puts that at risk.

 

Member States know that, and value domestic economic growth highly on their priority lists. It is worth looking at the experience of the EU-Canada agreement (CETA). The European Parliament fought tooth and nail for human rights conditionality in CETA, against Canada’s wishes. Despite Canada’s traditionally strong human rights record, the European Parliament insisted on the inclusion of a human rights clause in the deal, which the Canadians initially saw as unnecessary. It has not always pushed as strongly for such clauses but chose to operate tactically as a result of growing civil society and public focus on trade deals. Macron has arguably done the same. He spotted an opportunity to fight with a populist leader on an issue which had erupted into the public consciousness, while tactically avoiding confrontation with French farmers (much to the chagrin of other Member States.)

 

Overall, this situation is a microcosm of wider EU trade policy issues. Market Power Europe could have an exceptional amount of leverage with its partners and with global markets. If it was willing to overcome its squeamishness about hard power, it could successfully push other actors to fall in line with its human rights and environmental policy priorities while maintaining its ever-more-vital role as a defender of global free trade and economic openness. It could consistently and successfully spread European economic and human rights norms to its partners, in a beneficial manner for Europeans and the planet as a whole, but instead only uses this vast potential when the stars align to make it politically convenient for a leader or institution to do so.

 

 

 

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