Race and Law in Fortress Europe

Date01 January 2004
DOIhttp://doi.org/10.1111/j.1468-2230.2004.06701001.x
Published date01 January 2004
THE
MODERN LAW REVIEW
Volume 67 January 2004 No 1
Race and Law in Fortress Europe
Bob Hepple
n
The universality of human rights is undermined by the principle of territorial supremacy. This
allows member statesof the EU to discriminate against those who are not citizens of the Union.
Moreover, the European Convention on Human Rights and the EC Race Directive are incap-
able of redressing collective racial or ethnic disadvantage because they do not provide for the
enforcement of positive social, eco nomic and cultural obligations.Thes e limitations are assessed
in the light of current political and legal developments, using as the main illustration the case of
the European Roma. An analysis is provided of obligations to respect, to protect and to ful¢l
social rights, which could be used when challenging the actions of public authorities and secur-
ing access for i ndividuals to public facilities and services. An inclusionary approach would
emphasise that equality is central to human rights, and that‘outsiders’ such as migrant workers
and asylum-seekers havehuman rights.
INTRODUCTION
The debate about race, immigration, and asylum in the European Union has
become polarised between pessimists and optimists.
The pessimists and scaremongers claim that immigration undermines the
wages and job opportunitie s of Europeans, particularly those who are unskilled,
and makesbusinesses less competitive.
1
They assert,as did the Home A¡airsSelect
Committee in May 2003, that the increased number of asylum-seekers is ‘unsus-
tainable’ and‘if allowed to continue unchecked, it could overwhelm the capacity
of the receiving countries to cope, leading inevitably to social unrest’.
2
Some fear
that a multi-ethnic society will destroy the sense of national identity of the states
that make up the European Union.
3
The pessimists seek to seal the external
n
QC, FBA. Emeritus Master of Clare College and Emeritus Professor of Law in the University of
Cambridge; Chair of the European Roma Rights Center (ERRC). This is a revised version of the
thirty-second annual Chorley Lecture delivered at the London School of Economics on 11 June 2003.
My understanding of this subject has been greatly in£uenced by the insights, based on her vast
practical experience, of my wife, Mary Coussey. I am alsograteful for their comments to Catherine
Barnard, LukeClements,Terry Moore,Joanne Scott, and Erika Szyszczak.
1A.Browne,DoWe NeedMass Immigration? (London: Civitas,2002) 66^74.
2 House of Commons Select Committee on Home A¡airs, Asylum Removals 4
th
Report Session
2002^2003, para1.
3 Eg B. Rowthorn,‘Migration limits’ Prospec t, February 2003, 24^31; and see reply by N. Hildyard,
Prospect, March 20 03, 22^23.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(1) MLR 1^15

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