Implementing Soft Law: The Case of Equality Promotion

Abstract

The purpose of the article is to focus on the role of European institutions working on human rights related issues – such as the OSCE, the Council of Europe and the EU – in the protection of nomadic peoples’ way of life. In particular, the Council of Europe (CoE) has adopted several resolutions and recommendations specifically concerning nomadic communities in Europe. This article focuses on the situation of the Roma and the Travellers who are facing threats to their nomadic lifestyle, which often leads to violent confrontation with the settled communities of the different European countries. The Roma / Gypsies especially have been the victims of discrimination in several European countries. In 1993 the Parliamentary Assembly of the Council of Europe adopted a report highlighting that as “one of the very few non-territorial minorities in Europe Gypsies need special protection”. This article explores how European institutions working on issues related to minority rights are trying to establish a balance between the need to provide appropriate accommodation for nomadic peoples – while preserving their right to remain on the move – with the need for mechanisms to be in place to address illegal encampments. It will then be examined how these institutions have developed an approach based on a right to halting facilities under which states have a duty to ensure halting facilities for nomadic peoples. A Recommendation of the Committee of Ministers of the Council of Europe on the movement and encampment of Travellers in Europe highlights the dual legal approach to the right for nomadic peoples to remain nomads. The Committee’s Recommendation mentions the right to freedom of movement and the right to preserve and develop specific cultural identities as a basis for a right for Roma / Gypsies who wish “to continue to lead a traditional nomadic or semi-nomadic lifestyle”. The article explores how European institutions have developed such a dual approach to the right of nomadic peoples to remain on the move. It argues that a territorial right for nomadic peoples has been developed, firstly, through references to cultural rights and, secondly, under the banner of freedom of movement. Thus, based on this assumption, the article examines, first, the legal approach based on the right of nomadic peoples to enjoy their own way of life and, second, the interaction between freedom of movement and the right of nomadic peoples to remain nomads.