ethnic identification practices brief

MANDATORY ETHNIC IDENTIFICATION IN EUROPE

Memorandum

February 2013

Mandatory Ethnic Identification in Europe, February 2013

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MANDATORY ETHNIC IDENTIFICATION IN EUROPE

Introduction

The purpose of this memorandum is to illustrate that color-coded (or otherwise marked) ethnic ballots and, by extension, mandatory ethnic identification in general, are not a common state practice in Europe. The Council of Europe, the European Union, and individual European states have laws that discourage discrimination based on ethnicity and national minorities. Nevertheless, there are instances of ethnic identification in South Tyrol, Italy and the United Kingdom (UK). However, in South Tyrol, mandatory ethnic identification faces challenges by the state government and the Council of Europe, and in the UK, ethnic identification must be conducted under stringent statutory requirements and specifications and only for the purpose of combatting discrimination.

Analysis Under European standards, discrimination of any type, and particularly ethnic discrimination, is prohibited, as is mandatory self-identification for national minorities. This is likely why most European states are sensitive about making ethnic identification mandatory. South Tyrol and the United Kingdom are exceptions to this general practice. European Standards

Multinational agreements in Europe prohibit discrimination based on ethnicity, race, or political preference. Under the European Convention on Human Rights (ECHR), Article 14 prohibits discrimination with regard to the rights set forth in the ECHR.1 Article 1 of Protocol No. 12 prohibits discrimination with regard to any right under any law.2 In interpreting the ECHR, the European Court of Human Rights has held that “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures,” implying that ethnic discrimination is not tolerated in Europe.3 Similarly, under the Charter of Fundamental Rights of 1 European Convention on Human Rights art. 14 (1995), available at http://conventions.coe.int/treaty/en/treaties/html/005.htm. 2 Protocol No. 12 to the European Convention on Human Rights art. 1 (2000), available at http://conventions.coe.int/treaty/en/treaties/html/177.htm. 3 D.H. and Others v. Czech Republic, European Court of Human Rights, para. 176 (2007), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256).


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the European Union, Member States are prohibited from discriminating on the basis of ethic origin or political opinion.4

The Council of Europe also discourages mandatory identification of national

minorities. The Council of Europe Framework Convention for the Protection of National Minorities provides in Article 3 that “[e]very person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”5 In Article 4, the Convention provides that discrimination based on membership in a national minority is prohibited.6 The Convention does not define the term “national minority,” instead leaving the definition to the discretion of each state.7 In a 2002 report, “Code of Good Practice on Electoral Matters,” the European Commission for Democracy Through Law (Venice Commission) similarly provided that “[n]either candidates nor voters must find themselves obliged to reveal their membership of a national minority.”8

Individual European states similarly provide constitutional protections

against ethnic discrimination,9 and some provide that self-identification with ethnic groups and minorities is a guaranteed right.10 Due in part to these non-discrimination protections and prohibitions on mandatory identification of national minorities in multi-lateral agreements and state constitutions, compulsory ethnic identification and color-coded/marked ballots based on ethnicity are not common practice in European states.

4 Charter of Fundamental Rights of the European Union art. 21 (2010), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:EN:PDF. 5 Framework Convention for the Protection of National Minorities art. 3 (1995), available at http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm. 6 Framework Convention for the Protection of National Minorities art. 4 (1995), available at http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm. 7 Council of Europe, Promoting the Full and Effective Equality of Persons Belonging to Minorities (last accessed Feb. 7, 2013), available at http://hub.coe.int/what-we-do/human-rights/national-minorities. 8 European Commission for Democracy Through Law, Code of Good Practice on Electoral Matters, 8 (2002), available at http://www.venice.coe.int/WebForms/documents/?pdf=CDL-AD(2002)023rev-e. 9 See BELGIUM CONST. arts. 11, 23 (2012), available at http://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf; HUNGARY CONST. art. XV (2011), available at http://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf 10 SLOVENIA CONST. art. 62 (2007), available at http://www.servat.unibe.ch/icl/si00000_.html.


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South Tyrol The Italian province of South Tyrol requires that citizens identify their

ethno-linguistic statuses in population censuses held every 10 years in order to obtain certain electoral rights.11 Ethnic identification is only mandatory if a citizen wishes to be elected to a certain post, such as mayor or parliamentarian.12 However, if a citizen does not want to identify his/her ethnicity, then he/she cannot be elected to a political post.13 Political posts in the South Tyrolean government are reserved for three ethno-linguistic groups: Italian, German, and Ladino.14 If a citizen does chose to identify with an ethnicity during a census in order to hold a post, that citizen can only be considered for a post reserved for that particular ethno-linguistic identification.15 For instance, if a citizen identifies herself as Italian, she cannot stand as a candidate for a German post. However, South Tyrol’s ethnic identification system allows for ethnic-identity flexibility. A citizen may choose to change his/her declaration of ethnic affiliation; the citizen is not bound to one ethno-linguistic identification for his/her entire life.16

The South Tyrolean law requiring citizens to ethnically identify themselves

in order to stand for election has been challenged in Italy.17 In 1999, the Italian Supreme Court decided in the Beltramba case that a citizen’s non-declaration of ethnic identification does not prevent him/her from being elected to a political post.18 The Court held that though the government’s stated aim of protecting 11 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 79 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf. 12 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 79 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf. 13 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 79 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf. 14 Bosnia’s Gordian Knot: Constitutional Reform, INTERNATIONAL CRISIS GROUP, 11 (Jul. 12, 2012), available at http://www.crisisgroup.org/~/media/Files/europe/balkans/bosnia-herzegovina/b068-bosnias-gordian-knot-constitutional-reform.pdf. 15 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 79 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf. 16 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 79 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf. 17 Bosnia’s Gordian Knot: Constitutional Reform, INTERNATIONAL CRISIS GROUP, 11 (Jul. 12, 2012), available at http://www.crisisgroup.org/~/media/Files/europe/balkans/bosnia-herzegovina/b068-bosnias-gordian-knot-constitutional-reform.pdf. 18 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 80 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf.


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minorities was valid, the right to stand for election took precedence.19 Although this judgment is important for legal argumentation, this decision had an inter partes effect, meaning that the ruling cannot be imposed in practice.20 This is because, while a decision of the Supreme Court may quash the decision of a lower court on appeal, it is not binding on other lower courts (and impliedly on provincial governments); it merely serves as precedent.21 In its 2005 “Second Opinion on Italy,” the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities likewise criticized the South Tyrolean practice of tying ethnic identification to electoral rights.22

Shortly after the Advisory Committee issued its opinion, South Tyrolean

authorities amended the law to allow candidates to make ad hoc declarations of ethnicity at the time of accepting candidature, rather than stipulating ethnicity in the census.23 Decree No. 99/2005 also limits the circumstances under which the ethnic declaration may be disclosed, and allows voluntary changes in ethnic identification to come into force within 18 months, rather than the previously-required three years. In its 2010 “Third Opinion on Italy,” the Advisory Committee lauded South Tyrol for passing Decree No. 99/2005, but expressed concern that mandatory ethnic identification continues to be a requirement, and failure to self-identify with one of the three main ethnicities can still result in some loss of political rights.24 The South Tyrolean case illustrates that European states and sub-state entities that impose mandatory ethnic identification requirements on their citizens with the purpose of maintaining ethnic quotas in government are likely to face challenges from European authorities.

19 Emma Lantschner and Giovanni Poggeschi, Quota System, Census and Declaration of Affiliation to a Linguistic Group, in TOLERANCE THROUGH LAW: SELF GOVERNANCE AND GROUP RIGHTS IN SOUTH TYROL 219, 230 (Jens Woelk, Francesco Palermo and Joseph Marko, 2008). 20 Edin Hodžić and Nenad Stojanović, NEW/OLD CONSTITUTIONAL ENGINEERING 80 (2011), available at http://analitika.ba/files/NEW%20OLD%20CONSTITUTIONAL%20ENGINEERING%20-%2007062011%20za%20web.pdf. 21 Italian Court of Cassation, Functions of the Court of Cassation (last accessed Feb. 15, 2013), available at http://www.cortedicassazione.it/Cassazione/Cassazione.asp. 22 Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities, Second Opinion on Italy, 12 (Feb. 24, 2005), available at http://www.coe.int/t/dghl/monitoring/minorities/3_fcnmdocs/PDF_2nd_OP_Italy_en.pdf. 23 Emma Lantschner and Giovanni Poggeschi, Quota System, Census and Declaration of Affiliation to a Linguistic Group, in TOLERANCE THROUGH LAW: SELF GOVERNANCE AND GROUP RIGHTS IN SOUTH TYROL 219, 230 (Jens Woelk, Francesco Palermo and Joseph Marko, 2008). 24 Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities, Third Opinion on Italy, 13 (May 30, 2011), available at http://www.coe.int/t/dghl/monitoring/minorities/3_fcnmdocs/PDF_3rd_OP_Italy_en.pdf.


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United Kingdom The United Kingdom (UK) permits the collection of information related to

citizens’ ethnic origins under the Data Protection Act of 1998.25 While most European states allow census respondents to answer questions related to national origin, ethnicity, and religion on a voluntary basis, the UK is one of a few European states to require respondents to answer the ethnic questions on its census form.26 On its 2011 census form, the questions relating to ethnicity were mandatory, whereas the question relating to religion was voluntary.27

However, the difference between the ethnic identification in UK and that of

South Tyrol is that the UK’s Data Protection Act of 1998 authorizes the collection of ethnic identities only if the information “is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained,” and the collection must be carried out in a matter that protects the rights and freedoms of the citizens.28 This ethnic identification data is used in order to determine if employers are complying with laws preventing ethnic or racial discrimination.29

For instance, in Northern Ireland,30 the Fair Employment and Treatment

(Northern Ireland) Order 1998 requires employers to collect information relating to the “community” to which employees and potential employees belong.31 The Order defines “community” as “the Protestant community, or the Roman Catholic 25 Patrick Simon, “Ethnic” Statistics and Data Protection in The Council of Europe Countries, EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE, 60 (2007), available at http://www.coe.int/t/dghl/monitoring/ecri/activities/themes/Ethnic_statistics_and_data_protection.pdf. 26 Patrick Simon, “Ethnic” Statistics and Data Protection in The Council of Europe Countries, EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE, 24 (2007), available at http://www.coe.int/t/dghl/monitoring/ecri/activities/themes/Ethnic_statistics_and_data_protection.pdf. 27 Office of for National Statistics Household Questionnaire, questions 16, 20 (England, 2011), available at https://www.census.ac.uk/Documents/CensusForms/EnglandhouseholdformCensus2011_tcm77-262138.pdf. 28 Data Protection Act 1998 Schedule 3(9)(1)(b)-(c) (United Kingdom, 1998), available at http://www.legislation.gov.uk/ukpga/1998/29. 29 Patrick Simon, “Ethnic” Statistics and Data Protection in The Council of Europe Countries, EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE, 60-61 (2007), available at http://www.coe.int/t/dghl/monitoring/ecri/activities/themes/Ethnic_statistics_and_data_protection.pdf. 30 As part of the United Kingdom, the Data Protection Act of 1998 also governs Northern Ireland. See United Kingdom Information Commissioner’s Office, Monitoring Under Section 75 of the Northern Ireland Act 1998 (last accessed Feb. 15, 2013), available at http://www.ico.gov.uk/for_organisations/data_protection/topic_guides/~/media/documents/library/Data_Protection/Detailed_specialist_guides/SECTION_75_MONITORING_GPN_V1.ashx (explaining the relationship between the Data Protection Act of 1998 and the monitoring requirements in the Northern Ireland Act of 1998). 31 Fair Employment and Treatment (Northern Ireland) Order 1998, art. 53 (United Kingdom, 1998), available at http://www.legislation.gov.uk/nisi/1998/3162/part/VII/crossheading/monitoring-the-workforce/made.


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community, in Northern Ireland.”32 The Fair Employment (Monitoring) Regulations (Northern Ireland) 1999, issued pursuant to the Order, requires employers to identify the number of “employees whom the employer has treated—

(i) as Protestant; (ii) as Roman Catholic; (iii) as if the community to which they belong cannot be determined”33 Employers issue information forms for employees and potential employees

to complete, which are sent as a “monitoring return” to the Equality Commission of Northern Ireland.34 For instance, on one law firm’s employment monitoring form, respondents were given the option to self-identify as members of the Protestant or Roman Catholic communities, or identify as “a member of neither the Protestant nor the Roman Catholic community.”35 Employers are prohibited from disclosing the information revealed through monitoring for any purpose besides completion of the monitoring return for the Commission, and those who do disclose this sensitive information for other purposes are guilty of an offense.36 The Commission uses employment monitoring in Northern Ireland for the express purpose of reviewing patterns and trends to determine “whether they reveal the existence of absence of equal opportunity” and, where equal opportunity is absent, to determine “the manner in which equality of opportunity can best be achieved.”37

Because the express purpose of mandatory ethnic identification in the UK is

the prohibition of discrimination and guarantee of equal treatment for people of

32 Fair Employment and Treatment (Northern Ireland) Order 1998, art. 52 (United Kingdom, 1998), available at http://www.legislation.gov.uk/nisi/1998/3162/part/VII/crossheading/monitoring-the-workforce/made. Though the monitoring regulations focus on religious, rather than ethnic, affiliation, “religious identity [is] a key social marker of ethnicity” in Northern Ireland, as it is in Bosnia and Herzegovina. Paul Dougherty and Michael A. Poole, Religion as an Indicator of Ethnicity in Northern Ireland – An Alternative Perspective, 35 IRISH GEOGRAPHY 75, 75 (2002), available at http://www.ucd.ie/gsi/pdf/35-1/ethnic.pdf. 33 Fair Employment (Monitoring) Regulations (Northern Ireland) 1999, Schedule 1, Part I (United Kingdom, 1999), available at http://www.legislation.gov.uk/nisr/1999/148/schedule/1/made. 34 Fair Employment and Treatment (Northern Ireland) Order 1998, art. 52 (United Kingdom, 1998), available at http://www.legislation.gov.uk/nisi/1998/3162/part/VII/crossheading/monitoring-the-workforce/made. 35 Cleaver Fulton Rankin Solicitors, Fair Employment and Treatment (Northern Ireland) Order 1998 and Fair Employment (Monitoring) Regulations (Northern Ireland) 1999 Explanatory Statement for Applicants, question 6 (2013), available at http://www.cfrlaw.co.uk/fs/doc/FE%20Monitoring%20Form%20for%20Applicants%20TT2013.pdf. 36 Fair Employment and Treatment (Northern Ireland) Order 1998, art. 53 (United Kingdom, 1998), available at http://www.legislation.gov.uk/nisi/1998/3162/part/VII/crossheading/monitoring-the-workforce/made. 37 Fair Employment and Treatment (Northern Ireland) Order 1998, art. 10 (United Kingdom, 1998), available at http://www.legislation.gov.uk/nisi/1998/3162/part/VII/crossheading/monitoring-the-workforce/made.


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different ethnicities (and other groups), this practice has not been challenged by European authorities.

Conclusion The practices of mandatory ethnic identification and ethnic color-

coded/marked ballots are not generally practiced in Europe. Multinational human rights and minority rights agreements, as well as state constitutions, discourage and prohibit discrimination based on ethnicity. Requiring citizens to ethnically identify themselves could arguably be a discriminatory practice and violate citizen’s rights. Although South Tyrol and the United Kingdom require ethnic identification, their reasons for doing so are different. South Tyrol requires citizens running for public office to ethnically identify themselves; however, this practice has been challenged in the Italian Supreme Court and criticized by the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities. In the United Kingdom, the Data Protection Act limits the use of the ethnic identification data collected only to ensure that the anti-discrimination laws are being followed. European states generally favor voluntary ethnic self-identification for citizens, and in those cases, the information is generally used to protect against, rather than perpetuate, discrimination.38

38 Patrick Simon, “Ethnic” Statistics and Data Protection in The Council of Europe Countries, EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE, 24-25 (2007), available at http://www.coe.int/t/dghl/monitoring/ecri/activities/themes/Ethnic_statistics_and_data_protection.pdf.