The right to education of vulnerable groups in the European system of human rights protection

  • 9 April 2019
  • kutatocsoport5

A blogbejegyzés Campus Mundi ösztöndíjjal támogatott tanulmányok keretében került elkészítésre. (The publishing of this article has been made possible by a Campus Mundi grant.)

 

I. Introduction

When talking about the topic of vulnerability, one must first carefully define the concept of vulnerability itself, as research in law and social sciences (especially sociology and bioethics), the legal documents of states and international organizations, and international frameworks of human rights protection all offer differing approaches to what it means to be vulnerable. Even if we narrow the scope of our analysis to strictly legal approaches, we are faced with multiple parallel concepts of vulnerability – and these aren’t always considered mutually compatible. 

On one hand, representatives of critical theory – such as Martha Anderson Fineman, Anna Grear or Morgan Cloud – approach vulnerability as a universal category: due to our embodiment, we are all inevitably vulnerable, our physical existence being exposed to illnesses and disabilities, accidents, natural disasters, economic hardships and other difficulties. This approach, while accepting that certain members of society – due to differences in both their embodiment and their social and economic position – are vulnerable in different ways and to a different extent, rejects the idea that vulnerability can be limited to certain identities and to those groups in society that embody these identities.[i]

On the contrary, in the European framework of human rights protection – with particular regard to the practice of the ECtHR and the legal instruments of both the Council of Europe and the European Union – a different interpretation of vulnerability emerges: those regarded as vulnerable belong to certain groups, certain populations within society.[ii] This interpretation – closely related to the concept of “protected characteristics” utilized by anti-discrimination law, but somewhat broader – considers vulnerability to stem from the fact that due to certain identities or characteristics, members of some populations find it particularly difficult to exercise their rights. Vulnerability implies harm (or potential harm) – in the practice of the ECtHR, two main types of harm are delineated: maldistribution, resulting in financial deprivation and social disadvantages for the members of the group in question and misrecognition, resulting in prejudice and stigmatization towards those belonging to the group.[iii]

II. Categories of vulnerability

In drawing up the structure of the research behind this paper, I used a categorization of vulnerable groups developed by Francesca Ippolito and Sara Iglesias Sanchez in their volume dealing with vulnerability specifically in the context of European human rights protection. The book in question identifies five categories of vulnerable groups:

1. Groups traditionally considered vulnerable: the broad groups belonging to this category are those whose innate or physical characteristics make them socially perceived as ‘inherently’ vulnerable. This category includes children and the elderly (those considered vulnerable due to their age), people with disabilities and in certain scenarios, women.[iv]

2. Vulnerable minorities: groups whose vulnerability derives from their status as a minority by reference to the dominant cultural, social, ethnical or sexual orientation positions of their society of reference (so primarily, ethnic and national minorities, linguistic minorities, religious minorities and sexual minorities).[v]

3. Non-nationals: this category includes various groups ranging from those deprived of any nationality and those who cannot avail themselves of the protection of their state of nationality, to those awarded the highest level of protection as citizens of the European Union. Particularly vulnerable are the stateless and asylum seekers: the vulnerability of the latter is often exasperated by such personal circumstances as bad health and old age.[vi]

4. Victims of illegal acts: these cases of vulnerability arise out of intentional human conduct, turning an individual into a victim (including trafficked migrants, victims of crime and victims of terrorism).[vii]

5. Circumstantial vulnerability: the final category covers three very different groups: prisoners/detainees, irregular immigrants, and socially vulnerable people (in this case meaning financially deprived and at direct risk of social exclusion). Despite the obvious differences among these groups, the reason that they are grouped together is the fact that their vulnerability stems from circumstantial elements that may well be temporary, and which are often imposed on them by the state or their social conditions. Additionally, despite their undeniable vulnerability, their need for protection is sometimes countered in the political and legal discourses by the perception that individual choice has somehow contributed to their own position (by committing criminal offences, disregarding the applicable migration rules, or failing to achieve social inclusion).[viii]

III. Vulnerable groups and the right to education

During my research into the topic, I endeavored to briefly explore some specific approaches designed within the European system of human rights protection that aim to promote the access of the members of certain vulnerable groups to education and training that is of a sufficiently high quality and that is reactive to their group-level particularities (their special needs). Within the scope of this present blog post, I would only like to summarize my main conclusions without going into detail.

I found that the European framework of human rights protection reacts rather differently to specific forms of vulnerability: the provision of access to education, as an important tool in countering social exclusion, appears primarily in the context of people with disabilities and those belonging to national and ethnic minorities. With regard to other vulnerable groups, for instance, asylum seekers or socially vulnerable youth, legal guarantees in the field of education are significantly more scarce, and in the case of certain groups (such as irregular immigrants) they are completely absent.

1. Vulnerability of disabled people

Within the category of groups traditionally seen as vulnerable, the one group that received the most attention with regard to their special status in education are the disabled. Approximately 80 million people in the European Union live with some form of physical, intellectual, sensory or learning disability, who are affected by poverty to a much larger extent than other EU citizens, and face limitations in access to employment as well as limited opportunities to enjoy a wide range of goods and services including education.[ix] Within the European framework of human rights protection, a social model of disability has started to replace the formerly ubiquitous medical model: while the medical model can be characterized as paternalistic and essentializing, considering disabled people as little more than the objects of protective legislation (that often restricts the rights of affected people), the social model perceives disabled people as the subjects of rights: their rights should be equal to those of other members of society, and in order to allow them to practice these rights freely, legislation should aim for their integration instead of maintaining segregation by “protective” measures.[x]

While the explicit admission of the vulnerability of disabled persons is mostly limited to the area of consumer protection in European Union law – where the legal category of “vulnerable consumers” provides extra protection to children, the elderly and those with mental disabilities against unfair commercial practices and dangerous products[xi] – the EU itself and all its member states are parties to the UN Convention on the Rights of Persons with Disabilities of 2006, meaning that the provisions of the Convention are legally binding on EU institutions and bodies. The Convention remedies the lack of a definition of “disability” in relevant EU instruments – such as Directive 2000/78 of the Council on equal treatment in employment and occupation – and its Article 24 requires Parties to recognize the right of persons with disabilities to education with a view to realizing this right without discrimination and on the basis of equal opportunity.[xii]

While the Court of Justice of the EU opined in its judgment in the Z. v A Government department and the Board of management of a community school case that the Convention is “programmatic” and its provisions are not “unconditional and sufficiently precise” to have direct effect in European Union law[xiii], the Convention, nonetheless, played an important role in the development of the European Commission's European Disability Strategy 2010-2020. Regarding the area of education, the Strategy commits to promoting inclusive education and lifelong learning for pupils and students with disabilities in order to facilitate their participation in society and in the labour market and to improve their quality of life.[xiv]

2. Vulnerability of national and ethnic minorities

The other form of vulnerability that receives particular attention in the field of education, training and youth policy is that of national and ethnic minorities, who, in comparison to majority society, are often lacking in those resources they would require for the preservation of the particular identities of their communities. When trying to remedy the vulnerability of minorities, Member States are faced with a double challenge: on the one hand, they must strive to establish substantial equality between members of minority groups and those belonging to the majority; on the other, they should enable minorities to retain their distinguishing specificities, their culture and traditions.

On a European level, the Framework Convention for the Protection of National Minorities, adopted by the Council of Europe, can be considered the most comprehensive document promoting the rights of national minorities. Multiple provisions of the Framework Agreement affect the right to education of members of national minorities: according to Article 6, the contracting parties undertake to “encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education […]”.[xv] Articles 12 through 14 require Member States to provide equal opportunities for access to education at all levels for persons belonging to national minorities, to take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and to recognize the rights of persons belonging to a minority to set up and to manage their own educational and training establishments and to learn their minority language.[xvi]

The European Convention on Human Rights, while not containing any specific provisions on the protection of minorities, plays an important role in remedying the infringements of minority rights: of particular importance is Article 2 of the first Protocol, providing for the right to education for everyone, including the right of parents to ensure access to education and teaching in conformity with their own religious and philosophical convictions.[xvii] Article 14 of the Convention provides for the enjoyment of the rights and freedoms set forth in the Convention without discrimination on any ground, while Article 34 entitles every person or group of individuals in the Member States – including, therefore, members of minorities and minority groups themselves – to submit an application to the European Court of Human Rights in the case of Member States infringing upon their rights set forth in the Convention and its Protocols.[xviii]

Examining the case law of the European Court of Human Rights, we can find that the Court concluded in several cases concerning the right to education of young people belonging to a certain national or ethnic minority that Article 2 of the first Protocol and Article 14 of the Convention have been infringed upon. The Court has unearthed particularly severe issues regarding the education of Roma children: in the cases D.H. and others v. Czech Republic, Orsus and others v. Croatia and Horváth and Kiss v. Hungary, the Court condemned the Member States in question for classifying the Roma youth in question as intellectually disabled and placing them in special schools.

While the scope of the EU approach to minority protection is in general narrower than that of the Council of Europe, with the coming into effect of the Treaty of Lisbon, the Treaties now explicitly refer to respect for human rights, specifically including the rights of persons belonging to minorities, as one of the foundational values of the European Union.[xix] Within secondary EU legislation, it is worth mentioning Directive 2000/43/EC of the Council, which aims to lay down a European framework for combating discrimination on the grounds of racial or ethnic origin: the provisions establishing the scope of the Directive make explicit mention of education as one of the key areas where there shall be no direct or indirect discrimination based on racial or ethnic origin.[xx]

Regarding certain larger minorities, the European Union strives to further help Member States in the fight against social exclusion and discrimination by developing special programmes, such as the EU framework for national Roma integration strategies, through which the European Commission implores Member States to adopt national strategies for the improvement of the socio-economic conditions of Roma people until 2020.[xxi] The framework delineates four crucial areas where Member States should adopt specific measures to combat the social exclusion of Roma people: access to education is once again considered a key area alongside the areas of employment, healthcare and housing.[xxii]

***

As mentioned earlier and illustrated by these examples, the legal mechanisms currently in place seem to “favor” certain forms of vulnerability in the context of providing equal access to inclusive, quality education. However, this conclusion should be supplemented by two additional notes. First, the European framework of human rights protection has gradually become more sensitive to the issue of vulnerability, with the European Court of Human Rights at the forefront of this development process. Landmark decisions of the Court have played a key role both in defining the concept of vulnerability (Chapman v. United Kingdom case) and in establishing the vulnerability of certain groups (including Roma, people with disabilities and asylum seekers). However, in cases concerning other groups – including certain national and ethnic minorities (for example, Kurds living in Turkey), religious and sexual minorities – the Court, so far, has not invoked the concept of vulnerability in its arguments. If this tendency of “sensitization” continues and the Court further develops its case-law regarding the concept of vulnerability, this development may also provide guidance for other key participants within the European human rights protection framework for the establishment of further targeted approaches aiming to provide equal access to education for members of vulnerable groups.[xxiii]

Second, while an in-depth analysis of European Union education policy would fall beyond the scope of this blog post, it is important to notice that the fight against social exclusion appears often among the key aims of European Union policy instruments: in the area of education, training and youth policy, the promotion of social inclusion and diversity plays an ever-greater role in the structure and the execution of the “Education and Training 2020” strategic framework and the Erasmus+ programme, both of which have previously been explored in the blog posts linked above. While the competences of the EU in this policy area are limited to supporting, coordinating and supplementing the actions of the Member States[xxiv], the use of the Open Method of Coordination (OMC) ensures that the EU can efficiently support Member States in developing education and youth policy instruments that take into account the issues of vulnerability and the risk of social exclusion without the necessity of the harmonization of Member State legislation.

 

For a list of references, click HERE.

Author: Daniel Szilágyi, PhD student, University of Debrecen, Faculty of Law


[i] Martha Anderson Fineman: Equality, Autonomy, and the Vulnerable Subject in Law and Politics. In: (Martha Albertson Fineman – Anna Grear eds.) Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, eds. Ashgate, Farnham 2013. 21–32.

[ii] Lourdes Peroni – Alexandra Timmer: Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law. International Journal of Constitutional Law 2013/4. 1056–1085.

[iii] Peroni – Timmer: i.m. 1065.

[iv] Francesca Ippolito – Sara Iglesias Sánchez (szerk.): Protecting Vulnerable Groups: The European Human Rights Framework. Hart Publishing, Oxford 2015. 6.

[v] Ippolito – Iglesias Sánchez: i.m. 10-11.

[vi] Ippolito – Iglesias Sánchez: i.m. 14.

[vii] Ippolito – Iglesias Sánchez: i.m. 16-17.

[viii] Ippolito – Iglesias Sánchez: i.m. 18-19.

[ix] Anja Wiesbrock: Disability as a Form of Vulnerability under EU and CoE Law: Embracing the ’Social Model’? In: (Francesca Ippolito – Sara Iglesias Sánchez szerk.) Protecting Vulnerable Groups: The European Human Rights Framework. Hart Publishing, Oxford 2015. 71-94.

[x] Szilvia Halmos: A fogyatékosság orvosi és társadalmi modelljének szintézise, különösen a munkajog területén. Doctoral thesis, Pázmány Péter Katolikus Egyetem Jog- és Államtudományi Kar, Budapest 2016. 17-20.

[xi] Wiesbrock: i.m. 81-87.

[xii] Paragraph 1) of Article 2 of the United Nations Convention on the Rights of Persons with Disabilities

[xiii] Z v. A Government Department and the Board of Management of a Community School (2014), C-363/12, 90.

[xiv] European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe, 2.1.5.

[xv] Convention for the Protection of National Minorities, Article 6.1.

[xvi] i.m., Articles 12-14

[xvii] Protocol No. 1 to the European Convention of Human Rights, Article 2

[xviii] Ippolito – Iglesias Sánchez: i.m. 10-11.

[xix] Treaty on the European Union, Article 2

[xx] Directive 2000/43/EC of the Council implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 3.1.

[xxi] Communication of the Commission COM(2011) 173 final: An EU Framework for National Roma Integration Strategies up to 2020

[xxii] Tawhida Ahmed: The Many Vulnerabilites of the Roma and the European Legal Framework. In: (Francesca Ippolito – Sara Iglesias Sánchez eds.) Protecting Vulnerable Groups: The European Human Rights Framework. Hart Publishing, Oxford 2015. 141-158.

[xxiii] Peroni – Timmer: i.m. 1070.

[xxiv] Treaty on the Functioning of the European Union, Article 6

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