Racial, Ethnic, Or National Minority? Legal Discourses and Policy Frameworks on the Roma in Hungary and Beyond

Home , Minority group, Minority rights, Nationality

Social Inclusion (ISSN: 2183-2803) 2015, Volume 3, Issue 5, Pages 32-47 Doi: 10.17645/si.v3i5.232

Article Racial, Ethnic, or National Minority? Legal Discourses and Policy Frameworks on the Roma in Hungary and Beyond

Andras L. Pap

Department for the Study of Constitutionalism and the Rule of Law, Centre for Social Sciences Institute for Legal Studies, Hungarian Academy of Sciences, 1014 Budapest, Hungary; E-Mail: [email protected]

Submitted: 28 January 2015 | In Revised Form: 28 March 2015 | Accepted: 8 April 2015 | Published: 29 September 2015

Abstract Inspired by recent Hungarian legislative developments that, in reference to the Roma minority, exchanged the term “ethnic minority” with “nationality”, by providing a detailed case study of the development and morphology of policy measures and frameworks in Hungary, the article provides a general assessment of the relationship between policy instruments and terminology: that is, definitions and conceptualizations in international and domestic legal and policy documents for minority groups. The author argues that while terminology in itself is not a reliable signifier for policy frameworks, it may reveal contradictory group conceptualization and inconsistent policy-making. In regards to the Ro- ma, the author claims that the inconsistent labelling as an ethnic, racial and national minority reflects the lack of consistent conceptualization of who the Roma are, and what should be done with them.

Keywords ethnicity; Hungary; nation; Roma

Issue This article is part of the special issue “Talking about Roma: Implications for Social Inclusion”, edited by Dr. Eben Friedman (Independent Consultant and Senior Non-resident Research Associate, European Centre for Minority Issues, Germany).

1. Introduction nority terminology triad is unhelpful, and should be replaced by a more complex, functional set of categories, This question often arises concerning the phrase “Ro- which better reflect socio-political realities, and the ma”: does it refer to a social class,1 a race, an ethnicity, policy frameworks involved. I will also argue that group or a national minority? Inspired by recent Hungarian recognition is always politicized, and the form and sub- legislative developments that in reference to the Roma stance of recognizing certain groups’ legal and political minority, exchanged the term “ethnic minority” with aspirations will depend on the nature of their claims “Roma nationality”, this paper starts by analyzing ha- and its compatibility with the majority culture. I will bitually used terms, definitions and conceptualizations claim that both in distinguishing between minority in international and domestic legal and policy docu- groups and in conceptualizing group membership, the ments for minority groups. question of external perception and the nature of the I will first argue that the racial-ethnic-national mi- group-related claims will be of corollary importance. I will also point to the intrinsic relationship between 1 Reflecting on Oscar Lewis’ concept of the “culture of poverty” categorizing minority groups and conceptualizing and (1968), there has been a fierce debate among academics in instrumentalizing membership criteria. Hungary on the applicability of the concept of “underclass” for I will claim that when approaching the terminology Roma in Hungary and Eastern Europe (Ladányi, 2000; Ladányi issue from the point of legal and policy claims and & Szelényi, 2000, 2001; Stewart, 2000, 2001). frameworks, we see three clusters: minority rights fo-

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 32

cus on the recognition and accommodation of cultural 2. Race, Ethnicity, and Nationality: Clusters for claims of both groups and individuals, as well as identi- Conceptualizing Groups3 ty politics. Anti-discrimination legal and policy frameworks are individual rights oriented, and the third In social sciences and law, the purpose of typologies batch includes those various and diverse social inclu- and classification is to help us understand the internal sion measures, which “ethnicize” social policies or, en- logic and substance of concepts and institutions. De- dorsing multiculturalism, include the recognition of spite the fact that lawyers, legislators and drafters of other forms of group-based, collective claims. I will ar- international documents are well versed in creating gue that “national minorities”, “nationalities”, are ade- definitions for concepts that are widely debated in so- quate terminologies for the first cluster; “racial” and cial sciences and philosophy (consider for example the “ethnic” minorities for the second cluster, while the legal definition for poverty or disability), and notwith- third approach institutionalizes a curious mix of all standing the fact that the discourse on minority rights three. I will make a further concluding argument that and adjacent policy frameworks are essentially law- terminology in itself is not a reliable signifier for the based, most international and domestic documents on policy frameworks behind it, but contradictory and minority rights, human rights and social inclusion actu- ambiguous group terminology may be a useful signal ally refrain from defining several of their core concepts. for the underlying inconsistent policies, which may be As a result, we have to settle for vague descriptions of the product of decision makers’ conceptual and policy race, ethnicity, and nationality. In order to evaluate and inconsistencies. I will make the claim that the incon- contextualize the potential policy ramifications of differ- sistent labeling of the Roma as ethnic, racial and national ent conceptualizations of “the Roma”, the following minorities signals the fluidity and the indeterminate na- pages will provide an overview of what race, ethnicity ture of conceptualizing and targeting the Roma—both and nationality can mean in reference to this unique, on the European and national level. I will argue that this transnational, multifaceted group with a diverse set of inconsistency in labeling reflects the lack of understand- claims and a complex socio-political environment. ing (or at least a lack of consistently interpreting) who the Roma are, and what should be done with them. 2.1. Race and Ethnicity: Vague Categories, Inconsistent In order to support my claims, the second part of Application the article will provide the case study of Hungary. In this part of the essay, I will be following the Hungarian Race is a controversial category. In the social science legislators’ terminology and use “nationality” in the literature, it is widely understood to be a social con- sense of a group of people who share the same history, struct rather than a biological trait (in the biological traditions, and language, and not as a reference to citi- sense, the entirety of humanity constitutes one single zenship; meanwhile I acknowledge that this choice of race) without a theoretically or politically uniform defi- terminology is unfortunate and somewhat confusing. nition (see e.g. Tajfel (1981)). Race-based international As a further note on terminology, throughout the text, and domestic legal instruments identify race with the I have struggled with using the term “the Roma”, faced apprehension of physical appearance, and put percep- both ethical and rhetorical dilemmas, as it (even unin- tion and external classifications in the center when tentionally) may not only signal “othering”, and an out- prohibiting discrimination, or violence on racial sider position, but also hints that there is a unified, grounds. In this, it is rarely distinguished from ethnicity, general definition for the denotation. This, going be- and the two terms are often used interchangeably by yond the general lessons learned from critical race lawmakers (and drafters of international documents) theory, in the case of “the Roma” is even more contro- and, most of all, judicial bodies. For example, under Ar- versial, since group boundaries are extremely fluid, sit- ticle 1. of the 1965 International Convention on the uational, and given that the concept of this transna- Elimination of All Forms of Racial Discrimination, “the tional minority is a recent political construction, it term ‘racial discrimination’ shall mean any distinction, differs vastly from other “ethnic” and “national minori- exclusion, restriction or preference based on race, col- ties”. Also, it is the very argument of this paper that the our, descent, or national or ethnic origin….” Despite ac- conceptualization of “the Roma” will be completely dif- ademic interest and insistence in differentiating be- ferent when referencing rights holders for minority tween the two concepts, legal formulations seem to be (cultural) rights, beneficiaries of social inclusion poli- unaware and unobservant of a potential difference be- cies, and victims of discrimination. I also find it im- tween the two terms, and appear to be indifferent to it. portant to add that in this article the self-identification of Roma per se is not addressed, only the question of Feischmidt (2014), Havas, Kemény and Kertesi (1998), Kállai how particular categorizations of Roma are used in le- (2014), Ladányi and Szelényi (1998), Majtényi and Majtényi gal discourses.2 (2012), and Szalai (2003). 3 For a more detailed analysis of issues raised in this chapter, 2 On the Hungarian debate on who is Roma in Hungary, see see Pap (2015).

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 33

One of the most widely cited legal definitions for nia and Herzegovina: “Ethnicity and race are related race and ethnicity comes from the opinion of Lord Fra- concepts. Whereas the notion of race is rooted in the zer of the House of Lords in the Mandla v Dowell Lee- idea of biological classification of human beings into ruling ([1983] 1 All ER 1062), which concerned whether subspecies on the basis of morphological features such Sikhs were a distinct racial group under the Race Rela- as skin colour or facial characteristics, ethnicity has its tions Act: “For a group to constitute an ethnic [sic!— origin in the idea of societal groups marked in particu- ALP] group…it must,…regard itself, and be regarded by lar by common nationality, religious faith, shared lan- others, as a distinct community by virtue of certain guage, or cultural and traditional origins and back- characteristics. Some of these characteristics are es- grounds. Discrimination on account of a person's sential; others are not essential but one or more of ethnic origin is a form of racial discrimination.”8 them will commonly be found and will help to distin- While in 2004, the Irish Government, in the course guish the group from the surrounding community…(1) of reporting to the United Nations Committee on the a long shared history, of which the group is conscious Elimination of Racial Discrimination, declared that Irish as distinguishing it from other groups, and the memory Travellers, “do not constitute a distinct group from the of which it keeps alive; (2) a cultural tradition of its population as a whole in terms of race, colour, descent own, including family and social customs and manners, or national or ethnic origin”, Romani and Gypsy (used often but not necessarily associated with religious ob- interchangeably) and Irish Travellers have been held to servance…(3) either a common geographical origin, or be “ethnic” groups for the purpose of the Race Rela- descent from a small number of common ancestors; (4) tions Act in the UK. In Commission for Racial Equality v a common language, not necessarily peculiar to the Dutton9, a case dealing with the case of a London pub- group; (5) a common literature peculiar to the group; lican displaying a sign saying “No travellers” in his win- (6) a common religion different from that of neigh- dow, the Court of Appeals found that Romani were a bouring groups or from the general community sur- minority with a long, shared history, a common geo- rounding it; (7) being a minority or being an oppressed graphical origin and a cultural tradition of their own. In or a dominant group within a larger community….” Us- O’Leary and others v Allied Domecq and others10, a sim- ing these criteria, Frazer held that Sikhs “are a group ilar decision was reached with respect to Irish Travel- defined by a reference to ethnic origins for the purpose lers. In Hallam v. Cheltenham Borough Council11, the of the [Race relations!—ALP] Act of 1976, although House of Lords also held that a local council’s refusal to they are not biologically distinguishable from the other let public rooms to a Gypsy family for a wedding peoples living in the Punjab” (Human Rights Commis- amounted to discrimination on racial grounds for the sion, 2004, p. 5). purposes of the Race Relations Act. Then again, when This has also been the approach applied in cases in- dealing with a number of Planning Act cases involving volving members of Roma communities. In Koptova v. illegally encamped Gypsies, it said in Wrexham Bor- Slovakia4 and Lacko v. Slovakia5, the UN Committee on ough Council v. Berry12 that one of the matters a court the Elimination of Racial Discrimination, the body in should take into account when considering an applica- charge of supervising the aforementioned treaty, had tion for an injunction, was “the retention of his [the no qualms about accepting complaints concerning the Gypsy Respondent’s] ethnic identity” (at paragraph 41). treatment of Roma, thus recognizing them as a racial The Permanent Court of International Justice held group (see also Human Rights Commission, 2004, p. in the Case of Greco-Bulgarian “Communities” (1930), 10). The Grand Chamber of the European Court of Hu- that a minority community is: “a group of persons liv- man Rights, spoke about racial discrimination against ing in a given country or locality, having a race, religion, members of the Roma minority, when ruling against language and traditions of their own, and united by the the Czech Republic in the segregation case of D.H. and identity of such race, religion, language and traditions Others v. the Czech Republic6 in January 2007. Most ju- in a sentiment of solidarity, with a view to preserving dicial bodies had no qualms about applying race and their traditions, maintaining their form of worship, se- ethnicity as synonymous. In Chapman v. the United curing the instruction and upbringing of their children Kingdom7 the Court accepted that gypsies constituted in accordance with the spirit and traditions of their a distinct ethnic group in Britain by saying, “[T]he Ap- race and mutually assisting one another” (p. 26). plicant’s occupation of her caravan is an integral part We can argue that if we want to grasp the sub- of her ethnic identity as a gypsy, reflecting the long stance of these definitions in the racial and ethnic mi- tradition of that minority of following a travelling lifestyle”. According to the Court in Sejdic and Finci v. Bos- 8 Application nos. 27996/06 and 34836/06, p. 43. 9 [1989] 2 WLR 17, CA. 4 13/1998. 10 Case No CL 950275–79, Central London County Court, Gold- 5 11/1998. stein HHJ. See also McVeigh (2007). 6 Application No. 57325/00. 11 [2001] UKHL 15. 7 Application No. 27238/95. 12 [2003] UKHL 26, at paragraph 41.

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 34

nority concept, there is one common element: the pro- from the majority’s, which often require formal excep- tection from maltreatment, that is, discrimination, hate tions from generally applicable norms and regulations. crimes, hate speech, physical violence. Reflecting an In this case, we are dealing with claims for preferential anti-discrimination logic, the groups need to be defined treatment. According to Will Kymlicka (2001), cultural by following the perpetrators’ method: basing the def- minorities can be divided into two kinds, nations and inition of the group on the perception of either biologi- ethnicities. The former is a historical community, more cally determined characteristics or cultural attributes. or less institutionally complete, occupying a given terri- In a sense, however, ethnic minorities are multifac- tory or homeland, sharing a distinct language or cul- eted groups. While many of their claims are grounded ture, the latter is a group with common cultural origins, in the anti-discrimination rhetoric employed by racial but whose members do not constitute an institutional- minorities, some “ethnically defined” groups, such as ly complete society concentrated in one territory. the Roma, may also have cultural claims (and protec- Concerning a special form of relationship between tions) that national minorities would make. The inter- these clusters, we need to add the case when segrega- national legal terminology habitually differentiates be- tion is achieved by Roma parents being pressured to tween the two groups on the grounds that ethnic request specialized minority education, aimed original- minorities are different from national minorities in the ly at safeguarding Roma culture (Balogh, 2012a, sense that they do not have nation states as national 2012b). (This practice in not very common in Hungary homelands (Hannum, 2001). In this way, ethnic minori- but is well-documented.) The result is that Roma chil- ties are a sort of hybrid categorization, blending, and dren are provided low-quality Roma folklore classes often mirroring, the claims made by racial and national once a week, but are kept in separate, segregated clas- groups. ses, under inferior conditions.16 The 1995 Council of Europe Framework Convention for the Protection of National Minorities (probably the 2.2. Claims as a Basis for Categorization most important international document on national minorities) also fails to provide a definition for its tar- A useful way to help understand groups, and, I claim, gets.13 (A relevant definition, also endorsed by the Eu- the useful and meaningful way to conceptualize them, ropean Parliament’s 2005 resolution14 on the protec- is to look at the claims they make. This should also tion of minorities and anti-discrimination policies in an serve as a helpful indicator for conceptualizing “the enlarged Europe, is provided by the 1993 recommen- Roma”. Based on the claims ethno-cultural groups in dation of the Parliamentary Assembly of the Council of liberal democracies make, Will Kymlicka (2001) draws a Europe on an additional protocol on the rights of na- five-way distinction among (i) national minorities, tional minorities to the European Convention on Hu- complete and functioning societies in historic national man Rights: “‘national minority’ refers to a group of homelands which are either sub-state nations or indig- persons in a state who: reside on the territory of that enous peoples, (ii) immigrants, who do not want to en- state and are citizens thereof; maintain longstanding, gage in competing nation-building strategies, but want firm and lasting ties with that state; display distinctive to negotiate the terms of integration (food, customs, ethnic, cultural, religious or linguistic characteristics; holidays), (iii) voluntarily isolationist ethno-religious are sufficiently representative, although smaller in groups, which are unconcerned about marginalization, number than the rest of the population of that state or and seek exemption from certain laws, (iv) racial caste of a region of that state; are motivated by a concern to groups, and (v) Metics. (Kymlicka admits, however, that preserve together that which constitutes their com- some groups like the Roma in Europe or African Ameri- mon identity, including their culture, their traditions, cans are peculiar and atypical.). Minority rights claims, their religion or their language.”15) he concludes, may vary from immigrant multicultural- When it comes to defining national minorities, I of- ism to multination federalism, Metic inclusion, or reli- fer to settle for the definition that these are groups gion-based exemptions from general laws. As Young that, based on their claims for collective rights, bypass (1997) sets out, “According to Kymlicka, justice for na- the anti-discriminatory logic and seek recognition of tional minorities requires self-government rights of the cultural and political rights, particularly autonomy or national minority to govern their own affairs within the toleration of various cultural practices that differ their own territory, alongside and distinct from the larger society…Polyethnic rights, on the other hand, 13 According to the Explanatory Report (1995), “It was decided to adopt a pragmatic approach, based on the recognition that 16 See the reports of the Parliamentary Commissioner for Na- at this stage, it is impossible to arrive at a definition capable of tional and Ethnic Minority Rights (Kállai, 2011b, 2011c) and the mustering general support of all Council of Europe member report of the Parliamentary Commissioner for Fundamental States” (para. 12). See also Kymlicka (2007). Rights and of the Deputy Commissioner for the Protection of 14 2005/2008(INI). the Rights of Nationalities Living in Hungary (Szalayné Sándor & 15 Recommendation 1201 (1993). Székely, 2014).

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 35

give special recognition to cultural minorities in order form-fitted for the needs of indigenous populations; to compensate for the disadvantages they would oth- policies recognizing claims which mirror the state’s erwise have in political participation and economic op- ethnic kin’s Diaspora claims abroad; right to traditional, portunity in the larger society. The objective of poly- pre-colonization life; or simply measures designed to ethnic rights is thus to promote the integration of maintain international security. ethnic minorities into the larger society, whereas self- government rights of national minorities have a sepa- 2.3. Recognition and Accommodation: The Political Sine ratist tendency….The distinction between national mi- Qua Non nority and ethnic minority turns out to be a distinction between a[n immigrant—added by ALP] cultural group The political element in the success of certain groups’ that wishes to and has the right to be a separate and recognition as minorities can best be demonstrated distinct society, on the one hand, and a cultural minori- with the dynamic interpretation of the scope of the ty that wishes to or is expected to integrate into a larg- Council of Europe Framework Convention for the Pro- er nation” (p. 49). tection of National Minorities. For example, at the time In line with Young’s assessment, instead of a se- of ratification, the German minority in South Jutland mantic analysis of the types of minorities, I propose a was identified as the only recognized national minority categorical distinction for minorities based on the aim subject to the Framework Convention in Denmark. In of the particular protection mechanism sought. Instead 2000, the Advisory Committee urged the Danish gov- of an empty typology, I call for a more complex set of ernment to reconsider the scope of application of the criteria for distinguishing between minority groups, Framework Convention, in order to possibly include taking into consideration at least the origin of the Faroese, Greenlanders and the Roma (Council of Eu- group; the basis for group-formation; and the aspira- rope, 2000). tions, needs, and demands of the group towards the It can be seen that the reception of groups’ claims majority. Let us not forget: rights protecting minorities for protection and recognition, and institutionalizing may be dignity-based identity-claims; equality-based these through the inclusion in the privileged club of (synchronic or diachronic) justice claims; or even recip- minorities will depend on instances such as how com- rocal diaspora claims.17 patible these claims are with the majority culture, how Protective measures for racial, ethnic, or national long is the group’s common history with the majority, minorities may target a number of different things, or whether there are historical or contemporary politi- such as:18 socio-economic equality, de facto freedom of cal sensitivities involved. religion, the protection of potential pogrom victims Bans on visible and politically loaded expressions of and the prevention of brutal ethnic conflicts, decreas- Islamic religion, such as women wearing headscarves, ing cultural conflicts between majority and genuine mi- have, on the one hand, been repeatedly upheld by var- nority or immigrant groups, combating racial segrega- ious judicial organs including the European Court of tion or apartheid, or race-based affirmative measures of Human Rights (e.g. in Leyla Şahin v. Turkey;19 Dahlab v. compensatory, remedial, or transitional justice. In line Switzerland20). In Central-Eastern Europe, headscarves with this, laws protecting minorities may take several worn by Roma women in traditional communities trig- forms, ranging from affirmative action and social pro- ger no public response—even though the anti-Romani tection measures to declarations of religious and politi- racist rhetoric (in some ways analogously to Western cal freedom to setting forth cultural or political auton- European anti-Muslim political actors) envisions the omy, or controlling political extremists. The context- Roma as agents of a cultural, or a demographic takeo- dependent meaning of minority-protection may also ver and a security threat. Also, in the UK, in similar cas- refer to a widely diverse set of policies such as: equal es involving turbans worn by Sikhs, legislative and judi- protection (non-discrimination); participatory identity cial tolerance includes exemptions from wearing a politics (the political participation of identity-based helmet even while riding a motorbike or working on a groups in political decision-making); cultural identity construction site. The reason lies within the perception politics (the recognition of identity-based groups in cul- of Sikhs as a “harmless” group in the UK, with no ap- tural decision-making by the state); the protection of parent or manifest social, cultural, or political conflicts historically rooted identity-based sensitivity (the crimi- with the majority society. nalization of hate-speech, holocaust-denial, etc.); af- As demonstrated above, group recognition is al- firmative action; special constitutional constructions ways political, and the form and substance of recognizing a certain group’s legal and political aspirations will 17 In certain ethno-political situations (in Hungary, for exam- depend on the nature of their claims and on how com- ple), the approach to ethnic and national minority rights is de- patible those may be with the majority culture. Thus, fined by reference to ethnic kin’s Diaspora-rights (in the neighboring states). See e.g. Pap (2006). 19 Application no. 44774/98. 18 See e.g. Sajó (1993) or Bragyova (1994). 20 Application no. 42393/98.

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 36

the length of historic coexistence or even the basis for works is individual rights oriented, and has anti- group-formation will be critical elements in this pro- discrimination in focus. The term should be understood cess. In these debates concerning the Sikhs in the UK, in the broad sense, including protection from hate German citizens of Turkish descent, Maghrebi immi- crimes or even hate speech, and several other related grants in France, or the Roma in different European individual-based human rights claims. The third batch countries, it is irrelevant whether they are referred to includes those various and diverse social inclusion as racial, and national or ethnic minorities. The perti- measures, which “ethnicize” social policies or, endors- nent questions, rather, relate to what legal instruments ing multiculturalism, include the recognition of other can be called for in advocacy and along which lines are forms of group-based, collective claims. “National mi- policies drafted. A useful inquiry is not semantic, but norities”, “nationalities”, are adequate terminologies one focusing on the morphology of claims and the so- for the first, “racial” and “ethnic” minorities for the cio-legal climate. The very idea of group rights includes second cluster, while the third approach institutional- adjusting society’s perception of equality by including izes a curious mix of all three. certain groups as eligible claimants for such treatment. While acknowledging that according to Tajfel (1981) Even if, in theory, the existence of a minority should both “ethnicity” and “nationality” are group-like social not depend on the State’s decision, in practice this constructs (and imagined cultural communities, even if process of broadening of the agents of ethno-cultural conceptualized and essentialized as biologically deter- justice and equality will always include a political deci- mined), and “race” functions as a category created by sion and a value judgment. The process of recognizing essentialist external perceptions and criteria, this does minorities as minorities, as groups worthy of sui gene- not mean that an ethno-national vs. racial binary would ris recognition (that other groups do not have), is high- be a useful simplification. Also, while arguably external ly politicized. perceptions and classifications are corollary to defining and differentiating between these approaches, a nation- 2.4. Means to Ends: Concepts of Justice and Social al vs. ethno-racial binary is similarly reductionist. My Policy point is that the recognition of ethno-cultural claims and policies for enhancing certain groups’ capabilities for These questions, therefore cannot be separated from participating in cultural and public life, and the preserva- discussions concerning what concept of social justice tion of their identities, have to be differentiated from and equality are decision makers endorsing in regard to measures providing equal treatment, or setting forth the given community. As McCrudden (2005) points out, group-conscious social policies. Due to the uniquely there are at least four different meanings of equality, complex situation of the Roma, what we see in Roma and what may be suitable in one context, may not be in policies is the chaotic application of all of the above. another. What he calls the “individual justice model” focuses on merit, efficiency and achievement and aims 2.5. Notes on Operationalization to reduce discrimination. Second, the “group justice model” concentrates on outcomes and the improve- The operationalization of policies and concepts is a ment of the relative positions of particular groups, with crucial issue. Ethno-national identity can be defined in redistribution and economic empowerment at its core. several ways, all of which is applied in different Roma- Equality as the recognition of diverse identities is yet related policies: through self-identification; by other another dimension, since the failure to accord diversity members or elected, appointed representatives of the is a form of oppression and inequality itself; and finally, group (leaving aside legitimacy-, or ontological ques- the fourth conception of equality includes social dia- tions regarding the authenticity or genuineness of logue and representation, the meaningful articulation these actors); classification by outsiders, through the of group priorities and perspectives (McCrudden, perception of the majority; or by outsiders but using 2005). Each of these conceptions of equality also has a “objective” criteria, such as names, residence, etc. As different concept at its core, corresponding respective- noted earlier, for anti-discrimination measures, subjec- ly to: direct discrimination; indirect discrimination, tive elements for identification with the protected group-level marginalization and oppression; cultural group are irrelevant, and external perceptions serve as and linguistic rights; and participation in political and the basis for classification. Policies implementing this public policy decisions is in the center. anti-discrimination principle may rely on a number of As mentioned above, a useful set of terms there- markers: skin color, citizenship, place of birth, country fore should center around the substance of legal and of origin, language (mother tongue, language used), policy claims and frameworks. Under this approach name, color, customs (like diet or clothing), religion, there are three clusters: minority rights have the parents’ origin, or even eating habits (Simon, 2007). recognition and accommodation of cultural claims of Defining membership criteria comes up in a completely both groups and individuals, as well as identity politics different way when group formation is based on claims in focus. The second array of legal and policy frame- for different kinds of preferences and privileges. In this

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 37

case, subjective identification with the group is an es- It is not too far-fetched a claim to make that the in- sential requirement, but the legal frameworks may es- consistent terminology for the Roma as ethnic, racial tablish a set of objective criteria that needs to be met and national minorities signals the fluidity and the in- besides. In the context of drafting affirmative action determinate nature of conceptualizing and targeting— and ethnicity-based social inclusion policies, external both on the European and national level. In order to perception, self-declaration, and anonymized data col- support my claim, contextualized by recent Hungarian lection may be varied and combined. A special form of legislation that changed the label for the Roma from an opting in to groups concerns mixed partnerships or “ethnic minority” to a “nationality”, the following chap- marriages, where protections are extended to victims ter provides an overview of how the Hungarian legisla- of discrimination by association. tor and the European Union approached the Roma When it comes to choosing legal or policy means to question in Hungary. identify community membership, solutions should be tailored to match the policy frameworks. Thus, for hate 3. Roma in the Pharisaic Hungarian Multiculturalist crimes and discrimination, the perception of the major- Model ity and the perpetrators should be taken into consideration; in political representation, the perception of the 3.1. The Roma in Hungary minority community should matter; and in preferential treatment (remedial measures and affirmative action), Debates and theories applied to multiculturalism in an self- identification along with community identification immigration context need to be adjusted accordingly or endorsement should be key. when talking about Hungary. In order to properly con- Policy makers may even find that attempts to mis- textualize the Hungarian case, the following facts need use the system will inevitably occur. Thus, “explicit but to be stated concerning the Roma population. In the not exclusive targeting”, currently a dominant ap- 2011 census, 6.5% of the population declared that they proach in the context of the European Union’s Roma belong to one of the minority groups. According to the inclusion policies is a meeting-point between color- Council of Europe, the cultural rights and situation of blind measures preferred by old Member States, and the new minorities (immigrants) is a marginal issue; group-tailored “Roma policies” applied in Central- immigration figures are very low, and the overwhelm- Eastern Europe. According to Principle no. 2 of the Va- ing majority of immigrants are ethnic Hungarians from demecum by the European Commission (2010), “This a neighboring state, who do not constitute a cultural approach implies focusing on Roma people as a target minority. With an overall population of about 10 mil- group without excluding others who live under similar lion, the immigration authorities recorded 213,000 for- socio-economic conditions. Policies and projects should eigners living legally in Hungary in 2012 (Council of Eu- be geared towards ‘vulnerable groups’, ‘groups at the rope & ERICarts, 2015). margins of the labour market’, ‘disadvantaged groups’, According to the Council of Europe (2010), 7.05% of or ‘groups living in deprived areas’, etc. with a clear the total Roma population lives in Hungary. Roma con- mention that these groups include the Roma. This ap- stitute the largest minority group in the country. In the proach is particularly relevant for policies or projects 2011 population census about 3.2% of the population, taking place in areas populated by the Roma together 308,957, were identified as Roma (Central Statistical with other ethnic minorities or marginalized members Office, 2013), but the Council of Europe (2010) suggest of society”. as many as 700,000–1,000,000. In Hungary practically the Roma are the only visible minority, and have been 2.6. Inconsistent Terminology, Inconsistent present for centuries. Roma in Hungary are linguistical- Conceptualization and Policy Framing ly assimilated: practically all speak Hungarian, some only Hungarian, others are bilingual, and they also do not It has been shown that terminology in itself is not a re- differ significantly from the majority in religious affilia- liable indicator for policy frameworks. On the other tion. Also, Roma in Hungary live a sedentary lifestyle— hand, contradictory and ambiguous group terminology unlike some Roma communities in Europe—; only a may be a useful signal for the underlying inconsistent, very small group of Sinti (estimated to be less than 1% confused and confusing policies, which may be the among the Roma population, some operating travelling product of decision makers failing to take sides in carnivals/carousels) are semi-sedentary (Szuhay, 2003). broader debates concerning the multicultural or multi- The Hungarian Roma population is very diverse: ethnic nature of the states, or avoiding a straight for- there are three main groups (and several subgroups) of ward commitment towards directly targeting minority Roma in Hungary, in cultural and linguistic senses: the groups to address inequality, or insisting on privileging Romungros—who are linguistically assimilated, and individuals over groups (and favoring hybridity over speak Hungarian as a mother tongue—, the Boiash— boundaries, signing up for post-ethnicity, etc.) many of whom speak a language which is based on an (Kaufman, 2014). ancient version of Romanian—, and those who also

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 38

speak different dialects of the Romani language (the 3.2. The Hungarian Minority Rights Framework most widespread version is the Lovari) (Kemény & Janky, 2003). The Hungarian Roma community is ex- The starting point to understanding the contemporary tremely diverse and heterogeneous, unified only by the Hungarian minority rights framework dates back to “othering” of the majority, and the political concept of 1920, when in the post-WWI treaty21 Hungary lost two- the Roma, as constituted by state policies, and to a thirds of its territory and the corresponding population. very limited degree, the international Romani move- Ever since, the aspirations to reunite and reinstate the ment (see e.g. Fosztó (2003)). old glory and territorial integrity (or at least a responsi- With respect to identity and advocacy, there are bility for ethnic kins in the neighboring countries) have two competing ideologies and movements among Ro- always been a cornerstone of conservative domestic ma intellectuals in Hungary: one centered around civil- politics, and after the political transition in 1989 a con- rights-oriented emancipatory politics (Horváth, 2004), stitutional responsibility and a foreign policy priority as another with ethno-national cultural identity in focus. well. Arguably, the 1993 Act on the Rights of National The former emphasizes antidiscrimination and deseg- and Ethnic Minorities,22 was designed in a way to pro- regation, the latter groupism and cultural rights. An- vide a politically marketable example for the neighbor- drás Bíró (2013) calls these groups modernists and cul- ing countries with a substantial Hungarian minority turalists: “Modernists are mostly drawn from a (see e.g. Pap (2006) and Bíró (2013)). The law enumer- younger urban elite who see themselves as representa- ates 13 recognized minorities: Armenian, Bulgarian, Cro- tives of an ethnic minority group facing multiple social, atian, German, Greek, Polish Romanian, Ruthenian, economic, educational, but primarily, discrimination Serb, Slovak, Slovenian, Ukrainian, and Roma. There is a problems. Consequently their problems focus on equal complicated procedure to extend the list, which involves opportunities, human rights and integration. Cultural- a popular initiative, an advisory opinion of the Hungarian ists are located primarily in rural areas and while less Academy of Sciences and a vote in the Parliament visible, are a significant presence in Roma communi- amending the Act, and no such initiatives were success- ties. Headed by an older leadership, these prefer re- ful so far. The Act guarantees cultural and linguistic taining tradition to integration” (pp. 33-34). rights for these groups, and contains provisions on the A note on terminology: in line with the Council of establishment and maintenance of minority education Europe Descriptive Glossary of terms relating to Roma and establishes a unique Hungarian institution, the mi- issues (2012), throughout the text I will use the term nority self-governments (hereinafter MSGs). Funded by Roma, but it needs to be added that in Hungarian the the local authorities or by the State where national bod- term “cigány” and “roma” are used interchangeably. ies are concerned, MSGs operational in the local, re- Before 2011 the minority rights act and most govern- gional and national level, have special competences for ment documents used the former term, while political- protecting cultural heritage and language use, fixing the ly correct analysts and advocates would prefer the lat- calendar for festivals and celebrations, fostering the ter. According to the aforementioned Glossary of the preservation of traditions, participating in public educa- Council of Europe (2012), currently Council of Europe tion, managing public theatres, libraries and science and documents prefer the term “Roma”, referring to “Roma, arts institutions, awarding study grants and providing Sinti, Kale and related groups in Europe, including Trav- services for to the community (legal aid in particular). ellers and the Eastern groups (Dom and Lom), and co- MSGs are thus elected bodies, functioning parallel to vers the wide diversity of the groups concerned….The mainstream institutions, and have certain rights regard- term ‘Roma/Gypsies’ was used for many years by before ing decision-making in the areas of local education, lan- the decision was taken to no longer use it in official texts guage use in public institutions, media, and the protec- in 2005…, in particular at the request of International tion of minority culture and traditions; minority self- Roma associations who find it to be an alien term, linked government representatives have the right to provide with negative, paternalistic stereotypes which still pur- input on public policy matters through access to the lo- sue them in Europe. Consequently…it is recommended cal councils’ committee meetings. In 2006, 1118 local that the word ‘Gypsy’ or its equivalent no longer be Roma minority self-governments were operating in used, as it is felt to be pejorative and insulting by most of Hungary (NDI, 2007, p. 5); in 2010 1248 (Kállai, 2011a, p. the people concerned” (pp. 3-4). The term “cigány” is 25), and in 2014 1197 Roma minority self-governments closely connected to “Gypsy”, and the etymologically re- were elected (National Election Office, 2014). (National lated “Zigauner”, and “Gitano”. Similarly to several parts censuses, as well as elections of minority governments of former Yugoslavia, in Hungary, depending on the con- are all based on voluntary self-identification.) text, it may actually not carry a stigma at all; some Hun- garian communities only used this term for self- 21 Treaty of Peace Between the Allied and Associated Powers identification and until very recently were unfamiliar and Hungary and Protocol and Declaration. Signed at Trianon, with the term “Roma”, and many even today self- June 4 1920. identify as “cigány”, and prefer the term over “Roma”. 22 Act LXXVII of 1993.

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 39

The law, thus set forth a broad set of cultural and damentally flawed concept that offers the illusion of political rights for traditional national minorities, and political power rather than genuine inclusion (p. Roma (“cigány”, as it stood in the law). It is worth not- 4)….The MSGs tend to marginalize Romani issues by ing that the name of the law included both national depositing them in a parallel, fairly powerless, quasi- and ethnic minorities, with Ruthenians being the only governmental structure rather than addressing them group besides the Roma which does not have a nation through established governing bodies….MSGs fall far state. (The Ruthenian community numbered 1098 in short of the range of competencies that the title ‘self the 2001 census and 3882 in the 2011 one, with 1113 government’ implies. They lack the authority to take and 999 native speakers respectively (National Ruthe- action outside of a very limited scope of issues and nian Self-government (2013)). function more like NGOs than elected governing bod- Connecting to discussions in the first part of the pa- ies. The use of the term ‘self-government’ is not merely per, the function and the design of the MSGs is quite inaccurate, but actually damages the credibility and le- ambiguous: political representation and empower- gitimacy of the entire system among Roma, as it raises ment, cultural competences and a vague promise of unrealistic expectations on the part of constituents re- social integration potential is bundled together. Gener- garding what they can accomplish through the MSGs. ally, while acknowledging that it serves as a “training In truth, the very design of the system prevents it from school” for up-and-coming Romani politicians, giving having a significant impact on issues of greatest con- them skills that they can use in the mainstream politi- cern to most Roma and hinders political integration. cal arena, observers are quite critical of the institution- This is due in part to the fact that these were not the al design (Barany, 2002; Curejova, 2007; Kovats, 1996; government’s initial aims in creating the system. Ra- Majtényi, 2005, 2007; Thornberry, 2001). As Melanie ther, its goal was to give minorities a safeguard for pre- Ram notes (2014), the MSG-system, “which at times serving their distinct cultural and linguistic traditions, has been touted as a possible model for other coun- and…to provide the means for encouraging neighbor- tries, has not brought a substantial improvement in ing countries to allow Hungarian minority communities Roma lives. While it has increased participation of Ro- the same privilege. Governance over socio-economic ma to some extent, it has hardly enhanced social inclu- policy was never the intention” (p. 6). The NDI also sion of Roma, largely because its mandate is limited to points to flaws in funding, claiming that “MSGs lack ad- cultural autonomy (basic education, media, language, equate funding to carry out either socio-cultural pro- and promotion of culture. The language provisions are jects, per the system’s original intent, or additional pro- simply not so helpful for a community that largely jects to improve the living standards of community speaks Hungarian at home, and local self-governments members. With a budget of approximately $3,000 per do nothing to directly address either discrimination or year, with no consideration for the size of the town or socioeconomic inequalities” (p. 31). According to the Romani population, MSGs cannot cover even a modest report of the National Democratic Institute (supported stipend for a part-time employee to coordinate the by the Democratic Institutions and Human Rights of the work of its elected representatives or implement pro- Organization for Security and Co-operation in Europe), jects” (p. 6). “…Roma often approach their MSG ex- “the MSGs tend to marginalize Romani issues by de- pecting assistance related to a broad number of issues positing them in a parallel, fairly powerless, quasi- including housing, employment, discrimination and governmental structure rather than addressing them utility services. This problem is often exacerbated by through established governing bodies” (NDI, 2007, p. many local governments which send Romani constitu- 6). Claude Cahn argued (2001) that the framework is ents to their minority self-government to seek help in not only “largely inappropriate for addressing the situ- areas where the MSG has no mandate. As a result, citi- ation of Roma” but has “reified the exclusion of non- zens often find no answer to their questions or re- white minorities in Hungary”. The above mentioned quests and emerge from the process disillusioned with report of National Democratic Institution (NDI, 2007) both their Romani and mainstream representatives. pointed to many problems with the system. These in- This lack of authority leaves MSGs as a ‘half-way house’ cluded “unclear competencies, the lack of differentia- between a government institution and an NGO, with an tion between various minority needs, deficiencies in fi- undefined, under-funded mandate. Other than very nancing, and voter enfranchisement regardless of limited government funding and the right to consent in ethnic affiliation” (p. 5). According to the report: “Hun- issues of education, language, and cultural preserva- gary was among the first countries to create a system tion, the MSGs have few advantages over NGOs….As to promote minority rights and its minority self- consultative bodies, the MSGs have not proven to be government offers a unique approach to fostering effective in promoting Romani interests on a broad ar- Romani participation. While some consider it a model ray of mainstream policy debates” (p. 24). for countries with significant Romani populations, In sum, the NDI report pointed out that, “the gov- many in the international community, and among Ro- ernment’s stated purpose for creating the Minority Act ma themselves, say that [it—ALP]…tinkered with a fun- was to assure the cultural autonomy of minorities and

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 40

to fulfill international obligations regarding the protection. For example, the first comprehensive anti- tion of minority rights. However, another important discrimination law was adopted only in 2003, 10 years factor in the development of the act was Hungary’s de- after the minority rights law, necessitated by EU- sire to protect the rights of the large number of ethnic accession obligations, and in 2000, only three years be- Hungarians living in neighboring countries. By develop- fore its adoption, the Constitutional Court rejected ing the MSG system and other minority institutions, complaints pertaining to the lack of such a legislation.24 the government hoped to build leverage that it could Likewise, the law was unfit to meet social inclusion use in bi-lateral negotiations with neighboring states demands in dire need for Roma communities. Despite on guaranteeing the rights of Hungarians abroad…the the shocking sweep of market economy that hit the MSG system in Hungary is not specific to the Roma impoverished Roma the hardest, in the first decade or community and includes 12 additional minority so after the political transition there were no serious groups....While other minorities are primarily con- attempts to institutionalize social inclusion measures cerned with protection of cultural and linguistic auton- targeting the Roma, as Hungarian legislators’ priorities omy, the Roma population faces an almost opposite concerned enhancing exportable cultural identity for challenge, needing more integration to combat segre- national minorities. gated education, discrimination, unemployment, and Let us now investigate further developments in problems with housing and healthcare” (p. 5). these areas. What we will see is that the gradual pro- Hungarian Roma leaders repeatedly call for a redis- gress we may acknowledge is also hardly a conse- tribution, rather than recognition-oriented minority quence of thoughtful concise strategizing, and that alt- policy.23 According to Molnár and Schaft (2003), “Roma hough European Union accession did fertilize and self-governments see as their main objective the im- accelerate the development of social inclusion and an- provement of social conditions in their community ra- ti-discriminatory measures, the conceptualization of ther than the preservation of minority culture and these policies and envisioning the Roma in this process strengthening of minority identity. The ambitions of lo- is just as blurry and inconsistent as in the inconsistent cal Roma leaders are influenced primarily by the mar- and internally contradictory multiculturalist model as ginalization of their community, while the protection of set forth by the 1993 minority rights law. Roma identity remains secondary” (p. 41). 3.4. Accession and the Role of the European Union 3.3. Beyond Cultural Rights… As analysts point out, in order to minimize unwanted Despite the fact that none of the targeted national mi- mass migration after accession, the EU made efforts to nority communities ever voiced their demands in a polit- facilitate the social inclusion of the marginalized Roma ically compelling way (and Roma representatives cer- communities during the accession process (Guglielmo, tainly would not have advocated such a framework), the 2004; Vermeersch, 2003; Vizi, 2005). However, as Ba- first freely elected Hungarian government acted in a lázs Vizi (2013) points out after a thorough analysis of proactive manner, exceeding international minority accession reports, the European Commission was in- rights commitments and created an identity-politics ori- sensitive towards the difference between the complex- ented minority rights framework—even if partly, or most- ity of social inclusion measures tailored to Roma and ly in order to fuel national sentiments and political com- minority rights frameworks that enhance minority mitments towards ethnic Hungarians in the Diaspora. identity. There was no recognition or commitment to a As Balázs Vizi points out (2013), despite all its flaws, separate assessment of assimilationist, integrational for the first time in Hungarian history, the 1993 law measures, and inclusion strategies that in fact build formally recognized the Roma as a group with legiti- and rely on a separate and special ethno-cultural iden- mate claims for a separate identity. Admittedly, the tity. Given the heterogeneity of Roma in Hungary and law facilitated a peculiar nation-building project (see the very advanced degree of their assimilation, this was for example Fosztó (2003)), conceptualizing a Roma na- a severe omission. In a way, although doing the oppo- tional minority, a distinct political group, incorporating site, the European Commission turned out to be just as all its diverse subgroups. Also, the law to a certain de- obtuse, blindfolded and conceptually disoriented as gree successfully endorsed cultural aspirations of cer- the Hungarian legislator. Even though annual accession tain Roma communities and created a Roma political progress reports and documents adopted by the Euro- elite (Bíró, 2013), its declaration concerning the prohi- pean Parliament and the Commission discussed Roma- bition of discrimination, a daily practice for Roma in related issues under “minority rights” labels, recom- Hungary in all facets of life, received very little atten- mendations and concerns only focused on anti- discrimination, very broad social integration measures 23 For an academic assessment of the “redistribution- and complaints against the treatment of Roma by the recognition dilemma”, which are conceptualized both as analytically distinct categories of justice, see Fraser (1995). 24 Decision No. 45/2000 (XII. 8.).

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 41

police and other authorities—none actually having to to make this claim) that a “nationality” could or would do much with minority rights (Vermeersch, 2009). Even be regarded as a greater set comprising both the question of the parliamentary representation of (Chronowski, in press; Magicz, 2013; Majtényi, 2014). minorities was seen as a missing tool for social integra- Thus the most accurate description would be that it is tion and not as that of political participation (Vizi, synonymous with “national minority”. It is no coinci- 2013). The preservation of cultural identity was never dence that the terminology used in international doc- raised within accession progress reports. uments also employs the aforementioned distinctions, Despite these ambiguities concerning the concep- and that the original draft of the Fundamental Law tual framework of EU-accession demands, analysts talked of “nationalities and ethnic groups”. agree on the efficiency of the pressure it put on Hun- During the drafting of the new constitution in 2011, garian policy-makers to facilitate Roma social inclusion, the Croatian28 and the Ruthenian29 national minority which certainly improved after 1997. (It needs to be self-governments welcomed the change in terminolo- added that some argue that it may also have been due gy, which was also recommended by the minority to the fact that this was the time by when the inade- rights ombudsman, because for some unexplained rea- quacy of the 1993 law became apparent to the gov- son they considered the term “minority” demeaning. It ernments.) Even though the first government resolu- is well to add that only four of the 13 NMSG’s took the tion on Roma integration was adopted in 1995,25 1997 effort to comment on the draft constitution (all 13 marked a significant expansion in both the number of were asked to do so as requested by the parliamentary government documents,26 strategies, action plans, etc. committee in charge); crucially, the Roma minority self- adopted and the broadening of the perspectives within government remained silent. (Vizi, 2013). Recognizing its policies as successful, during The preamble of the new constitution proclaims the accession process, the EU granted Hungary the larg- that “the nationalities living with us form part of the est amount of support from the EU for Roma integration Hungarian political community and are constituent as part of the PHARE programme: 18 million Euros be- parts of the State”, and this is repeated in Article XXIX. tween 1999 and 2001, altogether 34.5 million between Although it is a repetition of the previous constitution’s 1999 and 2006 (National Development Agency, 2008). provision (not a verbatim reiteration, but substantially the same), despite several Constitutional Court deci- 3.5. From Ethnic to National Minorities: The New sions seeking to interpret its meaning, it still remains Hungarian Constitutional Order ambiguous. It would not raise interpretational questions if minorities were held to be constituent ele- The new 2011 Hungarian Constitution and the subse- ments of the nation, but the semantic connotations of quently adopted new Act on the Rights of Nationali- minorities or nationalities that are constituent parts of ties27 (i.e. minorities) which officially replaced the term the state is rather confusing outside a Bosnian-style “cigány” with “roma”, re-labeled Hungarian minorities ethnic federation.30 All in all, it appears therefore that to “nationalities” (“nemzetiség”) from “national and members of the Hungarian nation, having given them- ethnic minorities” (“nemzeti és etnikai kisebbségek”). selves a constitution, share public power with the na- There is no evidence (for example in parliamentary de- tionalities that live with them. Incidentally, these na- bates or government documents) that this shift in ter- tionalities are not subjects of the constitution, since minology would have been based on overarching theo- the preamble of the Fundamental Law states that it is retical or conceptual reasoning, or it would have been authored and framed by members of the Hungarian accompanied by systematic political commitments, or nation—even if there may have been (and in fact there that it even was determined with the Roma in mind. It were) members of parliament (even some governing is not clear what the legislator’s problem was with the party MPs who adopted the constitution) who are previous definition of “national and ethnic minority”. members of a national minority. Presumably, the constitution-maker neither disputed One significant development concerns the introduc- that “nationalities” constitute a numerical minority tion of parliamentary representation for all nationali- within society, nor that they suffer from certain disad- ties as set forth by a new electoral law. For the most vantages (which the minority law is designed to redress part, the 2011 nationalities act practically left the pre- by setting forth minority rights). Furthermore, putting vious legislation intact, except for depriving minority aside the difficulty of differentiating between “nation- self-governments of their veto rights concerning some al” and “ethnic” minorities, nothing supports the un- local legislation. A rather curious development con- derstanding (and even the Hungarian legislator failed 28 AEB/139/2010, retrieved from www.parlament.hu/biz39/ 25 Government Resolution No. 1120/1995 (XII. 7.). aeb/info/horvat_onk.pdf 26 Government Resolution No. 1093/1997 (VII. 29.); 1048/1999 29 AEB/136/2010, retrieved from www.parlament.hu/biz39/ (V. 5.); 1186/2002 (XI. 5.); 1021/2004 (III.18.). aeb/info/ruszin_onk.pdf 27 Act CLXXIX of 2011. 30 Decisions no. 1041/G/1999; 35/1992 (VI. 10.); 24/1994 (VI. 6.).

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 42

cerns Roma minority self-governments (but not other Flaws in the Strategy and its policy environment minority self-governments) as they have formally been have been thoroughly criticized in the monitoring re- involved in social inclusion measures, creating an even port commissioned by the Decade of Roma Inclusion more confusingly hybrid, mutant model. As an annex to Initiative33 and compiled by an NGO coalition34 involv- the first version of the Hungarian National Social Inclu- ing most of the relevant organizations in Hungary sion Strategy (2011), the government signed a frame- (Balogh et al., 2013). For example, it points out that work agreement with the National Roma Self- “some of the missing policies are closely connected Government, and competences including the supervi- with anti-discrimination and equal opportunities poli- sion of schools, developing new employment schemes, cies…abolishing the institution of the Parliamentary monitoring programmes have been assigned to the Commissioner for the Rights of National and Ethnic Mi- NRSG. In fact, it has been appointed as one of the core norities and moving this function to the portfolio of the implementing bodies of the Strategy (Annex 2). deputy of the Commissioner for Fundamental Rights, The new legislation, backed up by constitutional have resulted in far less powerful institutional tools for language, clearly signals that on the one hand, the leg- combating discrimination. Hungarian authorities do lit- islator as well as the right wing populist elite conceptu- tle to sanction hate speech, and criminal law provisions alize Roma issues as foremost within identity politics. designed to protect groups facing bias are more often On the other hand, government rhetoric and initiatives applied by the authorities to sanction Roma rather use cultural identity as a tool for social integration, and than non-Roma. In case of most hate crimes, no proper presents it in a simplified, essentialist, manner.31 Let us criminal procedure is launched. Romani women and see some examples from the first version of the Hun- children suffer extreme forms of exclusion, too. At the garian National Social Inclusion Strategy (2011), adopt- local level, the powerless position of minority self- ed in order to reflect policy aims set forth by the Euro- governments has been further weakened: their con- pean Framework for National Roma Integration sent is not obligatory any longer to decide on matters Strategies (which, following the “explicit but not exclu- affecting the local Romani community (while, on the sive targeting” principle targets several vulnerable other hand, numerous governmental tasks which go far groups32): “The fostering and popularisation of Roma beyond the legitimate political role of national minority culture…should not result in an effect contrary to the self-governments have been assigned to the National desired goal by overly emphasising the cultural ‘differ- Roma Self-Government” (pp. 9-10). Also, “the circum- entness’….As the fostering of Roma culture contributes stance that public security measures are connected to the positive shaping of the social image of the Ro- with the measures aimed at the Roma inclusion is quite ma…we must…enable the majority society to acquaint problematic, since this gives the impression that ethnic themselves with the values of Roma traditions and cul- origin is connected to criminality” (p. 37). The NGO ture in Hungary and abroad alike….Learning about the coalition makes the following general recommenda- life, values and culture of the other community is an ef- tions: “…the human rights and fundamental rights fective means of the fight against stereotypes. We based approach, including the principle of non- must therefore lay particular emphasis on providing in- discrimination, should be strengthened and become formation in public education on the culture and histo- more dominant in the Strategy and its implementa- ry of the Roma as a part of the multi-faceted Hungarian tion….Concerning hate crimes committed against vul- culture as well as on presenting the effects of the Ro- nerable groups (especially Roma), coordinated ma culture on the national and Eastern European cul- measures should be taken in the following areas: data ture” (Chapter VI. Involvement, awareness raising, fight collection, accessibility of court decisions, preparing an against discrimination, pp. 96-98). This approach is fur- adequate investigation protocol, training and aware- ther articulated in the updated version of the integra- ness raising of law-enforcement professionals, provid- tion plan (2014), which emphasizes the role of main- ing information to victim groups….Public policy taining cultural traditions, which can function as a measures should take into account the multiple disad- source of pride and confidence and “which is a prereq- vantages of Romani women and the phenomenon of uisite for the self-esteem, the consciousness-raising, intersectionality….The principle of social equality be- and the re-creation of the integrity of Roma communi- tween men and women should also be applied as a ty”. While the document sets forth the goal to “re- horizontal aspect in Roma inclusion policies….When shelve projects fostering Roma culture from social is- planning public policy measures, it should be taken into sues to cultural identity” it also calls for the integration account that human trafficking and prostitution are ar- of a social inclusion approach to Roma educational and eas where inequalities based on gender, ethnicity and cultural programs (Dinók, 2012). social status interconnect” (pp. 11-12).

31 See for example a speech delivered by the Minister of Hu- 33 For the assessment of the Decade see Kóczé and Mirescu man Resources (MTI-EMMI, 2014). (2011) and Jang (2015). 32 See Vizi (2011). 34 For the role of NGOs see Kóczé (2012)

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 43

4. Conclusion change, marginality and ethnopolitics. Cambridge: Cambridge University Press. The Hungarian case serves as a litmus test for showing Bíró, A. (2013). The price of Roma integration. In W. that labeling does not necessarily involve form-fitted Guy (Ed.), From victimhood to citizenship: The path conceptualization, and that terminology does not nec- of Roma integration. A debate (pp. 11-40). essarily determine policy instruments. In the Hungarian Budapest: Pakiv European Roma FundKossuth. case, the confusing legal terminology reflects and re- Bragyova, A. (1994). Are there any minority rights? veals confused conceptualization and the lack of clearly Archiv für Rechts- und Sozialphilosophie, 90, defined political and policy objectives. Here, despite all 489‑586. the efforts of human rights NGOs in strategic litigation Cahn, C. (2001). Smoke and mirrors: Roma and and policy recommendations (e.g. the European Roma minority policy in Hungary. Roma Rights, 4. Rights Center or the Chance for Children Foundation) Central Statistical Office. (2013). A népesség anyanyelv, the collectivist, essentialist and patronizing approach, nemzetiség és nemek szerint [The population by and the relabeling of the Roma as a nationality, is ac- mother tongue, nationality and gender]. Országos companied by a neglect of the individual justice based, adatok [National Data]. Retrieved from: anti-discrimination oriented approach. This clears the www.ksh.hu/nepszamlalas/docs/tablak/teruleti/00 path for far-right rhetoric centered on collective re- /1_1_6_1.xls sponsibility, culturally rooted, but in essence ethnicized Chronowski, N. (in press). Alaptörvény és etnicitás— criminality, or the parasitical “culture of poverty”, and Avagy az alkotmányozás viharaiban részekre an unwillingness to adopt Hungarian middle class szakadt nemzetünk [Fundamental law and norms and lifestyle. In sum, the terminology used in of- ethnicity—Our nation torn int he storm of ficial documents, the new constitution, laws and policy constitution-making]. Állam- és Jogtudomány, frameworks, fail to comprehend the complexity of Ro- 56(1). ma-related issues, and even the essential difference Council of Europe, & ERICarts. (2015). Hungary. the various policy models (minority rights, anti- Compendium of cultural policies and trends in discrimination, social inclusion) carry and require. Iron- Europe (February 10). Retrieved from: ically, anti-discrimination focused policies advocated by http://www.culturalpolicies.net/web/hungary.php? the European Commission were equally blindfolded aid=424 and obtuse concerning the differentiated nature of Council of Europe. (2010). Statistics. Retrieved from: these policies. www.coe.int/t/dg3/romatravellers/default_en.asp Council of Europe. (2012, May 18). Descriptive glossary Conflict of Interests of terms relating to Roma issues. Retrieved from: http://a.cs.coe.int/team20/cahrom/documents/Glo The author declares no conflict of interests. ssary%20Roma%20EN%20version%2018%20May% 202012.pdf References Council of Europe. (1995). Framework convention for the protection of national minorities and Balogh, L. (2012a). Jog a kultúra őrzésére—Vagy ürügy explanatory report. Strasbourg: Council of Europe. a szegregációra? A roma nemzetiségi oktatás mint Council of Europe. (2000). Advisory committee on the kétélű kard Magyarországon [The right to protect framework convention for the protection of national culture—Or an excuse for segregation? Roma minorities (2000). Opinion on Denmark, adopted on minority education, a double-edge sword in 22 September 2000, ACFC/INF/OP/I(2001)005. Hungary]. Pro Minoritate(Spring), 207-223. Strasbourg: Council of Europe. Balogh, L. (2012b). Minority cultural rights or an excuse Curejova, L. (2007, August 22). Self-abusive for segregation? Roma minority education in governance. Transitions Online. Retrieved from Hungary. In D. Pop (Ed.), Education policy and equal http://www.tol.org/client/article/18943-self- education opportunities (pp. 207-222). New York: abusive-governance.html Open Society Foundations. Dinók, H. (2012). Stratégia vs. oktatásügy [Strategy vs. Balogh, L., Berki, J., Daróczi, G., Farkas, Zs., Ivány, education politics]. Fundamentum, 1, 63-66. B.;Kóczé, A., Koltai, L., Kóródi, M., Kőszeghy, L., European Commission. (2010). The 10 common basic Moldova, Zs., Novoszádek, N., Somogyi, E., principles on Roma inclusion: Vademecum. Szendrey, O., Teller, N., & Wagner, J. (2013). Civil Luxembourg: EU. society report on the implementation of the Feischmidt, M. (2014). A mindennapi nacionalizmus és national Roma integration strategy and decade a másság cigányként való megjelölése [Banal action plan in Hungary in 2012. Budapest: Decade nationalism and signifying the other as Roma]. In of Roma Inclusion Secretariat Foundation. M. Feischmidt (Ed.), Nemzet a mindennapokban. Az Barany, Z. (2002). The East European gypsies: Regime újnacionalizmus populáris kultúrája [Banal nation:

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 44

The popular culture of neo-nationalism] (pp. 401- Kaufman, E. P. (2014). Immigration and Integration in 447). Budapest: L’Harmattan - MTA TK. Britain: the great nationalism debate. Nationalities Fosztó, L. (2003). Diaspora and nationalism: An Papers, 42(6), 1072-1077. anthropological approach to the international Kemény, I., & Janky, B. (2003). A 2003. évi cigány Romani movement. Regio: Minorities, Politics, felmérésről: Népesedési, nyelvhasználati és Society, 1. nemzetiségi adatok [About the Gypsy survey in Fraser, N. (1995). From redistribution to recognition? 2003: Data on demographics, spoken languages and Dilemmas of justice in a “post-socialist” age from nationality]. In E. Kállai (Ed.), A magyarországi redistribution to recognition? New Left Review, cigány népesség helyzete a 21 század elején [The 212(July-August), 68-93. situation of the Gypsy population in Hungary at the Guglielmo, R. (2004). Human rights in the accession beginning of the 21 century] (pp. 7-26). Budapest: process: Roma and Muslims in an enlarging EU. In MTA Etnikai-nemzeti Kisebbségkutató Intézet. G. N. Toggenburg (Ed.), Minority protection and the Kóczé, A. (2012). Civil society, civil involvement and enlarged European Union: The way forward. social inclusion of the Roma. Bratislava: United Budapest: OSI-EURAC. Nations Development Programme. Hannum, H. (2001). International law. In A. Motyl (Ed.), Kóczé, A., & Mirescu, G. (2011). A look behind the Encyclopedia of nationalism (pp. 405-419). San curtain: Reflections on the decade of roma Diego and London: Academic Press. inclusion. In G. Mirescu (Ed.), Social Inclusion and Havas, G., Kemény, I., & Kertesi, G. (1998). A relatív Cultural Identity of Roma Communities in South cigány a klasszifikációs küzdőtéren. Kritika, 3, 193- Eastern Europe (2011 ed., pp. 35-40). Bern: 201. Swisspeace. Horváth, A. (2004, July 12). Magyar nemzet, roma Kovats, M. (1996). The Roma and minority nemzet. Népszabadság, p. 6. self-governments in Hungary. Immigrants & Human Rights Commission. (2004). Travellers as an Minorities, 15(1), 42-58. ethnic minority under the convention on the Kymlicka, W. (2001). A Western political theory and elimination of racial discrimination: A discussion ethnic relations in Eastern Europe. In W. Kymlicka & paper (24th March ed.). Dublin: Human Rights M. Opalski (Eds.), Can liberal pluralism be exported? Commission. Western political theory and ethnic relations in Hungarian National Social Inclusion Strategy. (2011). Eastern Europe (pp. 13-107). New York: Oxford Extreme poverty, child poverty, the Roma 2011– University Press. 2020. Budapest: Ministry of Public Administration Kymlicka, W. (2007). Multicultural odysseys: Navigating and Justice. the new international politics of diversity. Oxford: Hungarian National Social Inclusion Strategy II. (2014). Oxford University Press. The permanently needy: Children living in poor Ladányi, J. (2000). The Hungarian neoliberal state, families—The Roma; 2011–2020. Updated version. ethnic classification and the creation of a Roma Budapest: Ministry of Human Resources. underclass. In R. J. Emigh & I. Szelényi (Eds.), Jang, M. (2015, February 11). A Roma education. Poverty, ethnicity, and gender in Eastern Europe Harvard Political Review. Retrieved from during the market transition (pp. 67-82). Westport: http://harvardpolitics.com/world/roma-education Greenwood. Kállai, E. (2011a). Beszámoló a Nemzeti és Etnikai Ladányi, J., & Szelényi, I. (1998). Az etnikai besorolás Kisebbségi Jogok Országgyűlési Biztosának objektivitásáról [On the objectivity of ethnic tevékenységéről, 2010 [Report on the activities of classification]. Kritika, 3, 33-35. the Parliamentary Commissioner for the Rights of Ladányi, J., & Szelényi, I. (2000). Adalékok a csenyétei National and Ethnic Minorities, 2010]. Budapest: cigányság történetéhez. Budapest: ATA - Új OBH. Mandátum. Kállai, E. (2011b). Jelentés a nemzeti és etnikai Ladányi, J., & Szelényi, I. (2001). Van-e értelme az kisebbségi általános iskolai nevelés-oktatás underclass kategória használatának? [Does it make helyzetéről [Report on the situation of national and sense to use the category of underclass?] Beszélő, ethnic minority education in elementary schools]. 6(11), 94-98. Budapest: OBH. Lewis, O. (1968). The culture of poverty. In D. P. Kállai, E. (2011c). Jelentés a nemzeti és etnikai Moynihan (Ed.), On understanding poverty (pp. 187- kisebbségi óvodai nevelés helyzetéről [Report on the 200). New York: Basic Books. situation of national and ethnic minority education Magicz, A. (2013). Re-regulation of national minority in kindergartens]. Budapest: OBH. rights. In B. Hajas & M. Szabó (Eds.), Their shield is Kállai, E. (2014). Vannak-e cigányok, és ha nincsenek, the law: The Ombudsman’s protection for akkor kik azok? [Are there any Roma and if not, vulnerable groups (pp. 27-30). Budapest: Office of who they are?]. Regio, 22(2), 114-146. the Commissioner for Fundamental Rights.

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 45

Majtényi, B. (2005). What has happened to our model in defining minority communities and membership child? The creation and evolution of the Hungarian boundaries. Columbia Human Rights Law Review, Minority Act. European yearbook of minority issues, 46(2), 153-232. 5(1), 397-469. doi:10.1163/22116117-90000055 Permanent Court of International Justice. (1930). The Majtényi, B. (2007). A nemzetállam új ruhája [The Greco-Bulgarian “Communities” Series B. - No.17. nation state’s new clothes]. Budapest: Gondolat. Ram, M. H. (2014). Europeanized hypocrisy: Roma Majtényi, B. (2014). Alaptörvény a nemzet akaratából inclusion and exclusion in Central and Eastern [Fundamental law out of the will of the nation]. Europe. Journal on Ethnopolitics and Minority Issues Állam- és Jogtudomány, 55(1), 77-96. in Europe, 13(3), 15-44. Majtényi, B., & Majtényi, G. (2012). Cigánykérdés Sajó, A. (1993). Protecting nation states and national Magyarországon 1945–2010 [Gypsy question in minorities: A modest case for nationalism in Eastern Hungary, 1945–2010]. Budapest: Libri. Europe. University of Chicago Law School McCrudden, C. (2005). Thinking about the Roundtable (Special Issue), 53-74. discrimination directives. European Anti- Simon, P. (2007). “Ethnic” statistics and data protection Discrimination Law Review, 1(18), 17-23. in the Council of Europe countries: Study report. McVeigh, R. (2007). “Ethnicity denial” and racism: The Strasbourg: Council of Europe. case of the government of Ireland against Irish Stewart, M. (2000). Spectres of underclass. In R. J. travellers. Translocations, 2(1), 90-123. Emigh & I. Szelényi (Eds.), Poverty, ethnicity, and Molnár, E., & Schaft, K. A. (2003). Preserving “cultural gender in Eastern Europe during the market authonomy” or confronting social crisis? Review of transition (pp. 191-204). Westport CT/London: Sociology of the Hungarian Sociological Association, Praeger. 9(1), 27-42. Stewart, M. (2001). Depriváció, romák és ‘underclass’ MTI-EMMI. (2014). Balog Zoltán: A kultúrára kell [Deprivation, the Roma and ‘underclass’]. Beszélő, építeni a felzárkóztatást. Retrieved from 6(7-8), 82-94. http://romagov.kormany.hu/balog-zoltan-a- Szalai, J. (2003). Conflicting struggles for recognition: kulturara-kell-epiteni-a-felzarkoztatast Clashing interests of gender and ethnicity in National Democratic Institute for International Affairs contemporary Hungary. In B. Hobson (Ed.), (NDI). (2007). The Hungarian minority self- Recognition struggles and social movements. government system as a means of increasing Contested identities, agency and power (pp. 188- romani political participation: National Democratic 215). Cambridge: Cambridge University Press. Institute assessment report September/October Szalayné Sándor, E., & Székely, L. (2014). Az alapvető 2006. Washington, DC: NDI. jogok biztosa és a Magyarországon élő National Development Agency. (2008). Ex-post nemzetiségek jogainak védelmét ellátó evaluation of Roma programmes in Hungary biztoshelyettes jelentése az AJB-3894/2012. számú financed by PHARE. Budapest: Hungary. ügyben, a nemzetiségi középiskolai oktatás National Election Office. (2014, November 18). helyzetéről [Report of the Parliamentary Önkormányzati választások, 2014. október 12.: Commissioner for Fundamental Rights and of the Tájékoztató adatok a nemzetiségek települési Deputy Commissioner for the Protection of the önkormányzatainak választásáról [Municipal Rights of Nationalities Living in Hungary on case no. Elections, October 12, 2014: Local self-governments AJB-3894/2012, regarding the situation of the of nationalities, overview of the election results]. secondary education of nationalities]. Budapest: Retrieved from: AJBH. http://valasztas.hu/hu/nemz2014/987/987_0_inde Szuhay, P. (2003). “Ez egy eredeti cigányélet” (“This is x.html an original Gypsy way of life”), Beszélő, 8(5), 90-99. National Ruthenian Self-government. (2013, Tajfel, H. (1981). Human groups and social categories: September 30). Népszámlálás 2011 [Population Studies in social psychology. Cambridge: Cambridge census 2011]. Retrieved from: University Press. http://www.rusyn.hu/hu/orszagos-ruszin- Thornberry, P. (2001). An unfinished story of minority oenkormanyzat/nepszamlalas-2011 rights. In A.-M. Bíró & P. Kovács (Eds.), Diversity in Pap, A. L. (2006). Minority rights and diaspora claims: action: Local public management of multi-ethnic Collision, interdependence and loss of orientation. communities in Central and Eastern Europe (pp. 46- In O. Ieda & B. Majtényi (Eds.), Beyond sovereignty: 73). Budapest: Local Government and Public Service From status law to transnational citizenship? (pp. Reform Initiative, Open Society Institute. 243-254). Sapporo: Hokkaido University Slavic Vermeersch, P. (2003). EU enlargement and minority Research Center. rights policies in Central Europe: Explaining policy Pap, A. L. (2015). Is there a legal right to free choice of shifts in the Czech Republic, Hungary and Poland. ethno-racial identity? Legal and political difficulties Journal on Ethnopolitics and Minority Issues in

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 46

Europe, 1, 1-32. neighbourhood and on a European Roma strategy. Vermeersch, P. (2009). The Roma. In B. Rechel (Ed.), Journal on Ethnopolitics and Minority Issues in Minority rights in Central and Eastern Europe (pp. Europe, 1, 123-134. 61-74). London: Routledge. Vizi, B. (2013). Európai kaleidoszkóp: Az Európai Unió Vizi, B. (2005). The EU and the situation of Roma in és a kisebbségek. Budapest: L’Harmattan. Hungary in the accession process. Central European Young, I. M. (1997). A multicultural continuum: A cri- Political Science Review, 6(20), 66-91. tique of Will Kymlicka’s ethnic-nation dichotomy. Vizi, B. (2011). The Hungarian presidency of the Council Constellations, 4(1), 48-53. of the European Union: Focus on the

About the Author Dr. András L. Pap András L. Pap is Research Chair and Head of Department for the Study of Constitutionalism and the Rule of Law at the Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Stud- ies. He is an Associate Professor at Eötvös University (ELTE) Faculty of Humanities, Institute of Philos- ophy. He is also a member of the Law Enforcement Faculty of the National Public Administration Uni- versity and a Recurrent Visiting Professor at Central European University’s Nationalism Studies Program in Hungary.

Social Inclusion, 2015, Volume 3, Issue 5, Pages 32-47 47