I spoke last week at the AGM of the Irish Travellers Movement, held on June 16th in Dublin. The main theme of the conference was the denial by the government that Irish Travellers represent an ethnic group. It seems that after many years of debate, the government may be willing to change its position. Minister Mary White, in her presentation, indicated a more open stance on the question than in the past, stating that she was happy to listen to arguments for reform; “my door is open”.
The emergence of the concept of ‘ethnicity’ has much to do with the decline of the term ‘race’. It is suggested that race was developed as an exclusive criterion built on arbitrary classifications of populations, with the (at least initial) intention of drawing hierarchical rankings of groups. Ethnicity, by contrast, could be said to be based on shared culture and heritage, and should be considered an inclusive term through which groups identify themselves and are identified by others. It should be noted, however, that ethnicity is as indeterminate as race. Neither concept has any basis in biology, for there are no discernible biological differences between ethnic groups or racial groups that have been found to be constant. They come together in the UN International Convention on the Elimination of Racial Discrimination 1965 (‘Race Convention’), which defines racial discrimination as occurring on the basis of 5 grounds: race, colour, descent, national origin or ethnic origin.
In its first report to the UN Committee on the Elimination of Racial Discrimination (CERD) in 2004, the Irish government stated that “In regard to the scope of the Report it should be noted that Irish Travellers do not constitute a distinct group from the population as a whole in terms of race, colour, descent or national or ethnic origin.” Thus Irish Travellers were included as an annexe to the report rather than in the main body of the text. The Minister for Justice at the time, Michael McDowell, argued in the Dáil that “the government is not prepared to include in the Report a statement that it does not believe in, namely that travellers are ethnically different from the majority of Irish people.” This was opposed by Irish Traveller representatives, an NGO Alliance of over 40 organisations and the Irish Human Rights Commission. It was pointed out that Irish Travellers have been recognised as an ethnic group in the UK, in O’Leary and Others v. Allied Domecq .
CERD had dealt with similar statements from governments before. It had built up a practice of not accepting claims by states in their reports that certain groups do not qualify. In order to counteract this, it has issued a number of guidelines, called General Comments, which set out what it expects from governments in their reports. This includes a General Comment 8 on ‘Identification with a Particular Racial or Ethnic Group’, which reads: “having considered reports from States parties concerning information about the ways in which individuals are identified as being members of a particular racial or ethnic group, the Committee is of the opinion that such identification shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.”
This Comment introduces the element of proof. In the Irish case, it holds that Travellers are entitled under the terms of the Convention to the right to identify themselves as an ethnic group. It places the burden of proving they are not an ethnic group on the reporting state. It does not offer a carte blanche to all groups to declare themselves as an ethnic group, nor does it affirm or reject the claim of the Irish Travellers that they are an ethnic group. It states that Irish Travellers are entitled to view themselves as an ethnic group until justification to the contrary is produced. This is the result of a pragmatic approach which prevents reporting states from excluding certain groups from the scope of the treaty. It combines a subjective approach – self-identification – with an objective approach, that is, justifications to the contrary, such as social or cultural studies, which could disprove the claim. But there is a primary right of self-identification, which if exercised, the government must provide evidence to counteract. It violated this right in the 2004 Report and has never produced evidence to support its position.
In its Concluding Observations to the 2004 Irish report, CERD expressed concern at the government’s position and encouraged Ireland “to work more concretely towards recognizing the Traveller community as an ethnic group”. It also pointed out that recognition could have “important implications under the Convention.” At the AGM last week, there was discussion around the potential for affirmative action provisions to be applied to Irish Travellers. These could take the form of reserving a small number of places in universities; or in the civil service (a pilot project involving internships is already taking place); or indeed potentially having Seanad representation. This three pronged system is seen in other States where there is entrenched discrimination, for example India which has sought to tackle caste-based discrimination through such measures. If the debate is to advance to this, recognition of Irish Traveller ethnicity would be an important first step. The Race Convention has provisions on what it terms special measures, ‘where the circumstances so warrant’ in the language of Article 2(2); including Travellers under the Convention would advance the debate on what contribution targeted legal interventions could make to greater equality.