Inconvenient Human Rights

Following an increase in Roma migration under the European “freedom of movement” laws, Swedish municipalities initiated more than 80 evictions of informal Roma settlements on the grounds of poor sanitation between 2013 and 2016. These evictions echo policies from earlier in the 20th century, when Roma living in Sweden were often marginalized through the denial of access to water and sanitation facilities. The recent Swedish evictions also follow similar government actions across Europe, where Roma settlements are controlled through the denial of access to water and sanitation. However, access to water and sanitation—central aspects of human health—are universal human rights that must be available to all people present in a jurisdiction, regardless of their legal status. The evictions described here violated Sweden’s obligations under both European and international human rights law. More positive government responses are required, such as providing shelters or camping sites, setting up temporary facilities, and directly engaging with communities to address water and sanitation issues. The authors conclude by providing guidance on how states and municipalities can meet their human rights obligations with respect to water and sanitation for vulnerable Roma individuals and informal settlements in their communities. Martha F. Davis, MA (Oxon), JD, is a professor of law at Northeastern University School of Law, Boston, MA, USA, and an affiliated scholar with the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden. Natasha Ryan, MA, is an adjunct lecturer in law at Södertörn University, Stockholm, Sweden. Please address correspondence to Martha F. Davis. Email: [email protected]. Competing Interests: None declared. Copyright © 2017 Davis and Ryan. This is an open access article distributed under the terms of the Creative Commons Attribution NonCommercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM m. f. davis and n. ryan / Romani People and the Right to Health, 61-72 62 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal Introduction Access to water and sanitation are fundamental human rights central to human health. Limiting access to water and sanitation are key means by which governments control the movements of marginalized people, deter their inclusion in the community, and undermine their well-being. In this study, we explore the ways in which limitations on water and sanitation access have been used to control the movements of Roma by examining Swedish municipal evictions of informal Roma settlements between 2013 and early 2016. Although Swedish authorities are prohibited from keeping records of ethnicity, records of official communications, reports from the media, and accounts from eye-witnesses confirm the Roma identity of the inhabitants of the affected sites. Among the official records analyzed for this study are the notes of officials discussing the evictions, which include the following comments: “we have problems with various bums/Roma,” “there were sleeping Roma in the cars,” “it is very hard for us to determine the identity of EU-emigrants,” and “we have issue in an area where there are Romanians.”1 This article proceeds as follows. Following this introduction, the second part sets out information on the legal status of water and sanitation, including for informal settlements, under European and international human rights law. The third part provides general information on access to water and sanitation in informal Roma settlements in Europe and Sweden. Part four presents our data regarding municipal evictions of Roma from informal settlements in Sweden based on sanitation grounds. Part five reviews ways in which Swedish municipalities might begin to meet human rights standards. We conclude by highlighting that access to water and sanitation remain key tools for controlling Roma individuals in Sweden, despite human rights norms that extend the human rights to water and sanitation to all. Both European and international human rights laws protect water and sanitation access for informal settlements Water and sanitation are independent human rights protected by European and international human rights law.2 These rights extend to people living in informal settlements and homeless people, and they are not conditioned on legal status.3 The fundamental nature of the rights to water and sanitation In the European Union (EU), the human rights to water and sanitation have been repeatedly recognized. Provisions of the EU’s Charter of Fundamental Rights protect the rights to dignity and life, implicitly encompassing the rights to water and sanitation.4 The relationship between water and Roma integration was explicitly identified by the Council of the European Union in 2013, when it recommended that member states “take effective measures to ensure equal treatment of Roma,” including “access to public utilities (such as water electricity and gas).”5 The first successful European citizens’ initiative addressed these rights even more specifically and urged that “EU institutions and Member States be obliged to ensure that all inhabitants enjoy the right to water and sanitation.”6 Answering this petition, the European Commission endorsed these basic rights and urged member states to “step up their own efforts to guarantee the provision of safe, clean and affordable drinking water and sanitation to all.”7 In 2015, the European Parliament urged the commission to take aggressive steps to implement the initiative while also calling on member states “to ensure non-discrimination in access to water services, ensuring their provision to all, including marginalized user groups.”8 The Council of Europe has also recognized the human rights to water and sanitation. Implicit protections are found in the “right to life” enshrined in the European Convention on Human Rights and Fundamental Freedoms and in the European Social Charter’s protections for the rights to health and housing.9 Water was addressed directly when, in 2001, the Council of Europe’s Committee of Ministers adopted the European Charter on Water Resources. Paragraph 5 of the charter states that “[e]veryone has the right to a sufficient quantity of water for his or her basic needs,” including “a minim. f. davis and n. ryan / Romani People and the Right to Health, 61-72 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal 63 mum quantity of water of satisfactory quality from the point of view of health and hygiene.”10 The rights to water and sanitation have likewise been recognized internationally. In 2002, the United Nations (UN) Committee on Economic, Social and Cultural Rights stated that the rights to water and sanitation are protected under the International Covenant on Economic, Social and Cultural Rights. According to the committee’s General Comment 15, “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.”11 Further, states have a duty to “ensure that everyone has access to adequate sanitation, which is crucial to protecting the quality of the water supply” (emphasis added).12 In 2010, the UN General Assembly confirmed the fundamental nature of the human rights to water and sanitation in its Resolution 64/292. The resolution stipulates that each member state should enable “access to drinking water for the most vulnerable persons and those living in informal settlements.”13 In 2015, the UN General Assembly adopted, by consensus, a resolution explaining that the right to sanitation is an independent human right.14 As with other economic, social, and cultural rights, states’ obligations regarding water and sanitation are to “respect, protect and fulfill” these rights by promoting their “progressive realization.”15 States must immediately meet the minimum core obligation of the rights in order to meet their basic commitments under the International Covenant on Economic, Social and Cultural Rights. For water and sanitation, commentators suggest that states must guarantee the minimum standard that is indispensable for human survival and dignity.16 Moreover, a state may not take deliberately retrogressive measures to hinder the realization of these rights.17 States are further obliged to avoid discrimination in securing the rights to water and sanitation.18 This obligation goes beyond eliminating formal inequalities and requires states to address substantive inequality as well.19 In particular, states parties must “immediately adopt measures to prevent, diminish or eliminate” de facto discrimination, including by “ensuring that all individuals”—including those living in informal settlements—“have equal access to adequate housing, water and sanitation.”20 The rights to water and sanitation of informal settlements The rights to water and sanitation belong to all, including those residing in informal settlements or otherwise without regular legal status. The United Nations Human Settlements Programme defines informal settlements as residential areas where 1) inhabitants have no security of tenure vis-à-vis the land or dwellings they inhabit, with modalities ranging from squatting to informal rental housing, 2) the neighbourhoods usually lack, or are cut off from, basic services and city infrastructure and 3) the housing may not comply with current planning and building regulations, and is often situated in geographically and environmentally hazardous areas.21 In Sweden, Roma settlements affected by municipal evictions typically fall within this definition. The human rights to water and sanitation, and the state obligation to ensure those rights, extend to such settlements. The Committee on Economic, Social and Cultural Rights indicates that “access to water services and protection from forced eviction should not be made conditional on a person’s land tenure status, such as living in an informal settlement.”22 Further, the committee has stated that “[d]eprived urban areas, including informal human settlements and homeless persons, should have access to properly maintained water facilities. No household should be denied the right to water on the grounds of their housing or land status.”23 The committee has specifically called on states to take the “necessary steps to ensure Roma nomadic groups or Travellers camping places for their caravans, with all necessary facilities.”24 In sum, the rights to water and sanitation are well established in both European and international human rights law. These rights unequivocally extend to informal settlements and homeless individuals, and require that states take affirmative steps to assure minimum standards of water and