‘Nobody Gives a Damn About the Gypsies': The Limits of Westphalian Models for Change

Abstract

Intra-, supra-, and transnational legal mechanisms have diffused a Western-styled human rights regime, under which fundamental, inviolable rights — enforceable in international fora — are ceded to individuals regardless of their status or group affiliation. To operationalize these rights, various strands of the international human rights project have emerged to strengthen the protection international law affords to specific vulnerable groups: minorities, indigenous peoples, refugees, et cetera. Notwithstanding their vulnerability, the various groups that have been denominated as "Gypsies" or Roma escape this supplementary protection. They are minorities who are not “minorities”; indigenous peoples who are not “indigenous”; refugees who are not “refugees.” In exploring how the ostensibly extensive protections available to other groups fail to capture Roma peoples, this essay argues that the operational tools of human rights target the precipitate abuses not the antecedents. Like other facets of international and supranational law, the primary concern of human rights law is that certain preemptory, first principles cannot be entrusted to states. But, its operational tools do not constrain the power of states to define the confines of their nations and choose insiders to enjoy the benefits of membership therein. Instead, they render intractable the problems associated with the culture of dominance by permitting states to define who enjoys protection and simultaneously appear to be constrained by preemptory norms. Moreover, such operational tools, dependent on state-determined definitions, encourage the altruistic pathologizing of subaltern groups and reify the notion that the protection afforded by human rights is a limited resource over which outwith groups must compete. Despite their achievements, the operational mechanisms of the human rights regime are Westphalian tools that cannot solve the problems associated with a Westphalian international order.

Keywords: Roma, Law and Geography, Scale, Westphalian, Indigenous, Minorities, Refugees