For quite some time, the Nordics’ exceptional approach to the norms of ‘solidarity, equality and (social) democracy’ qualified them to be externally referred to as ‘moral superpowers’.983 By the internalization of human rights norms, Scandinavians came to be
regarded as ‘global Good Samaritans’.984 However, in the face of the Gap, such reverence can be misplaced unless reinvigorated by policy-makers. Refugees are undeniably protected at the minimum threshold, just like any other citizen who qualifies for such protection.985 However, the long-term unemployment that affects over 50 per cent of refugees mars and potentially ruins this record and image of benevolence. When the Gap persists and persists, refugees’ physical and psychological mental abilities quickly deteriorate.
Practices that objectively but unjustifiably discriminate against refugees may partially explain why the situation is perpetual even when various approaches to combat it are in place. It
981 UN CESCR, General Comment Number 20: Non-discrimination in Economic, Social and Cultural Rights (art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights).
982 On Actions and Omissions that tantamount to violation of economic and social rights, see generally, ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, 1998 (20) Human Rights Quarterly, 691–705; The Limburg Principles on the Implementation of the Covenant on Economic, Social and Cultural Rights (1987) 9 Human Rights Quarterly 124. Although it was a declaration by academicians, it nonetheless remains an important human rights document.
983 M Langford and JK Schaffer, ‘The Nordic Human Rights Paradox: Moving Beyond Exceptionalism’ (PhD Thesis, Norwegian Centre for Human Rights, University of Oslo 2014); JC Ersen and MR Madsen, ‘The End of Virtue? Denmark and the Internationalisation of Human Rights’ (2011) 80 (3) Nordic Journal of International Law 257-277.
984 JC Ersen and MR Madsen ibid. For extra flattering epithets of Scandinavian human rights, see M Langford and JK Schaffer ibid.
985 CESCR, General Comment Number 3 elaborates what minimum core obligation could entail. The Nordics, through Universalism, have gone beyond the minimum threshold.
should be noted that differentiating between or treating persons differently can be justified under the guise of ‘genuine and determining occupational requirements’.986
International human rights, however, abhors discrimination987 on any grounds if respect for dignity,988 equality of opportunities and/or outcome;989 social justice,990 etc., are to be fully realized. The international human rights regime is not built upon whimsical or fragile pillars of belief, conviction or foundation. Nor can human rights be compared to some ephemeral
government policies which can be changed according to time and context. Since 1948, for instance, human rights have been called foundational pillars which have stood the test of time as they are universally true. Respecting them would weaken the Gap’s gravity, and offer a potential panacea which is within reach.991
All people, including refugees, share certain values simply because they are humans. This line of thought does not differ from what Kant referred to as the ‘virtue of humanity’.992 In the categorical imperatives, each human being should be treated ‘as an end, never merely as a means’.993 Universal inheritance and inalienability mean that no person can confer those rights on another; and neither can an individual take away such rights from another without violating them. The right to work, for example, is a universal value (right) in itself and is shared by all human beings. Its breach, whether by acts of omission or commission, ought to be politically
986 European Union, Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2 December 2000, preamble para 23 and Article 4.
987 CESCR General Comment Number 20; Charter of Fundamental Rights of the European Union (OJ C 346/1, 18 December 2000) Article 21; Council of Europe, Protocol Number 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Treaty Series Number 177, 4 November 2000) art 1.
988 On the complexities of dignity as an international human rights concept, see for example, P Carozza, ‘Human Dignity’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 346.
989 J Clifford, ‘Equality’ in D Shelton (ed) The Oxford Handbook of International Human Rights Law (OUP 2013) 420, 428, 429.
990 JM Diller, ‘Social Justice, Rights, and Labour’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 307. For example, prevention of unemployment can be one of the ways of reducing deprivation that leads to general unrest.
991 The universally agreed upon pillars in the Universal Declaration of Human Rights. For a detailed analysis of the raison d'être of the UDHR, see, WA Schabas (ed), The Universal Declaration of Human Rights: The Travaux Préparatoires Volumes 1-3 (CUP 2013).
992I Kant, ‘The Metaphysical Elements of Justice: Part 1 of the Metaphysics of Morals’ (1965) 38 in D Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’ (Oxford Monographs in International Law, OUP 2008) 60.
993 I Kant, ‘Groundwork of the Metaphysics of Morals’ (CUP 1998) 38 in Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’ (Oxford Monographs in International Law, OUP 2008) 60.
sanctioned, for example, through reparation, adopting special measures and others measures of satisfaction through dialogues, respect for and fulfilling refugees’ individual rights, etc.
Normatively, all human beings of working age who are able to work, are actively looking for work and are willing to work in the existing conditions even when such work is boring and frustrating, should be assisted by State authorities and private individuals to secure it.994 The tentacles of long-term unemployment, which emanate partly from discrimination, stereotyping and disrespect for the principles of substantive equality, violates the right to work. In such a situation, States Parties have an obligation to intervene through, for example, awarding damages as a way of ‘buying off’ the violation.995
Currently, refugees under the Gap have very limited remedies, if any. Even in periods of
economic boom, when most nationals and immigrants ie groups without refugee background, are in employment, most refugees do not find work even when they are willing and are able to work.
Jobs remain elusive. This can be symptomatic of the intricacies and complexities within the labour market which the refugees cannot themselves defeat. In this context it is important to note what General Comment Number 20996 elaborated: that the removal of formal discrimination from a constitution, laws and policies cannot of itself lead to the substantive equality envisaged in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights. Attention should be paid to ‘groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations...’997 The conditions and attitudes that cause and perpetuate substantive or de facto discrimination must be prevented, diminished and eliminated by adopting immediate and necessary measures by States Parties.998 If international human rights law is not heeded, the Gap will continue to steadily creep in.
Equality (both of opportunities and of the degree of their availability) is another human rights pillar which makes clear that ‘equal in dignity’ and ‘equal in rights’ mean that all people
994See generally the ICESCR; the Finnish, the Norwegian and the Danish Constitutions.
995 Jason NE Varuhas, Damages and Human Rights (Hart Publishing 2016) 347.
996 Para 8(b).
997 Ibid.
998 Ibid.
‘have essentially the same rights’.999 Furthermore, ‘equal in dignity’ and ‘equal in rights’ mean
‘of equal concern’ in issues of public justice.1000 Human dignity is ‘inviolable’ and must
therefore be protected and respected, if one follows the European Union Charter of Fundamental Rights.1001 According to Albie Sachs:
‘Respect for human dignity is the unifying constitutional principle for a society that is not only particularly diverse, but extremely unequal. This implies that the Bill of Rights exists not simply to ensure that the “haves” can continue to have, but to help create conditions in which the basic dignity of the “have nots” can be secured.’1002
Although Sachs was referring to the experience of post-apartheid South Africa, his observation directly applies to refugees under the Gap. They are a diversified group coming from far and wide, joining a ‘homogeneous’ group of Europeans/Scandinavians. Nevertheless, the preamble of the consolidated version of the Treaty of the European Union states that ‘…the culture, religion and humanist inheritance of Europe …’ inspired the development of the ‘universal values of the inviolable and inalienable rights of the human person… equality and the rule of law’.1003 The preamble continues that the European Union is attached to the principle of ‘respect of human rights and fundamental freedoms’, and also respects ‘fundamental social rights as defined in the European Social Charter’ of 1961.1004
By and large, the Nordics are bound to respect social rights, like the right to work. Social rights (to which the right to work belongs) are fundamental and are established by law or treaty.
Because dignity is ‘a foundational value, the intrinsic worth of every person’, its protection is a
999 Avishai Margalit, ‘The Decent Society’ (Harvard University Press 1996) 9 in Y Haeck et al. (eds), Human Realisation of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak, (Intersentia Publishing Limited 2013) 45; O Schachter, ‘Human Dignity as a Normative Concept’ (1983) 77 (4) American Journal of International Law 848, 852 in Y Haeck et al. ibid 45.
1000 Y Haeck et al.ibid 47.
1001 B Hepple, Equality: The Legal Framework (2nd Hart Publishing 2014) 20.
1002 A Sachs, ‘The Strange Alchemy of Life and Law’ (OUP, 2009) 213 in K Monaghan QC, Equality and Non-Discrimination (Annual Conference, Bar European Group and Administrative Law Bar Association, Athens 2011).
1003 European Union, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (2012/C 326/1) OJ C 326/1, 26 October 2012) para 3.
1004 Ibid para 6.
sine qua non if any iota of equality and non-discrimination is to be realised.1005 Every person’s dignity matters, irrespective of whether the concerned person can take his or her decisions on his or her own life.1006 Equal access to employment opportunities that partly redistribute society’s resources can be a venue for achieving ‘equality of outcome’.1007 This is what ‘justice and
fairness' is basically inclined to.1008 Under the Gap, values like dignity, substantive equality, etc., vanish into a puff of smoke, even though States are under obligation to respect all human rights.
This chapter therefore discusses the strategies that may be useful in this quest. But before going further, it is necessary to briefly show how and why the Gap exists and then assess the acts of omission or commission of States, which they seem to not appreciably recognise.