This post is co-authored by Lourdes Peroni and Alexandra Timmer
In an inadmissibility decision that might have gone unnoticed by many, the Court has recently ruled in an interesting case, Horie v UK. The case involves a “New Age Traveler” who complained of an impediment on her ability to pursue a nomadic way of life. The case’s issue was a rather technical legal one – the question was whether a quia timet order which prevented a group of travelers to occupy any land by the Forestry Commission in the Dorset-region was justified – but en passant the Court makes some potentially important remarks about what sort of lifestyle deserves recognition. The purpose of this post is to flag this case and briefly discuss the disquieting remarks the Court makes about what kind of cultural minority-groups deserve protection and which groups don’t.
The applicant, Shanon Horie, was born in 1961 and has been living a nomadic life since 1982. She lives with her 3 children in a vehicle. She is part of a group of “New Travellers” (also known as New Age Travelers). In 2007, Ms. Horie, together with other members of the group, established an unauthorized camp in Dorset on woodland known as Hethfelton Wood. This wood and thirteen others in the region were owned by the Secretary of State for the Environment, Food and Rural Affairs and managed by the Forestry Commission. The former sought an injunction to prevent the applicant and other travelers from entering or occupying any of those woodlands. The case reached the Supreme Court which confirmed the injunction granted by the Court of Appeal.
Referring to the case of Chapman v UK, Horie argued before the ECtHR that Article 8 imposed on the State a positive obligation to facilitate the gypsy way of life and that the injunction requiring her removal of the camping site affected her ability to lead her private and family life in accordance with that tradition. After recalling that the Contracting States have a positive obligation to protect “the gypsy way of life” on the basis of Chapman, the Court states:
“However, the Court observes that the applicant in the present case is a New Traveller and not a gypsy. Unlike Romani gypsies, who are widely recognised as an ethnic group, and Irish Travellers, who are a traditionally nomadic people with their own culture and language, New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group.” (par. 28)
The Court observes that it does not need to decide whether New Travellers should be afforded the same kind of protection as people who are gypsies by birth, as it can decide the case on other grounds. That makes the remarks quoted above obiter dicta. The Court then proceeds to declare the case manifestly ill-founded, reasoning that: (1) even without the injunction, the applicant had no right under domestic law to camp on any of the parcels of land covered by it, (2) the applicant had no right under Article 8 of the Convention to establish a camp on the land, and (3) it is not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life.
Now what to think of the above quoted obiter? The emphasis on the fact that New Travellers live a nomadic lifestyle by choice and not on account of being born into a particular group reminds us of the American “immutability”-criterion, broadly understood as the person’s inability to change a particular trait. In the U.S., this criterion is used to determine whether a classification deserves strict scrutiny.
Do we really want to go there? We think not. Making a distinction between which cultural (or other) expressions are protected on the basis of immutability would be a serious set-back in the Court’s minority-protection. It would not only be problematic in the area of cultural and ethnic minorities, but also sexual and religious minorities might suffer. In addition, the idea of immutability raises many questions: would this mean that only those traits beyond a person’s control may get the Court’s attention? Which exactly would these traits be? How would the Court recognize them?
The Court seems to imply that those who are part of an ethnic group (e.g. the Roma minority) or of a group with their own language and culture (e.g. Irish Travelers) will be taken serious. Will others such as the New Travelers get the same protection? This is not entirely clear, as the Court does not consider it appropriate to reach any conclusion on the extent of states’ positive obligations towards New Travelers. However, in the previous paragraph, it distinguishes between New Travelers, on one side, and Romani gypsies and Irish Travelers, on the other. The potential implications arising from this distinction for future cases concerning groups who are not recognized as an ethnic or cultural minority should not be underestimated.
Now back to the distinction the Court makes between lifestyle by birth and lifestyle by choice. The implicit idea is that when a trait is immutable, when it is something innate that you cannot “help” because you were born with it, it deserves protection. Martha Nussbaum, in her recent book From Disgust to Humanity, argues that immutability leads us to the idea of depth or centrality. How central is a certain trait to a person’s life and pursuit of happiness? The applicant has been a traveler since 1982. Time to take her choice of lifestyle serious.