MINELRES: ERRC Appeals to UN to Protect Non-Citizens in Europe from Discrimination

[MINELRES moderator]

Original sender: European Roma Rights Center <errc@errc.org> 


ERRC Action at UN Anti-Racism Committee, as Protection of Non-Citizens 
Comes up for Review

On March 1 and 2, 2004, the United Nations Committee on the Elimination
of Racial Discrimination (CERD) is holding a special discussion on the
theme "Non-Citizens and Racial Discrimination". This is the third such
session on this theme, highlighting the fact that the vulnerability of
foreigners, stateless persons, refugees, migrant workers and other
non-citizens around the world today is among the most pressing causes
for concern in the struggle against discrimination. In the run-up to the
CERD discussion, the ERRC sent materials related to the situation of
Romani migrants, refugees, and other Romani non-citizens in Europe
today. The ERRC also sent a written statement expressing concern that
European Union rules in the area of the ban on racial discrimination --
rules which are binding on all European Union Member States --
dangerously exclude non-citizens from protection, and are therefore not
in harmony with international law banning all forms of discrimination.
ERRC materials related to the situation of Romani non-citizens in Europe
are available at: 
http://www.errc.org/rr_nr2_2002/index.shtml. The full text of the ERRC 
submission to the CERD follows below:


Statement by the European Roma Rights Center to the Committee on the
Elimination of Racial Discrimination (CERD) on the Occasion of its
Thematic Discussion on "Non-Citizens and Racial Discrimination" at its
64th Session, February-March 2004



Introduction
In recent years, the European Union has played a leading role in Europe
in the struggle against discrimination, including by enacting a number
of binding standards banning discrimination by law on a range of
grounds. Worryingly, however, a new corpus of European Union rules,
coming into effect now, has left individuals dangerously exposed to
arbitrary treatment on grounds of nationality and/or status as a
non-citizen. Strengthening norms in particular in the field of racial
discrimination have been noteworthy for their exclusion of unequal
treatment on grounds of nationality. This void in law has left
non-citizens and others arguably more exposed to discrimination on these
grounds than before, insofar as the European Union has to date failed to
render explicit how states are to regulate the ban on discrimination on
grounds of nationality or status, while it has provided increasingly
clear guidance on issues related to differential treatment based on
ethnicity or race. It has additionally established a marked discord
between European Union law and international law as established under
the UN system in the area of discrimination. This is particularly of
concern in light of strong anti-foreigner sentiment in Europe. At
present, there is not sufficient political will in Europe to challenge
this state of affairs.

The ERRC is concerned at the impact of these developments on Roma in
Europe. Under a separate cover, the ERRC has provided a number of
publications documenting issues related to human rights abuse of Romani
non-citizens, as well as "Fortress Europe" issues -- extremely
restrictive policies and practices leading to systemic human rights
abuses of migrants, in this case Romani migrants. The ERRC urges the
Committee on the Elimination of Racial Discrimination to take the
opportunity of this session on "non-citizens and racial discrimination"
to encourage the European Union without delay to bring EU rules into
conformity with the ban under international law on all forms of
discrimination.


The ban on racial discrimination under international law
Space considerations preclude an extensive discussion here of the ban on
discrimination -- and in particular racial discrimination -- under
international law. Three of the most core instruments regulating the ban
-- the definitions of discrimination as provided under the International
Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights and the International Convention on
the Elimination of All Forms of Racial Discrimination follow:

The International Covenant on Civil and Political Rights (ICCPR) states,
at Article 2(1): "Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status." Article 26 of the ICCPR
further provides: "All persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status." In
its General Comment 15 on the position of aliens under the Covenant, the
Human Rights Committee elaborated that "[...] the general rule is that
each one of the rights of the Covenant must be guaranteed without
discrimination between citizens and aliens. Aliens receive the benefit
of the general requirement of non-discrimination in respect of the
rights guaranteed in the Covenant, as provided for in article 2 thereof
[...]"

The International Covenant on Economic, Social and Cultural Rights
(ICESCR) provides, at Article 2(2): "... the rights enunciated in the
present Covenant will be exercised without discrimination of any kind as
to race, colour, sex, language, religion, political or other opinion,
national or social origin, birth or other status." The ICESCR also
requires that states may provide limitations to the enjoyment of the
rights in the Covenant "only in so far as this may be compatible with
the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society." (Article 4). In its general
comments on areas such as health, housing and education, the CESCR has
emphasised that the principle of non-discrimination extends also to
non-citizens. For example, in its General Comment 13 on the right to
education, the Committee stated that "the principle of
non-discrimination extends to all persons of school age residing in the
territory of a State party, including non-nationals, and irrespective of
their legal status." In its concluding observations on Italys third
periodic report, the Committee criticised the government for limiting
access to healthcare for asylum-seekers only to emergency
situations.(Endnote 1)

Article 1(1) of the International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD) states: "In this Convention, the
term 'racial discrimination' shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or
ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life." Although at Article 1(2)
the ICERD provides that the Convention shall not apply with respect to
treatment between citizens and non-citizens, the CERD has importantly
emphasised that protections included in the Convention are to be seen
within the broader context of the ban on discrimination included in the
major international laws on human rights. In its General Recommendation
XI on non-citizens, the CERD held: "The Committee further affirms that
article 1, para.2 must not be interpreted to detract in any way from the
rights and freedoms recognized and enunciated in other instruments,
especially the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights."

Moreover, the CERD has also emphasised that a number of the rights
included in the Convention extend to all persons on the territory of a
given state. In its General Comment XX on non-discriminatory
implementation of rights and freedoms, the CERD noted: "Whenever a State
imposes a restriction upon one of the rights listed in article 5 of the
Convention which applies ostensibly to all within its jurisdiction, it
must ensure that neither in purpose nor effect is the restriction
incompatible with article 1 of the Convention as an integral part of
international human rights standards. [...] Many of the rights and
freedoms mentioned in article 5, such as the right to equal treatment
before tribunals, are to be enjoyed by all persons living in a given
State; others such as the right to participate in elections, to vote and
to stand for election are the rights of citizens."

The Committee later elaborated on this opinion in written response to a
questionnaire sent by the Special Rapporteur on the rights of
non-citizens, dated 20 March 2003, by noting: "As stressed by the
Committee in its General Recommendation XX, several of the rights and
freedoms mentioned in article 5 ICERD, are to be enjoyed by all persons
living in a given state. The Committee is consistently reviewing the
situation in State parties regarding the enjoyment by everyone,
including non-citizens, of such rights and freedoms." In its response to
the Special Rapporteur on the rights of non-citizens, the Committee also
provided a summary of some areas in which it had in the past noted
particular concerns with respect to treatment of non-citizens, focussing
in particular on discrimination in access to housing, education,
employment and access to justice, as well as to concerns related to
ill-treatment of foreigners by law-enforcement officials. (Endnote 2)

In light therefore of the comprehensive nature of the ban on
discrimination provided in particular at Article 26 of the ICCPR, as
well as in view of the developing body of commentary by the CERD as to
interpreting the Convention, it is evident that at minimum, non-citizens
enjoy equal protection of the law in the realisation of a number of
rights.


Recent European Union measures banning discrimination
In recent years, the European Union has led efforts to combat racism and
xenophobia in Europe, in particular by adopting in June 2000 Directive
2000/43/EC "implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin" (Hereinafter "Race
Equality Directive" or "Directive"). The Directive establishes a
framework for the dimensions of laws banning racial discrimination, and
sets a deadline of June 19, 2003 for EU member states to transpose the
requirements of the Directive into domestic law and a deadline of the
date of accession for transposition by candidate countries to the
European Union, ten of which will join on May 1, 2004. Under existing EU
jurisprudence, should states fail to transpose elements of the Directive
into domestic law, particular elements not transposed may be applied
directly in certain circumstances. Insofar as directives are binding on
Member States, and insofar as the Race Equality Directive provides a
very detailed menu as to the content, scope and limits of laws banning
racial discrimination, in Europe, the Directive is set to bring about a
quantum leap in the dimensions of legal protections available to
individuals who have suffered the very serious harm of racial
discrimination.

The Preamble of the Directive recognises that "The right to equality
before the law and protection against discrimination for all persons
constitutes a universal right recognised by the Universal Declaration of
Human Rights, the United Nations Convention on the Elimination of all
forms of Discrimination Against Women, the International Convention on
the Elimination of all forms of Racial Discrimination and the United
Nations Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights and by the European Convention for the Protection of
Human Rights and Fundamental Freedoms, to which all Member States are
signatories." In the general provisions of the Directive, at Article
3(1), the Directive provides that its scope of application shall be "all
persons".

However, Article 3(2) of Directive 2000/43/EC states: "This Directive
does not cover difference of treatment based on nationality and is
without prejudice to provisions and conditions relating to the entry
into and residence of third-country nationals and stateless persons on
the territory of Member States, and to any treatment which arises from
the legal status of the third-country nationals and stateless persons
concerned." As yet, no body of jurisprudence exists to indicate how the
tension between the provisions of Article 3(1) and Article 3(2) should
be regulated.

The apparent exclusion of nationality from EU regulations on the ban on
racial discrimination -- indeed the emphasis on the distinction between
the ban on racial discrimination and "any treatment which arises from
the legal status of the third-country nationals and stateless persons
concerned" -- opens possibilities for unequal treatment on grounds of
nationality, and arguably may come to constitute a significant erosion
of integral parts of the ban on discrimination in Europe. To take the
most glaring examples, under EU rules, not only it is apparently legal
(absent any indication to the contrary (Endnote 3) and prior to the
existence of a body of jurisprudence with respect to the Race Equality
Directive) for an employer, housing provider, restauranteur or for that
matter any other service provider in a European Union Member State to
provide services to a French citizen instead of an Afghani solely on the
basis of the nationality of the persons concerned, but it is also
apparently fully legal for the same service provider to discriminate
between a Canadian and an Afghani, again solely on the basis of the
nationality of the persons concerned. It is difficult to see how such an
approach could be harmonious with the anti-discrimination acquis as
provided by international law. It is also apparent from the latter
example that excluding nationality opens the potential for allowing
blatant racial discrimination into play, as long as it is disguised as
discrimination on grounds of nationality.

The approach of the European Union in adopting the rules included in the
Race Equality Directive is also noticeably divergent from United Nations
standards -- and the developing approach of the CERD in particular --
insofar as it fails to examine specific rights individually to determine
whether non-citizens should enjoy equal protection of the law in the
case of a given right. By excluding all areas of social life from the
scope of the Directive as relates to non-citizens (an interpretation
which would arise from a literal reading of the Directive), the European
Union has fallen far short of even the minimum areas enumerated to date
by the CERD, noted above.

The exclusion of nationality and status from EU law on racial and ethnic
discrimination might be palatable, were the EU to make clear what
protections states should provide to individuals such that they might be
sheltered from arbitrary treatment based on nationality or citizenship
status. The EU has in fact recently addressed various types of
discrimination in separate directives. For example, European Union rules
on gender (most recently Directive 2002/73/EC "on the implementation of
the principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions")
on the one hand, and EU rules on racial and ethnic discrimination on the
other (Directive 2000/43/EC) have been addressed under separate
directives. The European Union has also provided bridging legislation in
certain fields, for example by addressing discrimination in employment
on many grounds in one directive (Directive 2000/78/EC "establishing a
general framework for equal treatment in employment and occupation").
This umbrella legislation has only served to emphasise, however, that
non-citizens do not enjoy protection against discrimination on grounds
of nationality. Directive 2000/78/EC (hereinafter "Employment
Directive") states, at Article 3(2):

"This Directive does not cover differences of treatment based on
nationality and is without prejudice to provisions and conditions
relating to the entry into and residence of third-country nationals and
stateless persons in the territory of the Member States, and to any
treatment which arises from the legal status of the third-country
nationals and stateless persons concerned."

The provisions of the Employment Directive are especially problematic
insofar as they seem, taken together with the Race Equality Directive,
definitively to set beyond the scope of EU anti-discrimination law
protection from differential treatment on grounds of nationality, at
least for the purposes of employment.

The European Union has provided no specific binding guidance -- an
equivalent to directives in the area of gender discrimination and
discrimination on grounds of race or ethnicity -- to indicate how Member
States should address issues related to differential treatment based on
nationality or status as a non-citizen. As such, despite a thickening
terrain of law in the European Union as relates to the ban on
discrimination on a range of grounds, a void currently exists with
respect to laws banning a very significant area of concern in European
Union Member States. This gap raises very serious concerns
intrinsically, as well as with respect to the compliance of the states
currently regulated by EU law -- soon to become 25 states in Europe --
with the corpus of the ban on discrimination as provided under
international law. It also removes European Union law from harmony with
international law in the area of the ban on discrimination, and
establishes in its place marked discord as to the scope of the ban.

The impact of the failure of the European Union in the areas delineated
above cannot be understated. The ERRC has provided to the Committee
under a separate cover with several ERRC publications related to
concerns about the treatment of Romani non-citizens in Europe. Treatment
of Romani migrants is only one facet of a well-documented and very
disturbing dynamic in today's Europe, a dynamic giving rise to numerous
and systemic human rights abuses and described broadly under the
shorthand "Fortress Europe". Explicitly anti-foreigner parties have
entered government in Austria, Denmark, Italy and the Netherlands and
have scored major electoral successes in Belgium, France, Norway and
other countries in Europe. The ten countries joining the European Union
in May 2004 have only very limited experience with migration and
migrants, and are today very difficult places for non-citizens --
particularly dark-skinned non-citizens -- to live lives with dignity.

In such an atmosphere, the signal sent by the European Union to member
states and the countries joining in 2004 -- that on a core concern in
Europe today, the European Union is not only indifferent but actually
legally speechless -- is truly regrettable. There is currently a
distinct threat to all Europeans and others living in Europe, as well as
to the social peace in Europe as a whole, arising from the failure of
the European Union to provide comprehensive and adequate law in the area
of the ban on discrimination.

The ERRC urges that, in the context of the current session by the
Committee on the Elimination of Racial Discrimination on "non-citizens
and racial discrimination", these matters be addressed with the utmost
urgency. The European Union should be encouraged, without delay, to
bring EU rules on the ban on racial discrimination into conformity with
the international law ban on all forms of discrimination.

Endnotes:

1. Committee on Economic, Social and Cultural Rights, Twenty-second
session 25 April-19 May 2000 Concluding Observations on Italy's third
periodic report para 17, available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b977bc856afe94b9802568e4003bf53a?Opendocument

2. See "CERD response to the questionnaire sent by the Special
Rapporteur on the rights of non-citizens:
20/03/2003.CERD/C/62/Misc.17.Rev.3.

3. For example, ICERD includes provisions limiting the extent of the
exclusion of nationality. Article 1(3) of the ICERD states: "Nothing in
this Convention may be interpreted as affecting in any way the legal
provisions of States Parties concerning nationality, citizenship or
naturalization, provided that such provisions do not discriminate
against any particular nationality."

____________________________________________

The European Roma Rights Center is an international public interest law 
organisation which monitors the rights of Roma and provides legal
defence 
in cases of human rights abuse. For more information about the European 
Roma Rights Center, visit the ERRC on the web at http://www.errc.org.

European Roma Rights Center
1386 Budapest 62
P.O. Box 906/93
Hungary


Phone: +36 1 4132200
Fax:   +36 1 4132201

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