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

12 February 2004

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 HERE. 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 here.

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."