Discrimination based on race, religion, ethnicity or similar protected characteristics In many contexts, the most immediate concern may be discrimination against certain population groups in access to education, health care, housing or other economic and social rights, but this discrimination is caused or exacerbated by denial of nationality or lack of identity documents recognising nationality. It can be hard to challenge discrimination in nationality law and administration based on race, ethnicity, or religion, especially in countries where the framing of nationality is closely tied up with the idea of a nation as a cultural unit. Nonetheless, the fact that a prohibition on racial discrimination is widely recognised as jus cogens—a “peremptory norm” of international law—can provide a powerful argument. At the same time, if the core problem is the complainants’ lack of identity documents and/or recognition of nationality, then a focus on discrimination in access to other rights (only) may risk missing the opportunity to make this deeper case about statelessness and the right to nationality and legal identity, and/or to propose specific remedies for the lack of identity documents that would in turn unlock a broader access to rights. (u section 7.4.) Birth registration, juridical personality, legal identity, and the right to family life In a very large number of cases one starting point to resolve a person’s lack of documents and recognition of nationality will be to remedy the lack of timely birth registration. The advantage of this framing is that the remedy sought can be argued to be administrative, without challenging the top-level legal framework for nationality; it may therefore also be less politically controversial. The right to birth registration is included within a wide range of UN and regional human rights instruments and in many national laws. The disadvantage is that a focus (solely) on birth registration may reinforce the impression that the victims of state discrimination are themselves responsible for their lack of documents, and for failing to ensure that the births of their children are registered. Article 8 of the Convention on the Rights of the Child makes clear that the obligation is on a state to re-establish identity if a child is illegally deprived of some or all the elements of his or her identity, including nationality. Moreover, the right to recognition as a person before the law—to recognition of juridical personality or legal identity—is a foundational concept for much litigation on recognition of legal status in a country. It is a concept protected (with some variations in wording) under Article 6 of the Universal Declaration of Human Rights, Article 16 of the International Covenant on Civil and Political Rights, Article 3 of the American Convention on Human Rights, and Article 5 of the African Charter on Human and Peoples’ Rights, among other instruments. Among those states that are party to the European Convention on Human Rights, a central pillar of a case relating to recognition of nationality and issue of documents is likely to be Article 8 of the Convention establishing the right to respect for private and family life. Although the Council of Europe has adopted two free-standing conventions on nationality (European Convention on nationality, 1997, and European Convention on the Avoidance of Statelessness in the Context of State Succession, 2006), the European Convention on Human Rights does not itself include the right to a nationality. The Court has, however, recognised that a violation of Article 8 of the ECHR may occur in some cases of nationality deprivation or denial, if a person is denied the right to register a birth, or to transmit nationality to a child or spouse, and in case of stateless people denied the possibility to regularise their residence. (u sections 7.8 and 7.9.) Arbitrary detention as cruel, inhuman, and degrading treatment The Inter-American and African human rights treaty bodies have found that the consequences of arbitrary deprivation of nationality may constitute inhuman treatment. If a stateless person is kept in immigration detention, despite the impossibility of any removal from the country, that may itself constitute inhuman and degrading treatment. Deportation of a stateless person to another country where they previously held some form of legal status, but were subjected to ill treatment may also be in violation of norms of non-refoulement. (u section 7.9) Dignity The centrality of recognition of nationality and legal identity to human dignity has been recognised by many different courts. Whatever the detailed framing of a case, the right to human dignity may be a foundational argument. The close linkage of recognition of legal status with dignity is reflected in the inclusion of both concepts within the same article of the African Charter on Human and Peoples’ Rights (Article 5). 38 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S