Legal briefing: Statelessness and the prohibition on discrimination against Romani communities • • • April 2023 under the law and guarantees 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;17 The International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that States ensure that its rights are exercised without discrimination;18 The ICERD defines discrimination on the basis of race as any difference in treatment based on race, colour, descent or national or ethnic origin which aims at or has the effect of nullifying or impairing the recognition, enjoyment or exercise of human rights in any field of the public life;19 The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities emphasises the obligation to ensure that minorities are equal before the law and can exercise their rights without discrimination.20 The European Convention on Human Rights also contains a non-discrimination clause in Article 14, which provides a non-exhaustive list of grounds for finding discrimination, including race and membership of a national minority. It must be applied in relation to another substantive right protected by the ECHR.21 Article 1 of Protocol 12 also contains a general prohibition on discrimination in the enjoyment of all rights “set forth in law”, although it only applies to States that have signed this Protocol. Importantly, the European Court of Human Rights addresses discrimination on account of nationality status by reading Article 8 ECHR (right to respect for private and family life) in conjunction with Article 14 ECHR. If an unjustified difference in treatment places the individual at a disadvantage or has a disproportional prejudicial effect on their private and family life, it may amount to a violation of Article 8. 22 The Court has held that a difference of treatment based exclusively on the ground of nationality would require “very weighty reasons” to be considered compatible with the ECHR, 23 thus a difference in treatment between stateless persons and nationals or other non-nationals resident of the same country may amount to discrimination. Stateless persons might also face discrimination on the basis of their nationality status if they are being denied the possibility to regularise their situation when the measures adopted by the State do UNHRC, ‘General Comment No. 18. Non-Discrimination’ (1989), UN Doc HRI/GEN/1/Rev.9 (Vol. I), §1. International Covenant on Economic, Social and Cultural Rights, Article 2. The Committee on Economic, Social and Cultural Rights declares that the ground of nationality cannot impede access to the rights guaranteed in the ICESCR. It further states that “all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as […] stateless persons” (‘General Comment No. 20: Non-discrimination in economic, social and cultural rights’, E/C.12/GC/20, 2 July 2009). 19 International Conventions on the Elimination of All Forms of Racial Discrimination, Article 1. 20 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Article 4. 21 ECtHR, Genovese v Malta (n 8), §31. 22 ECtHR, Biao v. Denmark, application no. 38590/10, judgment of 24 May 2016, §130. 23 ECtHR, Gaygusuz v. Austria, application no. 17371/90, judgment of 16 September 1996, §42; Koua Poirrez v. France, application no. 40892/98, judgment of 30 September 2003, §46; Andrejeva v. Latvia, application no. 55707/00, judgment of 18 February 2009, §87. 17 18 5