Abstract
Excerpted From: William Thomas Worster, Discrimination on the Basis of Nationality under the Convention on the Elimination of Racial Discrimination, 35 Pace International Law Review 41 (Fall, 2022) (264 Footnotes) (Full Document)
The International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) clearly prohibits certain forms of discrimination, but less clear is whether it prohibits discrimination on the basis of nationality. Currently, the Committee on the Elimination of Racial Discrimination (“CERD Committee”) and the International Court of Justice (“ICJ”) appear to take different approaches to this question. However, this article will argue that the divergent views of the CERD Committee and the ICJ can be reconciled by identifying precisely which nationals are being distinguished on the basis of nationality. The practice under other human rights treaties shows that a distinction has emerged between discrimination between citizens and aliens, on the one hand, and discrimination among nationalities, on the other. While both may be covered under nationality discrimination, the CERD appears to diverge from this practice and only cover discrimination among nationalities. Both the ICJ and CERD Committee appear to have overlooked this critical distinction, leading to the resulting conflict in their views. This paper will analyze the judgment of the ICJ in the Application of the International Convention on the Elimination of All Forms of Racial Discrimination case brought by Qatar against the United Arab Emirates (“UAE”) and the two parallel inter-state communications brought by Qatar against the UAE and Saudi Arabia before the CERD Committee, as well as prior CERD Committee views on the question of nationality, in particular General Recommendation No. 30. It will identify the distinction between the two forms of discrimination in human rights law and apply that distinction to resolve the divergence between the ICJ and CERD Committee.
II. Background
During the brief diplomatic dispute between Qatar and several Gulf states, the UAE, Saudi Arabia, and other states took a wide range of measures against Qatar and its nationals, including expulsions and blockades. As a result, Qatar brought multiple legal claims before several institutions, including parallel claims under the CERD at both the ICJ and CERD Committee. Due to issues of jurisdiction, the claim at the ICJ was lodged only against the UAE, whereas two separate claims were made before the CERD Committee against the UAE and Saudi Arabia. Qatar requested provisional measures from the Court, which were partially granted and the UAE requested provisional measures as well, although those were refused. Ultimately, the Court rejected Qatar's case at the preliminary objections phase. Although the CERD Committee proceeding remained pending before an ad hoc Conciliation Committee after the ICJ case ended, it has now also been discontinued due to the thaw in diplomatic relations between the states. Without an active case, the CERD Committee cannot affirm its position, aside from issuing a clarification to General Recommendation 30.
In its 2021 judgment on preliminary objections, the Court concluded that the CERD did not prohibit discrimination on the basis of nationality, or, in the words of the Court, on the basis of “current citizenship.” Instead, the term “national origin” in the CERD should be read to refer to the immutable characteristic of personal heritage and family descent with a link to a nation, unlike nationality which was a changeable political bond. The Court based this conclusion on the text, context, and object and purpose, in addition to the preparatory works of the CERD. Firstly, regarding the text of the CERD, the Court noted that the other characteristics listed in article 1 for which discrimination is prohibited include “race, colour, [and] descent” and that the term “national origin” should be read to be more aligned with the meaning of the other listed characteristics, than political affiliation. Secondly, the Court observed that the CERD expressly excluded application to the distinction of citizenship: “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.” As for the object and purpose of the CERD, the Court looked to the preamble, stating that the CERD was negotiated in the context of decolonization and expressly rejected the flawed doctrine of racial superiority. Lastly, the Court noted that discrimination on the basis of nationality was common in state practice and, implicitly, could not have been intended to be prohibited by the drafters. To confirm this interpretation, the Court consulted the travaux préparatoires. It noted that an amendment had been suggested that would have clarified that citizenship was not included in the definition of “national origin,” but that amendment was withdrawn. However, the Court did not understand the withdrawn amendment to remove the distinction between national origin and political nationality. In its view, the reason that the amendment to article 1 was rejected was the addition of paragraphs 2 and 3 to article 1, which clarified that distinctions between citizens and aliens, were permissible. Thus, the Court concluded that differentiation on the basis of political nationality was not covered by CERD, and dismissed the case on the preliminary objection.
However, the CERD Committee interprets the definition differently than the ICJ. In General Recommendation 30, the Committee specifically addressed the issue of discrimination against non-citizens. The Committee appeared to contemplate some distinction between nationality, as in citizenship, and national origin, as in descent, when it determined that states must report fully on legislation pertaining to non-citizens disaggregated by national origin within their jurisdiction in their compliance reports. Nonetheless, the Committee concluded that nationality discrimination is protected by the CERD. Specifically, the Committee noted that “xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices.” It also observed that persons who have “lived all their lives on the same territory” might face discriminatory practices if they are unable to “establish the nationality of the State on whose territory they live.” The Committee consulted the text, just as the ICJ did, listing the various characteristics on which basis discrimination was prohibited: “race, colour, descent, and national or ethnic origin.” Although paragraph 2 of the article does indeed provide the possibility for discrimination on the basis of citizenship, paragraph 3 provides that in matters of “nationality, citizenship or naturalization,” states may not discriminate against any particular nationality. In addition, the Committee argued, paragraph 2 cannot be understood to abridge human rights that individuals enjoyed regardless of citizenship. Certainly, some distinctions between citizens and aliens are permitted, such as rights to vote in elections or stand for political office, but the vast array of human rights do not permit such a distinction. Thus, in the view of the Committee, differential treatment on the basis of citizenship must pursue a legitimate aim and be proportional to that aim.
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This article has identified the disagreement between the ICJ and CERD Committee expressed in the Qatar v UAE CERD case and General Recommendation No. 30 of whether nationality discrimination is covered by the CERD. This article has argued that the best approach to resolving the tension is to distinguish between two forms of nationality discrimination: (1) discrimination by a state in favor of its own nationals and against foreign aliens and (2) discrimination by a state among foreign nationals on the basis of their differing nationalities. This distinction emerges from the practice of discrimination in many human rights treaties where states have a wide degree of permission to discriminate against foreigners generally for political and other rights traditionally only enjoyed by the citizens of a state. However, when states propose to discriminate among foreign nationals, such different treatment must be justified and proportionate to legitimate aims.
That does not mean that all distinctions between foreigners are prohibited. This article has already cited several times to the judgment of the ECtHR in C v. Belgium concerning discrimination among nationalities for deportation and to that of the IACHR in the Proposed Amendments advisory opinion permitting states to discriminate among nationalities for purposes of naturalization. In fact, there are many cases of distinction among nationalities, as the ICJ rightly noted, far beyond the examples in this article. Many treaties provide for certain benefits for persons with specified nationality, such as Bilateral Investment Treaties that include investment protection, investor-state dispute mechanisms and Most-Favored-Nation clauses for nationals of certain states. The World Trade Organization (“WTO”) General Agreement on Trade in Services largely bans discrimination among nationals (of WTO member states), but exempts requirements for visas. However, under the CERD, such distinctions must be justified. Distinctions between foreign nationals on the basis of nationality can nevertheless survive scrutiny provided they are legitimate and closely tailored to achieve the legitimate aim. The precise degree of probing scrutiny will have to await future analysis.
However, the conclusions in this article also do not mean that a state is generally free to discriminate between citizens and aliens. For example, the Human Rights Committee held that such discrimination against foreigners by France in Gueye v. France was not proportionate. Rather, discrimination between citizens and aliens has certain carve out exceptions and perhaps a slightly lower threshold of legitimacy. They are still subjected to the proportionality test and can fail.
What this analysis separating the two forms of nationality discrimination identifies is that the CERD treats the two forms differently. The CERD does not cover discrimination between citizens and aliens at all, while instead only covering only discrimination among nationalities. Individuals who have been discriminated against as foreign aliens compared to citizens of the state would need to invoke the ICCPR or other instrument for protection, rather than the CERD. However, distinctions among nationalities are covered and would need to be justified under the CERD, in addition to the other human rights instruments already mentioned.
What appears to be critical, in line with the reasoning of the CERD Committee in General Recommendation No. 30, is whether the discrimination is aimed at disadvantaging a person based solely on facts out of his or her control such, as place of birth or descent, and facts central to one's identity, such a culture and nationality, with no other rational or scientific basis for this prejudice. One could imagine a wide array of measures discriminating against foreigners or among foreign nationalities. Some of these measures might pass scrutiny provided they are based on legitimate reasons rather than prejudicial ones. But surely they are subject to scrutiny and that scrutiny might be different if the hypothetical measures banned those rights for all foreigners or only for certain nationalities. Moving forward, this author suggests that states should consider the distinction between the two forms of discrimination and reflect on whether differentiations made between foreign individuals entirely on the basis of their nationality alone are justifiable.
The Hague University of Applied Sciences, The Hague, The Netherlands.
