Racial Discrimination and Nationality and Migration Exceptions: Reconciling CERD and the Race Equality Directive

David Fennelly,Clíodhna Murphy

doi:10.1177/09240519211055648

David Fennelly, Clíodhna Murphy

Open Access

https://doi.org/10.1177/09240519211055648

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Abstract

The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens. However, nationality and immigration-related exceptions are an established feature of non-discrimination laws. Such exceptions raise fundamental questions about the scope of the protection offered by anti-discrimination laws and have the potential to perpetuate, rather than eliminate, race discrimination. This article addresses this critical but often neglected issue, through a doctrinal analysis of two specific exceptions - Articles 1(2) and 1(3) of the UN Convention on the Elimination of All Forms of Racial Discrimination and Article 3(2) of the EU's Race Equality Directive - and an examination of their impact in practice at the domestic level. We argue that nationality and migration status exceptions must be interpreted as narrowly as possible, in line with the core purpose of these instruments to eliminate race discrimination. Furthermore, we suggest that the interplay between these legal frameworks at the domestic level of implementation takes on particular importance in defining the scope and limits of nationality and migration-based exceptions.

Highlights

The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens.1 nationality and immigration-related exceptions are an established feature of international, European Union (EU) and domestic non-discrimination laws
Broad-based nationality, citizenship and immigration exceptions present a real risk of undermining the promise of discrimination law in the context of racial discrimination connected with nationality and migration status
The CERD Committee has minimised the impact of the exceptions in Articles 1(2) and 1(3) CERD, using a purposive interpretation of the relevant provisions to ensure that nationality and migration status-based discrimination fall within the scope of the Convention

Summary

INTRODUCTION

The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens. nationality and immigration-related exceptions are an established feature of international, European Union (EU) and domestic non-discrimination laws. In circumstances where all EU Member States are parties to CERD, this underlines the importance of interpreting Article 3(2) RED in line with In light of this analysis, we argue that, despite the inherent limitations of anti-discrimination law in addressing deep-rooted structural or institutionalised forms of exclusion, its potential to tackle migration-related discrimination has not yet been fully realised. The interpretive difficulties which have persisted around these provisions are underlined by the recent diverging approaches of the CERD Committee and the International Court of Justice (ICJ) to the question of whether discrimination on the basis of current nationality constitutes racial discrimination falling within the scope of the Convention. GR30 and the concluding observations of the CERD Committee embrace the universalist underpinnings of the Convention and describe transformative State obligations to eliminate racial discrimination against non-citizens and migrants The importance of these developments, which effectively neutralise the effects of Articles 1(2) and (3) in most circumstances, cannot be underestimated. While not directly questions of immigration – reaffirm the Committee’s commitment to its ‘constant practice’ that 51 its competence ratione materiae extends to differences of treatment on the basis of nationality

DOCTRINAL UNCERTAINTY AND UNRESOLVED TENSIONS IN THE CERD COMMITTEE’S

THE VERDICT ON CERD

BROAD AND UNCERTAIN EXCLUSIONS AT THE NATIONAL LEVEL

Conclusion

Declaration of Conflicting Interests