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Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights of Noncitizens

Published online by Cambridge University Press:  25 March 2011

James A. Goldston
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Abstract

In recent years, states have increasingly exploited their traditional discretion over matters of citizenship to carve out significant exceptions to the universality of human rights protection. This primarily occurs in two ways: through denial and deprivation of citizenship and through the imposition of illegitimate distinctions between citizens and noncitizens. The results of such actions may be physical expulsion, disenfranchisement, exclusion from access to public benefits, and acts of violence and discrimination. The potential for abuse is heightened for racial and ethnic minorities. Racial discrimination is a major cause of denationalization and restrictive access to citizenship. And citizenship status is often used as a proxy for racial grounds in justifying denial of other human rights. The treatment of noncitizens compellingly tests societies' commitments to the rule of law. This essay explores how human rights norms—particularly the body of law that forbids discrimination on grounds of racial or ethnic origin—can be deployed to combat the worst effects of citizenship denial and ill-treatment of non-citizens. It recommends that the problem be addressed through three principal activities: documentation and public education; clarification and distillation of legal standards related to citizenship; and enforcement of existing norms, including those prohibiting racial discrimination.

Type
Special Section on Citizenship and Equality
Information
Ethics & International Affairs , Volume 20 , Issue 3 , September 2006 , pp. 321 - 347
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2006

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References

1 This essay uses the term “citizenship” in its narrowest sense, as a formal legal status articulating the relationship between the individual and the state. So understood, citizenship is used interchangeably with “nationality.” This discussion does not address broader, political conceptions of citizenship, such as global citizenship, postnational citizenship, denationalized citizenship, or “citizenship in the global city.”

2 The details of Yean's case are drawn from Report of Admissibility No. 28/01 Case No. 12.189 (San José, Costa Rica: Inter-American Court of Human Rights, February 22, 2001); and Open Society Justice Initiative, Written Comments on the Case of Dilcia Yean and Violeta Bosico v. Dominican Republic, a Submission from the Open Society Justice Initiative to the Inter-American Court of Human Rights (April 2005); available at http:\\www.justiceinitiative.org/db/resource2/fs/?file_id=15874.

3 “Final Report on the Rights of Non-Citizens,” UN Doc. E/CN.4/Sub.2/2003/23 (2003), Executive Summary, para. 6.

4 See UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation No. 30: Discrimination against Non Citizens, Preamble; see also International Convention on Civil and Political Rights, which makes no distinctions between citizens and noncitizens, except for Article 25, which reserves to citizens alone the rights to take part in public affairs, to vote, and to hold public office.

5 See UN Human Rights Committee, General Comment 23, “The Rights of Minorities,” Article 27 (50th Sess., 1994).

6 Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

7 See Convention on Certain Questions Relating to the Conflict of Nationality Laws (The Hague, 1930).

8 Amartya Sen, Identity and Violence: The Illusion of Destiny (New York: W.W. Norton, 2006), pp. 2–3.

9 Arthur C. Helton, “Protecting the World's Exiles: The Human Rights of Noncitizens,” Human Rights Quarterly 22 (2000), pp. 280, 297.

10 Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004), p. 178.

11 UN Human Rights Committee, Concluding Observations: Croatia (April 30, 2001), CCPR/CO/71/HRV, para 8; UN CERD, Concluding Observations: Qatar (March 20, 2002), CERD/C/60/CO/11; and Views of the UN Human Rights Committee, Karel Des Fours Walderode v. Czech Republic, Communication No. 747/1997 (October 30, 2001), CCPR/C/73/D/747/1997.

12 See, on xenophobic attitudes, UN CERD, Concluding Observations on Argentina, A/56/18 (2001), para. 53, and Ecuador, CERD/C/62/CO/4 (2003), para. 21; on working conditions and language requirements, CERD/C/60/3 (Costa Rica); A/57/18, paras. 344–66 (Estonia); on segregated schooling, CERD/C/60/60/C)/14 (Switzerland); on forcible eviction and mass deportation, “Final Report of UN Special Rapporteur on the Rights of Noncitizens—Examples of Practices in Regard to Noncitizens,” UN Doc. E/CN.4/Sub.2/2003/23/Add. 3 (2003), para. 24; on capital punishment, CERD/C/62/CO/12, para. 18 (Saudi Arabia); on public accommodations and real estate, Jonathan Watts, “Japanese-only Public Baths to Pay Damages,” Guardian, November 12, 2002; on the right to run businesses, Frans H. Winarta, “Much Work Needed to End Ethnic Discrimination,” Jakarta Post, February 13, 2002; and on sexual and other physical abuse, A/48/18 (1993), para. 376 (Kuwait) and A/58/18 (2003), para. 217 (Saudi Arabia).

13 See Open Society Justice Initiative, “Racial Discrimination and the Rights of Non-Citizens” (February 2004); available at http:\\www.justiceinitiative.org/db/resource2?res_id=101639.

14 American Civil Liberties Union, “Sanctioned Bias: Racial Profiling Since 9/11” (New York: February 2004), p. 1; available at http:\\www.aclu.org/FilesPDFs/racial%20profiling%20report.pdf.

15 A and Others v. Secretary of State for the Home Department (U.K. House of Lords, December 2004), UKHL56.

16 Benjamin Ward, “Expulsion Doesn't Help,” International Herald Tribune, December 2, 2005, p. 5; Migration Policy Group, “Three Imams Ordered to Leave,” Migration News Sheet (July 2005), p. 5; Liz Fekete, “‘Speech Crime’ and Deportation,” European Civil Liberties Network (2005), p. 3; available at http:\\www.ecln.org/essays/essay-2.pdf; “France Expels ‘Radical Preacher, ’” BBC News, July 30, 2005; available at http:\\news.bbc.co.uk/2/hi/europe/4731857.stm; and Nathalie Malinarich, “Europe Moves against Radical Imams,” BBC News, May 6, 2004; available at http:\\212.58.226.44/1/low/world/europe/3686617.stm.

17 See Human Rights Watch, “The New Racism: The Political Manipulation of Ethnicity in Côte d'Ivoire,” Human Rights Watch 13, no 6(A) (August 2001); available at http:\\www.hrw.org/reports/2001/ivorycoast/cotdiv0801.htm.

18 Grant Ferrett, “Citizenship Choice in Zimbabwe,” BBC News, February 28, 2003; available at http:\\news.bbc.co.uk/2/hi/africa/2806913.stm.

19 See Organisation of African Unity, 14th Annual Activity Report of the African Commission on Human and Peoples’ Rights 2000–2001, 211/98— Legal Resources Foundation v. Zambia.

20 See Human Rights Watch, “Nepal: Bhutanese Refugees Rendered Stateless,” June 18, 2003; available at http:\\www.hrw.org/press/2003/06/nepal-bhutan061803.htm.

21 Country data is taken from U.S. Department of State, “Country-Specific Abduction Flyers”; available at http:\\travel.state.gov/family/abduction/country/country_486.html. See also UN Press Release WOM/1514, “Women's Anti-discrimination Committee Takes up Lebanon's Report, Commends Impressive Steps Taken to Promote Gender Equality, Also Urges Elimination of Discrimination in Family Relations, Citizenship, More Attention to Violence against Women,” July 12, 2005; and David Montero, “World's Vast Ranks of Stateless,” Christian Science Monitor, October 13, 2005, p. 1.

22 Olivier Roy, Globalized Islam: The Search for a New Ummah (New York: Columbia University Press, 2004), p. 133.

23 Mary O'Rawe, “Ethnic Profiling, Policing, and Suspect Communities: Lessons from Northern Ireland” (New York: Justice Initiative, June 2005), p. 88; available at http:\\www.justiceinitiative.org/db/resource2/fs/?file_id=15799.

24 See Restatement (Third) The Foreign Relations Law of the United States (1987), sec. 702; and Vienna Convention on the Law of Treaties (Vienna: May 23, 1969), art. 53.

25 UN CERD, General Recommendation No. 30, Preamble.

26 Ibid., paras. 3, 7.

27 “Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin,” European Council Directive 2000/43/EC, June 29, 2000.

28 A further complication is that, in some countries, what is in fact racial discrimination may be understood and characterized as a problem of citizenship, even where the victims of discrimination are lawful citizens of the country at issue. In parts of Africa, the concepts used to describe discrimination may reflect the legacy of an anticolonial struggle, “couched in the language of citizenship, that is, the right of the natives to become citizens.” Said Adejumobi, “Citizenship, Rights and the Problem of Conflicts and Civil Wars in Africa,” Human Rights Quarterly 23 (2001), pp. 148, 158.

29 See “Final Report of UN Special Rapporteur on the Rights of Noncitizens,” para. 34.

30 Malcolm Gladwell, “Troublemakers: What Pit Bulls Can Teach Us about Profiling,” New Yorker, February 6, 2006.

31 David Cole, “Are We Safer?” New York Review of Books, March 9, 2006.

32 See Migration Policy Institute, “America's Challenge: Domestic Security, Civil Liberties and National Unity after September 11” (Washington, D.C.: 2003), p. 8; and David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New York: New Press, 2004).

33 Cole, “Are We Safer?”

34 Naturalization Act of March 26, 1790, ch. 3, 1 Stat. 103 (repealed 1795).

35 In re Ah Yup, 1 F. Cas. 223 (1878).

36 In re Ellis, 179 F. 1002, 1002 (C.C.D. Ore. 1910).

37 Takao Ozawa v. United States, 260 U.S. 178, 198 (1922).

38 Section 1422 of the Immigration and Nationality Act of June 27, 1952.

39 Joanne Mariner, “Racism, Citizenship and National Identity,” Development 46, no. 3 (2003).

40 International Convention on the Elimination of All Forms of Racial Discrimination, art. 1(3).

41 There is a “fundamental distinction between denying someone citizenship and divesting someone of citizenship.” Haile v. Gonzales, 418 F.3d 798, No. 03-3953 (Chicago: U.S. Court of Appeals, 7th Circuit, August 29, 2005), p. 4.

42 Universal Declaration of Human Rights, art. 15(2); and 1961 Convention on the Reduction of Statelessness, art. 8. See also International Convention on the Elimination of All Forms of Discrimination against Women, art. 9(1); American Convention on Human Rights, art. 20(3); and European Convention on Nationality, arts. 4, 7(3). Arbitrary deprivation of citizenship may also raise concerns under articles 3 and 8 of the European Convention on Human Rights.

43 See Johannes M. M. Chan, “Nationality as a Human Right,” Human Rights Law Journal 12 (1991), p. 11; and Amnesty International, “Nationality, Expulsion, Statelessness and the Right to Return,” ASA 14/01/00 (September 2000).

44 CERD, General Recommendation No. 30, para. 14.

45 African Society of International and Comparative Law and Minority Rights Group International, Joint Oral Intervention at UN Commission on Human Rights, 59th Sess., 2003.

46 Francis M. Deng, “Ethnic Marginalization as Statelessness: Lessons from the Great Lakes Region of Africa,” in T. Alexander Aleinikoff and Douglas Klusmeyer, eds., Citizenship Today: Global Perspectives and Practices (Washington, D.C.: Carnegie Endowment for International Peace, 2001).

47 Daniel Chirot, “The Debacle in Côte d'Ivoire,” Journal of Democracy 17 (April 2006), p. 68.

48 David A. Martin, “The Authority and Responsibility of States,” in T. Alexander Aleinikoff and Vincent Chetail, eds., Migration and International Legal Norms (The Hague: Asser Press, 2003), pp. 34–35.

49 As an example of this test applied in the context of the nondiscrimination guarantee of Article 14 of the European Convention on Human Rights, see Willis v. United Kingdom (Strasbourg: European Court of Human Rights, June 11, 2002), ECHR 36042/97; available at http:\\www.worldlii.org/eu/cases/ECHR/2002/488.html.

50 Asia-Pacific Human Rights Network, “Caste, Ethnicity and Nationality: Japan Finds Plenty of Space for Discrimination,” HRF/39/001 (June 2001); available at http:\\www.hrdc.net/sahrdc/hrfeatures/HRF39.htm.

51 To take one example, in 2003, Israel adopted a law specifically prohibiting Palestinian residents of the West Bank and Gaza who marry Israelis from obtaining Israeli citizenship, residency, or entry permits. In May 2006, the Israeli Supreme Court found the law unconstitutional and disproportionate. “Who's a Citizen?” Economist, May 18, 2006.

52 Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 (Inter-American Court of Human Rights, January 29, 1984); available at http:\\www.umn.edu/humanrts/iachr/b_11_4d.htm.

53 Patrick Weil, “Access to Citizenship: A Comparison of Twenty-Five Nationality Laws,” in Aleinikoff and Klusmeyer, eds., Citizenship Today, pp. 22–23.

54 Rein Mullerson, International Law, Rights and Politics: Developments in Eastern Europe and the CIS (New York: Routledge, 1994), pp. 147–48.

55 Weil, “Access to Citizenship,” p. 33; and Open Society Institute, Monitoring the EU Accession Process: Minority Protection (New York: Open Society Institute, 2001), pp. 265–301.

56 Richard Bernstein, “True or False: Do You Want to Be a German?” International Herald Tribune, March 29, 2006, p. 2.

57 Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84.

58 A limited exception is Article 20(2) of the American Convention of Human Rights.

59 See 1961 Convention on the Reduction of Statelessness.

60 As of April 4, 2006, fifty-nine states had ratified the 1954 Convention relating to the Status of Stateless Persons, and thirty-one had ratified the 1961 Convention on the Reduction of Statelessness.

61 Deng, “Ethnic Marginalization as Statelessness,” p. 187.

62 UN High Commissioner for Refugees, “UNHCR's Activities in the Field of Statelessness: Progress Report” (June 3, 2003), EC/53/SC/CRP.11, para. 7.

63 Nottebohm Case (Lichtenstein v. Guatemala) (Second Phase), 1955 ICJ Reports, pp. 4, 23.

64 Diane F. Orentlicher, “Citizenship and National Identity,” in David Wippman, ed., International Law and Ethnic Conflict (Ithaca: Cornell University Press 1998), p. 323.

65 See United Nations Children's Fund, “Birth Registration”; available at http:\\www.unicef.org/protection/index_birthregistration.html.

66 See UNIFEM at a Glance; available at http:\\www.unifem.org/about/fact_sheets.php?StoryID=283.

67 “OHCHR Plan of Action: An Attempt to Turn Rhetoric into Reality,” Respect: The Human Rights Newsletter, no. 6, June 2005; available at http:\\www.ohchr.org/english/about/publications/docs/issue6respect.pdf.

68 Specifically, the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee against Torture; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of Discrimination against Women; the Committee on the Rights of the Child; and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families.