Discrimination based on nationality

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Discrimination based on nationality is discriminating against a person based on their nationality, country of citizenship, or national origin. Although many countries' non-discrimination laws contain exceptions for nationality and immigration status, [1] nationality is related to race and religion, so direct discrimination on the basis of nationality may be indirect discrimination on racial or religious grounds. [2] The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), currently signed by 88 countries, [3] allows discrimination by nationality, citizenship or naturalization but prohibits discrimination "against any particular nationality". [4]

Contents

Treaties

Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) includes national origin in it's definition of racial discrimination: "distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life". [5] The treaty allows distinguishing between citizens and non-citizens, but not "against any particular nationality", which could encompass a grouping of particular nationalities. [5]

Prohibition of discrimination based on nationality for nationals of European single market member states is a key aspect of the European single market. [6] Article 18 of the Treaty on the Functioning of the European Union (TFEU) bans discrimination based on nationality within the scope of the treaties. According to the European Court of Justice, this prohibition is not applicable to non-nationals of member states of the European Union or European single market. [7] Investment treaties also prohibit discrimination based on the nationality of the investor. [8] [9]

Article 7(1) of the Refugee Convention prohibits discrimination on the basis of nationality among refugees. [10]

Labor market

One study found that foreign NBA players were paid less than United States nationals of equivalent performance between the 1999-2000 and 2007-2008 seasons. [11]

Migration law

Many states have travel and immigration laws based on nationality, for example offering visa-free travel to nationals of certain states but not others. [12]

A well-known example of discrimination on the basis of nationality is the Executive Order 13769 ("Muslim ban") in which nationals of several Muslim-majority states were prohibited from traveling to the United States. [12]

According to Professor of Migration Law Thomas Spijkerboer  [ Wikidata ], "at face value, migration law is also a form of racial discrimination" under the CERD. [5]

Global apartheid is a term used to describe how Global North countries discriminate on the basis of nationality and deny permanent residency or citizenship to migrants from the Global South as well as discrimination based on nationality in migration law. [13]

According to Gareth Davies, eliminating discrimination based on nationality would create polities based on residence rather than citizenship. [14]

See also

Related Research Articles

<span class="mw-page-title-main">Discrimination</span> Prejudicial treatment based on membership in a certain group

Discrimination is the process of making unfair or prejudicial distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong, such as race, gender, age, religion, physical attractiveness or sexual orientation. Discrimination typically leads to groups being unfairly treated on the basis of perceived statuses based on ethnic, racial, gender or religious categories. It involves depriving members of one group of opportunities or privileges that are available to members of another group.

Nationality is the legal status of belonging to a particular nation, defined as a group of people organized in one country, under one legal jurisdiction, or as a group of people who are united on the basis of culture.

In international law, a stateless person is someone who is "not considered as a national by any state under the operation of its law". Some stateless people are also refugees. However, not all refugees are stateless, and many people who are stateless have never crossed an international border. At the end of 2022, the United Nations High Commissioner for Refugees estimated 4.4 million people worldwide as either stateless or of undetermined nationality, 90,800 (+2%) more than at the end of 2021.

Refugee law is the branch of international law which deals with the rights and duties states have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law.

Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country, and to leave the country and return to it. The right includes not only visiting places, but changing the place where the individual resides or works.

<span class="mw-page-title-main">Convention on the Elimination of All Forms of Discrimination Against Women</span> International bill of rights for women

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it was instituted on 3 September 1981 and has been ratified by 189 states. Over fifty countries that have ratified the convention have done so subject to certain declarations, reservations, and objections, including 38 countries who rejected the enforcement article 29, which addresses means of settlement for disputes concerning the interpretation or application of the convention. Australia's declaration noted the limitations on central government power resulting from its federal constitutional system. The United States and Palau have signed, but not ratified the treaty. The Holy See, Iran, Somalia, Sudan, and Tonga are not signatories to CEDAW.

<span class="mw-page-title-main">European Union citizenship</span> Legal right conferred to citizens of EU member states

European Union citizenship is afforded to all nationals of member states of the European Union (EU). It was formally created with the adoption of the 1992 Maastricht Treaty, at the same time as the creation of the EU. EU citizenship is additional to, as it does not replace, national citizenship. It affords EU citizens with rights, freedoms and legal protections available under EU law.

<span class="mw-page-title-main">Anti-discrimination law</span> Legislation designed to prevent discrimination against particular groups of people

Anti-discrimination law or non-discrimination law refers to legislation designed to prevent discrimination against particular groups of people; these groups are often referred to as protected groups or protected classes. Anti-discrimination laws vary by jurisdiction with regard to the types of discrimination that are prohibited, and also the groups that are protected by that legislation. Commonly, these types of legislation are designed to prevent discrimination in employment, housing, education, and other areas of social life, such as public accommodations. Anti-discrimination law may include protections for groups based on sex, age, race, ethnicity, nationality, disability, mental illness or ability, sexual orientation, gender, gender identity/expression, sex characteristics, religion, creed, or individual political opinions.

<span class="mw-page-title-main">European single market</span> Single market of the European Union and participating non-EU countries

The European single market, also known as the European internal market or the European common market, is the single market comprising mainly the 27 member states of the European Union (EU). With certain exceptions, it also comprises Iceland, Liechtenstein, Norway, and Switzerland. The single market seeks to guarantee the free movement of goods, capital, services, and people, known collectively as the "four freedoms". This is achieved through common rules and standards that all participating states are legally committed to follow.

<span class="mw-page-title-main">Convention Relating to the Status of Refugees</span> United Nations multilateral treaty

The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention or the Geneva Convention of 28 July 1951 is a United Nations multilateral treaty that defines who a refugee is and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals. The Convention also provides for some visa-free travel for holders of refugee travel documents issued under the convention.

<span class="mw-page-title-main">Denaturalization</span> Revoking a persons citizenship

Denaturalization is the loss of citizenship against the will of the person concerned. Denaturalization is often applied to ethnic minorities and political dissidents. Denaturalization can be a penalty for actions considered criminal by the state, often only for errors in the naturalization process such as fraud. Since the 9/11 attacks, the denaturalization of people accused of terrorism has increased. Because of the right to nationality, recognized by multiple international treaties including Article 15 of the Universal Declaration of Human Rights, denaturalization is often considered a human rights violation.

Human rights in Kuwait are a topic of significant concern. Most notably, Kuwait's handling of the stateless Bedoon crisis has come under substantial criticism from international human rights organisations and the United Nations. Kuwait has the largest number of stateless people in the entire region. Kuwait also faces significant criticism for the human rights violations against foreign nationals, women, and LGBT people. Although Kuwaiti law theoretically pledges to protect all human rights; the enforcement mechanisms designed to help protect human rights are very limited in Kuwait.

<span class="mw-page-title-main">Immigration to Turkey</span> Overview of immigration to Turkey

Immigration to Turkey is the process by which people migrate to Turkey to reside in the country. Many, but not all, become Turkish citizens. After the dissolution of the Ottoman Empire and following Turkish War of Independence, an exodus by the large portion of Turkish (Turkic) and Muslim peoples from the Balkans, Caucasus, Crimea, and Greece took refuge in present-day Turkey and moulded the country's fundamental features. Trends of immigration towards Turkey continue to this day, although the motives are more varied and are usually in line with the patterns of global immigration movements. Turkey's migrant crisis is a following period since the 2010s, characterized by high numbers of people arriving and settling in Turkey.

The Constitution of Bosnia and Herzegovina is the highest legal document of Bosnia and Herzegovina. The current Constitution is the Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement, signed on 14 December 1995. The Constitution saw the end of war in Bosnia and Herzegovina, however it has seen a large amount of criticism. Under the supervision of international community, an "arrangement of amendments" to the Constitution, agreed upon by leading political parties, was proposed for adoption in the Parliamentary Assembly of Bosnia and Herzegovina in April 2006, but it failed to get the approval of two-thirds of members in the House of Representatives.

<span class="mw-page-title-main">Estonian nationality law</span> History and regulations of Estonian citizenship

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<span class="mw-page-title-main">Ukrainian nationality law</span> History and regulations of Ukrainian citizenship

Ukrainian nationality law details the conditions by which a person holds nationality of Ukraine. The primary law governing these requirements is the law "On Citizenship of Ukraine", which came into force on 1 March 2001.

Human rights in Estonia are acknowledgedas being generally respected by the government. Nevertheless, there are concerns in some areas, such as detention conditions, excessive police use of force, and child abuse. Estonia has been classified as a flawed democracy, with moderate privacy and human development in Europe. Individuals are guaranteed on paper the basic rights under the constitution, legislative acts, and treaties relating to human rights ratified by the Estonian government. As of 2023, Estonia was ranked 8th in the world by press freedoms.

<span class="mw-page-title-main">International Convention on the Elimination of All Forms of Racial Discrimination</span> 1969 United Nations human rights instrument

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. The Convention also requires its parties to criminalize hate speech and criminalize membership in racist organizations.

<i>Keck and Mithouard</i>

Reference for a Preliminary Ruling in the Criminal Proceedings against Bernard Keck and Daniel Mithouard (1993) C-267/91 is an EU law case, concerning the conflict of law between a national legal system and European Union law. The Court found that "selling arrangements" did not constitute a measure having equivalent effect to a quantitative restriction on trade between Member States of the European Community, as it was then. As a result, the 'discrimination test' was introduced to identify such selling arrangements.

<span class="mw-page-title-main">Human rights in Sweden</span>

Human rights in Sweden are largely protected in the country's constitution and ratified international law. The three Constitutional acts concerning human rights are Chapter 2 of the Instrument of Government, Regeringsformen, the Freedom of the Press Act, Tryckfrihetsförordningen (1949) and Fundamental Law on Freedom of Expression, Yttrandefrihetsgrundlagen (1991). Additionally, the European Convention on Human Rights has been incorporated into Swedish domestic law since 1995.

References

  1. Fennelly, David; Murphy, Clíodhna (2021). "Racial Discrimination and Nationality and Migration Exceptions: Reconciling CERD and the Race Equality Directive". Netherlands Quarterly of Human Rights. 39 (4): 308–328. doi: 10.1177/09240519211055648 . S2CID   243839359.
  2. Heijer, Maarten den (2018). "Visas and Non-discrimination". European Journal of Migration and Law. 20 (4): 470–489. doi: 10.1163/15718166-12340039 . S2CID   239512847.
  3. "2. International Convention on the Elimination of All Forms of Racial Discrimination". United Nations Treaty Collection.
  4. International Convention on the Elimination of All Forms of Racial Discrimination
  5. 1 2 3 Spijkerboer, Thomas (2018). "The Global Mobility Infrastructure: Reconceptualising the Externalisation of Migration Control". European Journal of Migration and Law. 20 (4): 452–469. doi: 10.1163/15718166-12340038 . S2CID   150019997.
  6. Favilli, Chiara (2021). "Article 18 [Combating Discrimination Based on Nationality]". Treaty on the Functioning of the European Union – A Commentary: Volume I: Preamble, Articles 1–89. Springer International Publishing. pp. 453–467. ISBN   978-3-030-43511-0.
  7. Brouwer, E. R.; Vries, K. M. de (2015). "Third-country nationals and discrimination on the ground of nationality: article 18 TFEU in the context of article 14 ECHR and EU migration law: time for a new approach". Equality and Human Rights: Nothing but Trouble?. Utrecht University Press. pp. 123–146. ISBN   9789039363072.
  8. Wordsworth, Sam (2013). "Some Thoughts on Applicable Law and Interpretation". Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (2012). Brill. p. 56. ISBN   9789004260207.
  9. Haslehner, Werner (2016). "Nationality Non-Discrimination and Article 24 OECD - Perennial Issues, Recent Trends". Nationality Non-Discrimination and Article 24 OECD - Perennial Issues, Recent Trends and New Approaches. IBFD. ISBN   978-90-8722-378-6.
  10. Grundler, Maja (2021). 'Treatment Accorded to Aliens Generally': Article 7(1) of the 1951 Refugee Convention as a Basis for Visa-Free Access to States Parties' Territory? An Examination of the Prohibition of Nationality Discrimination in the Refugee Convention. Vol. 33. pp. 469–496. doi:10.1093/ijrl/eeac003.{{cite book}}: |journal= ignored (help)
  11. Yang, Chih-Hai; Lin, Hsuan-Yu (2012). Is There Salary Discrimination by Nationality in the NBA?: Foreign Talent or Foreign Market. Vol. 13. pp. 53–75. doi:10.1177/1527002510391617. S2CID   155033433.{{cite book}}: |work= ignored (help)
  12. 1 2 Ellermann, Antje; Goenaga, Agustín (2019). "Discrimination and Policies of Immigrant Selection in Liberal States". Politics & Society. 47 (1): 87–116. doi: 10.1177/0032329218820870 . S2CID   159178544.
  13. Sharma, Nandita (2006). "Global apartheid and nation-statehood: Instituting border regimes". Nationalism and Global Solidarities. Routledge. p. 72. ISBN   9780203085981.
  14. Davies, Gareth (2005). "'Any Place I Hang My Hat?' or: Residence is the New Nationality". European Law Journal. 11 (1): 43–56. doi:10.1111/j.1468-0386.2005.00248.x.

Further reading