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] Discrimination "against any particular nationality" is prohibited by the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Contents

Treaties

Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) defines racial discrimination as a "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". [3] The treaty allows distinguishing between citizens and non-citizens, but not "against any particular nationality", which could encompass a grouping of particular nationalities. [3]

Prohibition of discrimination based on nationality for nationals of European single market member states is a key aspect of the European single market. [4] 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. [5] Investment treaties also prohibit discrimination based on the nationality of the investor. [6] [7]

Article 7(1) of the Refugee Convention prohibits discrimination on the basis of nationality among refugees. [8]

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. [9]

A 2021 study recommended narrowly interpreting exceptions for nationality in non-discrimination laws to ensure that forms of racial discrimination are not being enabled. [1]

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. [10]

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. [10]

According to Professor of Migration Law Thomas Spijkerboer  [ Wikidata ], "at face value, migration law is also a form of racial discrimination" under the CERD. [3]

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. [11]

According to Gareth Davies, eliminating discrimination based on nationality would create polities based on residence rather than citizenship. [12]

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 statues 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 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 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.

In law, an alien is any person who is not a citizen or a national of a specific country, although definitions and terminology differ to some degree depending upon the continent or region. More generally, however, the term "alien" is perceived as synonymous with foreign national.

<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, and 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.

Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in probable danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales. It is a principle of customary international law, as it applies even to states that are not parties to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol.

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

Estonian citizenship law details the conditions by which a person is a citizen of Estonia. The primary law currently governing these requirements is the Citizenship Act, which came into force on 1 April 1995.

<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.

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

According to the Japanese Ministry of Justice, the number of foreign residents in Japan has steadily increased in the post Second World War period, and the number of foreign residents was more than 2.76 million at the end of 2022. Being a country with a total estimated population of 125.57 million in 2020, the resident foreign population in Japan amounts to approximately 2.29% of the total population.

<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">LGBT refugees and asylum seekers in Canada</span>

In Canada, Lesbian, Gay, Bisexual, or Transgender (LGBT) or Gender and Sexual Minority (GSM) refugees and asylum-seekers are those who make refugee claims to Canada due to their sexual orientation or gender identity.

Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne is a 2018 case of the European Court of Justice (ECJ) that affirmed residency rights in EU countries, to the spouse of an EU citizen who is exercising their right to freedom of movement and if the marriage was legally performed in an EU member state.

<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.

Hate speech is public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation. Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation".

Article 14 of the European Convention on Human Rights lists the prohibited grounds against which discrimination in illegal. The text states that

"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Externalization is efforts by wealthy, developed countries to prevent asylum seekers and other migrants from reaching their borders, often by enlisting third countries or private entities. Externalization is used by Australia, Canada, the United States, the European Union and the United Kingdom. Although less visible than physical barriers at international borders, externalization controls or restrict mobility in ways that are out of sight and far from the country's border. Examples include visa restrictions, sanctions for carriers who transport asylum seekers, and agreements with source and transit countries. Consequences often include increased irregular migration, human smuggling, and border deaths.

References

  1. 1 2 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. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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)
  9. 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)
  10. 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.
  11. Sharma, Nandita (2006). "Global apartheid and nation-statehood: Instituting border regimes". Nationalism and Global Solidarities. Routledge. p. 72. ISBN   9780203085981.
  12. 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.

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