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]
Treaties
editArticle 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) includes national origin in its 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
editOne 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
editMany 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, "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
edit- Democratic globalization
- Executive Order 11246 — banning discrimination based on national origin
References
edit- ^ 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.
- ^ Heijer, Maarten den (2018). "Visas and Non-discrimination". European Journal of Migration and Law. 20 (4): 470–489. doi:10.1163/15718166-12340039. hdl:11245.1/b58cac4e-2b9b-4bb0-bc14-207f1cca7050. S2CID 239512847.
- ^ "2. International Convention on the Elimination of All Forms of Racial Discrimination". United Nations Treaty Collection.
- ^ International Convention on the Elimination of All Forms of Racial Discrimination
- ^ a b c 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.
- ^ 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.
- ^ 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.
- ^ 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.
- ^ 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.
- ^ 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) - ^ 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) - ^ a b 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.
- ^ Sharma, Nandita (2006). "Global apartheid and nation-statehood: Instituting border regimes". Nationalism and Global Solidarities. Routledge. p. 72. ISBN 9780203085981.
- ^ 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
edit- Foster, Michelle; Baker, Timnah Rachel (2021). "Racial Discrimination in Nationality Laws: A Doctrinal Blind Spot of International Law?". Columbia Journal of Race and Law. 11: 83. doi:10.7916/cjrl.v11i1.8018.