38/52 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance - Note by the Secretariat

GE.18-06576(E)



Human Rights Council Thirty-eighth session

18 June–6 July 2018

Agenda item 9

Racism, racial discrimination, xenophobia and related

forms of intolerance, follow-up to and implementation

of the Durban Declaration and Programme of Action

Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the report of

the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia

and related intolerance, E. Tendayi Achiume, prepared pursuant to Council resolution 34/35.

The report addresses the issue of racial discrimination in the context of laws, policies and

practices concerning citizenship, nationality and immigration.

United Nations A/HRC/38/52

Contents

Page

I. Activities of the Special Rapporteur ............................................................................................. 3

A. Country visits ........................................................................................................................ 3

B. Other activities ...................................................................................................................... 3

II. Racial discrimination in the context of citizenship, nationality and immigration status ............... 3

III. Prohibition of racial discrimination on the basis of citizenship, nationality and immigration

status under international human rights law .................................................................................. 6

A. Overview of the applicable international legal framework ................................................... 6

B. Right to nationality and the reduction/prevention of statelessness ....................................... 8

C. Importance of an intersectional approach to racial discrimination and

related intolerance ................................................................................................................. 9

IV. Contemporary drivers and manifestations of racial discrimination in citizenship, nationality

and immigration laws, policies and practices ................................................................................ 12

A. Ethno-nationalism ................................................................................................................. 12

B. National security machinery and anxiety .............................................................................. 17

C. Economic scapegoating of non-citizens ................................................................................ 18

V. Conclusion and recommendations ................................................................................................. 19

I. Activities of the Special Rapporteur

1. The present report is submitted pursuant to Council resolution 34/35.

A. Country visits

2. Following her appointment, the Special Rapporteur renewed the formal requests for

country visits sent by her predecessors to Algeria, Bangladesh, Botswana, India, Israel, Japan,

Malaysia, South Africa and Tunisia. She also sent requests to Colombia, the Dominican

Republic, Jamaica, Kenya, Lebanon, Madagascar, Oman, Peru and Trinidad and Tobago. She

urges States that have not yet responded positively to her visit requests to do so.

3. The Special Rapporteur thanks the Government of the United Kingdom of Great

Britain and Northern Ireland for inviting her to conduct a visit from 30 April to 11 May 2018.

She also thanks the Governments of Brazil, Morocco, the Netherlands, Poland and Qatar for

accepting her visit requests.

B. Other activities

4. In November 2017, the Special Rapporteur delivered a video statement at the regional

meeting for Europe, Central Asia and North America on the International Decade for People

of African Descent. On 22 February 2018, she participated in the annual parliamentary

hearing of the Inter-Parliamentary Union, entitled “Towards a global compact for safe,

orderly and regular migration: A parliamentary perspective”. In March 2018, she attended

the 167th session of the Inter-American Commission on Human Rights in Bogotá, during

which she engaged with local civil society organizations. During the twenty-second session

of the Working Group of Experts on People of African Descent, from 19 to 23 March 2018,

she delivered a video statement on land rights for people of African descent.

5. On 20 March 2018, the Special Rapporteur was a keynote speaker at the

commemorative plenary meeting of the General Assembly in New York on the occasion of

the International Day for the Elimination of Racial Discrimination. On the same day, she

participated in the official launch of the Group of Friends on the Elimination of Racism. On

21 March 2018, she participated in a special event celebrating the International Decade for

People of African Descent, entitled “A decade of recognition for the contributions,

achievements and challenges of people of African descent worldwide”. While in New York,

she held an informal consultation with local civil society organizations and other interested

stakeholders. Participants discussed setting an international human rights anti-racism agenda

in the shadow of populist nationalism.

II. Racial discrimination in the context of citizenship, nationality and immigration status

6. The present report identifies and reviews contemporary racist and xenophobic

ideologies, and institutionalized laws, policies and practices, which together have a racially

discriminatory effect on individuals’ and groups’ access to citizenship, nationality and

immigration status. It shows how both are prohibited under international human rights law

and recommends concrete actions States must take to fulfil their obligations to achieve

substantive racial equality. It highlights the impact of ethno-nationalism, and draws attention

to how ethno-nationalists and other groups manipulate national anxieties about national

security and economic prosperity to achieve and advance racist and xenophobic policies

against indigenous peoples, non-nationals and other minority groups. In doing so, it calls

attention both to explicit ideologies of racial superiority and to structural racism that occurs

through institutions and policies that might otherwise be ignored due to the absence of

explicit racial, ethnic or religious animus. To inform the drafting of the present report, the

Special Rapporteur issued a call for submissions to the various stakeholders of her mandate.

She received and reviewed 25 submissions from Member States and 13 submissions from

civil society organizations. She welcomes these submissions and encourages wider

participation of Member States, civil society organizations and other stakeholders in her

future reports.

7. Under international human rights law and principles, all human beings are entitled to

fundamental human rights on account of their inherent dignity. The preamble to the Universal

Declaration of Human Rights begins with the proclamation that recognition of the inherent

dignity and of the equal and inalienable rights of all members of the human family is the

foundation of freedom, justice and peace in the world. In reality, however, for all human

beings, their capacity to enjoy full human rights depends on their citizenship, nationality or

immigration status. Everywhere, States require passports, identification cards and other

forms of proof of citizenship in order for residents to enjoy access to health care, education,

financial services and to maintain formal employment. In short, citizenship, nationality and

immigration status remain preconditions for full enjoyment of human rights for people

everywhere.

8. Although the exact number of stateless persons is unknown, the Office of the United

Nations High Commissioner for Refugees (UNHCR) estimates that there are approximately

10 million stateless persons across the globe.1 The dire circumstances confronting stateless

persons make clear the vital role that citizenship and nationality play in determining access

to fundamental human rights. Owing to their lack of documentation, individuals who are

stateless face grave and often insurmountable barriers in access to employment, education,

health care, birth registration, property ownership, freedom of movement and political

participation.2 Stateless persons also face greater risks of human trafficking victimhood and

other forms of exploitation.3 In general, stateless individuals live lives of constant fear of

arrest, detention and even physical expulsion because they lack official documents. Children

constitute over a third of the global stateless population, and in the countries with the 20

largest stateless populations, approximately 70,000 stateless children are born each year.4

9. Owing to their immigration status, other categories of non-citizens are also subject to

serious human rights violations, including unlawful involuntary physical expulsion in

violation of the non-refoulement principle under international refugee law and international

human rights law. From formally recognized refugees to regular and irregular migrants, many

are denied access to education, health care, employment and even equality before the law.

Barriers to formal documentation can mean entire generations of refugee children are

excluded from formal education. For example, 54 per cent of South Sudanese refugee

children are out of school, 5 as are over half a million Syrian refugee children. 6 More

generally, about only half of the global child refugee population has access to primary

education as compared to the global non-refugee child average of 90 per cent. As refugee

children get older, their educational opportunities only worsen: whereas the global average

of adolescent secondary school attendees is 84 per cent, for refugee children this proportion

plummets to 22 per cent enrolment in secondary school.7

10. It simply remains the case that, notwithstanding the entitlement that every human

being has to fundamental human rights, the lived experience of most is that it is citizenship,

nationality and immigration status that effectively determine the ability to exercise and enjoy

1 UNHCR, “The Sustainable Development Goals and addressing statelessness”, March 2017, p. 2.

Available at www.refworld.org/docid/58b6e3364.html.

2 See UNHCR, “This is our home: stateless minorities and their search for citizenship”, November

2017. Available at www.refworld.org/docid/59e4a6534.html.

3 UNHCR and Open Society Justice Initiative, “Citizens of nowhere: solutions for the stateless in the U.S.”, December 2012, p. 10. Available at www.refworld.org/docid/50c620f62.html.

4 UNHCR, “I am here, I belong: the urgent need to end childhood statelessness”, November 2015, p. 8.

Available at www.unhcr.org/ibelong/wp-content/uploads/2015-10-StatelessReport_ENG15-web.pdf.

5 See UNHCR, “The plight of South Sudanese refugee children—reflections of the Regional Refugee

Coordinator”, 20 September 2017. Available at www.unhcr.org/afr/news/stories/2017/9/59c246674/

the-plight-of-south-sudanese-refugee-children-reflections-of-the-regional.html.

6 UNHCR, “Syria crisis: education interrupted”, December 2013, p. 5. Available at www.unhcr.org/en-

us/publications/operations/52aaebff9/syria-crisis-education-interrupted.html.

7 UNHCR, “Missing out: refugee education in crisis”, September 2016, p. 4. Available at

www.unhcr.org/57d9d01d0.

these rights. Some are denied citizenship or formal immigration status at birth or through

restrictions on naturalization, while others are subject to collective and individualized

withdrawals of citizenship. Sometimes, States produce stateless populations or persons with

irregular or inadequate status through administrative barriers that structurally exclude

marginalized social or national groups.8 They use policies and laws that range from outright

denial of citizenship to heightened inaccessibility of complicated immigration systems. In

either case, the impacts of these direct and indirect mechanisms of exclusion and

discrimination are similarly devastating.

11. A State discriminatorily deprives a person of citizenship or immigration status when

it withholds or withdraws status on an unreasonable classification such as skin colour,

ethnicity, national origin or religion. States have long used access to citizenship and

immigration status as a discriminatory tool to curtail the rights and benefits of marginalized

groups. Statelessness, for example, has a number of causes, but it is often the result of long-

standing discrimination against racial and ethnic minorities, indigenous peoples and religious

groups. In other words, it is often the foreseeable product of discriminatory laws, policies

and practices that aim to exclude or have the effect of excluding people who are considered

as foreign, often on the basis of their race, colour, descent, ethnicity, national origin or

religion.9 It is thus no surprise that according to UNHCR, “more than 75% of the world’s

known stateless populations belong to minority groups”. 10 Although some States have

renounced explicit discriminatory practices and have adopted fairer-seeming laws and

policies, many States continue to permit institutional or indirect discrimination based on race,

colour, ethnicity and religion. Similarly, exclusion from citizenship status or from all forms

of formal immigration status typically occurs along racial, ethnic, national origin and

religious lines, as discussed below.

12. Also discussed below is the importance of an intersectional approach to racial

discrimination in the context of citizenship, nationality and immigration laws that accounts

for the compounding and differential effects of sex and gender, among other factors. States

continue to enforce patriarchal laws that use gender-based discrimination to achieve racial,

ethnic and religious exclusion.

13. The present report is organized as follows: section III provides an overview of the

applicable international human rights framework. Section IV examines several contemporary

manifestations and drivers of racial discrimination in the context of citizenship, nationality

and immigration laws, policies and practices. The current section notes that the past decade

has seen the escalation of racially discriminatory policies and rhetoric concerning citizenship,

nationality and immigration status all over the world. In the past three years in particular,

ideologies of racist and xenophobic hatred have been resurgent. As mentioned above, the

first aim of the present report is to name and analyse the human rights impact of these

ideologies on specific racial, ethnic, national and religious groups. The Special Rapporteur

underscores the urgent need for States to condemn explicitly racist and xenophobic practices

and policies where citizenship, nationality and immigration laws are concerned.

14. At the same time, the Special Rapporteur aims in the present report to highlight and

condemn facially race-neutral policies or rhetoric that nonetheless result in racialized

exclusion. This is because States regularly engage in racial discrimination in access to

citizenship, nationality or immigration status through policies and rhetoric that make no

reference to race, ethnicity or national origin, and that are wrongly presumed to apply equally

to all. The Special Rapporteur thus uses the present report to identify and analyse structures

and discourses that have the effect of racially discriminating against individuals and groups

in their access to citizenship and immigration status, even when States, politicians and

general populations ignore or deny the racial impact of these structures and discourses. There

8 This is particularly the case in situations of protracted or large-scale displacement. See, for example,

Institute on Statelessness and Inclusion and Norwegian Refugee Council, “Understanding

statelessness in the Syria refugee context”, 2016. Available at

www.nrc.no/resources/reports/understanding-statelessness-in-the-syria-refugee-context/.

9 UNHCR finds that “discrimination and exclusion of ethnic, religious or linguistic minority groups

often lies at the heart of their statelessness”. See UNHCR, “This is our home”, p. 2.

10 Ibid., p. 1.

is no question that achieving racial equality requires robust action to deal swiftly and

simultaneously with explicit racism and xenophobia, and with policies and institutions that

achieve racial and xenophobic discrimination, even absent discernible racial or xenophobic

animus.

15. Section V concludes the report with recommendations for various stakeholders,

outlining necessary actions to promote substantive equality.

III. Prohibition of racial discrimination on the basis of citizenship, nationality and immigration status under international human rights law

A. Overview of the applicable international legal framework

16. The Special Rapporteur recalls that international human rights law is based on the

premise that all persons, by virtue of their humanity, should enjoy all human rights without

discrimination on any grounds. The principles of equality and non-discrimination are

therefore codified in all core human rights treaties.11 The Human Rights Committee and the

Committee on Economic, Social and Cultural Rights have frequently reiterated that the rights

set out in the two International Covenants on Human Rights must generally be guaranteed to

everyone, including non-citizens and persons belonging to racial and ethnic minorities.12

Exceptional distinctions, for example between citizens and non-citizens or between different

groups of non-citizens, are permissible only if they serve a legitimate objective and are

proportional to the achievement of that objective. Differences in treatment on grounds of race

or ethnicity are not permitted as the prohibition of racial discrimination has been recognized

as part of customary international law, imposing immediate and absolute obligations from

which no derogation is permitted, even in a state of emergency.13

17. The most comprehensive prohibition of racial discrimination can be found in the

International Convention on the Elimination of All Forms of Racial Discrimination. Article

1 (1) defines racial discrimination as “any 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”. While the provision does not mention discrimination on the basis of religion,

the Committee on the Elimination of Racial Discrimination has found that the Convention

may apply in cases where discrimination on religious grounds intersects with other forms of

discrimination specifically prohibited under article 1 (1).14

18. The Special Rapporteur would like to highlight that the prohibition on racial

discrimination in international human rights law aims at much more than a formal vision of

equality. Equality in the international human rights framework is substantive, and requires

States to take action to combat intentional or purposeful racial discrimination, as well as to

combat de facto or unintentional racial discrimination. Indeed, in its general recommendation

No. 32 (2009) on the meaning and scope of special measures in the Convention, the

Committee on the Elimination of Racial Discrimination clarifies that the prohibition of racial

discrimination under the Convention cannot be interpreted restrictively. It not only aims to

11 For an overview of international human rights instruments that specifically prohibit discrimination

against certain groups, see A/HRC/32/50, paras. 10–14. The report also provides an overview of the

prohibition of racial discrimination at the regional level, paras. 15–25.

12 See, for example, Human Rights Committee, general comment No. 15 (1986) on the position of aliens

under the Covenant, paras. 1–2; Committee on Economic, Social and Cultural Rights, general

comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, paras. 24 and

30.

13 See, for example, A/HRC/7/23, para. 35.

14 See, for example, Committee on the Elimination of Racial Discrimination, general recommendation

No. 32, para. 7; and P.S.N. v. Denmark (CERD/C/71/D/36/2006), para. 6.3.

achieve formal equality before the law, but also substantive (de facto) equality in the

enjoyment and exercise of human rights. The Committee emphasizes that the Convention

applies to purposive or intentional discrimination as well as discrimination in effect15 and

structural discrimination.16

19. The Special Rapporteur stresses that this substantive, non-formalistic approach to

equality applies even in the context of citizenship, nationality and immigration laws and

policies. Article 1 (2) of the International Convention on the Elimination of All Forms of

Racial Discrimination stipulates that the Convention does not apply to distinctions,

exclusions, restrictions or preferences made between citizens and non-citizens. While this

provision allows States to make some distinction between citizens and non-citizens, the

Special Rapporteur reiterates that it must be interpreted narrowly and in accordance with

international human rights law and standards relating to the prohibition of racial

discrimination and equality before the law. Distinctions between citizens and non-citizens

cannot be applied in a racially discriminatory manner or as a pretext for racial discrimination.

In its general recommendation No. 30 (2004) on discrimination against non-citizens, the

Committee explains that article 1 (2) must not undermine the general equality and non-

discrimination provisions enshrined in article 5 of the Convention and other international

legal instruments (paras. 2–3). The Committee elaborates further, indicating that differential

treatment based on citizenship or immigration status will constitute discrimination if the

criteria for such differentiation, judged in the light of the objectives and purposes of the

Convention, are not applied pursuant to a legitimate aim, and are not proportional to the

achievement of this aim (para. 4). In order to eliminate and prevent racial discrimination

against non-citizens, the Committee calls on States to ensure that domestic legislation on the

prohibition of racial discrimination applies to non-citizens, regardless of their immigration

status, and to ensure that the implementation of national legislation does not have a

discriminatory effect on non-citizens (para. 7). In addition, the Committee urges States to

protect the rights of non-citizens by adopting concrete measures with regard to hate speech

and racial violence; access to citizenship; the administration of justice; expulsions and

deportations; and the enjoyment of economic, social and cultural rights (sects. II–VII).

20. The prohibition of racial discrimination also applies in the context of deportations or

expulsions of non-citizens. Although not explicitly mentioned in the Convention, the

Committee has addressed racial discrimination in the context of deportations and expulsions

in its general recommendations, jurisprudence and concluding observations. Deportations

and expulsions threaten and can violate article 5 (b) of the Convention, which guarantees

freedom from racial discrimination in enjoyment of the right to security of person and

protection from violence or bodily harm. 17 In its general recommendation No. 30, the

Committee lists concrete measures that States should adopt in this area. It calls on States to

ensure that: (a) domestic legislation concerning deportations or other forms of removal do

not discriminate, in purpose or effect, among non-citizens on the basis of race, colour,

national or ethnic origin; (b) all non-citizens have equal access to effective remedies; (c) non-

citizens are not subject to collective expulsion; (d) the principle of non-refoulement is

respected; and (e) they avoid expulsions of non-citizens, especially long-term residents, that

would result in disproportionate interference with their right to family life (paras. 25–28).

21. With regard to immigration, the Special Rapporteur notes that laws and policies on

immigration must not discriminate, in purpose or effect, on the basis of race, colour, national

or ethnic origin.18 The Special Rapporteur is of the view that blanket immigration bans that

target particular nationalities with the intent or effect of discriminating on the basis of race,

15 See Committee on the Elimination of Racial Discrimination, general recommendation No. 32, paras.

6–7.

16 See, for example, Committee on the Elimination of Racial Discrimination, general recommendation

No. 34 (2011) on racial discrimination against people of African descent, paras. 5–7.

17 Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial

Discrimination: A commentary (Oxford, Oxford University Press, 2016), pp. 325–326 and 339–340.

18 See, for example, International Convention on the Elimination of All Forms of Racial Discrimination,

art. 1 (3); Committee on the Elimination of Racial Discrimination, general recommendation No. 30,

paras. 1, 7 and 9; Durban Declaration and Programme of Action, art. 30.

colour, national or ethnic origin are in clear violation of article 1 (3) of the Convention.19 In

particular, in the context of counter-terrorism, immigration and other measures must comply

with the prohibition of racial discrimination, including with regard to racial and ethnic

profiling or stereotyping.20

B. Right to nationality and the reduction/prevention of statelessness

22. While the prohibition of racial discrimination applies to the enjoyment of all civil,

political, economic, social and cultural rights,21 the Special Rapporteur notes that the right to

nationality is particularly relevant in the context of citizenship, nationality and immigration.

23. Although the regulation of nationality is generally considered to be within the

domestic jurisdiction of States, international law provides that the right of States to decide

who their nationals are is not absolute.22 The Inter-American Court of Human Rights noted

that although “the determination of who has a right to be a national continues to fall within a

State’s domestic jurisdiction … its discretional authority in this regard is gradually being

restricted with the evolution of international law”.23

24. The right to a nationality is recognized and protected in various international24 and

regional25 human rights instruments. It entails the right of each individual to acquire, change

and retain a nationality.26 In addition, the issue of nationality is regulated in the Convention

on the Reduction of Statelessness, the Convention relating to the Status of Stateless Persons,

and the Convention relating to the Status of Refugees. The Convention on the Reduction of

Statelessness requires States to prevent statelessness by granting their nationality to persons

who would otherwise be stateless and are either born in their territory or are born abroad to

one of their nationals (arts. 1 and 4) and upon loss or deprivation of nationality (arts. 5–8).

Under the Convention relating to the Status of Stateless Persons, States parties are also

required to facilitate the assimilation and naturalization of stateless persons (art. 32).

25. Discrimination in the acquisition, transmission, change or deprivation of nationality

is prohibited under the general equality and non-discrimination provisions of various

instruments. 27 Some treaties also include specific provisions on the non-discriminatory

enjoyment of the right to nationality. For example, article 5 (d) (iii) of the International

Convention on the Elimination of All Forms of Racial Discrimination explicitly obliges

States parties to guarantee the right of everyone to equality before the law, including in the

enjoyment of the right to nationality. In its general recommendation No. 30, the Committee

on the Elimination of Racial Discrimination calls upon States parties to ensure that particular

groups of non-citizens are not discriminated against with regard to access to citizenship or

naturalization; to address barriers to naturalization for long-term and permanent residents; to

19 See also A.M.M. v. Switzerland (CERD/C/84/D/50/2012), para. 4.11. 20 See Committee on the Elimination of Racial Discrimination, general recommendation No. 30, para.

10.

21 See International Convention on the Elimination of All Forms of Racial Discrimination, art. 5.

22 See A/HRC/13/34, paras. 20 and 57.

23 See Yean and Bosico v. Dominican Republic, Inter-American Court of Human Rights, judgment of 5

September 2005, series C, No. 130, para. 140.

24 See Universal Declaration of Human Rights, art. 15; International Convention on the Elimination of

All Forms of Racial Discrimination, art. 5 (d) (iii); International Covenant on Civil and Political

Rights, art. 24 (3); Convention on the Elimination of All Forms of Discrimination against Women,

art. 9; Convention on the Rights of the Child, arts. 7–8; International Convention on the Protection of

the Rights of All Migrant Workers and Members of Their Families, art. 29; Convention on the Rights

of Persons with Disabilities, art. 18; Convention on the Nationality of Married Women, arts. 1–3;

United Nations Declaration on the Rights of Indigenous Peoples, art. 6.

25 See African Charter on the Rights and Welfare of the Child, art. 6; Protocol to the African Charter on

Human and Peoples’ Rights on the Rights of Women in Africa, art. 6; American Declaration on the

Rights and Duties of Man, art. XIX; American Convention on Human Rights, art. 20; Arab Charter on

Human Rights, art. 24; European Convention on Nationality, arts. 4–9; Council of Europe Convention

on the Avoidance of Statelessness in relation to State Succession, arts. 2–11.

26 See A/HRC/13/34, para. 21.

27 Ibid., paras. 18 and 30–31.

take into account that denial of citizenship could result in a violation of the Convention if

long-term or permanent citizens are disadvantaged in their access to employment and social

benefits; to reduce statelessness; and to regularize the status of former citizens of predecessor

States (paras. 13–17). 28 In addition, in its general recommendation No. 27 (2000) on

discrimination against Roma, the Committee urges States parties to ensure that legislation

regarding citizenship and naturalization does not discriminate against members of Roma

communities (para. 4).

26. The right to retain a nationality entails a prohibition of the arbitrary deprivation of

nationality, 29 which is implicitly or explicitly recognized in numerous international and

regional instruments.30 In its general recommendations, the Committee on the Elimination of

Racial Discrimination has reiterated that the deprivation of citizenship on the basis of race,

colour, descent or national or ethnic origin violates States parties’ obligations to ensure non-

discriminatory enjoyment of the right to nationality.31 Article 9 of the Convention on the

Reduction of Statelessness provides that the deprivation of nationality on racial, ethnic,

religious or political grounds is prohibited, even if it would not result in statelessness.

27. In the light of the above-mentioned standards, the Special Rapporteur concludes that

citizenship, nationality, and immigration laws and policies constitute a violation of

international human rights law when they discriminate, in purpose or effect, between citizens

and non-citizens, or among non-citizens, on the basis of race, colour, descent, or national or

ethnic origin. Law, policies and practices that disproportionately exclude or have a negative

impact on a particular racial, ethnic or national group should also be considered as a breach

of the prohibition of racial discrimination. This is true even in the absence of de jure or

intentional discrimination.

28. The Special Rapporteur would like to highlight that States must not only refrain from

racial discrimination, but also have an obligation to adopt preventive measures aimed at

combating prejudice and promoting tolerance, understanding and inclusion.32

C. Importance of an intersectional approach to racial discrimination and

related intolerance

29. Achieving substantive racial equality requires an intersectional analysis of the

problem of racial discrimination and intolerance. 33 The following definition of

intersectionality captures well its significance:

The idea of “intersectionality” seeks to capture both the structural and dynamic

consequences of the interaction between two or more forms of discrimination or

systems of subordination. It specifically addresses the manner in which racism,

patriarchy, economic disadvantages and other discriminatory systems contribute to

create layers of inequality that structures the relative positions of women and men,

races and other groups. Moreover, it addresses the way that specific acts and policies

28 The Committee has frequently addressed these issues in its concluding observations. See, for

example, CERD/C/KWT/CO/15-20, para. 17; CERD/C/ITA/CO/16-18, para. 24;

CERD/C/MDV/CO/5-12, para. 10; CERD/C/CYP/CO/17-22, para. 18; CERD/C/EST/CO/8-9, para.

13; CERD/C/KHM/CO/8-13, para. 18; CERD/C/TKM/CO/6-7, para. 18; CERD/C/SRB/CO/1, para.

19.

29 For an analysis of the term “arbitrary deprivation of nationality”, see A/HRC/13/34, paras. 23–27. See

also A/HRC/25/28, para. 22.

30 See A/HRC/13/34, para. 26; and Human Rights Council resolution 32/5.

31 See Committee on the Elimination of Racial Discrimination, general recommendations No. 30, para.

14, and No. 34, para. 48.

32 See, for example, International Convention on the Elimination of All Forms of Racial Discrimination,

arts. 2 (1) (e), 4 and 7; Durban Declaration and Programme of Action, inter alia, paras. 30 (a) and

132; Committee on the Elimination of Racial Discrimination, general recommendation No. 30, paras.

11–12.

33 See Committee on the Elimination of Racial Discrimination, general recommendation No. 25 (2000)

on gender-related dimensions of racial discrimination.

create burdens that flow along these intersecting axes contributing actively to create a

dynamic of disempowerment.34

30. An intersectional approach is especially important where citizenship and immigration

status are concerned. Individuals and groups who are actual or perceived “foreigners” are

vulnerable to a broad spectrum of human rights violations on account of this foreigner status.

Foreignness, here, is the status of being an actual or perceived outsider to a given political

community and significantly, the construction of foreignness rests on multiple, intersecting

classifications, even where international migrants are concerned.35 For migrants, the relevant

membership unit is typically, although not exclusively, the nation State. However,

foreignness should not be reduced to nationality or national origin alone.36 In much of the

world, non-white migrants are far more vulnerable to discrimination and intolerance than

white migrants, irrespective of nationality. Refugees and migrants are targeted for

discrimination on the basis of their nationality and national origin combined with other social

categories, the most important of which include race, ethnicity, religion and class. 37

Increasingly these dimensions are made explicit in actual or aspirational State policy, as when

politicians in Western Europe and North America openly oppose admission of specific

groups of refugees on religious or racial grounds.

1. Gender

31. Gender-based discrimination concerning the right to nationality is explicitly

prohibited under article 9 of the Convention on the Elimination of All Forms of

Discrimination against Women and the Convention on the Nationality of Married Women.38

32. In the context of citizenship, nationality and immigration law and policy, States rely

heavily on patriarchal laws and gender-based discrimination to achieve racial, ethnic and

religious exclusion or restrictions. In several countries all around the world, women are

denied the ability to confer their nationality on their children or on a non-national spouse.39

This gender-based discrimination is often deployed by States to preserve notions of national,

ethnic or racial “purity”. An implicit aim of restricting the rights of citizenship to the children

of male nationals and excluding married women from transferring their nationality to a

foreign spouse is to discourage female nationals from marrying members of particular

national, religious, ethnic or racial groups.

33. Twenty-five countries have nationality laws that discriminate based on gender, 12 of

which are in the Middle East and North Africa and 6 are in Sub-Saharan Africa.40 The

Working Group on the issue of discrimination against women in law and in practice has

highlighted the far-reaching impact of gender discrimination in nationality laws:

In addition to violating anti-discrimination obligations, the unequal treatment of

women’s nationality in law and practice hinders the realization of other rights,

34 See Division for the Advancement of Women, OHCHR and United Nations Development Fund for

Women, “Gender and racial discrimination: report of the Expert Group Meeting, 21–24 November

2000”. Available at www.un.org/womenwatch/daw/csw/genrac/report.htm.

35 For an analysis of foreignness as an intersectional category and its regulatory implications, see E.

Tendayi Achiume, “Beyond prejudice: structural xenophobic discrimination against refugees”,

Georgetown Journal of International Law, vol. 45, No. 2 (Winter 2014), pp. 331–334.

36 National origin and nationality differ in important respects, notwithstanding the regular overlap of the

two. National origin variously refers to country of origin or one’s ancestry, but nationality refers to

the legal status belonging to a given nation State.

37 See UNHCR, “Combating racism, racial discrimination, xenophobia and related intolerance through a

strategic approach”, December 2009, para. 11. Available at

www.refworld.org/docid/4b30931d2.html.

38 See also Human Rights Council resolution 32/7; Human Rights Committee, general comment No. 28

(2000) on the equality of rights between men and women, para. 25.

39 UNHCR, “Background note on gender equality, nationality laws and statelessness 2017”, pp. 3–5.

Available at www.refworld.org/docid/58aff4d94.html.

40 Ibid., p. 2. For analysis of gender discrimination in citizenship laws in Africa, see Bronwen Manby,

Citizenship Laws in Africa: A Comparative Study, 2nd ed. (New York, African Minds, 2009), pp. 63–

72.

including: the right to a nationality and freedom from statelessness, the right to

equality in the family, the ability to participate equally in public and political life,

freedom of movement, access to public services and the rights to housing, health and

education, among other economic, social and cultural rights.41

34. In addition, more than 40 countries in the Middle East, North Africa and the sub-

Saharan region, as well as in the Caribbean42 and Asia and the Pacific,43 have laws denying

or implementing restrictions on married women passing their nationality to a foreign spouse

on an equal basis with a married man. For example, in some States a woman loses her

nationality of origin upon marrying a foreign spouse and cannot regain that nationality if the

marriage ends.44 Owing to citizenship discrimination, women and their children are often left

stateless, lack access to social benefits and education, and have limited access to economic

opportunities, among many other consequences.45 Several countries holding discriminatory

nationality laws towards women are also home to thousands of refugees who have fled armed

conflict, repression, poverty and violence. These laws reinforce the vulnerability of refugee

populations to statelessness and to abuse and exploitation.

35. As a result of gender-based discriminatory laws, millions of people are left without

access to citizenship and are denied rights they would hold as citizens. In many cases, these

gender discriminatory laws have a greater impact on people belonging to specific groups due

to their origins, race, ethnicity or descent. These laws may therefore have direct or indirect

racial discriminatory impacts on these groups. Indeed, the Working Group on the issue of

discrimination against women in law and in practice has found that there is an intersectional

dimension to gender-based discrimination in this context that appreciably subjects “women

and girls belonging to minority communities, rural and indigenous women, migrant women,

refugee women and those seeking asylum, and poor women” to unequal treatment in

citizenship and immigration laws. 46 At least one submission received by the Special

Rapporteur highlighted the specific challenges faced by transgender non-citizens, including

restrictions on these groups that do not apply to citizens, but which have an impact on

transgender non-citizens’ access to employment, housing and other basic rights and that

disproportionately target racial minorities.47

36. In recent years, many States have undertaken initiatives to amend their discriminatory

nationality laws, allowing women to pass their nationality to their children, and to a lesser

extent to their foreign husband.48 Such reforms are commendable and should be emulated by

other States. These reforms were also realizable in countries where Governments withdrew

their reservations to article 9 of the Convention on the Elimination of All Forms of

Discrimination against Women, which provides that States shall grant women equal rights

with men to acquire, change or retain their nationality, and also with respect to their

children’s nationality.

2. Religion

37. Contemporary manifestations of racism and xenophobia where citizenship and

immigration status are implicated also point to the importance of attention to religion49 and

its regular overlap with race, ethnicity and national origin where discrimination and

41 See www.ohchr.org/Documents/Issues/Women/WG/DiscriminationAgainstWomenNationality.pdf, p.

1.

42 A/HRC/28/85, p. 119 (BHS 2/2014).

43 Equality Now, The State We’re In: Ending Sexism in Nationality Laws, January 2016, p. 16.

Available at www.equalitynow.org/sites/default/files/NationalityReport_EN.pdf.

44 Ibid.

45 Ibid., p. 9.

46 See www.ohchr.org/Documents/Issues/Women/WG/DiscriminationAgainstWomenNationality.pdf, p.

2.

47 See the submission dated 16 February 2018 from Center for Research-Action on Race Relations for

the present report.

48 See Equality Now, “Nationality laws: progress”. Available at www.equalitynow.org/nationality-laws-

progress.

49 See A/72/365, paras. 19–25.

intolerance are concerned. The relationship between racial and religious discrimination is

complex. Racial and religious discrimination are not always easy to distinguish, especially in

practice. For example, religious minorities may also be racially or ethnically distinct in ways

that make them vulnerable to racial discrimination that is formally achieved through religious

preferences. Furthermore, in some cases religion and race become fused in dangerous ways.

In many parts of the world, individuals or groups are discriminated against because they are

“Muslim-looking” irrespective of whether these individuals or groups even hold Islamic

religious beliefs.50 On the other hand, the citizenship laws of some countries discriminate

against non-Muslims and non-Arabs. 51 While the International Convention on the

Elimination of All Forms of Racial Discrimination does not mention religion as a basis for

prohibited racial discrimination, the Committee on the Elimination of Racial Discrimination

has found that article 1 may apply to cases involving religious discrimination where the

targeted individual or individuals belong to identifiable ethnic minority groups.52

IV. Contemporary drivers and manifestations of racial discrimination in citizenship, nationality and immigration laws, policies and practices

38. When States justify, adopt and implement policies that racially discriminate on the

basis of citizenship and immigration status, they do so using a combination of approaches. It

can be difficult to isolate individual drivers of discrimination and intolerance but it is possible

to identify distinct, although related, categories.

A. Ethno-nationalism

39. The most obvious driver and facilitator of racial discrimination in citizenship and

immigration laws is explicit prejudice, often rooted in ethno-nationalist ideologies. Ethno-

nationalism, broadly defined, views the nation as “defined in terms of assumed blood ties and

ethnicity”.53 It is important to highlight that, despite popular perception, ethno-nationalist

ideologies are not spontaneous. They are the result of a range of complex economic, political,

social and historical forces combined with the deliberate manipulation by “ethnic

entrepreneurs” 54 and other political actors who seek to advance the narrow interests of

particular groups.

40. Ethno-nationalism is not new. As discussed below, it has deep historical roots that

have long operated in the realm of the law and policies of political membership. For example,

European colonialism relied on ethno-nationalist theories to systemically exclude non-

Europeans from effective citizenship status. In the nineteenth and twentieth centuries, Jews

and Roma in Europe were targeted and excluded from citizenship on ethno-nationalist

grounds. However, shifts have occurred over the past four years that include remarkable and

50 Muneer I. Ahmad, “A rage shared by law: post-September 11 racial violence as crimes of passion”,

California Law Review, vol. 92, No. 5 (October 2004), p. 1278; Stephanie E. Berry, “Bringing

Muslim minorities within the International Convention on the Elimination of All Forms of Racial

Discrimination—square peg in a round hole?”, Human Rights Law Review, vol. 11, No. 3 (September

2011), p. 446; Olivier Roy, Globalized Islam: The Search for a New Ummah (New York, Columbia

University Press, 2004), p. 133.

51 Bronwen Manby, Citizenship Law in Africa, p. 4. Available at www.unhcr.org/4cbc60ce6.pdf.

52 For an analysis of the jurisprudence of the Committee on the Elimination of Racial Discrimination involving religious discrimination that reaches this conclusion, see Stephanie E. Berry, “Bringing

Muslim minorities within the International Convention on the Elimination of All Forms of Racial

Discrimination—square peg in a round hole?”, Human Rights Law Review, vol. 11, No. 3 (September

2011), pp. 431–436 and 450.

53 René Lemarchand, “The siren song of self-determination”, UNESCO Courier (June 1993), p. 30.

Available at http://unesdoc.unesco.org/images/0009/000944/094420eo.pdf.

54 Ibid., p. 31. See also Kris Brown and Fionnuala Ní Aoláin, “Through the looking glass: transitional

justice futures through the lens of nationalism, feminism and transformative change”, International

Journal of Transitional Justice, vol. 9, No. 1 (March 2015), p. 140.

dangerous normalization and mainstreaming of racist and xenophobic discourse in public

discourse, in part due to the growth and spread of ethno-nationalist ideologies. Political

parties and leaders have shown increasing and disturbing tolerance for ethno-nationalist

messages of hatred and intolerance in their political platforms. Countries that have long

celebrated immigration as central to their national identity have now taken steps to vilify and

undermine immigration, with a disproportionate effect on certain racial, religious and

national groups. Even countries such as Argentina, which have been celebrated by holders of

this mandate in the past for their human rights-based immigration policies, are now rolling

back these policies under anti-immigrant political leadership.55

41. The rise of populist nationalism and right-wing extremism has delivered a devastating

blow to racial equality, especially in the global North. Non-citizens, including refugees and

stateless persons, have been the most vulnerable as a result of the ethno-nationalism that has

accompanied this rise, although others have been targets, including women, sexual minorities

and people with disabilities. Racist and xenophobic speech and violence against racial and

other minorities, and against refugees and migrants in particular, escalated in the wake of the

decision by the United Kingdom to leave the European Union, or “Brexit”, and national

elections in Europe, North America and Australia.56 At the same time, States and politicians

have used offensive and Islamophobic rhetoric to justify blanket immigration bans and

military force and fences at border crossings in violation of their obligations under

international human rights law and international refugee law. In other countries, the primary

targets of blanket immigration prohibitions have been Africans and people of African

descent.57 Reputable reports have uncovered the underhanded tactics of ethno-nationalist

political leaders and even official government leaders who have been willing to spend

millions deliberately to spread “fake news” or false information about refugees and

involuntary migrants.58 These lies are dangerous and even fatal when they raise national

resistance to and violence against asylum seekers and migrants, and more generally escalate

racial, ethnic and religious intolerance.59

42. Present day Europe offers a multitude of examples of national identity anxiety ranging

from explicitly articulated calls for racial or ethnic purity, to coded calls for religious or

linguistic preservation. In some cases, ethno-nationalist arguments are pretextually framed

as defences of linguistic, cultural or religious identity. But when linguistic and cultural

requirements in naturalization or immigration laws have the effect of excluding groups from

the benefits of the State on the basis of their race, ethnicity or religion, these requirements

should be seen as an urgent and unlawful threat to racial equality. The Special Rapporteur

expresses grave concern about the growing number of States that have threatened and even

adopted blanket bans against refugees of particular religions or national origin, most

commonly Muslims and Muslim majority countries. 60 Religious discrimination blatantly

55 See A/HRC/35/41/Add.1. A 2017 presidential decree took the regressive step of overturning or

undermining one of the most progressive immigration policies in the world, in an atmosphere of

growing racism and xenophobia against non-nationals. See Alejandro Grimson, “Argentina’s anti-

immigrant about-face”, North American Congress on Latin America Report on the Americas, vol. 49,

No. 2 (2017), p. 123. Available at www.tandfonline.com/doi/abs/10.1080/10714839.2017.1331792.

56 See, for example, A/HRC/35/41/Add.2, para. 56; A/HRC/35/42, paras. 17–18; A/72/287, paras. 11–

17; A/HRC/32/50, paras. 64–65.

57 See OHCHR, “Israel: UN experts urge immediate halt of plans to deport Eritrean and Sudanese

nationals”, 1 March 2018. Available at www.ohchr.org/EN/NewsEvents/Pages/

DisplayNews.aspx?NewsID=22741&LangID=E.

58 See Human Rights Watch, “Hungary’s xenophobic anti-migrant campaign”, 13 September 2016.

Available at www.hrw.org/news/2016/09/13/hungarys-xenophobic-anti-migrant-campaign.

59 See OHCHR, “Hungary: opinion editorial by UN High Commissioner for Human Rights Zeid Ra’ad

Al Hussein”, 6 March 2018. Available at

www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22765.

60 In the case of International Refugee Assistance Project v. Trump, 883 F.3d 233, 269 (2018), the

United States Court of Appeals for the Fourth Circuit noted that “plaintiffs offer undisputed evidence

that the President of the United States has openly and often expressed his desire to ban those of

Islamic faith from entering the United States. The Proclamation [travel ban] is thus not only a likely

Establishment Clause violation, but also strikes at the basic notion that the government may not act

based on ‘religious animosity’” (p. 52). See also Secretary General of the Council of Europe, “No

violates international refugee law,61 and national origin discrimination blatantly violates the

international human rights laws and principles analysed above. In the light of the

contemporary prevalence of national identity anxiety targeting Muslims, it is important to

highlight that the substantive core of such anxiety is often Islamophobia, defined by one legal

scholar as “the presumption that Islam is inherently violent, alien, and inassimilable”.62

43. Blanket exclusion of entire categories of minorities or migrants justified by claims of

cultural preservation too often aims to achieve racial preservation. The use of culture in this

way has historical roots in Europe and North America. In Europe, traditionally, racism was

understood as “an ideology that claims the fundamental inequality and hierarchical order of

different biologically defined races”.63 In the wake of German Nazism, scholars in Europe

identify the shift in salience from racism traditionally defined to “a new form of racism …

not based on biology and hierarchies but on culture and difference”.64 Today, radical right-

wing parties in Europe are characterized by ideology that constructs cultural difference as an

existential threat to European nationhood that can be neutralized only by migrant exclusion

to achieve ethnic purity. 65 A similar dynamic exists in parts of North America, where

arguments for national identity preservation have sought to achieve racialized ethnic purity.66

Culturally coded racism is still racism, and must be strongly condemned.

44. The Special Rapporteur notes that the resurgent xenophobic and racist rhetoric and

policies rooted in ethno-nationalism do not only harm non-citizens of any given nation. They

also make formal citizens who are ethnic, racial or religious minorities vulnerable to

discrimination and intolerance. For example, Islamophobic or anti-Semitic ethno-nationalism

undermines the rights of Muslims or Jews irrespective of citizenship status. Ethno-nationalist

rhetoric and policy have also reinforced and escalated discrimination against indigenous

peoples and peoples of African descent through various measures relating to citizenship and

immigration status, even when these communities have deep and enduring ties to the nations

in which they reside.67

45. In the global South, nation-building and nationalist ideology privileging certain racial,

ethnic or religious groups have played an equivalent role to extreme right-wing ideology in

the global North. Ethno-nationalist ideologues continue to use civilian and military force to

exclude minorities and indigenous peoples from the benefits of national membership. Such

forms of intolerance fuel extreme forms of discrimination, including ethnic cleansing and

ultimately genocide. The case of Rohingya Muslims offers a chilling example. In this regard,

in March 2018, the Special Adviser on the Prevention of Genocide stated that:

Rohingya Muslims have been killed, tortured, raped, burned alive and humiliated,

solely because of who they are. All the information I have received indicates that the

intent of the perpetrators was to cleanse northern Rakhine state of their existence,

possibly even to destroy the Rohingya as such, which, if proven, would constitute the

crime of genocide.68

46. The 1982 Myanmar nationality law discriminates on the basis of ethnicity, and is

largely inaccessible to the Rohingya, rendering many of them stateless. The law and the way

place for discrimination, xenophobia in migrant crisis in Europe”, 20 August 2015. Available at

https://goo.gl/sk8VtS; CCPR/C/POL/CO/7, paras. 31–32.

61 See Convention relating to the Status of Refugees, art. 3.

62 See Khaled A. Beydoun, “Islamophobia: toward a legal definition and framework”, Columbia Law

Review Online, vol. 116 (2016).

63 Jens Rydgren, “Meso-level reasons for racism and xenophobia”, European Journal of Social Theory,

vol. 6, No. 1 (2003), p. 48.

64 Ibid.

65 Jens Rydgren, “Immigration sceptics, xenophobes or racists? Radical right-wing voting in six West

European countries”, European Journal of Political Research, vol. 47, No. 6 (October 2008), pp.

745–746.

66 See, for example, Juan F. Perea, “Demography and distrust: an essay on American language, cultural

pluralism, and official English”, Minnesota Law Review, vol. 77 (1992).

67 See, for example, CERD/C/GBR/CO/21-23, para. 15; A/HRC/35/41, paras. 48–59.

68 See www.un.org/sg/en/content/sg/note-correspondents/2018-03-12/note-correspondents-statement-

adama-dieng-united-nations.

it is implemented effectively deny nationality to the Rohingya and perhaps more significantly

the laws have enabled the State to deny the Rohingya their humanity.69

47. Ethno-nationalist ideologies may in some cases be implicitly manifested in legal and

policy frameworks that systematically exclude specific racial, ethnic or national minorities

from citizenship status, even where these minorities have been territorially resident for

multiple generations. The treatment of Haitian descendants, many of whom the Dominican

Republic effectively stripped of citizenship,70 and whom the United States has stripped of

temporary protected immigration status,71 is a clear example of racial targeting. The Inter-

American Court of Human Rights found that the Dominican Republic had applied its

nationality laws in a discriminatory manner where Dominicans of Haitian descent were

concerned.72 In the report of their 2007 mission to the Dominican Republic, the Special

Rapporteur on racism and the independent expert on minority issues found that individuals

of Haitian descent were treated in a discriminatory manner in the registration offices of the

government agency responsible for issuing important identity documents required to

establish citizenship and the right to remain in the country. 73 Although many in the

Dominican Republic do not have proper documents, only those with “dark skins and Haitian

features” are treated as “illegal”.74 The widespread, institutionalized exclusion of Haitians

and Haitian descendants in different parts of the world is but one example of the persisting

vulnerability of Afrodescendants to racial discrimination.

48. In some African countries, ethno-nationalist theories of citizenship have been used to

disqualify political opposition leaders from national office, and in some parts of Asia and the

Middle East, ethno-nationalism regularly results in the stripping of citizenship or territorial

expulsion of unpopular racial and ethnic minorities.75

Unresolved historical ethno-nationalist legacies

49. In addition to the contemporary manifestations of racial discrimination driven by

explicit and implicit ethno-nationalism in the context of citizenship and immigration status,

historical legacies remain operational. Especially in former colonial territories, long-standing

citizenship and nationality laws often discriminate against indigenous peoples or persons

belonging to racial and ethnic minorities, in ways that reinforce ethno-nationalist conceptions

of political membership. In some cases, racial or ethnic discrimination in access to citizenship

or naturalization renders these groups stateless, preventing them from fully enjoying their

human rights.

50. Koreans forcibly transferred to Japan during the Second World War faced extreme

forms of discrimination. Today their descendants, despite being second and third generation

in that country, are unable to attain citizenship and are still labelled as “foreigners” or

“aliens”. Additionally, these Korean descendants remain vulnerable to hate crimes, including

fatal attacks.76 Similarly, Nubians living in Kenya are considered to be aliens and have always

69 See UNHCR, “States of denial: a review of UNHCR’s response to the protracted situation of stateless

Rohingya refugees in Bangladesh”, December 2011, paras. 11–15. Available at

www.unhcr.org/afr/research/evalreports/4ee754c19/states-denial-review-unhcrs-response-protracted-

situation-stateless-rohingya.html.

70 See Inter-American Commission on Human Rights, Report on the situation of human rights in the

Dominican Republic, 31 December 2015, paras. 4–6 and 197–271. Available at

www.oas.org/en/iachr/reports/pdfs/dominicanrepublic-2015.pdf; CERD/C/DOM/CO/13-14, paras.

19–21; A/HRC/7/19/Add.5-A/HRC/7/23/Add.3, paras. 51–87 and 125–131; Inter-American Court of

Human Rights, Yean and Bosico v. Dominican Republic.

71 See United States of America, Citizenship and Immigration Services, “Termination of the designation

of Haiti for temporary protected status” (Federal Register, 18 January 2018). Available at

www.federalregister.gov/documents/2018/01/18/2018-00886/termination-of-the-designation-of-haiti-

for-temporary-protected-status.

72 See Inter-American Court of Human Rights, Yean and Bosico v. Dominican Republic, para. 260.

73 See A/HRC/7/19/Add.5-A/HRC/7/23/Add.3, paras. 49, 55–56 and 129.

74 Ibid., para. 62.

75 James A. Goldston, “Holes in the rights framework: racial discrimination, citizenship, and the rights

of noncitizens”, Ethics and International Affairs, vol. 30, No. 3 (2006), p. 327.

76 See CERD/C/JPN/CO/7-9, para. 11.

occupied an uncertain citizenship status.77 British colonial forces conscripted many Nubians

in the Sudan and deployed them to Kenya during the Second World War. At the end of the

war, these Nubians were prohibited from repatriation and the colonial Government refused

to acknowledge Nubians as citizens, instead classifying them as a foreign tribe. 78 This

foreigner classification has continued to define Nubians in Kenya, despite many generations

of Nubians living in Kenya, with no real ties to the Sudan.79 To obtain the identity cards

necessary to prove citizenship, Nubians must undergo long, complex and humiliating vetting

processes without the guarantee they will be issued with the cards.80 This process effectively

restricts Nubians from accessing citizenship at all in parts of East Africa. It was only in June

2017 that Kenya recognized the property rights of Nubians, following a decision of the

African Commission on Human and Peoples’ Rights.81

51. The Special Rapporteur notes with concern that the restrictive nationality laws in one

State in the Middle East have left more than 100,000 people stateless. Although many of

them have lived in the country for generations, they are considered “illegal residents” who

continue to be denied equal access to social services, legally valid civil documentation, and

due process in claiming citizenship.82

52. In some countries, former citizens of predecessor States continue to face barriers to

the regularization of their status. According to UNHCR, there were more than 722,000

stateless persons with no or unclear citizenship status in the Organization for Security and

Cooperation in Europe (OSCE) area in 2015. The majority of them are former Soviet Union

and Socialist Federal Republic of Yugoslavia citizens.83 While many successor States have

adopted measures to regularize the status of former citizens of predecessor States who now

reside within their jurisdictions, to this day, thousands of people in successor States do not

enjoy the rights and benefits of citizenship. 84 Although citizenship regulations in these

countries do not formally discriminate against particular groups of non-citizens, historical

circumstances often mean that persons belonging to ethnic minorities are disproportionately

affected.85 In Latvia, more than 230,000 people remain so-called non-citizens, 99.5 per cent

of whom belong to ethnic minorities.86 In this context, a former Special Rapporteur on racism

77 See CERD/C/KEN/CO/5-7, para. 27.

78 Bronwen Manby, Struggles for Citizenship in Africa (New York, Palgrave Macmillan, 2013), pp.

122–123.

79 Samantha Balaton-Chrimes, “Indigeneity and Kenya’s Nubians: Seeking equality in difference or

sameness?”, Journal of Modern African Studies, vol. 51, No. 2 (June 2013), pp. 338–339. Available

at www.cambridge.org/core/services/aop-cambridge-core/content/view/S0022278X13000049. See

also Adam Hussein Adam, “Kenyan Nubians: standing up to statelessness”, Forced Migration

Review, vol. 32 (April 2009). Available at www.fmreview.org/sites/fmr/files/FMRdownloads/en/

FMRpdfs/FMR32/19-20.pdf; African Committee of Experts on the Rights and Welfare of the Child,

Institute for Human Rights and Development in Africa and Open Society Justice Initiative on behalf

of Children of Nubian Descent in Kenya v. Kenya, decision No. 002/Com/002/2009 (2011). Available

at www.opensocietyfoundations.org/sites/default/files/ACERWC-nubian-minors-decision-

20110322.pdf (finding that the treatment of children of Nubian descent in Kenya by the Government

constituted a violation of the African Charter on the Rights and Welfare of the Child and a failure to

protect their right to nationality).

80 See Open Society Foundations, “Nubian community in Kenya v. Kenya”, 12 May 2017. Available at

www.opensocietyfoundations.org/litigation/nubian-community-kenya-v-kenya.

81 See Open Society Foundations, “After long struggle, Kenya’s Nubian minority secures land rights”, 5

June 2017. Available at www.opensocietyfoundations.org/press-releases/after-long-struggle-kenyas-

nubian-minority-secures-land-rights.

82 See CERD/C/KWT/CO/21-24, paras. 27–28; CCPR/C/KWT/CO/3, paras. 10–11; Human Rights

Watch, “Prisoners of the past: Kuwaiti Bidun and the burden of statelessness”, 13 June 2011.

Available at www.hrw.org/report/2011/06/13/prisoners-past/kuwaiti-bidun-and-burden-statelessness.

83 OSCE and UNCHR, “Handbook on statelessness in the OSCE area: international standards and good

practices”, 2017, p. 9. Available at www.osce.org/handbook/statelessness-in-the-OSCE-area.

84 Ibid.

85 See, for example, A/HRC/7/19/Add.3, para. 77.

86 See www.pmlp.gov.lv/lv/assets/documents/1aaaa/ISVN_Latvija_pec_TTB_VPD.pdf.

recommended that the country adopt various measures to facilitate naturalization, including

granting automatic citizenship at birth to children of non-citizen parents.87

53. The Special Rapporteur highlights that long-standing barriers in access to citizenship

and naturalization in various countries have contributed to the deep-rooted forms of

discrimination and exclusion faced by Sinti and Roma. Many members of the Roma and Sinti

communities are stateless or face the risk of statelessness due to their lack of access to civil

registration and identity documents.88 Some of the major factors contributing to the lack of

personal documents include complicated and burdensome bureaucratic procedures, lack of

financial means to pay for the process of obtaining documentation, residence in unregistered

settlements and difficulties in registering permanent place of residence, displacement, lack

of access to free legal aid, lack of information about the procedures and discrimination.89

These barriers mean that statelessness is passed on from generation to generation, further

perpetuating the exclusion, discrimination and marginalization that Roma and Sinti

communities experience in many countries.

54. At the same time, racial discrimination in the context of citizenship and immigration

law and practice is often fuelled by national concerns and resulting policies that exist outside

the realm of ethno-nationalism. An important example is national anxieties about national

security and economic prosperity, which continue to facilitate racial discrimination on the

basis of citizenship and immigration status. In the remainder of this section, the Special

Rapporteur analyses these anxieties as contributing to racial discrimination and xenophobia,

and condemns the role they play in perpetuating discrimination and intolerance on the basis

of race, colour, descent, ethnicity, national origin or religion.

B. National security machinery and anxiety

55. Especially in Western liberal democracies, anxieties about national security and

terrorism threats have produced a far-reaching web of surveillance and other practices that

result in racial discrimination on the basis of citizenship or immigration status. This trend

continues the disturbing and unlawful practices extensively documented by the former

Special Rapporteur in his 2017 thematic reports. In these reports, he provides a

comprehensive analysis of the human rights violations and xenophobic rhetoric abetted by

Governments and other actors in Europe, Asia, South America, the Middle East, North

America and Africa, fuelled by exaggerated and manipulated terrorism and national security

anxieties, especially targeting Muslims and those perceived to be Muslim.90

56. In some countries, politicians have spread misinformation that portrays certain racial,

national and religious groups as inherent national security threats. These misinformation

campaigns have been most vehemently propagated by political parties and leaders with

ethno-nationalist commitments. These parties and leaders deliberately stoke and exploit the

national security anxieties of national populations, and they effectively stigmatize entire

racial, ethnic, national and religious groups in ways that make these groups even more

vulnerable to racist and xenophobic violence.91

57. States all over the world continue to use national security and counter-terrorism

justifications to strip members of their national populations of citizenship. Rarely do States

explicitly discriminate on the basis of race, ethnicity or national origin in their citizenship-

stripping processes. However, overbroad policies ostensibly rooted in national security

concerns permit arbitrary enforcement — including arbitrary citizenship stripping — which

in practice have a disproportionate effect on marginalized racial, national and religious

87 See A/HRC/7/19/Add.3, para. 88.

88 See A/HRC/29/24, para. 36.

89 OSCE, Office for Democratic Institutions and Human Rights, “Summary report: expert seminar on

access to identification and civil registration documents by Roma in Ukraine” (Kyiv, 2015), p. 6.

Available at www.osce.org/odihr/211996?download=true.

90 See A/HRC/35/41, paras. 48–75; A/72/287, paras. 11–45.

91 See OHCHR, “Zeid warns against populists and demagogues in Europe and U.S.”, 5 September 2016.

Available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20452.

groups. In these cases, racial discrimination continues to be the foreseeable effect of

overbroad national security policy that is not proportionately tailored to achieve legitimate

national defence requirements.

58. Whereas some groups are at heightened risk of losing citizenship and immigration

status due to national security machinery and anxiety, these groups are also systematically

barred from naturalization or regularizing their immigration status for similar reasons. A

disturbing example is the application of clandestine reviews and internal checks that use

unreliable methods to designate persons belonging to specific religious ethnic groups as

inherent national security threats, thereby barring or delaying their naturalization.92

59. For a detailed analysis of the racial discrimination and intolerance targeting non-

nationals and driven by national security and terrorism fears, the Special Rapporteur refers

the Council to the 2017 reports of her predecessor, which also canvass the applicable

international human rights law.93

C. Economic scapegoating of non-citizens

60. The economic effects of globalization have included escalating inequality. The

continuing impact of the 2008 global financial crisis, for example, includes austerity

measures that have impoverished many around the globe. Previous holders of this mandate

have highlighted “the direct relationship between the increase in economic disparity and the

increase in xenophobic and populist parties”.94 The resulting economic marginalization of

large sectors of national populations continues to facilitate toxic scapegoating, in which

migrants, refugees and other non-nationals bear the blame for the economic failures of

Governments and the global neoliberal order. To make matters worse, opportunistic political

leaders and extremist groups continue to use economic fears to justify punishing restrictions

on the human rights of migrants. The Government of Israel, for example, has vowed to expel

refugees and migrants whom it has labelled “infiltrators”, “economic opportunists” and

“criminals”.95 In Greece, refugees from so-called “undesirable” countries in North Africa and

South Asia are being singled out, detained and put through fast-track asylum procedures

before being returned to Turkey.96

61. The Special Rapporteur wishes to highlight that, especially with respect to refugees,

the countries and Governments that have had the most racist and xenophobic responses to

involuntary displacement in Europe, North America and Australasia in particular are not the

countries that currently shoulder the primary economic implications of refugee admissions.

In 2016, UNHCR reported that 84 per cent of the world’s refugees under the UNHCR

92 For example, the American Civil Liberties Union has argued that the United States Controlled

Application Review and Resolution Program uses unreliable methods of determining national security

threats and often equates the practice of Islam and Muslim religious observance with terrorism. See

Jennie Pasquarella, Muslims Need Not Apply (American Civil Liberties Union of Southern California,

August 2013). Available at www.aclusocal.org/sites/default/files/carrp-muslims-need-not-apply-aclu-

socal-report.pdf.

93 See A/HRC/35/41, paras. 52–96; A/72/287, paras. 11–57.

94 See A/HRC/35/41, para. 48.

95 See OHCHR, “Israel: UN experts urge immediate halt of plans to deport Eritrean and Sudanese

nationals”, 1 March 2018. Available at

www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22741&LangID=E. See also

Ruth Eglash and Loveday Morris, “Q&A with Israel’s Interior Minister Aryeh Deri: plan to deport

thousands of Africans is not about race”, Washington Post, 7 February 2018. Available at

www.washingtonpost.com/news/worldviews/wp/2018/02/07/refugees-or-illegal-migrants-israels-

plan-is-to-deport-them-by-force/?utm_term=.5d917cd434f8; A/HRC/22/67 and Corrs.1 and 2, p. 24

(ISR 8/2012).

96 See Eleni Koutsaraki, “The indefinite detention of undesirable and unreturnable third-country

nationals in Greece”, Refugee Survey Quarterly, vol. 36, No. 1 (March 2017); Amnesty International,

“Greece: lives on hold. Update on situation of refugees and migrants on the Greek islands”, 14 July

2017. Available at www.amnesty.org/download/Documents/EUR2567452017ENGLISH.PDF.

mandate were being hosted in developing countries,97 with some of the poorest and least

xenophobic countries playing host to the largest numbers of refugees. Economic rhetoric used

to justify refugee exclusion in wealthy countries should be rejected for the xenophobia and

racism that is at its core. The Special Rapporteur on the human rights of migrants has noted

that, notwithstanding the prevalence of narratives portraying migrants generally as an

economic strain, “immigration has … been found to have a minimal impact on

unemployment of residents and a positive overall impact on employment generation and

investment”.98

62. In the Durban Declaration, States acknowledge the unequal distribution of the benefits

of globalization and recognize “that interregional and intraregional migration has increased

as a result of globalization, in particular from the South to the North” (paras. 11–12). They

go on to stress that migration policies should not be based on racism, racial discrimination,

xenophobia and related intolerance (para. 12). Yet still, racists and xenophobes — including

in Governments all over the world — continue to take advantage of legitimate economic

discontent to target non-nationals of specific racial, ethnic and religious groupings.

Opportunistic political leaders and parties continue to strategically deploy inaccurate

economic narratives about non-nationals of specific ethnicities, races and religions. In doing

so, these leaders and parties distract national attention from political and economic elites

among citizens, including through multinational corporations, all of whom are the persistent

overrepresented beneficiaries of economic globalization.

V. Conclusion and recommendations

63. In sum, racist and xenophobic ideologies rooted in ethno-nationalism regularly

combine with national security fears and economic anxieties to violate the human rights

of non-citizens, indigenous peoples and minorities on the basis of race, ethnicity,

national origin and religion. Although the Special Rapporteur analyses each of the

drivers separately in the present report, it is vital to maintain sight of their combined

operation. The resurgence and spread of extreme right-wing racist ideology should be

challenged alongside other discourses and drivers that are on their face more

acceptable, but are in practice just as effective at targeting specific racial, ethnic or

religious groups. National security and economic prosperity anxieties or concerns can

have the ultimate effect of making racial and xenophobic discrimination and

intolerance more socially acceptable. The value of distinguishing the different drivers

is the subsequent capacity to develop tailored policies that are responsive to conditions

on the ground.

64. In a number of recent cases, some courageous States and other actors within the

United Nations system have publicly condemned instances of extreme xenophobic

ethno-nationalism. These actions are to be encouraged and commended. However, in

most instances of explicit ethno-nationalism, xenophobia and racism, even at the highest

levels of political office, too many States remain silent. This silence amounts to

complicity and the Special Rapporteur urges all States and multilateral regional bodies

to take public, consistent and firm positions against all such incidents whenever they

occur.

65. The Special Rapporteur urges all to be vigilant regarding the calculated and

opportunistic ways in which many political leaders and parties continue to exploit the

economic discontent and national security anxieties of their populations. States must

refrain from pretextual use of exaggerated economic and national security concerns

that are not grounded in objective reality in order to justify racist and xenophobic

practices in the context of citizenship, nationality and immigration laws and policies.

Legitimate economic and national security concerns will not be resolved by allowing

populist but elite leaders who are already overrepresented beneficiaries of economic

97 UNCHR, Global Trends: Forced Displacement in 2016, p. 2. Available at

http://www.unhcr.org/5943e8a34.pdf.

98 See A/69/302, paras. 20, 25 and 98.

globalization instrumentally to use and further marginalize those who have not

benefited in the same ways from the global neoliberal order.

66. In the light of these conclusions, the Special Rapporteur wishes to reiterate the

recommendations made by the Committee on the Elimination of Racial Discrimination

in its general recommendation No. 30 on discrimination against non-citizens (sects. II–

VII). She also recalls relevant good practices and recommendations made by her

predecessors, particularly in reports relating to xenophobia (A/HRC/32/50), counter-

terrorism (A/72/287), racial and ethnic profiling (A/HRC/29/46) and Islamophobia

(A/HRC/15/53).

67. In addition, the Special Rapporteur urges States to adopt the following concrete

measures aimed at eliminating and preventing racial discrimination in the context of

citizenship, nationality and immigration:

(a) Ratify relevant instruments, including the 1954 Convention relating to the

Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness,

and harmonize the definitions of racial discrimination against non-citizens, stateless

persons and refugees within national laws in accordance with these instruments. This

includes withdrawing reservations to these treaties that undermine the pursuit of

substantive racial equality;

(b) Especially with respect to citizenship and nationality, adopt and

implement article 1 of the International Convention on the Elimination of All Forms of

Racial Discrimination, as explained by the Committee on the Elimination of Racial

Discrimination in its general recommendation No. 30. States are prohibited from

restricting the rights of non-citizens in any way that is not proportionately tailored to

achieve a legitimate aim grounded in the substantive racial equality framework of the

Convention. Under the Convention relating to the Status of Refugees and the

International Convention on the Elimination of All Forms of Racial Discrimination,

blanket bans on specific nationalities and other immigration measures that exclude on

the basis of race, colour, ethnicity or national origin are unlawful. States must take

immediate steps to undo any measures of this sort;

(c) Take specific steps to end statelessness, including by putting an end to the

practices and policies identified above that render persons stateless and in doing so,

make them vulnerable to extreme human rights violations;

(d) Address intersectional discrimination, especially as it affects non-citizens

on the basis of gender and religion, combined with other grounds;

(e) Make every effort to ensure that the Global Compact on Migration and

the Global Compact for Refugees both place equality and non-discrimination principles

at their centre. For the Global Compact on Migration, this means States must make an

explicit commitment to protecting regular and irregular migrants from racial

discrimination, as required by international human rights law.

68. A set of more concrete recommendations has been posted on the website of the

Special Rapporteur.99

99 See www.ohchr.org/EN/Issues/Racism/SRRacism/Pages/Reports.aspx.