Publication: Yale Human Rights and Development Law Journal
Publication Date: 01-JAN-05
Format: Online - approximately 36461 words
Delivery: Immediate Online Access
Author: Satterthwaite, Margaret L.
Article Excerpt
This Article considers the impact of the Migrant Workers Convention on the human rights of women migrants. While the adoption of a convention targeting abuses against migrant workers is a significant development in international human rights law, the author cautions that its specialized nature might be perceived as a limitation on the obligations that states owe to women migrants. The author warns against traditional, single-variable, compartmentalization of human rights treaties that would make the Migrant Workers Convention the only applicable human rights tool to women migrants, and, instead, advocates an intersectional approach. Using intersectionality, the author shows that many of the major human rights treaties can be invoked on behalf of the empowerment of migrant workers. While advocates and scholars should welcome the Migrant Workers' Convention as an interpretive tool and as a potential site for the development of best practices, they should also refocus their attention on the entire range of human rights treaties, and consider the ways in which the rights of women migrants are already included in the panoply of standards set out in those instruments.
I. INTRODUCTION
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers' Convention or MWC) entered into force on July 1, 2003. (1) This event was celebrated as a major milestone in the effort to provide human rights protections to migrant workers all over the world, including the large number of women who migrate for work. Certainly, the existence of a binding human rights convention that provides explicit and extensive protections for migrant workers is a singular achievement. However, given that none of the primary receiving--"host"--countries have ratified the treaty, (2) and that few are likely to do so in the near future, (3) this victory is a limited one, even for human rights advocates accustomed to celebrating small achievements. For those concerned about the rights of women migrants, a dominant focus on the Migrant Workers' Convention could be detrimental, not only because such a focus would siphon off energy more wisely placed elsewhere, but also because it would allow states to minimize the obligations they owe to women migrants under existing human rights law regardless of their decision to sign, ratify, or ignore this new treaty.
The temptation to counter-productive compartmentalization is by no means new or unique to advocates for migrants' rights: it is instead the product of the traditional single-variable human rights analysis still prevalent among human rights practitioners, U.N. experts, and those charged with implementing treaty norms at the national level. By focusing on a single aspect of experience--that of being a member of a racial minority, or a woman, for instance--and on the standards that seem most obviously to apply to those variables, human rights professionals often fail to examine and articulate the ways in which rights standards can be enlisted to provide strong protections for individuals whose experience crosses the pre-set institutional lines. Through the lens of such single-variable analysis, the MWC appears to be the only relevant standard for those who are migrant workers, since the treaty explicitly responds to the status "migrant." Viewed through the framework of intersectionality, on the other hand, all of the other major treaties have significant contributions to make to the empowerment of migrant workers.
In this Article I will argue that applying the methodology of intersectionality to human rights treaty law allows us to identify and articulate a set of robust standards relating to women migrant workers that can be applied to states--now--by shifting the focus from the single variable of "migration status" to the multiple variables relevant to women who migrate for work--including gender, race or ethnicity, and occupation. Other scholars have demonstrated the ways in which the failure to use an intersectional approach leads to misapprehensions about individuals' varied experiences of discrimination and subordination. (4) Shifting the focus, I will argue here--more affirmatively--that intersectionality can also be applied to existing rights standards to produce a wide variety of empowering norms that advocates can use right away. (5)
Since there are no real enforcement mechanisms for human rights internationally, much depends on whether--and how--advocates take up the discourse of rights. Indeed, outside of the various regional human rights bodies, which have binding authority over states in various forms, human rights institutions and advocates largely rely on their power to "name and shame" as they monitor countries' compliance with treaties. Despite the international human rights system's significant limits, it provides advocates with a language and a practice through which to engage states. Given the powerful transnational processes at work in producing conditions of life for migrant women, international human rights law should be seen as a crucial tool to capture the attention of both sending and receiving countries. What is needed is a skeptical engagement with human rights institutions and standards aimed at making states more responsive to the gendered, racialized, and class-specific impacts of economic globalization on women who cross borders to find work.
Through the lens of intersectionality, it is clear that treaty law prohibits governments from reducing policy decisions concerning the treatment of migrant workers to instrumental calculations about the economic impact of upholding entitlements. While advocates and scholars should welcome the Migrant Workers' Convention as an interpretive tool and as a potential site for the development of best practices, they should also refocus their attention on the entire range of human rights treaties, insisting that the rights of women migrants are already included in the panoply of standards set out in those instruments.
My argument will unfold as follows: in Section II, I situate the experience of women migrant workers by describing the major forces combining to create gendered labor migration flows. In Section III, I present the concept of intersectionality, consider the issue of women's vulnerability, and comment on the way in which human rights law can be used to reach private, non-state conduct. In Section IV, I apply intersectionality to several of the major issues that have been identified by rights advocates as especially pressing for women migrant workers. In relation to each of these forms of violation, I examine the ways in which human rights law can be invoked to require remedial steps and an end to abusive practices. The bulk of the analysis focuses on the experience of women in household service, since domestic work is the most prevalent occupation for women migrants around the world. (6) The analysis draws on the five most relevant major human rights conventions: (7) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); (8) the International Covenant on Social, Economic and Cultural Rights (ICESCR); (9) the International Covenant on Civil and Political Rights (ICCPR); (10) the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); (11) and the Migrant Workers Convention (MWC). (12) Since this Article focuses on treaty law, it does not include an analysis of the wide range of documents on migration produced by U.N. bodies in recent years, such as the reports produced by the U.N. Special Rapporteur on the Rights of Migrants (13) and the Secretary-General, (14) resolutions of the U.N. General Assembly (15) and the Commission on Human Rights, (16) documents relating to the International Commission on Migration, (17) or the outcome documents from the various world conferences of recent years, though they were consulted as background. Further, important work being done at the regional level--including the recent advisory opinion of the Inter-American Court of Human Rights affirming the rights of all migrant workers--is not examined in this Article. (18)
In the concluding section, I emphasize the need both to insist on enforcement of existing protections, and to remain attentive to emerging claims. Such emerging claims may require scholars and advocates to push the current boundaries of human rights frameworks to accommodate claims made by workers who are crossing borders at increasingly rapid rates.
This Article is intended to contribute to the efforts of advocates to use existing protections now, rather than waiting until more states have ratified the MWC, or until the U.N. human rights treaty bodies are effectively working in close coordination. It is also aimed at advancing scholarly consideration of human rights by demonstrating that careful doctrinal work can help close the gap between rules and reality by providing the normative clarity that is a prerequisite to effective rights enforcement.
II. FEMINIZED LABOR MIGRATION IN THE CONTEXT OF GLOBALIZATION
The world is witnessing an increasing feminizaton of migration, (19) resulting from a number of worldwide forces in which gender roles and sex discrimination are intertwined with globalization. Trends contributing to this include: the growing demand for labor in fields dominated by women (especially the service sector); the lower cost of production when labor-intensive tasks are shifted to women migrant workers; (20) and the sex-stereotyping of large business enterprises and governments that may see women as cheap, temporary, or supplemental laborers whose "docile" nature makes them easily exploitable. (21)
Other forces are more regional. Women's widespread participation in the wage labor market in the North, when combined with global income disparities in the South and persisting demands for Northern women to retain responsibility for household and childrearing tasks, has led to a dynamic in which Northern women's reproductive labor is transferred to women migrants working as domestics, whose reproductive labor is in turn shifted to family members or poor women at home. (22)
From the perspective of women seeking work, a wide variety of factors combine to make border-crossing an attractive, acceptable, or--in desperate circumstances--the only viable option. (23) Most job opportunities for women migrants are in unregulated sectors, including domestic work, informal "off the books" industries or services, and criminalized sectors, including the sex industry. (24) This means that even women who cross borders legally may find themselves in unregulated--and often irregular-work situations. (25) In addition, the majority of opportunities that offer legal channels of migration are in male dominated sectors such as agriculture and construction work, (26) putting women at a great disadvantage. The ILO explains that "the demand for foreign labor reflects the long term trend of informalization of low skilled and poorly paid jobs, where irregular migrants are preferred as they are willing to work for inferior salaries, for short periods in production peaks, or to take physically demanding and dirty jobs." (27)
In sum, globalization has ushered in increasing "pull" and "push" factors for women's migration for labor at the same time as it has resulted in decreasing regulation of the labor market, growth in the informal sector, and the emergence of new forms of exploitation, many of which are gendered. In the midst of these trends, many governments are tightening migration controls while simultaneously allowing private employers and recruiting agencies to operate unchecked by regulation or inspection. This interplay of competing incentives sets the scene for abuse of those already disadvantaged through systems of discrimination and marginalization that operate along axes of gender, race, poverty and position within the global economic order. For women in many parts of the world, these trends spell increased vulnerability to exploitation and abuse, while simultaneously presenting opportunities for empowerment.
III. APPROACHES TO USING HUMAN RIGHTS LAW TO EMPOWER WOMEN MIGRANT WORKERS
Although the human rights system is in many ways limited by the single-variable framework described in the introduction, the system is also flexible enough to allow for alternative interpretive methodologies. Through intersectionality, human rights law can effectively be used by advocates to respond to the myriad aspects of women migrant workers' experience as multiply situated individuals. Further, human rights law can support carefully crafted responses to discrimination and exploitation that do not reinscribe women as victims in need of protection. Since states have obligations under treaty law to end discrimination and exploitation carried out by private actors, governments' efforts to end abusive practices should reach employers and recruitment agencies.
Briefly, intersectionality is an approach to combating discrimination in which the various forms of subordination that people face are taken into consideration as they act together. (28) Instead of conceiving of a Filipina domestic worker, for example, as separately or consecutively disadvantaged by gender and racial discrimination in the United States, intersectionality calls attention to the ways in which race and gender interact--or intersect--to create specific forms of discrimination and oppression. A Filipina migrant woman's experience of racism in the U.S. will be different than the racism experienced by a Filipino migrant man in the same location, and her experience of gender discrimination will differ from that of a native born American woman of any race; these differences are seen as crucially important by those using intersectional analysis, since they may require different remedial and preventive actions. Further, by focusing on the dynamics of multiple forms of discrimination, intersectionality emphasizes society's responses to variously situated individuals and groups rather than the characteristics of disparate sets of people. (29)
The version of intersectionality most familiar to North American legal audiences was formulated in the 1990s by critical race feminists. (30) This American strand of intersectionality has since blended with other forms of intersectional analysis and has been used and re-crafted by scholars, (31) advocates, (32) and jurists (33) both in North America and abroad. The concept of multiple forms of discrimination--if not intersectionality--has even entered the language of U.N. documents. (34) Although the use of this language is important, intersectionality, as a mode of analysis in which all of the axes of discrimination are systematically considered as they work together, has not been truly integrated into the work of the human rights bodies of the United Nations.
In recent years, a number of scholars have applied intersectionality analysis to international human rights norms and processes. (35) In an important 1997 article, Lisa Crooms uses intersectionality to elucidate U.S. obligations under the CERD Convention, and concludes that, if applied holistically and robustly, human rights law can respond effectively to women's intersectional experiences of racism, sexism, and other forms of discrimination.
Similarly, Kimberle Crenshaw--a pioneer of intersectional analysis in relation to U.S. domestic law--has explored the ways in which "[n]either the gender aspects of racial discrimination nor the racial aspects of gender discrimination are fully comprehended within human rights discourses." (36) Crenshaw recommends a number of specific steps that should be taken by the human rights community to implement intersectionality. The majority of her recommendations are institutional or procedural, ranging from improved disaggregation by gender and race of all statistics used in human rights monitoring to the appointment of a Special Rapporteur to develop greater awareness about the conditions of women of color and the convening of joint meetings by the CERD and CEDAW monitoring committees. (37) Crenshaw also recommends that treaty bodies interpret their own mandates as requiring intersectional analysis, though she limits this recommendation to the CERD and CEDAW committees. (38)
Building on this work, Johanna Bond has recently called for renewed attention to intersectionality in the international arena and has identified specifically the need for both a "theoretical shift" toward using intersectionality and institutional reforms aimed at encouraging intersectional analyses by the treaty bodies and other UN human rights mechanisms. When it comes to concrete proposals, Bond's focus is heavily on institutional reforms, with suggestions ranging from the drafting of General Recommendations and Comments that would promote intersectionality to the appointment by treaty committees of cross-treaty liaisons and the development of joint reports by the Special Rapporteurs on Violence Against Women and the Special Rapporteur on Racism and Xenophobia. (39) She also points to the need for more scholarship that applies--rather than merely theorizes--intersectionality to human rights problems. (40)
Taking up this challenge, I use intersectionality in this Article to analyze the situation of women migrant workers. I intend to perform the kind of analysis requested by Crenshaw and Bond: Examining some major human rights concerns women migrant workers face, I will set out the ways in which race, gender, and other variables interact in the daily lives of women migrant workers. But I also intend to push beyond this applied form of intersectionality with its focus on identifying forms of discrimination and suggesting institutional reform. Shifting the emphasis from only articulating forms of discrimination to also identifying protections, I will use intersectionality to uncover those human rights norms that already exist, and which could be called upon to fight the subordinating practices made so clear through intersectional descriptions of violations. (41)
Women migrant workers face abuses not only at the hands of government officials, but also private individuals, companies, and other non-state actors. This is true all along a migrant's trajectory of movement, as well as in her chosen place of work. In fact, most of the abuses described in this Article are committed by private actors in the sense that they are not carried out directly by government personnel, but are instead perpetrated by employers and recruitment agencies. For this reason, it is important to acknowledge the ways in which the human rights framework responds to abuses that are carried out by agents other than the state.
Under human rights law, the state has a broad set of positive and negative obligations concerning both private and public conduct. These obligations have been abbreviated in the human rights field into the three-part requirement that states must respect, protect, and fulfill rights. States must respect rights by ensuring that the state and its instrumentalities do not violate rights; protect rights by preventing violations by non-state actors and investigating, punishing, and redressing violations when they do occur; and fulfill rights by creating enabling conditions for all individuals to enjoy their full rights. (42) In stun, then, in relation to both civil and political rights and economic, social, and cultural rights, the state must ensure that conditions are such that all people enjoy all of their rights. Though the state actions required in relation to each set of rights--and indeed each individual right--may differ, this common framework is a helpful way of conceptualizing state obligations. It should help guide readers through the doctrinal analysis in this Article: the focus is on the obligations of states, even when the abuses are occurring in private at the hands of non-state actors, since the state is ultimately responsible for setting up regulatory systems and monitoring schemes to halt such abuses. (43)
IV. INTERNATIONAL INTERSECTIONALITY: ARTICULATING ABUSES, IDENTIFYING RIGHTS
This section will begin by considering the principles of nondiscrimination and equal protection as they apply to women migrant workers. Following this introduction to core principles, the longest portion of the section will analyze the substantive treaty norms relevant to prevalent forms of discrimination and abuse that women migrant workers face. (44) For each set of violations, the relevant rights standards will be examined, alongside a brief consideration of some of the steps states may be required to take to fulfill their obligations to respect, protect, and fulfill the rights of variously situated women migrant workers under these treaties. This analysis will be based on a careful consideration of the major human rights treaties and their interlocking norms, as well as the interpretations of the treaties by their U.N. monitoring bodies.
This section is written in general terms, and includes descriptions of violations that occur in widely disparate circumstances. The common consideration of such violations may tend to decontextualize them, but it also highlights real similarities across geographical, political, and cultural spaces. These commonalities occur as a result of globalized labor and migration patterns, as well as both local and cross-national forms of gender discrimination and exploitation. (45) For this reason, joint consideration is justified, and international human rights responses are especially important: the negative impacts of globalization cannot be corrected by any one state, but must instead be addressed by all states as they uphold their responsibilities to respect, protect, and fulfill human rights.
Since this section is written in general terms, it does not examine questions that would be crucial for country-specific advocacy work, including the ratification status and extent of possible reservations to each of the treaties examined here. At a general level, this section examines the web of international norms that has been woven concerning women migrant workers. For that reason, the analysis in this section would only apply as a legal matter to states that have ratified the treaties under discussion without relevant reservations. As a normative matter, however, the existence of these rules, based on multilateral treaties that are in force for hundreds of States Parties, (46) evidences certain ethical principles applicable in a persuasive manner to the entire international community and contributes over time to the crystallization of customary international law rules. (47)
This section will conclude with a discussion of the human rights norms that can be used to argue against the imposition of overprotective measures and restrictive responses to abuses against women migrant workers. Since many governments have placed restrictions on women's freedom of movement and ability to seek employment abroad in response to rights violations they have suffered in receiving countries, it will be important to identify rules that can be used to guide states' choice of measures to respect, protect and fulfill women's rights.
A. Core Principles: Non-Discrimination, Equality and Equal Protection; Ensuring Equality for Women Migrant Workers
Women migrant workers suffer specific forms of abuse and deserve full protection from these abuses under human rights law. While the human rights framework provides a wide range of standards and mechanisms that are relevant to this group, it is a challenge to build an analytical approach to women migrant workers' rights that will encompass all aspects of their experiences. At this stage in the development of the human rights framework, the experiences of women migrant workers have not been thoroughly and holistically articulated by international human rights analysis. Until now, women migrant workers have stood at the crossroads of three major sets of norms: the human rights standards pertaining to women--mostly strong, protective standards; the human rights of workers--again, clearly articulated and robust; and the human rights rules concerning aliens or migrants--rules that remain in development, but which currently offer less protection than the rules relating to women and to workers. While this somewhat uncomfortable position means that women migrant workers' rights should be very carefully articulated based on existing standards, it in no way means that they are unprotected. Indeed, as this Article will demonstrate through the use of international intersectionality, women migrant workers have a wide range of clear rights to depend on, and states have existing obligations toward them that must be fulfilled.
The primary principles of non-discrimination, equality and equal protection of the law are essential to any human rights analysis, since they embody the general rule that human rights must be extended to all equally and that avenues for redress should be made available to all on an equal footing. Over the years, these guarantees have been very strongly articulated with respect to certain groups that tend to face discrimination--including women. Unlike women, however, aliens and migrants, though they often face discrimination on the basis of their status as aliens or migrants, are not generally protected as a category. (48) Indeed, some exceptions to the standards of equal protection and non-discrimination have been carved out in relation to these groups, allowing states to make certain distinctions between citizens and non-citizens, and between documented and undocumented aliens under international human rights law. This does not mean that states can violate the rights of aliens and migrants with impunity. Instead, it means that with respect to a small number of rights, states may limit their application to nationals or to documented migrants. This subset of rights never includes the most fundamental guarantees- so-called "non-derogable rights"--and even permissible restrictions may not be imposed discriminatorily as between men and women. Further, since they are only permissible in specific circumstances, distinctions between citizens and non-citizens, and between documented and undocumented aliens should be scrutinized very closely.
The principle of equal protection requires states to ensure that individuals whose rights have been violated are able to access remedies on a basis of equality. Under this principle, women migrant workers should be able to seek remedies for rights violations in both their countries of origin and in the countries in which they work.
1. The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) contains strong general non-discrimination and equal protection guarantees. Under Article 2, each State Party "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized within the present Convention, without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." This protective standard does not draw a distinction between the rights of citizens and non-citizens and therefore requires States Parties to extend the rights within the Convention to all individuals equally. Indeed, the reference to "national origin" in this Article may be construed as a rule prohibiting discrimination on the basis of nationality. (49) In its 2004 General Comment on the Nature of the Covenant, the Human Rights Committee underscores this rule, emphasizing that "the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness ... who may find themselves in the territory or subject to the jurisdiction of the State Party." (50)
Article 3 ensures equal civil and political rights to women and men. In its General Comment on Non-discrimination (No. 18, 1989), the Human Rights Committee noted that since the Covenant does not define discrimination, the definitions of discrimination set out in CERD and CEDAW should guide the interpretation of the ICCPR so that the term discrimination is "understood to imply any distinction, exclusion, restriction or preference ... based on any ground ... and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." (51) This "purpose or effect" standard has been recognized as essential to international efforts to combat discrimination. Article 26 holds that all people are entitled to equal protection of the law. (52) This article is crucial because it extends equal protection of the law to all persons subject to the State Party's jurisdiction, including women and aliens. One of the most important ways to enforce nondiscrimination standards is to ensure that all individuals--here, women migrant workers--are able to vindicate their rights equally under the law. Violations of the right to equal protection are among the most critical violations that women migrant workers face, since such infringements compound the underlying violation for which a remedy is sought. For example, everyone has the right to be free of servitude, but when non-nationals or women are denied even the ability to challenge their servitude in a court in the country where they work, they are also facing a denial of the equal protection of the law. Further, since aliens benefit from equal protection under the Covenant, all legislation in states that have ratified the Convention must be applied to aliens without discrimination. (53) This means that in states that have enacted protective legislation on wages or working conditions, for example, such protections must be applied equally to aliens, unless the state can demonstrate that the exemption of aliens aims at achieving a legitimate purpose under the Covenant. (54) This will be especially important in cases in which a state has ratified the ICCPR but not the ICESCR or other treaties guaranteeing substantive economic and social rights.
In general then, the protections of the ICCPR are guaranteed without discrimination between women and men, and between citizens and aliens. (55) Against this background rule, some articles are specifically limited to citizens. (56) These rights--to participate in public affairs, to vote and hold office, to have access to public services, and to enter one's own country--are rights directly tied to the status of citizenship in a democratic state. (57) The special nature of these rights makes their limited applicability to citizens acceptable.
In addition to these citizenship rights, there is one other category of rights that may be limited in relation to non-citizens in specific circumstances. Article 4 holds that in the instance of a public emergency, which "threatens the life of the nation and the existence of which is officially proclaimed," states may derogate from a limited set of obligations under the Covenant so long as the derogations are not implemented in a manner that discriminates on grounds of race, color, sex, language, religion or social origin. Note that this list of prohibited classifications is narrower than the general non-discrimination clause included in Article 2(1), and does not include nationality. For this reason, states that have declared a public emergency may limit the rights of aliens, but only in relation to those rights which are not non-derogable, and even then, the limitations may not extend beyond those which are strictly required by the exigencies of the situation. (58) This means that states may not use public emergencies as an excuse to limit the rights of aliens in ways that are unrelated to the emergency. Further, even when certain limitations are legitimate under the Covenant, it must be recalled that all of the non-derogable provisions and rights under the Covenant continue to protect citizens and aliens equally within a State Party s jurisdiction. For these reasons, limits on the rights o women migrant workers during states of emergency must be closely scrutinized to ensure they are strictly necessary under the prevailing circumstances, and that they do not constitute sex-based discrimination. (59)
2. The International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR) includes strong non-discrimination guarantees in the field of social and cultural rights and slightly less protective guarantees for economic rights. (60) With respect to gender, the ICESCR contains a guarantee identical to that in the ICCPR: Article 3 guarantees the "equal right of men and women to the enjoyment of all economic, social and cultural rights...." In addition, the list of protected groups in Article 2 is also identical to those included in the ICCPR. Article 2 obliges States Parties to "undertake to guarantee that the rights enunciated in the present Convention will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." As with the ICCPR, the reference to "national origin" in this article can be interpreted as a general rule prohibiting discrimination on the basis of nationality.
One specific exception to this rule is carved out, however, in Article 2(3) of the Convention. Under this provision, developing countries, "with due regard to human rights and their national economy[,] may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals." (61) It must be stressed that this exception is limited to developing countries, and to economic rights. Aliens continue to enjoy the full complement of social and cultural rights in all countries. Further, by calling on states to make this decision with "due regard" to human rights as well as the national economy, the treaty makes clear that states may not use this provision as a general exemption from the obligation to protect the economic human rights of aliens. Further, even when permissible, it may be possible to argue, using Article 3, that restrictions on the economic rights of aliens must not be applied in such a manner as to amount to sex discrimination. This would mean that both limitations on economic rights that are facially discriminatory on the basis of sex, and those which violate substantive equality by impacting women disproportionately, would be impermissible. (62)
3. Convention on the Elimination of All Forms of Racial Discrimination
The Convention on the Elimination of All Forms of Racial Discrimination (CERD) includes strong language requiring States Parties to prohibit and eliminate racial discrimination in all its forms and to guarantee equality before the law to all without distinction as to "race, color, or national or ethnic origin." (63) On its face, the reference to "national origin" appears to prohibit discriminatory distinctions between citizens and non-citizens as it does in the ICCPR and the ICESCR. The CERD Convention regime is more complex than this, however. Article 1(2) states that the Convention does not prevent the state from drawing distinctions between citizens and non-citizens: "[t]his Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a state party to this Convention between citizens and non-citizens."
In addition to this provision, Article 1(3) makes clear that the treaty will not affect the rights of States Parties to determine how they grant nationality, citizenship or naturalization. (64) It is important to note that these provisions clarify the scope of the Convention rather than authorizing substantive restrictions on the rights of aliens. Article 1(2) is simply saying that CERD is not the standard to look to when determining the permissibility of distinctions on the basis of alien status. (65) This means that States Parties to CERD cannot find permission in the Convention to contravene the rights of aliens recognized in other human rights instruments, such as those included in the ICCPR and the ICESCR. (66) Indeed, those rights remain, and they functionally trump the silence of the CERD Convention in this area.
In addition, the CERD Committee has interpreted the Convention to prohibit the application in a racially discriminatory manner of otherwise permissible distinctions between citizens and non-citizens. (67) Even more potentially far-reaching is the principle the CERD...
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