Manasa Venkatachalam*
Introduction
With the swelling of nationalism globally, the definition of national identities is becoming increasingly restrictive. This phenomenon is extremely evident in India, where the Citizenship (Amendment) Act, 2019 (CAA) expressly relies on national origin and religion as factors to determine eligibility for citizenship. In this climate of individualistic, national identities, it is important to evaluate how this sense of belonging ties into legal frameworks governing identity, and in particular, definitions of citizenship. Given the involvement of ethnic, national, and religious factors that have become increasingly evident in the granting of citizenship in several parts of the world, the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) becomes a relevant tool to assess such issues from an international legal perspective. This article utilizes the ICERD to examine this leading question: how far can states go in creating criteria to exclude those from citizenship based on ethnic or religious grounds?
Scholars belonging to the Third World Approaches to International Law school often point out how citizenship was created to sustain a colonial and imperial order, and thus, citizenship laws are aimed at excluding “backward” peoples who were viewed as incapable of possessing property and exercising rationality (see, e.g., Bhandar, p. 35; Shahid & Turner, p. 7). The historical exclusion of indigenous communities, women, and people of color from the privilege of citizenship illustrates how citizenship status is used as a tool of “othering” (Edwards). This practice continues in the post-colonial era despite global developments like the ICERD.
The proposal to codify an international prohibition on racial discrimination emerged from the recently independent Pan-Africanist segment of the United Nations. Concerned by the othering and racist discrimination inherent in colonial imperialism, Global South states engaged in forceful multilateral human rights diplomacy to build support for an international prohibition on racial discrimination (see Schabas, p. 248-52). Their efforts resulted in the U.N. General Assembly’s approval of the ICERD in 1965 (Preamble, para. 4; Keane & Waughray, p. 4; Boyle & Baldaccini, who point out how the ICERD painted racism as being “solely about the consequences of Western imperialism”). Even the International Court of Justice (para. 86) has observed that the Convention was drafted “against the backdrop of the 1960s decolonization movement.”
In many ways, the ICERD represents law-making by and for the “Third World.” The Convention’s history makes it an interesting tool to use to examine issues of racial discrimination in the Global South. Still, the ICERD is not without its issues. One significant problem is that Article 1(3) of the ICERD excludes review of domestic nationality laws from the scope of its protection. The International Court of Justice (“ICJ”) has subsequently touched upon the ambit of the exceptions to the prohibition of racial discrimination regarding nationality in its interpretation of the term “national origin.” However, the ICJ confined its analysis to the ICERD and did not consider whether the prohibition on racial discrimination has independent customary character. The International Law Commission’s (“ILC”) recent work (p. 16) on documenting jus cogens norms has introduced a new factor to consider: whether the prohibition of racial discrimination is a peremptory norm. Since peremptory norms are non-derogable,[2] if the prohibition on racial discrimination has peremptory status, all exceptions to this prohibition become irrelevant. This makes the applicable law a lot simpler and the exceptions to the prohibition on racial discrimination in Articles 1(2) and 1(3) of the ICERD inoperative. Using India’s 2019 Citizenship (Amendment) Act (“CAA”) as an example, this article attempts to resolve the conflict between the ICERD’s prohibition of racial discrimination and the carve-out provided under ICERD Article 1(3), which exempts legal provisions concerning nationality from the scope of ICERD’s protection. In doing so, this article purposely distances itself from the explanations offered by the ICJ in Qatar v. UAE, choosing to instead focus on a different approach than the judgment: the possible peremptory nature of the prohibition of racial discrimination.
I. The ICERD and Nationality
The ICERD is one of the most widely ratified human rights treaties in the world. It has 182 states parties. This makes it a powerful tool to regulate discrimination in citizenship laws and practices (see Hoornick, p. 224). Article 1 of the ICERD prohibits racial discrimination, and Article 5(d)(iii) extends this prohibition to guarantee the enjoyment of the right to nationality regardless of race, color, or national or ethnic origin. However, there are certain exceptions to this prohibition that weaken the ICERD as a tool to combat discriminatory citizenship practices. Mainly, Article 1(3) cabins the ICERD’s scope to exclude review of legal provisions of states parties concerning nationality, citizenship, or naturalization as long as such laws do not discriminate against any specific nationality. Thus, the ICERD presents contradictory positions on the issue of discrimination in the grant and denial of citizenship.
Article 1(3), ICERD: Gaps and Relevance
Paragraphs (2) and (3) of Article 1 detail exceptions revolving around citizenship to the prohibition on racial discrimination in Article 1. Article 1(3) of the ICERD reads: “Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.” Article 1(2) excludes the application of the ICERD from “distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.” While the exception provided under Article 1(2) featured more prominently in Qatar v. UAE (see para. 83), Article 1(3) has not received such jurisprudential attention. This could be an indication of states’ and courts’ attitudes towards the sovereign sacredness attached to laws governing citizenship, as emphasized in the ICJ’s Nottebohm judgement.[2] The question that has gone unanswered owing to this lack of discussion is whether grounds other than discrimination against a particular nationality can be used to maneuver around ICERD Article 1(3).
Before delving into an analysis of the ICERD, it is important to highlight the practical importance of this inquiry. The current government in India is led by the Hindu nationalist Bharatiya Janata Party. The party’s representatives, specifically the Union Home Minister, have made several statements indicating their anti-Muslim sentiment and how the CAA and the impending National Register of Citizens (“NRC”) are coordinated policies to remove Muslims from the country.[3] Consequently, the next section will highlight the disparate grant of citizenship in India and the international legal consequences of these policies.
II. India, the CAA, and the NRC
The CAA amends the Indian Citizenship Act of 1955 to make specific classes of illegal migrants eligible for citizenship. Prior to this amendment, any person who satisfied the definition of an illegal migrant would not be eligible for Indian citizenship, and neither would their children (see s. 2(b) of the 1955 Act). However, the CAA establishes that if a person (1) belongs to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian community, (2) is from Afghanistan, Bangladesh, or Pakistan, or (3) entered India on or before 31st December 2014, such a person is now eligible for Indian citizenship.
The Union Government also plans on introducing a NRC for the entirety of the nation. The NRC would contain the names of all “genuine” Indian citizens, requiring persons to submit evidence to prove citizenship per the criteria in the 1955 Act (see Arts. 3 to 6). A similar system has been implemented in the Indian state of Assam. While this policy has not yet been enacted on the national level, the intention of the CAA and the NRC, as the Home Minister noted, is to “weed out” immigrants that the government deems illegal.
Data from the State of Assam illustrates the effect a nationwide NRC and CAA could have. In 2017, the first draft of the NRC was published for Assam. It excluded 19 million people out of 32.9 million applicants for citizenship. The final NRC for Assam was published in 2019 and excludes 1.9 million people from the list, deeming them all not citizens of India. While citizenship in Assam has always been regulated slightly differently ever since the influx of migrants and refugees from Bangladesh in the 1970s, this data offers insight into the impact that the CAA and NRC could have on the rest of the nation.
The Indian CAA and Discrimination Under ICERD Article 1(1)
In short, the CAA does distinguish and exclude individuals based on identities protected by the ICERD, nullifying basic human rights guaranteed to such persons.[4] It excludes any persons other than those from Afghanistan, Pakistan, and Bangladesh from the benefits of citizenship, which can be argued to amount to discrimination based on national origin.[5] As of April 2023, India hosts over 213,000 refugees and asylum seekers, most hailing from Sri Lanka, Afghanistan, China or Myanmar (UNHRC 2022, p. 9). Around 92,000 of these people originated in Sri Lanka, 72,291 from Tibet, and 30,308 from Myanmar (UNHRC 2023), and these are only those registered with the government (UNHRC 2022, p. 9). On the other hand, 14,466 refugees and asylum-seekers are from Afghanistan (UNHRC 2023), and even fewer are from Bangladesh and Pakistan. The law also clearly distinguishes between persons based on religion, as it only covers persons from Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities.
Additionally, the CAA violates several human rights, including the right to nationality and the right against statelessness. The right to a nationality, though disputed, seems to have entered today’s body of customary international law. Making its earliest appearance in Article 15 of the Universal Declaration of Human Rights, it has been transposed in varying forms into six of the nine core human rights treaties,[6] all of which have widespread ratification, strongly indicating state practice and opinio juris.[7]
The deprivation of the right to nationality has far-reaching consequences. Nationality is the “right to have rights.” Though human rights are inherent, citizenship is often the right that enables the enforcement of all rights; it is the connection between the State and its citizens that ensures the former’s protection of the latter (see Kesby). The deprivation of the right to nationality, consequently, is a deprivation of the vehicle for access to fundamental rights and protection under domestic law.
And, of course, nationality and statelessness are intimately linked. Dubbed a corollary of the right to a nationality (ILC, p. 27), the obligation to prevent and reduce statelessness is now widely considered customary (Case of the Girls Yean and Bosico, paras. 139-141; Blackman, p. 1183; Adjami & Harrington, pp. 102-3 for an in-depth explanation).[8] Statelessness, simply put, is the absence of nationality (1954 Convention, Art.1; Rütte, p. 242). For this reason, the duty to prevent statelessness has been described as a negative right arising from the right to a nationality (Blackman, p. 1176). When combined with the norm of equal and effective protection of the law (Juridical Condition and Rights of Undocumented Migrant, para. 101; UDHR, Art. 1; ICCPR, Art. 26; ICESCR, Arts. 3, 7; CRC, Art. 2; CEDAW, Art. 1), states must abstain from creating discriminatory mechanisms to grant citizenship (Case of the Girls Yean and Bosico, para. 141).
The CAA was enacted with the purpose of providing citizenship to a select few based on national origin and religion and, consequently, depriving the rest of the same. Additionally, irrespective of its purpose, the CAA certainly impeded the right to nationality of persons of national origin in countries other than the three mentioned. These distinctions imply that the CAA impairs the enjoyment of human rights on an equal footing, engaging the CERD’s definition of racial discrimination.
III. Article 1(3) ICERD: A Free Pass for India?
On a purely textual analysis, Article 1(3) of the ICERD would exclude the CAA from the ICERD’s protections. India’s law clearly covers issues of nationality and citizenship, and it does not distinguish against any nationality per se. (It does distinguish on national origin, but national origin has generally been regarded as different than nationality (ICJ, Qatar v. UAE, para. 105)).
A different way to look at the issue is to assess whether the prohibition on racial discrimination has peremptory status. The ICJ declined to take this approach in Qatar v. UAE. But the obligation to not undertake racial discrimination has been deemed erga omnes by the ICJ (see dicta in Barcelona Traction (para. 34)), and the ILC deemed it a jus cogens norm in 2022 (see Annex (e)). Treaty provisions that conflict with peremptory norms are non-derogable and void per customary treaty interpretation rules.[9] Thus, any exception to the prohibition of racial discrimination would be nullified, including Articles 1(2) and (3) of the ICERD. Unfortunately, the ICJ did not touch upon this in its judgment in UAE v. Qatar. Had it, would the outcome have been different?
An obvious reason as to why the ICJ did not venture into this territory is the severity of the approach. Recognizing ICERD’s prohibition on racial discrimination as reflective of customary international law would deal a considerable blow to the sovereign discretion of States in matters of nationality. Courts are legitimate when they are perceived as having the authority to make decisions, and the ICJ is not exempt from this idea. Legitimacy capital is thus linked to authority: when international courts act in a manner that could be perceived as exceeding the scope of authority granted to them, they lose authority (see Grossman et al., p. 5). Consequently, a decision from the ICJ that would use jus cogens as a means to override significant treaty provisions representing the sovereign will of States is highly unlikely, given the shockwaves it would generate with respect to its legitimacy. That being said, such a decision would still be a legally acceptable and effective means to expand the prohibition on racial discrimination.
Conclusion
Public international law has long recognized the State’s sovereign discretion in dictating terms for membership (Donner, p. 17). A permanent population is necessary for statehood; thus, the ability to control the membership of this population is a vital aspect of sovereignty (Mantu, p. 25). However, the focus on individual human rights is eroding this sovereignty-backed discretion. One tool contributing to this erosion has been the prohibition of racial discrimination.
Still, the untapped potential of the ICERD to evaluate selective nationality laws is striking. Selective citizenship laws deprive persons of vital fundamental rights, but remain under the international legal radar. The ICERD must be used to the fullest as a counter to such laws. With the ICERD’s growing usage in international litigation, the time for a challenge to discriminatory laws like India’s CAA may be ripe.
*Manasa Venkatachalam completed her B.A. LL.B. (Hons.) from Gujarat National Law University, India, and an Advanced LL.M. in Public International Law from Leiden University, Netherlands. She has worked with NGOs, law firms and international organizations over the years, engaging with several facets of human rights and international law. She started working with Blue Ocean Law in July 2023 and is assisting the firm in representing Vanuatu at the International Court of Justice for the Advisory Opinion on the Obligations of States in respect of Climate Change. She is currently based out of Amsterdam. You can find her on LinkedIn and X.
[1] The ILC, for instance, defines it as follows: “A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law (jus cogens) having the same character” (see Conclusion 3).
[2] See p. 20, where the ICJ determines: “It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain.”
[3] For example, Amit Shah has commented that “[f]irst we will pass the Citizenship Amendment bill and ensure that all the refugees from the neighbouring nations get the Indian citizenship. After that NRC will be made and we will detect and deport every infiltrator from our motherland” and that “[w]e will remove every single infiltrator from the country, except Buddha, Hindus and Sikhs.”
[4] This follows the definition of racial discrimination per Article 1(1) of the ICERD, which defines racial discrimination as [a]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
[5] See Judge Robinson’s definition of “national origin” in his Qatar v. UAE dissent (paras. 7-8): “According to the ordinary meaning of the words “national” and “origin”, the term “national origin” refers to a person’s historical relationship with a country where the people to which that person belongs are living… National origin refers not only to the place from which one’s forebears came; it may also refer to the place where one was born.”
[6] ICERD, Art. 7; 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 Persons with Disabilities, Art. 18; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Art. 29.
[7] On this, see the ICJ’s judgement in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (paras. 99-100), explaining how jus cogens norms are determined.
[8] This is reinforced via the Convention on the Reduction of Statelessness, Art. 1(1); the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, Art. 29, the Convention on the Rights of the Child, Art. 7(1), and the International Covenant on Civil and Political Rights, Art. 24(3).
[9] Vienna Convention on the Law of Treaties, Art. 53; Application of Genocide Case (Further Requests for the Indication of Provisional Measures) (Separate Opinion of Judge ad hoc Lauterpacht), para. 100; ILC, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, para. 365; B. Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250(2) RdC 217–384, 289.
