a special importance should be attached to discrimination based on race, and that to publicly single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question.259 The UN Commission on Human Rights adopted a series of resolutions dating back to 1997 on arbitrary deprivation of nationality noting that “arbitrary deprivation of nationality on racial, national, ethnic or religious is a violation of human rights and fundamental freedoms.”260 In later resolutions, “political or gender grounds” were added.261 The Human Rights Council that replaced the Commission in 2006 has repeatedly confirmed and elaborated on this statement, most recently in 2016.262 This position is also echoed by the Committee on the Elimination of Racial Discrimination in its General Recommendation on discrimination against non-citizens adopted in 2004.263 The European Convention on nationality, adopted in 1997, avoids any doubt on the universal application of the norms of non-discrimination, and specifically bars discrimination in law or administrative practice governing nationality: “The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour, or national or ethnic origin.” The development of normative frameworks at the UN level has been complex. The Convention on the Elimination of Racial Discrimination (CERD), adopted in 1965, requires that enjoyment of the right to nationality be guaranteed to everyone “without distinction as to race, colour, or national or ethnic origin.”264 However, recognising that some forms of discrimination are intrinsic to the concept of nationality and form the basis of nationality law, the CERD also provides that “this Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens,” and excludes from its application “legal provisions of States parties concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality” (emphasis added).265 This convoluted language is the outcome of a compromise position between state sovereignty in nationality matters and the norm of non-discrimination.266 In 2004, the UN Committee on the Elimination of Racial Discrimination adopted a General Recommendation which urged states, among other things, to: 13. Ensure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalisation, and to pay due attention to possible barriers to naturalisation that may exist for long-term or permanent residents.267 Resolutions of the UN Commission on Human Rights and Human Rights Council on arbitrary deprivation of nationality have consistently called for states “to refrain from taking measures and from enacting legislation that discriminates against persons or groups of persons on grounds of race, colour or national or ethnic origin by nullifying or impairing the exercise, on an equal footing, of their right to nationality, and to repeal such legislation if it already exists.”268 259 East African Asians v. United Kingdom, application no. 4715/70 and others (consolidated), European Court of Human Rights, Decision of 14 December 1973, para 207, https://hudoc.echr.coe.int/eng?i=001-73658. Human rights and arbitrary deprivation of nationality, CHR res. 1997/36, ESCOR Supp. (No. 3) at 122, UN Doc. E/CN.4/1997/36 (1997), http://hrlibrary. umn.edu/UN/1997/Res036.html. 260 For example, Commission on Human Rights, Resolution 2005/45: Human Rights and Arbitrary Deprivation of Nationality, E/CN.4/RES/2005/45, 19 April 2005, https://www.refworld.org/docid/429c3b694.html. 261 Human Rights Council, Resolution on Human rights and arbitrary deprivation of nationality, A/HRC/RES/32/5, 15 July 2016, which, among other things, “stresses that the arbitrary deprivation of nationality, especially on discriminatory grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, including disability, is a violation of human rights and fundamental freedoms.” See also periodic Reports of the Secretary General to the Human Rights Council on “Human rights and arbitrary deprivation of nationality.” Human Rights Council reports and resolutions on nationality collated at: https://www.ohchr.org/en/nationality-and-statelessness. 262 General Recommendation XXX of the Committee on the Elimination of Racial Discrimination on Discrimination against Non-citizens, 5 August 2004, https:// www.refworld.org/docid/45139e084.html, included within report The Rights of Non-citizens, Office of the UN High Commissioner for Human Rights, 2006, https://www.ohchr.org/en/publications/special-issue-publications/rights-non-citizens. 263 264 CERD, art. 5: “states Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:[…] (d) Other civil rights, in particular: […] (iii) The right to nationality.” 265 CERD, art 1. The CERD was adopted while decolonisation was rapidly progressing, and the newly independent states wished not to be constrained as they redressed the imbalances caused by pervasive discrimination under colonial laws. See Bronwen Manby, ”Post-colonial Citizenship and Decolonisation as a Turning Point: Continuities and Discontinuities in African states”, Robert Schuman Centre for Advanced Studies, European University Institute Working Paper 2023/01, January 2023, https://cadmus.eui.eu/handle/1814/75181. 266 Committee on the Elimination of Racial Discrimination, General Recommendation XXX on Discrimination against Non-citizens, 5 August 2004, https://www. refworld.org/docid/45139e084.html. 267 268 Human rights and arbitrary deprivation of nationality, E/CN.4/1997/36, Commission on Human Rights, 11 April 1997, http://hrlibrary.umn.edu/UN/1997/ Res036.html. Resolutions on arbitrary deprivation of nationality adopted by the Human Rights Council, which replaced the Commission on Human Rights, are available here: https://www.ohchr.org/en/nationality-and-statelessness/resolutions. 68 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S