Addressing Statelessness through ICERD
procedure to adequately ensure the identification and protection of stateless
persons’. 163 States are recommended that ‘facilitated naturalization of refugees
and stateless persons’ is a possible solution to their lack of nationality. 164 While
the Committee does not recommend this for all refugee-situations, it does seem to
provide an opening for facilitated naturalisation as a durable solution for refugees
and asylum-seekers at risk of statelessness.
To sum up, under the provisions of arts 2(1)(e) and 2(2) of the ICERD, States
Parties have a positive obligation to work towards the elimination of racial
discrimination. The Committee has made its strongest Concluding Observations
on tearing down existing barriers to naturalisation, including hurdles in the
application process that enforce an already existing inequality. States are
recommended to take steps to enable anyone the access to nationality. Only in a
few cases has the Committee recommended states to take special measures
targeting one particular group. However, it does acknowledge that the very
presence of non-citizens gives rise to an obligation towards these non-citizens.
CONCLUSION
As described in the introduction, racial discrimination is one of the main root
causes of statelessness. Owing to its mandate to eliminate such discrimination in
all its forms, the ICERD has the potential to ensure an effective nationality to every
individual, regardless of their race, colour, descent, national or ethnic origin. 165
As its monitoring body, the Committee has the mandate to promote the
implementation of the ICERD through the periodic review of Member States,
interpretations of particular provisions in the ICERD and other communications,
and can, therefore, play a pivotal role in ensuring an equal enjoyment of the right
to a nationality.
In its Concluding Observations, the Committee made references related to
nationality, citizenship and statelessness in 145 out of 262 Concluding
Observations from 2004–19. That is a clear sign that this issue is of relevance to
the Committee. These recommendations are diverse and may range from a request
to provide more data on a state party’s naturalisation procedure, to urging them to
recognise a particular group within the state party’s jurisdiction as citizens. This
paper aims to provide a clearer picture of how the Committee interprets the right
to nationality, and whether there are gaps that needs to be solved.
Regarding the ICERD’s mandate, the starting point is the Committee’s
consistent reference to its aim of eliminating ‘all forms of racial discrimination’,
and providing for the rights listed in art 5 without racial discrimination. This builds
onto the key art 1, defining racial discrimination, and art 2, which sets out the
measures a member state should take to do so.
163 Committee on the Elimination of Racial Discrimination, Concluding Observations on the
Combined Seventh to Ninth Periodic Reports of Japan, UN Doc CERD/C/JPN/CO/7-9 (29
August 2014) [23]; Committee on the Elimination of Racial Discrimination, Concluding
Observations on the Combined Eight to Tenth Periodic Reports of Kyrgyzstan, UN Doc
CERD/C/KGZ/CO/8-10 (30 May 2018) [30]; Committee on the Elimination of Racial
Discrimination, Concluding Observations on the Combined Fifth to Ninth Reports of Ireland,
UN Doc CERD/C/IRL/CO/5-9 (12 December 2019) [36].
164 Committee on the Elimination of Racial Discrimination, Concluding Observations on the
Fourth to Sixth Periodic Reports of Liechtenstein, UN Doc CERD/C/LIE/CO/4-6 (31 August
2012) [14].
165 ICERD (n 3) arts 1(1), 5.
245