Addressing Statelessness through ICERD
Nevertheless, in the period of 2004–19, the Committee has referred to themes
related to ‘nationality’, ‘statelessness’ or ‘naturalisation’ in at least 145
Concluding Observations — over half of all such assessments — ranging from
recommendations to accede to the Statelessness Conventions; to provide data on
naturalisation procedures; to change citizenship legislation; and consider granting
nationality to particular stateless groups.
In 2004, the Committee clarified in its GR 30 how it interpreted the obligations
under the Convention regarding non-citizens, in which it devoted a section on
access to citizenship. 14 This interpretation is the starting point of this paper. In
particular, the article will look at three aspects of the right to a nationality;
deprivation of nationality, denial of nationality and positive obligations to fulfil
the right to a nationality.
The Content of the Convention
In comparison to the other instruments of that period — the Universal Declaration
of Human Rights (‘UDHR’), 15 the Charter of the United Nations, 16 the
International Covenant on Civil and Political Rights (‘ICCPR’) and the
International Covenant on Economic, Social and Cultural Rights. 17 —the ICERD
provides for the equal enjoyment of existing rights regardless of racial
background, rather than it stipulating new rights. 18 As Thornberry notes, the
genesis of the ICERD strives against ‘unfair or unjust distinctions on defined
grounds’ that lead to an unequal enjoyment of the already accepted human rights. 19
As such, it relies on the rights included in other treaties. However, in art 5, an
open-ended list of rights is provided, including in the right to a nationality. 20 This
builds onto the key art 1, defining racial discrimination, and art 2, which sets out
the measures a member state should take to eliminate such discrimination.
The ICERD has repeatedly been described as a ‘living instrument’, which
should be read in light of both legal and practical circumstances. The Committee
therefore holds the opinion that the ICERD ‘must be interpreted and applied taking
into account the circumstances of contemporary society’, and this interpretation
can therefore change over time and with context. 21 One of the changes over time
has been that, although the ICERD does not create new rights, the rights listed
14
15
16
17
18
19
20
21
GR 30, UN Doc CERD/C/64/Misc.11/Rev.3 (n 13) [13]–[17].
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen
mtg, UN Doc A/810 (10 December 1948) (‘UDHR’).
Charter of the United Nations.
ICCPR (n 7); International Covenant on Economic, Social and Cultural Rights, opened for
signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
Egon Schwelb, ‘The International Convention on the Elimination of all Forms of Racial
Discrimination’ (1966) 15(4) The International and Comparative Law Quarterly 1001–2.
Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial
Discrimination (Oxford University Press 2016) 132.
ICERD (n 3) art 5(d)(iii).
Thornberry (n 19) 4; Committee on the Elimination of Racial Discrimination, General
Recommendation No 32: The Meaning and Scope of Special Measures in the International
Convention on the Elimination of All Forms Racial Discrimination, UN Doc CERD/C/GC/32
(24 September 2009) (‘GR 32’) [5]; Committee on the Elimination of Racial Discrimination,
Communication No 26/2002, UN Doc CERD/C/62/D/26/2002 (14 April 2003) [7.3];
Committee on the Elimination of Racial Discrimination, General Recommendation 35 on
Combatting Racist Hate Speech, UN Doc CERD/C/GC/35 (26 September 2013) [4].
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