While CERD thus provides for the possibility of differentiating between nationals and nonnationals, as the Committee on the Elimination of All Forms of Racial Discrimination has
noted in its 30th General Recommendation, “[Article 1(2)] must be construed so as to avoid
undermining the basic prohibition of discrimination; hence, it should not be interpreted to
detract in any way from the rights and freedoms recognized and enunciated in particular in
the Universal Declaration of Human Rights, the International Covenant on Economic, Social
and Cultural Rights and the International Covenant on Civil and Political Rights”.120 The
Committee then went on to say:
3. Article 5 of [CERD] incorporates the obligation of States parties to prohibit and eliminate racial
discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of
these rights, such as the right to participate in elections, to vote and to stand for election, may be confined
to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an
obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the
extent recognized under international law;
4. Under the Convention, differential treatment based on citizenship or immigration status will constitute
discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of
the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement
of this aim … 121
Nationality in municipal law
As well as being a concept of international law, nationality is also a concept of municipal
law. Indeed, as the International Court of Justice observed in the Nottebohm case:
nationality has its most immediate, its most far-reaching and, for most people, its only effects within the
legal system of the State conferring it. Nationality serves above all to determine that the person upon
whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in
question grants to or imposes on its nationals. This is implied in the wider concept that nationality is within
the domestic jurisdiction of the State.122
Thus, the scope of the rights and obligations attached to a person’s nationality is determined
by the municipal law of the State of which he or she is a national.
Municipal law may grant nationals rights which go beyond those which the State is required
to provide under international human rights law. All nationals may, for example, be entitled
to free university education.
Municipal law may also grant to non-nationals certain rights which under international law
only have to be granted to nationals, e.g. some countries allow non-nationals who are
permanent residents to vote in local elections. However, in all, or virtually all States, certain
rights and obligations nevertheless remain reserved for persons who possess the nationality of
the State concerned.123 Any provisions to this effect under municipal law must be consistent
120
121
122
123
Committee on the Elimination of All Forms of Racial Discrimination, “General Recommendation No. 30:
Discrimination against Non Citizens”, 1 October 2004.
Ibid.
Nottebohm Case (Liechtenstein v. Guatemala) I.C.J. Reports 1955, p. 20. See also Inter-American Court of
Human Rights, Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica,
Advisory Opinion OV-4/84 of 19 January 1984, para. 34.
In exceptional cases non-nationals may be assimilated to nationals, as envisaged by Article 1(2)(ii) of the
1954 Statelessness Convention according to which “[This Convention shall not apply to] persons who are
recognized by the competent authorities of the country in which they have taken residence as having the
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