Racial discrimination in nationality law

A commonly accepted principle under international law is that countries may not discriminate on grounds of race in matters of nationality. Among the many instruments addressing this issue, the International Covenant on Civil and Political Rights states in Article 24 that every child shall have, without any discrimination as to race, the right to protection as well as the right to acquire a nationality. The European Convention on Nationality provides in Article 5 that the nationality legislation of contracting States may not contain distinctions or include any practice which amount to discrimination on the grounds of race, colour or national or ethnic origin.

The instrument dealing with racial discrimination most directly is the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), which entered into force on 4 January 1969. Article 5 of this Convention obliges the States Parties 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 a number of enumerated rights, including ‘the right to nationality’. The CERD therefore prohibits racial discrimination in law and practice with regard to acquisition, loss and deprivation of nationality.

There are still a few conspicuous examples where racial discrimination still exists in nationality law. The GLOBALCIT database on acquisition of citizenship identifies at least two cases. In Haiti, a child born in Haiti to non-citizen parents is only eligible for citizenship acquisition by ius soli if the father is an alien and of the African race, or, in the case of non-recognition of by the father, if the mother is an alien and of the African race. If this condition is not met because neither parent is of the African race, the child can only acquire Haitian citizenship later in life and under less generous conditions.

Liberia goes a step further by providing that Liberian citizenship can only be acquired if the person is ‘a Negro or of Negro descent’. While the constitutional ‘Negro clause’ which prohibits non-blacks from obtaining citizenship by birth or naturalization is currently being challenged by President George Weah, it is reported that there is insufficient support for removing the clause because ‘Liberians experience citizenship differently based on their class, gender and ethnicity, and this largely influences whether they reject or accept … the “Negro clause”’.

Author: Dr. Olivier Vonk