Racial Discrimination and Nationality and Migration Exceptions: Reconciling CERD and the Race Equality Directive

Abstract

The principles of equality and non-discrimination offer potentially valuable tools to challenge discriminatory practices employed by States against non-citizens. However, nationality and immigration-related exceptions are an established feature of non-discrimination laws. Such exceptions raise fundamental questions about the scope of the protection offered by anti-discrimination laws and have the potential to perpetuate, rather than eliminate, race discrimination. This article addresses this critical but often neglected issue, through a doctrinal analysis of two specific exceptions - Articles 1(2) and 1(3) of the UN Convention on the Elimination of All Forms of Racial Discrimination and Article 3(2) of the EU's Race Equality Directive - and an examination of their impact in practice at the domestic level. We argue that nationality and migration status exceptions must be interpreted as narrowly as possible, in line with the core purpose of these instruments to eliminate race discrimination. Furthermore, we suggest that the interplay between these legal frameworks at the domestic level of implementation takes on particular importance in defining the scope and limits of nationality and migration-based exceptions.