Discrimination on the Basis of Nationality Under the Convention on the Elimination of Racial Discrimination

Following a recent judgment by the International Court of Justice (ICJ), a divergence has opened between the Court and the Committee on the Elimination of Racial Discrimination (CERD Committee) over whether the Convention on the Elimination of All Forms of Racial Discrimination (CERD) covers nationality-based discrimination. The ICJ held that the CERD does not, but the CERD Committee had previously held the opposite. The solution to this difference is to recognize that the CERD excludes discrimination between citizens and aliens, and, in this, the ICJ was correct. However, this discrimination is distinct from discrimination between foreign persons on the basis of their nationality, which is covered by the CERD. It is for this latter form of discrimination that the CERD Committee is correct. In essence, the ICJ and the CERD Committee are both partly wrong and partly correct, and by identifying this nuance between forms of nationality discrimination, we can reconcile the two views.