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A Conceptual Challenge For The U.N. Racism Conference


Monday, Sep. 03, 2001

Judging from events so far, the ongoing U.N. conference on racism may never tackle its ambitious agenda. With the debate turning acrimonious due to sharp disagreements over how to characterize the Israeli-Palestinian situation, most of the larger questions on the agenda — including those directly raised by Israel's treatment of Palestinians — are likely to be overshadowed.

One such issue is that of racism in the conferral of citizenship. A quick review of global practice reveals a marked tension — or perhaps contradiction is a better word — between citizenship policies and non-racist ideals. Indeed, the conflict is so clear, and the stakes are so high, that it is tempting to view citizenship rules as an anomaly. At least in practice, citizenship seems to be an area in which governments can act unrestrained by concerns of racial discrimination.

With its explicit focus on racism and xenophobia, the U.N. race conference offers a particularly appropriate forum to discuss this view and, hopefully, to challenge it. As is often the case with difficult issues, an analysis of citizenship policy and racism implies the necessary reexamination of some core assumptions. Such a searching appraisal could be of benefit in shedding light on broader issues of racism and xenophobia, and, in particular, on why racism has proven so difficult to eradicate.

The question of racism in the granting of citizenship is also a timely one. With travel from even the most remote places becoming less onerous, the world is seeing increasingly massive migration flows. How we view new immigrant arrivals — whether as potential citizens, temporary guest workers, or unwanted strangers — is certain to be one of the defining issues of the century.

The Citizenship Exception

While adamantly prohibiting racial and ethnic discrimination in other areas, international human rights law falters notably with regard to rules regulating citizenship. The Race Convention, the primary international treaty of relevance to the issue, actually includes an explicit exception for countries' citizenship and naturalization policies.

This provision specifies that the treaty's protections against discrimination do not generally extend to legal rules on citizenship and naturalization, although they do bar discrimination against particular nationalities. In other words, countries cannot, for example, allow European immigrants to naturalize while barring Haitians. But in myriad other ways, countries are free to impose highly discriminatory citizenship rules, ones that favor one racial or ethnic group over everyone else.

International Practice

Many countries do, in fact, grant citizenship on an obviously discriminatory basis. Israel's Law of Return is perhaps the best-known example of the practice: it opens the country's doors to anyone with at least one Jewish grandparent. Germany, as well, recognizes a "Right of Return" that permits ethnic Germans, mostly from Eastern Europe and the Soviet successor states, to obtain citizenship upon their arrival in Germany.

The United States has its own history of explicit discrimination in the conferral of citizenship. In 1882, Congress passed the Chinese Exclusion Act, which regulated immigration and naturalization on the basis of race. By 1924, with the exception of Filipino "nationals," all Asian immigrants, including Koreans, Japanese, and Indians, were excluded by law from obtaining U.S. citizenship through naturalization.

In addition, countries have frequently deprived people of citizenship on discriminatory grounds. Ethiopia, for example, summarily denationalized and expelled some 70,000 citizens of Eritrean origin after war broke out with Eritrea in 1998.

Discriminatory Impact

But even in countries where discrimination in the granting of citizenship is less overt, the actual state of affairs is not all that different. In racial terms, citizenship rules overwhelmingly favor the status quo. In other words, they tend to perpetuate existing racial and ethnic majorities, while excluding members of minorities.

In general, there are three ways to obtain a citizenship: birth on a country's territory (jus soli), descent from a citizen (jus sanguinis), and naturalization. In many countries, the possibility of naturalization (which is the most open to racial diversity) is extremely limited. Descent is the most traditional route to citizenship, with jus sanguinis remaining the primary method used by many countries. It is obviously very effective in limiting the racial diversification of a country's citizenry.

Countries applying a strict rule of jus sanguinis, such as Japan, may deny citizenship even to generations of foreigners living on their territory. Japan's well over half a million Koreans, many of whom are racially, culturally, and linguistically indistinguishable from Japanese citizens, have a precarious, second-class legal status.

The rule of jus soli is somewhat more flexible in its racial impact. Yet it only undermines racial uniformity to the extent that there is diversity in a country's immigration practices. Unless a country has a fairly open immigration policy, its racial and ethnic make-up will remain relatively static.

Clash of Ideals

As their near-total exemption from the coverage of the Race Convention suggests, citizenship rules are of critical importance to governments, and of corresponding sensitivity. The decision to extend or deny citizenship touches on basic questions of national identity for, indeed, what is more fundamental to a country than its territory and its citizens?

Moreover, defenders of racial and ethnic discrimination in citizenship policy have their own ideal to protect: that of national self-determination. Enshrined in Article 1 of the U.N. charter, the concept of the "self-determination of peoples" militates in favor of discrimination.

Thus, unsurprisingly, states such as Israel that define themselves as the national state of a particular ethnic group are especially apt to have citizenship rules reflecting overt discrimination. Such rules exist all over Central and Eastern Europe, as well as the former Soviet Bloc. Armenia and Hungary, for example, extend preferential conditions in the granting of citizenship to members of the eponymous ethnic group.

The relationship between racism and citizenship policy is a complex topic, but one that certainly deserves to be addressed. Unfortunately, the Race Conference seems unlikely to do so. Not only does the conference seem to be mired in a single debate, but also its draft declaration lacks any reference to the issue. Such a glaring oversight probably reflects the uncompromising nature of government views, however, not the issue's lack of importance.

Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. Her prior columns on human rights issues can be found in the archive of her columns on this site. The views expressed in her columns are her own, and do not necessarily reflect those of Human Rights Watch.

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