NATIONALITY CONTINGENT HUMAN RIGHTS

RETHINKING THE LEGITIMACY OF DISCRIMINATION UNDER ICERD ARTICLES 1(2) AND 1(3)

Resumo

This paper critically analyses the tension between the principle of universality in international human rights law and exceptions based on nationality permitted under Articles 1(2) and 1(3) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). While the international legal framework presumes human rights to be universal, indivisible, and inalienable, this research reveals a paradox within international and domestic legal practice: the enjoyment of fundamental rights is often premised upon citizenship or nationality. Its main focus being the legal and policy regimes of European Union member states, the research addresses how ICERD exceptions inadvertently legitimize discrimination between citizens and non-citizens. Through doctrinal analysis of treaties, court decisions, and domestic legislation, and empirical analysis of migration flows, labour market trends, and racial
discrimination claims, this study reveals the systemic exclusion and marginalisation of foreigners in industrialised states. The study contextualises how notions of citizenship and nationality were historically converted into tools of legal stratification that, despite formal anti discrimination ideals, preserve a stratified rights regime. The paper demonstrates that naturalisation policy, visa regimes, and access to social services establish a de facto hierarchy in which individuals are graded as 'super-citizens', 'marginal citizens', and 'un-citizens' with corresponding degrees of access to human rights. It explores how these measures are too often employed as proxies for racial, ethnic, and cultural discrimination, masked behind the sovereign prerogative of states to manage membership. Specific emphasis is put on the legal liminality of migrants, refugees, asylum seekers, and stateless persons, arguing that current international norms inadequately protect these vulnerable populations. By mapping the gaps between international obligations and national practices, the dissertation calls for re-interpreting ICERD Articles 1(2) and 1(3) on grounds of necessity, proportionality, and legitimate aim. The study ultimately proposes a rights-based model for reforming nationality laws that balances sovereign discretion with international obligations of equality and non-discrimination.