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Europe’s extraordinary response to those fleeing the Russian invasion of Ukraine in February 2022 has prompted many criticisms of Europe’s treatment of other refugees, and indeed people of colour and members of ethnic minorities fleeing Ukraine. While stark, this differentiated response in not unusual: The global refugee regime treats different refugees differently, as a matter of course. Refugees often encounter racialized migration controls, and systems which privilege some refugees over others. The article seeks to clarify when these practices violate the international legal prohibitions on discrimination on grounds of race and nationality. To do so, it focuses on race discrimination in general international human rights law, clarifying the interaction between general human rights principles and instruments, and the specialist instrument in the field, the International Convention on the Elimination of all Forms of Racial Discrimination. We identify how differences in treatment on grounds of nationality may engage the prohibition on race discrimination both directly (in particular when nationality equates to national origin) or indirectly. Concerning nationality discrimination, the article focuses in particular on the added value of Article 3 of the 1951 Convention on the Status of Refugees, which obliges states to ‘apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.’ We examine Article 3 both within the overall scheme of the Refugee Convention and as a source to guide interpretation of international human rights norms.
This essay examines the interpretation of the core international treaty dedicated to the elimination of racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and in particular how the prohibition on race discrimination applies to the treatment of migrants. This essay is timely, as CERD has travelled from the margins of human rights law to the center of the hottest interstate lawfare. At the time of writing, the first ever interstate dispute before any UN treaty body is before the CERD Committee, and CERD has been invoked in several interstate cases before the International Court of Justice (ICJ). Unfortunately, this crucible of adjudication has not marked an increase in principled interpretation. This essay critiques the recent admissibility ruling of the ICJ in Qatar v. U.A.E. for its marginalization of the prohibition of race discrimination, in particular the failure meaningfully to consider how nationality discrimination may constitute prohibited race discrimination.
The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of ‘custom plus’ we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.