Introduction
This contribution aims to highlight the shortcomings of European and International anti-racism law with respect to discriminations based on nationality. It promotes the concept of intersectionality as a means of addressing the gap between what anti-racism law promises and what it delivers. Therefore, nationality serves as an example to show if and how intersectionality can affect anti-racism law.
The symposium on ‘Unmasking the Intractable: Exploring Racism and Ethnic Discrimination’ raises the question why anti-racism laws tend to fail to combat racism effectively. Is it ineffectiveness as a result of unrealistic expectations regarding the potential of law in general or does it stem from inherent flaws in legal design? I argue that it is a mixture of both. Law surely reaches its limits when it comes to detecting and combating racism, especially everyday, structural, and institutional racism. It is wishful thinking to assume that law can fix all existing social problems and it may be necessary to accept that in some cases law is just a ‘helping hand’ pointing to the desired outcome. At this point, it is also important to acknowledge the distinction between racism and racial and ethnic discrimination. Not everything that is regarded as racism by society is subject to a verdict of illegality in law and therefore understood as ‘racism’ in a legal sense. At the same time, it is necessary to see that there already is a legal framework to combat racial and ethnic discrimination: non-discrimination law. However, it needs to stop its mere existence. It must be fully applied and implemented in its entirety. The normative framework outlawing discrimination on grounds of race and ethnic discrimination should not be blind to the challenge of effective implementation.
Shortcomings of anti-racism law: How to fill the gap?
Law in general but especially non-discrimination law often operates in dichotomies. There is a line of difference that follows the logic of marking differences and hierarchies. In other words, law often distinguishes between norm versus deviation from the norm. Accordingly, it suggests that discrimination grounds such as nationality, race, and ethnic origin should be understood as strictly separable categories. As Iyiola Solanke puts it ‘anti-discrimination law adopts a zero-sum perspective’ (Iyiola Solanke, Discrimination as stigma (Hart 2017) 133). Such an understanding, however, makes it difficult to uncover the inner connections of discriminatory structures and runs the risk of not being able to depict and appropriately respond to them. Discriminations in everyday life are more complex than the dichotomy of norm versus deviation from the norm. A strict separation of the categories suggests a ‘uniformity of experience’ (Mark Bell, Racism and Equality in the European Union (OUP 2008) 21) that does not exist. Therefore, discrimination categories should be understood as generally interrelated, while still retaining their own distinct meanings. Only by adopting this perspective it is possible to react to the various manifestations of racial and ethnic discrimination. This also explains why some scholars tend to speak from ‘racisms’ rather than ‘racism’ (see for example Étienne Balibar, Racism and Nationalism, in: Étienne Balibar/Immanuel Wallerstein, Race, Nation, Class. Ambiguous Identities (Verso 1991) 40). This claim is not new, but merely refers to the concept of intersectionality. Intersectionality refers to the multidimensionality or interconnectedness of discrimination or identities. Nevertheless, the demand for an overlapping reading of the categories should not be made open ended. Every category can still stand alone. Any other view would regularly run counter to the applicable non-discrimination law.
What is the concept of intersectionality?
In 1851, the abolitionist and advocate for the rights of all women, Sojourner Truth, asked at a meeting of the Women’s Rights Convention in Ohio “Ain’t I a woman?”. The raising of this meaningful question in public can be seen as the birth avant la lettre of the theory of intersectionality. It was the US-American feminist and anti-racist movement in the 19th and 20th century that mainly shaped the development of the concept. It achieved its popularity in the 1980s, when women of colour started a public discussion about them being marginalized and passed over by anti-discrimination policy. The term intersectionality was coined and first highlighted by Kimberlé W. Crenshaw, an US-American legal scholar. It refers to the overlapping or intersecting social identities and related systems of oppression, domination, or discrimination. It is the idea that several identities overlap and form a new whole. Several other key texts certainly introduced the concept and provided similar terms (see the references in Leslie McCall, ‘The complexity of intersectionality’ (2005) 30 Signs 2005 1771, 1771). Crenshaw used the metaphor of an intersection to describe the situation of Black women and thereby named the theory. According to her, the marginalization can be compared with the situation of a victim of a car accident that is hurt by cars coming from different directions of an intersection: ‘Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another.’ Another way trying to understand the interconnection of all forms of subordination is through Mari J. Matsuda ‘ask the other question’-method: Where is the patriarchy in racism? Where is the heterosexism in sexism? Where are the class interests in homophobia? Since the 1990s, the concept of intersectionality has been constantly developed and different perspectives of analysis exist. Nevertheless, all of them share a common goal: The requirement to identify complex forms of discriminatory experiences.
How to apply intersectionality to anti-racism law?
Despite, the long and rich tradition of nearly 200 years across disciplines and countries, intersectionality experienced a slow growth within anti-discrimination law in general and anti-racism law in particular. As a result, the intersectional realities of black women or black people with disabilities, for example, are largely ignored. According to Elisabeth Kaneza, an intersectional protection framework is missing so far. I agree on that. I don’t see the need to introduce a completely new framework but to find a way to and incorporate the concept of intersectionality into the existing legal framework that follows a zero-sum logic and is therefore a single-axis framework. It sees in the singular – for example race or gender — requiring separate proof for every ground.
Nevertheless, an increase in intersectional understanding can be observed: Recital 14 of EU Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU Race Equality Directive)can be interpreted as recognizing the existence of intersectional discrimination by acknowledging that ‘woman are often the victims of multiple discrimination’, if ‘multiple discrimination’ is understood as over-arching term for all multidimensional forms of discrimination. Such an overarching, neutral understanding includes ‘additive discrimination’ as well as ‘intersectional discrimination’. However, the directive itself does not define multiple discrimination or operates with it. A more recent example is the recommendation of the European Parliament to explicitly incorporate ‘intersectional discrimination’ in the wording of Article 2(1) of the Directive on combating violence against women and domestic violence. In the final version, ‘intersectional discrimination’ is not prominently placed among the definitions in Article 2, but, crucially, is defined (Article 16(4)) and applied elsewhere in the directive.
This finding can mostly be noticed in the interface of gender and other discrimination grounds. Concerning the intersection of race and nationality, less recognition can be noticed. The Committee on the Elimination of Racial Discrimination (CERD Committee) highlighted in its General recommendation No. 30 on discrimination against non-citizens the importance of intersectionality with regard to race and nationality. Also in its General recommendation No. 36 on preventing and combating racial profiling by law enforcement officials it stresses the intersection of race with other relevant grounds such as ‘migration status’ by defining racial profiling (para. 13).
Applying the concept of intersectionality to race, ethnic origin and nationality the question arises as to whether the concept can be applied without further ado. In terms of nationality, the category is not explicitly mentioned as prohibited discrimination ground in the International legal framework to combat racism. Article 1 (2) International Convention on the Elimination of All Forms of Racial Discrimination (CERD) even explicitly excludes discrimination on the grounds of nationality and citizenship. Furthermore, the key question is less about the relationship between the various social categories (race, ethnic origin and nationality) than it is about the meaning and boundaries of the categories themselves: For example, if an Algerian man is refused a vacant job position it is difficult to distinguish meaningfully between this is due to his ‘race’ or his north African ethnic origin or his nationality.
According to Leslie McCall, intersectional approaches differ in their use of an ‘intercategorical’ and ‘intracategorical’ approach. By ‘intercategorical’ she means a focus on the intersections of different social categories (for example race and gender) while ‘intracategorical’ focuses on the blurry meanings and boundaries of the categories themselves (for example race and nationality). Both understandings are not mutually exclusive and an ‘intracategorical’ approach can be seen as an advancement of the ‘original’ and rather ‘intercategorical’ understanding of the concept of intersectionality.
How does intersectionality help combat racism?
Intersectionality offers a critical view on inequality and discrimination if its transformative potential is used. Understood as ‘intercategorical’ and ‘intracategorical’, this perspective applies not only to the interface of race with other suspect discrimination grounds such as gender or disability, but also to other grounds interacting with race as standard, such as ethnic origin and nationality. Race and ethnic origin are often used interchangeable or interpreted as interrelated, especially by courts. Therefore, the question how intersectionality helps to combat racism mainly arises for nationality.
Nationality is often characterised as mutable characteristic, but that is a false friend. The requirements for obtaining a new citizenship are high. Recognising that nationality is close to the categories that are not permitted under the prohibitions of discrimination shows that it is more likely to be classified as an immutable characteristic. The significance of nationality as a central point of reference for inequality in anti-racism law is often ignored, although it has a delimiting and exclusionary effect that should not be underestimated. Lots of non-discrimination law regulations explicitly exclude discrimination on the grounds of nationality. In addition to CERD, Article 3(2) of the EU Racial Equality Directive (Directive 2000/43/EC) provides another example. This shows that states do not attach great importance to discrimination on grounds of nationality, because they do not see the need to categorise this type of discrimination as racial or consider it justified. Therefore, especially since nationality shapes an individual’s life chances, the question arises as to when differentiation on grounds of nationality constitutes discrimination on grounds of race and/or ethnic origin? Does nationality merely serve as proxy or is it more than that? The reasons why it is so difficult to distinguish, whether in everyday life or in legal practice, between discrimination based on race, ethnic origin or nationality may be manifold. In some circumstances, this could also be due to the fact that the discrimination cannot be classified as ‘classic’ discrimination on the basis of nationality, but on grounds of the absence of a particular nationality (usually that of the state of residence).
A case brought to the International Court of Justice (ICJ) by Qatar is an example showing that nationality is more than a proxy ((critical analysis of the case can be found here, here, here and here). In 2018, Qatar instituted proceedings against the United Arab Emirates (UAE) before the Court claiming violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The subject matter is an embargo of Qatar since June 2017 by various Arab states for reasons of support for terrorism and a close relationship with Iran, which, according to Qatar, have a discriminatory effect on Qatari citizens within the meaning of the CERD. According to the ICJ’s ruling, discrimination based on current nationality is not covered by the CERD and the measures complained of by Qatar do not fall within the scope of CERD (para. 105). A parallel inter-state proceeding of the Committee on the Elimination of Racial Discrimination (CERD Committee) came to a contrary conclusion. The disagreement centred on the proper interpretation of the term ‘national origin’ in Article 1(1) CERD, the distinction between discrimination based on nationality and on national origin and therefore how nationality discrimination may constitute prohibited race discrimination. Based on an intersectional understanding the CERD Committee recalled in its Recommendation No. 30 on discrimination against non-citizens that ‘differential treatment based on citizenship or immigration status will constitute [race] discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.’
This finding can be underlined by the fact that there already are some EU Member States like Belgium, Bulgaria, Czechia, Finland, Luxembourg, the Netherlands, Poland, Portugal and Romania, where the national social law lists nationality explicitly as a prohibited discrimination ground. Alternatively, the national law includes nationality in as part of the concept of racial discrimination. For example, under Irish law, racial grounds include ‘race, colour, nationality or ethnic or national origins’. Accordingly, Irish law distinguishes between a number of different elements that are related to race and may lead to racial discrimination. These elements include nationality as ‘the nationality element of the race ground’. Such an approach is progressing and therefore more favourable for the victims of racial discrimination. Only an intersectional understanding of race (and ethnic origin) can fully map all forms of experience of racial and ethnic discrimination.
Conclusion
By applying the concept of intersectionality to anti-racism law it may include nationality in the concept of racial discrimination without a structural change of the existing framework and thereby strengthening the protection of victims of racism(s). Intersectionality therefore can serve as a concept to effectively combat racism and racial and ethnic discrimination, not only with regard to nationality but all different kind of grounds of discrimination. It helps to make the invisible visible – if noticed and applied. Applying anti-racism law we should start to ‘ask the other question’: Where is the racism in nationality?
This piece belongs to our Symposium “Unmasking the Intractable: Exploring Anti-Racism and the Law” (see the Introduction here), hosted by Verfassungsblog and africanlegalstudies.blog.
