PART I – WHAT IS ICERD? In the concluding observations on the Philippines, the Committee further noted that “even well-intentioned or neutral policies may directly or indirectly have negative or undesired effects on race relations and lead to de facto discrimination.”21 Illustration 5: A system with a discriminatory effect – de facto discrimination22 In the concluding observations on China in 2009, the Committee expressed its concern that the national household registration system (hukou) could indirectly have a discriminatory effect i.e. create de facto discrimination against internal migrants in the fields of employment, social security, health services and education. It further stated that this system also affects members of ethnic minorities, and in particular women. Against this backdrop, the Committee recommended that “the State party implement its decision to reform the hukou system and ensure that internal migrants, in particular members of ethnic minorities, will be able to enjoy the same work, social security, health and education benefits as long-time urban residents.” 1.4 Citizens and Non-citizens ICERD Articles 1 (2) and 1 (3) respectively allow States parties to make distinctions, exclusions, restrictions or preferences between citizens and non-citizens and to interpret the Convention as not affecting laws on citizenship, nationality or naturalization, provided that they do not discriminate against any particular nationality. However, CERD takes the position that the Convention is generally applicable to discrimination against immigrants or foreigners. This interpretation was developed as a consequence of the practice in many countries, where distinctions between citizens and non-citizens appear to follow ethnic patterns and are inherently discriminatory in their effect. States occasionally interpret Article 1 (2) as absolving them from any obligation to report on matters relating to legislation on foreigners. This prompted CERD to issue General Recommendation No. 11 in 1993,23 requesting that States parties fully report on legislation on foreigners and its implementation. Concerning the issue of xenophobic, discriminatory and racist practices against non-citizens including migrants, refugees, asylum seekers, undocumented non-citizens and persons who cannot establish the nationality of the State on whose territory they live, CERD issued its General Recommendation No. 30 in 2004. This Recommendation was issued to clarify the States parties’ various responsibilities with regard to non-citizens and make clear that that Article 1 (2) should not be interpreted as reducing the rights and freedoms for everyone recognized in other international human rights instruments, particularly the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). It further observes that: “differential treatment based on citizenship or immigration status will constitute 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.”24 In the General Recommendation No. 30, the Committee also recommends that States parties adopt various measures to protect the rights of non-citizens against discrimination in the law and practice. In this Recommendation, more concrete measures are listed in terms of: • • Protection against hate speech and racial violence; Access to citizenship; 21 CERD annual report 2009, A/64/18, para. 42, the Philippines (13) Ibid., para. 32, China (14) 23 The General Recommendation No. 11 was replaced by the General Recommendation No. 30 in 2004. 24 CERD General Recommendation No. 30, para. 4 22 4 ICERD & CERD: A GUIDE FOR CIVIL SOCIETY ACTORS