(Some) refugees welcome: When is differentiating between refugees unlawful discrimination?
| Author | Cathryn Costello,Michelle Foster |
| DOI | http://doi.org/10.1177/13582291221116476 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(3) 244–280
© The Author(s) 2022
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DOI: 10.1177/13582291221116476
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(Some) refugees welcome:
When is differentiating between
refugees unlawful
discrimination?
Cathryn Costello
1,2
and Michelle Foster
3
Abstract
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 dis-
crimination 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.
1
University of Oxford, Oxford, UK
2
Hertie School, Berlin, Germany
3
The University of Melbourne Melbourne Law School, Carlton, VIC, Australia
Corresponding author:
Cathryn Costello, Refugee Studies Centre, Oxford Department of International Development, University of
Oxford, 3 Mansfield Rd, Oxford OX1 2JD, UK.
Email: cathryn.costello@law.ox.ac.uk
Keywords
Refugee, discrimination, race, nationality, national origin, Refugee Convention, Article 3,
asylum-seekers
Introduction
In commentary on Europe’s extraordinary response to those fleeing the February 2022
Russian invasion of Ukraine, polarised views have been expressed on the question
whether the starkly different treatment is legally discriminatory. Ukrainian nationals may
enter the European Union (EU) without visas (since 2017), and the EU has for the first
time triggered its Temporary Protection mechanism, meaning most of those who have fled
Ukraine enjoy a quasi-automatic temporary right to stay, work and social benefits, ef-
fectively in an EU Member State of their choosing.
1
The contrast with the EU’s‘normal’
treatment of protection seekers could not be starker: Usually, protection seekers lack legal
means to enter the EU, and so must do so irregularly, facing possible pushbacks, border
violence, and detention. They cannot claim asylum where they wish, but rather are liable
to further coercive measures under the Dublin System, and then asylum procedures with
rights-restrictions built in, often protracted and with unpredictable outcomes.
2
The exodus from Ukraine was also accompanied with documented reports of racialized
violence against some individuals fleeing Ukraine,
3
prompting a statement from the
African Union urging all ‘to show the same empathy and support for all people fleeing war
notwithstanding their racial identity.’
4
Some European politicians have expressed their
support for Ukrainian refugees in racialized terms,
5
and even qualified the welcome for
Ukrainians by explicitly denying welcome to Roma from Ukraine.
6
Meanwhile, border
violence and illegal pushbacks against other protection seekers continue across Europe.
While those fleeing Ukraine enter Poland with relative ease, the Polish-Belarussian border
remains the site of unlawful border violence against protection seekers from Syria and
Afghanistan in particular.
7
And Europe’s deeply ambivalent response to the last ‘refugee
crisis’triggered by arrivals of refugees from Syria in 2015 stands as a clear reminder that
the Ukrainian response has been exceptional. Little wonder that the stark difference in
treatment between the Ukrainians and the rest has been understood as racialized.
To some commentators, the differentiated treatment for those fleeing Ukraine is not
racial discrimination, as offering special treatment to one nationality over others is par for
the course in the refugee regime raising no questions of unlawful discrimination.
8
Others
concede the applicability of non-discrimination norms, but accept relatively easy jus-
tifications,
9
or acknowledge the ambiguity of the international norms in this field.
10
What
is remarkable is perhaps the immediate cries of discrimination, given that the global
refugee regime has long been pervaded by stark differences in treatment on grounds of
nationality and deeply racialised practices.
11
Differentiation between refugees is hardly
new, yet despite its prevalence, has only been episodically considered by scholars of the
refugee regime.
12
Deeper legal assessment of these questions has been lacking, with the
notable exception of the vital work of E Tendayi Achiume recentring race in international
legal scholarship generally,
13
and in refugee law in particular.
14
We draw on her insights,
Costello and Foster 245
and our previous work critiquing legal interpretations attempting to silo race and na-
tionality discrimination.
15
This article focuses on the legal wrong of discrimination, an
admittedly limited optic on the many harmful and pervasive manifestations of racism.
16
But precisely because of the ubiquity of differentiation in the global refugee regime, we
argue that doctrinal tools to identify unlawful discrimination are important.
Treating refugees differently on grounds of nationality is at least in part reflective of the
constitutive nature of refugeehood, in that it reflects an assessment of the absence of state
protection in a particular country. However, the refugee regime is also characterised by a
range of other differentiation between refugees on grounds of their nationality, and indeed
race. Inevitably, political factors, both national and international, drive differentiated state
and public responses to different groups of people fleeing persecution and war. The best
scholarship in political science successfully explains the differentiated response to dif-
ferent groups of refugees as a factor of ethnic affinity between host populations and
refugee populations, and the geopolitical relationship between the host state and the state
driving out refugees.
17
Given that differentiation is so prevalent, we argue that a reading
of international norms that is informed by a sound appreciation of the wrong of dis-
crimination is urgently needed, in order to clarify when differences in treatment are
prohibited, and when equal treatment is required as a matter of international law.
In principle, non-discrimination applies to nationals and non-nationals alike, and to
states’migration control practices in general. Nonetheless, both the text and interpretation
of key human rights instruments acknowledge that states may control the entry and
residence of non-nationals, and that non-discrimination cedes to migration control in at
least some respects.
18
In this regard it has been observed that ‘the principle of equality is
significantly restricted in the field of immigration’.
19
These legal questions pertaining to
discrimination in migration controls, and in particular between refugees, are rarely lit-
igated, but we draw on a range of legal sources to set out the contours of an emerging
consensus in international law in order to offer a framework to analyse whether dif-
ferences in treatment are reflective of assessment of country of origin conditions (and so
inevitably part of determining refugeehood); unjustified discrimination on grounds of
nationality; or in fact race discrimination, a practice international law demands be
‘eliminated’rather than celebrated.
20
The article proceeds in two parts: Part I 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 (ICERD). The
arguments in this part have the widest possible personal scope of application, as they
apply to all persons, irrespective of refugeehood. Part II turns to nationality discrimi-
nation, a practice that pervades international law and is not always treated with suspi cion.
And yet, when it comes to refugees, non-discrimination structures the entire Refugee
Convention, and in particular Article 3 provides:
The Contracting States shall apply the provisions of this Convention to refugees without
discrimination as to race, religion or country of origin.
21
246 International Journal of Discrimination and the Law 22(3)
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