Nationality and National Origin: From Non-Discrimination to Equality
Monograph by professor Freya Baetens (forthcoming).
First, this work analyses how public international law regulates whether, when and under which conditions States can discriminate on the basis of nationality or national origin. At present, discriminatory State conduct is regulated by a panoply of independently-operating international rules which differ in their application and interpretation − sometimes this can be explained by the structural differences between various fields of law but this is not always the case. This book attempts at assessing this situation by analysing the regulation of this type of discriminatory treatment across different fields of international law. There has been a gradual but major shift in the regulation of nationality-based discrimination by States: while such conduct was first generally allowed under international law, with a few exceptions where discrimination was prohibited (such as concerning diplomatic agents), nationality-based discrimination is now generally prohibited, with again a few exceptions where differentiation is still allowed (such as political rights). This development has been partially codified in customary international law and general principles, for example with regard to expropriation, but took place mostly via the creation of international treaty law. The formulation of non-discrimination standards may differ; they may be interpreted and applied differently – but their objective is the same: the restriction, or even elimination, of discriminatory State conduct.
This work analyses customary and treaty rules regulating nationality-based discrimination; their scope and techniques of application; and their place within the larger regulatory context. A comparison of such rules in human rights, trade and investment law is relevant, not only because certain interpretations are transferable across different fields of law, but also in circumstances where this is not possible. In the latter case, a comparison serves as an aid towards the development of more precise reasoning as to why a particular interpretation is field-specific (e.g. the ‘like products’ test in trade law). Finding common threads is not the sole aim of this volume – much more important is the objective to analyse non-discrimination rules in each field separately; to compare similarities and differences of their application; and to examine whether certain problems in the application and interpretation of the rules could be remedied by applying approaches developed in other fields. Due to the differences between the three fields at hand, the interpretation of non-discrimination rules ought not to be made uniform across all fields of law, but their comparison can be used as a means to improve the application of the non-discrimination standard within each field, by allowing adjudicatory bodies to take note of non-discrimination developments in other fields and encouraging them to motivate why their particular approach ought (not) to differ.
The final part of this book aims at examining the gap in law and policy between 'the absence of nationality-based discrimination' on the one hand, and the achievement of equality in this context, on the other. The objective in this regard is to identify best practice and models through a study of comparative advantages (and disadvantages) of current approaches in international human rights, trade and investment law.