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Lester, Eve -- Imagining the "promise of justice" in the prohibition on racial discrimination: paradoxes and prospects [2007] IHLRes 8 (28 June 2007)

Last Updated: 19 November 2007

ANZSIL Conference 2007

Imagining the ‘promise of justice’[1] in the prohibition on racial discrimination: paradoxes and prospects

Eve Lester[§]


The question I explore in this paper is how sovereignty, race and migration have informed the development and application of the prohibition on racial discrimination in international law.

The following scenario sets the scene. The date is 26 August 2001. A small fishing boat carrying several hundred white Zimbabwean farmers is adrift in waters somewhere northwest of Australia. The occupants are attempting to land in Australia and seek asylum. Their boat begins taking water, and they are rescued by a Norwegian freighter. There is a flurry of urgent phone calls around the corridors of power in Canberra about how the government should respond. It is a familiar story, with a ‘colourful’ twist.

Consider the spectre of the Australian Prime Minister ordering SAS troops to board a Norwegian freighter[2] to prevent a group of white Zimbabweans from landing in Australia. Imagine the Australian Parliament passing legislation denying any right to habeas corpus and to any cause of action for detention or other wrongs[3] against such people, despite their presence in Australian territory. In addition, imagine denying the right to apply for a protection visa, or any other visa,[4] to them.

Privileging of ‘whiteness’

The scenario is unimaginable; unimaginable because the question of how the Government would respond is circular and unanswerable. The reality is that the Australian Government is not going to be faced with the dilemma of the scenario I have painted. This is because Australian borders and immigration control measures have an inherent ‘whiteness’ that privileges certain groups and individuals. Even though it is only partially articulated, the whiteness of Australia’s borders remains strongly in evidence, with its migration policy still favouring the characteristics of privilege that inhere in whiteness; wealth, language and skills.

‘Whiteness’, the way I use this term, is not necessarily about ‘race’. Rather,

‘whiteness’ represents an emphasis on the desirability of certain attributes coming out of a racialised history of Western colonial domination. However, although not exactly about race, ‘whiteness’ has racial consequences as it recognises and rewards these attributes.

Consciously or otherwise, former Immigration Minister, Philip Ruddock, is a prominent author of this partial articulation of an immigration policy that perpetuates the whiteness of Australia’s borders. On one occasion, he explained that one or two Zimbabwean visitors had filed refugee applications in Australia, but that more were coming as migrants. He is reported to have said:

"If people have skills that are transportable, recognised, have English language competency and are relatively young, they're able to do very well under our migration selection."[5]

In this statement, transportable skills and language competency have become ciphers for the unarticulated privilege of whiteness. Implicit in the policy behind Ruddock’s statement is that only the ‘Other’ will need to resort to making claims for refugee status; those without skills, good English, or economic viability. These ‘Others’ are not ‘like us’. They are people who the citizenry is invited, and sometimes exhorted, to fear as a threat to identity, nationhood, and security;[6] and sometimes to condemn as perpetrators of inhumane behaviour anathema to ‘Australian values’.[7] This masked ‘whiteness’ to Australia’s borders contradicts the formal abolition of the White Australia Policy, and the formal equality of its universal visa system. The operation of Australia’s migration control measures still makes its borders porous for some, but impenetrable for ‘Others’; the excluded ‘Others’ being the ‘non-white’.

So, how is it that ‘whiteness’ is able to play so central a role in immigration law- making in a country such as Australia which, as a ‘rule of law’ nation, subscribes to the international prohibition on racial discrimination?

The prohibition on racial discrimination

The prohibition on racial discrimination is one of the most well recognised human rights principles, enjoying widespread recognition in both international and national laws. A stated purpose of the United Nations in the Charter of the United Nations is to promote and encourage “respect for human rights and for fundamental freedoms for all without distinction [including] as to race...”[8] All general expressions of the anti- discrimination norm explicitly include a prohibition on racial discrimination.[9] In addition, a widely ratified international instrument has been specifically dedicated to the elimination of all forms of racial discrimination.[10] Indeed, the prohibition on racial discrimination is considered to be a peremptory norm of international law. Furthermore, patterns of ratification of international instruments that prohibit racial discrimination reinforce the view that no state can plausibly deny that it is bound to respect the prohibition.[11]

Yet, race retains an iron-fisted hold over the relationship between sovereignty and migration. In September 2001, at around the same time as the Tampa incident, the World Conference Against Racism (WCAR) was meeting in Durban, South Africa.

In the Programme of Action adopted at the conclusion of the conference, the WCAR urged states:

‘[t]o review and revise, where necessary, their immigration laws, policies and practices so that they are free of racial discrimination and compatible with States’ obligations under international human rights instruments’.[12]

The question arises as to the extent to which international human rights law has actually provided an adequate framework with which states can undertake the ‘review and revision’ that has been urged upon them? Put differently, does international human rights law ever permit states to make distinctions in immigration law, whether in policy or practice, whose purpose or effect is racialised? And if so, is the resultant violation of the prohibition on racial discrimination attributable to states claiming the sovereign right to develop their own immigration policies and to control their borders?[13]

This inquiry takes me to a re-examination of the origins of international law. Although it might seem self-indulgent to go back five centuries, I have done so emboldened by the work of Antony Anghie[14] and I hope it will become clear that thisre-examination has contemporary relevance for immigration law-making.

International law and the foreigner: tracing the history

Francisco de Vitoria, historically accorded the originary status of ‘father’ of international law,[15] wrote during the sixteenth century Spanish colonisation of the Indies.[16] His writings express a conflicted response to the barbarian ‘Other’.[17]

Although conferring rights on the Indian ‘barbarians’, Vitoria subordinates them to the power and control of the Spanish, asserting in particular the right of the Spanish coloniser to ‘travel and sojourn’.[18]

Vitoria’s conflicted positions, geared towards legitimising the ‘travels’ of the Spanish in ‘Indian’ territory, suggest an implicit recognition, by Vitoria, of the ‘outsider’ status of the Spanish. Vitoria argues that it is inhuman to treat strangers and travellers badly, unless they are hostile,[19] and that borders were never intended to inhibit free movement’.[20] He describes expulsion or prohibition on entry as acts of war and concludes that those who do no harm cannot be lawfully barred from entry,[21] asserting that it would be a monstrous and inhumane act to do otherwise.[22] Clearly, Vitoria’s construction of a protective legal framework for the ‘foreigner’ served the colonising interests of the Spanish.[23]

To Vitoria, the permissibility of the right to ‘set forth and travel’ in natural law is justified, amongst others, through recognition that the migration impulse is inherent to the human condition.[24] Vitoria’s focus, however, is on the movement of the Spanish colonising ‘foreigner’ to the territory of the Indian ‘barbarian’, and does not appear to anticipate movement in the other direction. As such, he constructs an international law in which the colonising ‘foreigner’ had more rights than the resident ‘barbarian’.[25] This provides some explanation for the historical protection of the foreigner in international law.

Emmerich de Vattel, the eighteenth century legal theorist, maintained, to some extent, Vitoria’s power dynamic of the protected (European) ‘foreigner’ but his focus was on relations between different populations within Europe. That is not to say that Vattel was not concerned with the wider world. He cites, for example, the highly restrictive practices of China and Japan where “all foreigners are forbid to penetrate without an express permission”.[26] However, he contrasts these practices with the more liberal Europe where “the access is everywhere free to every person who is not an enemy of the state, except, in some countries, to vagabonds and outcasts”.[27] The ‘vagabonds and outcasts’ to which he refers appeared to be his ‘barbarians’, and could well be the Roma gypsies – ‘travellers’ – in Europe at least by the beginning of the fourteenth century,[28] and possibly as early as the eleventh century.[29]

Moving from the eighteenth into the (long) nineteenth century, in an ironic role reversal, it was the ‘barbarian’ who began to assert the right to set forth and travel. The powerful foreigner was still an ‘outwardly mobile’ coloniser. However, it was the movement of the ‘barbarian’ that appears to have prompted the passage of much immigration legislation. This legislation was in large measure expressly intended or specifically designed to address the movement of people in a racialised way. Legislation in Australia, the UK and the US explicitly restricted residence by specific ‘race’ groups. In Australia, for example, the Chinese Immigrants Statute 1865 (Victoria),[30] the Chinese Act 1881 (Victoria)[31] and the Pacific Island Labourers Act 1901 (Cth),[32] restricted entry and residence by specific groups. In the US, the stated purpose of the Act of Congress of May 5, 1892 was “An act to prohibit the coming of Chinese persons to the United States.”[33] The effect of this act was to continue in force for a further ten years an Act of May 6, 1882[34] which suspended the entry of Chinese labourers to US territory.[35] In the UK, the Aliens Act 1905 was passed to restrict Jewish immigration from Eastern Europe.[36] As Goodwin-Gill has observed, permanent migration was rarely, if ever, seen in other than a racial context.[37]

Sovereignty and the foreigner: 19th century developments

It was also in the nineteenth century that sovereignty doctrine as it applies to the alien emerged in common law jurisprudence. Decisions of the Privy Council and the US Supreme Court commenced a line of authority which asserted with confidence that sovereignty confers a right to exclude aliens.[38] Later the High Court of Australia would follow suit.[39]

These cases include the Privy Council decisions of Musgrove v. Toy[40] and Attorney- General for Canada v. Cain and Gilhula,[41] and the US Supreme Court decisions in the Chinese Exclusion Case,[42] Ekiu[43] and Fong Yue Ting.[44] The central proposition for which this line of authority stands is that there is a sovereign right to exclude even friendly aliens in unfettered or absolute terms. Although not all of the cases refer specifically to the theories of Vattel,[45] many of them draw on his writings to justify this proposition.[46] Part of the justification for this position was that in international law the treatment of aliens, in particular their exclusion, was a matter between sovereign states.[47] However, significantly, these were cases that dealt with the non- white ‘barbarian’,[48] from places such as China,[49] Japan[50] and later the Pacific Islands,[51] giving added impetus to what Goodwin-Gill has described as a ‘primitive’ conception of sovereignty.[52]

The impact of this jurisprudence has been significant and long standing, not least in Australia. More than a century later, the High Court’s mandatory detention jurisprudence starting in the early 1990s,[53] the 2001 Tampa litigation[54] and the 2005 High Court decision of Ruhani v Director of Police [No 2][55] (regarding the immigration status of asylum seekers on Nauru) have cited this line of authority with approval.[56]

Yet, as James Nafziger has shown, the proposition that there is an unfettered right to exclude aliens is not supported by the writings of Vattel.[57] For example, to Vattel, although he considered the exclusion of aliens to be “not at all inconsistent with justice”, he qualified this with a proviso that the inhabitants of territory “not refuse human assistance to those whom tempest or necessity obliged to approach their frontiers.”[58] Clearly, the nineteenth century claim that sovereignty accorded an unqualified right to exclude aliens was made on the basis of selective readings by the Courts of Vattel’s writings which, read as a whole, would lead to a contrary conclusion. To Vattel, sovereignty was tempered by important qualifications including the right of necessity and duties of humanity indicating that events or circumstance may justify actions which are otherwise considered unlawful. Indeed, Vattel even viewed poverty as sufficient grounds for a citizen to leave their country, even permanently, and to seek to procure subsistence elsewhere.[59]

It becomes clear that sovereignty doctrine has interposed to change the emphasis in international law, which previously protected the powerful colonising ‘foreigner’ and was then seen as needing to respond to the (unwanted) movement of the ‘barbarian’. Although the economic desirability of cheap migrant labour had significant influence in the nineteenth century, the ‘new foreigner’, hitherto the ‘barbarian’, was viewed as enjoying fewer rights in international law. International law and sovereignty doctrine effectively ‘coalesced’ to protect the powerful in highly racialised terms. The role of race in this process may therefore be seen as having provided unworthy reinforcement to the development of a legal framework that excluded and marginalised the non- citizen ‘Other’.

This leads me to consider whether the historical foundations of international law have limited the capacity of the prohibition on racial discrimination to protect the rights of the foreigner. Is a state properly exonerated if its laws or policies do not offend the prohibition?

Racial discrimination and the foreigner

It was in the wake of World War II that the international human rights framework emerged, articulating the prohibition on racial discrimination and the broader anti- discrimination norm. However, notwithstanding proclamations of equality through the promulgation of these broad principles, international human rights law still excludes and subordinates the non-citizen.[60]

International law, as we have seen through an historical analysis, is inherently ‘raced’. In view of this, is it possible for international law through this new human rights framework to shed its racialised history? Additionally, even though racial discrimination contradicts human rights norms, does the way in which ‘sovereignty’ has been interpreted and applied perpetuate the legitimisation of discriminatory immigration law-making? In sum, is international law able to break with its long and entrenched racialised past?

It is widely accepted in international law that the anti-discrimination norm generally applies to everyone within the territory or jurisdiction of a state[61] or under its effective control,[62] and therefore applies to foreign nationals as well as to citizens. However, with some qualification,[63] the UN Human Rights Committee has indicated that “it is in principle a matter for the State to decide who it will admit to its territory”.[64] Likewise, the 1965 Convention on the Elimination of All Forms of Racial Discrimination (ICERD) qualifies the framework of protection against racial discrimination. The prohibition does not apply to ‘distinctions, exclusions, restrictions or preferences’ made between citizens and non-citizens.[65] Significantly, non-citizens can be further differentiated into sub-categories, and discrimination is only prohibited between non-citizens where citizenship, nationality and naturalization laws discriminate against any particular nationality.[66] Sovereignty doctrine has again tempered the strength of the prohibition for the non-citizen.

States are encouraged to construe these qualifications in a manner which avoids undermining the basic prohibition against discrimination.[67] However, applying the historico-legal analysis I have described above, and as the ‘unimaginable hypothetical’ of the white Zimbabwean boat people suggests, harsh migration policies can still be constructed in a manner which is racialised but does not adversely affect any particular racial group. Thus a paradox arises in the international human rights discourse, namely that one of the most widely recognised international legal norms – the prohibition on racial discrimination – is, in its breach, one of the most firmly entrenched in national migration laws.

In international human rights law, in order to be permissible, distinctions between citizens and non-citizens, or between different groups of non-citizens, must be pursuant to a ‘legitimate aim’ and ‘proportionate’ to the achievement of that aim.[68] This accords with ECHR jurisprudence[69] which has consistently recognised

immigration control as, ipso facto, a ‘legitimate aim’.[70] Thus, although states should ensure that their immigration policies do not have discriminatory purpose or effect,[71]

the retention of the ‘legitimate aim’ assumes that any racial element to an immigration policy is readily discernible from an assessment of the purpose. It also forecloses an examination of the more broadly racialised effects of migration programmes. As such, on the strength of the assumption of legitimacy, states are able to retain considerable latitude in the development of such laws and policies.

Policies that barred East Asian Africans from entry to the UK in the 1970s[72] or which screened and intercepted Roma asylum seekers – Vattel’s vagabonds and outcasts?[73] – in Prague Airport in 2001[74] were clearly targeting a particular racial group. Such policies are properly caught by the prohibition, but they are also exceptional. Most migration policies do not explicitly or experientially impact on persons of a particular nationality. Without an historical examination of the legal architecture it is more difficult to discern the less obvious racial component of a migration system that ‘simply’ favours the wealthy, well-spoken and well-qualified; attributes of ‘whiteness’. Such an examination steps beyond the assumed qualification of the aim of immigration law-making as always already ‘legitimate’. It exposes a more deeply embedded ideological ‘othering’ that legitimises certain forms of discrimination within a framework of formal neutrality, rather than pointing to an aim that may be considered to be inherently just.

Notwithstanding the global reach that the prohibition on racial discrimination appears to enjoy, historical understandings of migration, sovereignty and the idea of race have ensured that there are normative gaps that remain and which leave open a number of possibilities for perpetuating racialised policies. Because of the way in which international law has been constructed, these normative gaps suggest that laws, policies or practices may still have a racialised effect without necessarily constituting a racially discriminatory purpose or effect that contravenes international law. We are left with a migration system that derives from a long history of systemic discrimination that may be beyond the reach of ‘effect’ within the parameters of the definition of racial discrimination.

Imagining the ‘promise of justice’ in the prohibition on racial discrimination

The era of more blatantly race-driven immigration laws and policies is now (largely) a thing of the past. However, despite significant advances in formulating the rights of non-citizens in international human rights law and developing related frameworks for the protection of refugees and stateless persons, the racialised history of international law and the pervasive influence of a racialised conception of sovereignty have combined to compromise the prohibition on racial discrimination as it applies to aliens. The race ideologies that have historically informed international law and conceptions of sovereignty have led to the formulation of a framework of protection containing exceptions that amount to ‘lawful injustice’; a framework with two faces that has enabled the construction of a rights discourse that purports to safeguard rights but in effect legitimises and perpetuates racial and other social inequalities. This has occurred through the formulation of permissible differences that reflect and maintain unjust power imbalances;[75] whiteness.

So, what prospects are there in the context of the prohibition on racial discrimination for imagining its ‘promise of justice’[76]?

International law presents itself as always already principled and humanist. Within this framework, the prohibition on racial discrimination is a central expression of these values. By identifying the normative gaps in the prohibition, the capacity of the fault lines within the human rights framework to perpetuate racial prejudice can be revealed.

The broad purpose of human rights law is to eliminate racial discrimination. However, to scrutinise the detail of the human rights framework for the non-citizen is to find that the effect of the doctrine of sovereignty and the corpus of international law on which it is based, both of which are racialised, are deeply embedded within it. The task of overcoming this profound obstacle to justice seems painfully insurmountable. However, unless the continuing legacy of the historical racialisation of international law and sovereignty are recognised, and the jurisprudential anomalies in interpreting the scope of sovereignty acknowledged, it will not be possible to meet the challenge of re-balancing the power dynamics that are at work.

[1] Thanks for these words are due to Shirley Scott, International law and the justice crisis in global governance (Paper presented at the Fifteenth Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL), Canberra, 28-30 June, 2007).

[§] Eve Lester is an international refugee and human rights lawyer. She is an independent human rights consultant and is currently undertaking postgraduate studies at the University of Melbourne. I would like to thank Jothie Saunthararajah and Penelope Mathew for generously providing comments on earlier drafts of this paper. Any errors are, of course, my own.
[2] Commonwealth, Parliamentary Debates, House of Representatives, 29 August 2001, 30516 (John Howard, Prime Minister).
[3] See Migration Act 1958 (Cth), s 494AA. Note that the Australian Parliament has retained jurisdiction of the courts in relation to offences committed against a provision of the Migration Act whether inside or outside territory to which the Act applies: s. 494.
[4] See, in particular, Migration Act 1958 (Cth) ss 5 and 46A.

[5] Frank Walker, ‘Woman, 78, seen as refugee test case’, Sydney Morning Herald (Sydney), 2 September 2002, <> at 10 July 2007. The article continues: "But if there ends up with a situation in which there is a large exodus of people from Zimbabwe and there is a need for the international community to look at a resettlement outcome of the sort that we would see has happened in other places, we would, with advice from the United Nations High Commission [sic] for Refugees, look to see what needs to be done. But that situation hasn't arisen at this time."

[6] Commonwealth, Parliamentary Debates, House of Representatives, 29 August 2001, 30570 (John Howard, Prime Minister) and 30544 (Kevin Andrews); former Defence Minister Peter Reith was reported as saying that the government had to be allowed to prevent entry to boat people because "it can be a pipeline for terrorists to come in and use your country as a staging post for terrorist activities." ‘Australia links asylum policy to US attack’, BBC News (UK), 13 September 2001. See <> at 10 July 2007.
[7] In the midst of the now discredited ‘Children Overboard’ affair, Prime Minister John Howard stated: “I express my anger at the behaviour of those people and I repeat it. I can’t comprehend how genuine refugees would throw their children overboard.” Similarly, then Immigration Minister Philip Ruddock stated: “More disturbingly, a number of children have been thrown overboard again with the intention of putting us under duress. I regard these as some of the most disturbing practices that I have come across in the time I have been involved in public life. Clearly planned and premeditated.” See Michael Brissenden, ‘PM under pressure over ‘children overboard’ claims’, ABC 7.30 Report, 16 August 2004, <> at 10 July 2007. In a similar way, then Immigration Minister described lip sewing by immigration detainees, including children, as “a practice unknown in our culture ... that offends the sensitivities of Australians”. Andrew West, ‘Asylum- Seekers Sew Lips Together: Protest’, Herald Sun (Melbourne), 20 January 2002.
[8] Charter of the United Nations, art 1(3), U.S.T.S. No. 993 (1945).
[9] See, for example, 1966 International Covenant on Civil and Political Rights (‘ICCPR’), art 2, opened for signature 16 December 1966, 999 U.N.T.S. 171 (1976), (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), art 2, opened for signature 16 December 1966, 993 U.N.T.S. 3 (1966) (entered into force 3 January 1976); 1951 Convention relating to the Status of Refugees, art 3, adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under GA Res 429 (V) of 14 December 1950, 189 U.N.T.S. 137 (entered into force 22 April 1954).
[10] As at 19 April 2007, there are 173 states parties to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’), with a further five signatories. See <> at 10 July 2007; ICERD, adopted and opened for signature 21 December 1965, GA Res 2106 (XX), 660 U.N.T.S. 195 (1969) (entered into force 4 January 1969).
[11] Of the five international human rights instruments in which racial discrimination is expressly prohibited, the Convention on the Rights of the Child (‘CRC’) is the most widely ratified (with 192 states parties, and only Somalia and the US having failed to ratify), and ICERD is the next most widely ratified with more than 170 states parties. All states are party to at least one of these instruments, thus even on the strength of these two instruments the prohibition on racial discrimination has extremely wide application and recognition. The CRC was adopted and opened for signature by GA Res 44/25, 20 November 1989 (entered into force 2 September 1990).
[12] Durban Declaration and Programme of Action: World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, (2001), Programme of Action, [30(b)], 26.
[13] Even the World Conference Against Racism acknowledged as much when it reaffirmed “the sovereign right of each State to formulate and apply its own legal framework and policies for migration”. Although in the same paragraph this was subject to the qualification that “these policies should be consistent with applicable human rights instruments, norms and standards, and designed to ensure that they are free of racism, racial discrimination, xenophobia and related intolerance”, the same question arises as to whether the human rights framework provides adequate safeguards against all incidences that have racialised effect. Ibid [47], 11.
[14] Antony Anghie, Imperialism, sovereignty and the making of international law, (2004).
[15] The seventeenth century legal theorist, Hugo Grotius, is also accorded by many the status of father of international law. Hugo Grotius, De Jure Belli ac Pacis, (1646; Carnegie Endowment trans. 1925). Ibid 224
[16] Francisco de Vitoria, Political Writings, (circa 1546, Pagden, A. and Lawrence, J. ed. 1991).
[17] Ibid 233, where Vitoria describes “barbarians, commonly known as Indians, who came under the power of the Spaniards ... having been previously unknown to our world.” (my emphasis)
[18] Anghie, above n 14, 20.
[19] Vitoria, above n 16, 278.
[20] Ibid. See also James A. R. Nafziger, ‘The general admission of aliens under international law’, (1983) 77 American Journal of International Law, 804, 811.
[21] Vitoria, above n 16, 278
[22] Ibid.
[23] See, for example, Anghie, above n 14, 269.
[24] Vitoria, above n 16, 278.
[25] This reflects the construction of economic and trade rights that served the interests of the powerful coloniser. See Anghie, above n 14, 270.
[26] Emmerich de Vattel, The Law of Nations, (J. Chitty ed. 1839), 171, [100].
[27] Ibid 172, [100].
[28] See Jean-Pierre Liégeois and Nicolae Gheorghe, Roma/Gypsies: A European Minority, (1995), summary, Minority Rights Group International, <>, at 10 July 2007.
[29] See, for example, <>, at 10 July 2007.
[30] See Musgrove v Chun Teeong Toy [1891] AC 272 (‘Musgrove v Toy’).
[31] Ibid.
[32] See Robtelmes v Brenan (1906) 4 CLR 395.
[33] Fong Yue Ting v United States 149 U.S. 698, 725 (‘Fong Yue Ting’).
[34] As amended by a further act of Congress of July 5, 1884. Ibid.
[35] Chae Chan Ping v United States 130 U.S. 581 (‘Chinese Exclusion Case’).
[36] Guy S. Goodwin-Gill, International Law and the Movement of Persons Between States (1978), 97.
[37] Ibid 91.
[38] See, in particular, Musgrove v Toy [1891] AC 272, Attorney-General for Canada v Cain and Gilhula [1904-1907] All ER Rep 582 (‘A-G v. Cain’), Nishimura Ekiu v United States 142 U.S. 651 (‘Ekiu’), Fong Yue Ting 149 U.S. 698, Chinese Exclusion Case 130 U.S. 581.
[39] The leading case in the early jurisprudence is Robtelmes v Brenan (1906) 4 CLR 395. See also, for example, the later case of Koon Wing Lau v Calwell (1949) 80 C.L.R. 533
[40] (1891) A.C. 272.
[41] (1906) A.C. 542.
[42] (1889)130 U.S. 581.
[43] Ekiu (1892)142 U.S. 651.
[44] Fong Yue Ting (1893)149 U.S. 698.
[45] Musgrove v Toy [1891] AC 272, Chinese Exclusion Case (1889) 130 U.S. 581
[46] Ekiu 142 U.S. 651, Fong Yue Ting 149 U.S. 698, A-G v Cain [1904-1907] All ER Rep 582.
[47] See Musgrove v Toy [1891] AC 272: “Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he was a native, but it is quite another thing to assert that an alien excluded from any part of Her Majesty's dominions by the executive government there, can maintain an action in a British Court, and raise such questions as were argued before their Lordships on the present appeal -- whether the proper officer for giving or refusing access to the country has been duly authorized by his own colonial government whether the colonial government has received sufficient delegated authority from the Crown to exercise the authority which the Crown had a right to exercise through the colonial government if properly communicated to it, and whether the Crown has the right without Parliamentary authority to exclude an alien.” See also Chinese Exclusion Case 130 U.S. 581: “If there be any just ground of complaint on the part of China, it must be made to the political department of our government, which is alone competent to act upon the subject...” And see dissenting opinion of Read J, in the Nottebohm Case (Liechtenstein v Guatemala), 1955 I.C.J. 446: “Fundamentally the obligation of a State to accord reasonable treatment to resident aliens and the correlative right of protection are based on the consent of the States concerned. When an alien comes to the frontier, seeking admission, either as a settler or on a visit, the State has an unfettered right to refuse admission. That does not mean that it can deny the alien's national status or refuse to recognize it. But by refusing admission, the State prevents the establishment of legal relationships involving rights and obligations, as regards the alien, between the two countries. On the other hand, by admitting the alien, the State, by its voluntary act, brings into being a series of legal relationships with the State of which he is a national.”
[48] The only case among the early jurisprudence where this is not clear is the case of A-G v Cain [1904-
1907] All ER Rep 582. Although this case related to return of individuals to the United States, the case itself does not disclose the ethnic backgrounds of the individuals concerned. Wider research, to date, has also not yielded clarification on this point.
[49] Chinese Exclusion Case 130 U.S. 581, Musgrove v Toy [1891] AC 272, Fong Yue Ting 149 U.S. 698.
[50] Ekiu 142 U.S. 651.
[51] Robtelmes v Brenan (1906) 4 CLR 395.
[52] Goodwin-Gill, above n 36, 98.
[53] See, for example, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [19], [27]-[29], per Brennan, Deane and Dawson JJ, and [13], per Gaudron J. See also, for example, Al-Kateb v Godwin (2004) 219 CLR 562, [203] and [227], per Hayne J, and [289], per Callinan J.
[54] See Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452 and Ruddock v Vadarlis (2001) 110 FCR 491 (‘the Tampa litigation’). For an application of the Nafziger analysis, above n 20, to the decisions of the Courts in the Tampa litigation, see Kim Rubenstein, ‘Citizenship, sovereignty and migration: Australia’s exclusive approach to membership of the community’, (2002) 13 Public Law Review, 102.
[55] (2005) 222 CLR 489, [26], n 6, per Gleeson CJ, Gummow, Hayne and Heydon JJ.
[56] Jurisprudence in the United Kingdom has followed a similar approach. See, for example, Prague Airport Case [2004] QB 811, [12], per Lord Bingham of Cornhill and R (Saadi) v Secretary of State for the Home Department [2002] WLR 3131, [31], per Lord Slynne of Hadley.
[57] Nafziger, above n 20.
[58] Vattel, above n 26, 169-170, Book II, Chapter VII, [94].
[59] Ibid, 105, Book I, Chapter XIX, [222]-[223].
[60] Anghie, above n 14, 289.
[61] UN Human Rights Committee (‘HRC’), General Comment No. 15: The position of aliens under the Covenant, twenty-seventh session, 11 April 1986, [1].
[62] HRC, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, eightieth session, CCPR/C/21/Rev.1/Add.13, 26 May 2004, [10].
[63] HRC, General Comment No. 15, above n 61, [5].
[64] Ibid.
[65] ICERD, art 1(2), adopted and opened for signature 21 December 1965, GA Res 2106 (XX) (entered into force 4 January 1969).
[66] Ibid, art 1(3).
[67] UN Committee on the Elimination of Racial Discrimination (‘CERD’), General Recommendation No. 30: Discrimination Against Non-Citizens, 1 October 2004, [2].
[68] Ibid [4].
[69] See Case “Relating to Certain Aspects of the Laws on the use of Languages in Education in Belgium” v Belgium (1979-80) 1 EHRR 252 (‘Belgian Linguistics Case’).
[70] See, for example, Vilvarajah v United Kingdom (1991) 14 EHRR 248, [102]; Chahal v United Kingdom (1996) 23 EHRR 413, [73]; D v United Kingdom (1997) 24 EHRR 423, [46]; Bensaid v United Kingdom (2001) 33 EHRR 205, [32]; Boultif v Switzerland (2001) 33 EHRR 1179, [46].
[71] ICERD,art 1(1), adopted and opened for signature 21 December 1965, GA Res 2106 (XX) (enteredinto force 4 January 1969).
[72] East African Asians v United Kingdom [1973] ECHR 2.
[73] Vattel, above n 26, 172, [100].
[74] R v Immigration Officer at Prague Airport; ex parte European Roma Rights Centre [2004] UKHL 55 (‘Prague Airport Case’).
[75] Kimberlé Crenshaw, ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, (1988) 101 Harvard Law Review 1331, 1334.
[76] Shirley Scott, above n 1.

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