Beyond Containment – Confronting Racial Hierarchies in International Law: From the Colour of Skin to the Colour of Passport – Race as Citizenship Personified

[Dr Shahab Saqib is an Assistant Professor of Law at the University of Birmingham Law School]

Illumination rests on comparison. Comparing those who are situated in similar circumstances but are treated differently generates a desire to demystify the logic and circumstances that enable such discrepancies to emerge and to persist. 

In my chapter, I use illumination to unpack the racial logic of international law: a logic that permits wrongs associated with discrimination on the basis of citizenship yet forbids the same conduct when it is premised on colour. I do this by comparing a hypothetical case of racial discrimination based on colour with a human rights communication (Diop v France) decided by the Race Committee, using that comparison to critique the reasoning of the contemporary international legal order that legitimises citizenship-based exclusions. 

The first two paragraphs of the chapter, which initiate the comparison, set forward the essence of my argument.

Imagine an organisation limits its admission to those who are ‘white’ and therefore rejects a black applicant (X). On being challenged that this classifies as racial discrimination, the organisation argues that the refusal is not because X is black but, rather, because X is not white. Would such an argument succeed in a court that seeks to prohibit racial discrimination? Surely not. The criterion of ‘only white’ is based on an implicit preference that is designed to exclude people of colour, even if such a preference is not explicitly stated. Such an argument, therefore, would not only be rejected but be viewed as morally reprehensible as well.

Why do these arguments convince when applied to citizenship? In Diop v. France, a Senegalese citizen – residing in France and married to a French citizen – was refused admission to a French bar association. He satisfied all the prerequisites to become a member of the legal profession in France, except his nationality. The state made a similar argument to what I illustrated above. To quote verbatim, the state argued that:

“the rejection of his application by the Bar Council of Nice was … not because he was Senegalese but because he was not French within the meaning of article 1, paragraph 2 (of ICERD)”.

The Committee on the Elimination of All Forms of Racial Discrimination (CERD) accepted the argument while rejecting the discrimination claim by Mr Diop.

Given that race is often assumed to possess an inherent connection with colour, I begin the chapter by demystifying the purported linkage between the two. I argue that the materialisation of physical traits into rigid racial categories requires historical, conceptual, and spatial disruption. 

From a purely scientific perspective, human colouration is no more than a distribution of waves on the electromagnetic spectrum, or, for those with achromatopsia, nothing more than shades. Scholarly vantage points are different, but also consistent. Brodkin explains that the historical assignment of ‘white’ or ‘off-white’ labels to Jewish people was not dependent on skin colour; Nancy Shoemaker shows that the invention of the ‘red’ Indian label used to identify Native Americans is unconvincing as a description of colour, functioning instead as a tool of imperial separation; and, in the same vein, Michael Keevak demonstrates that assigning the colour yellow to East Asians had little to do with skin tone, operating instead as a manufactured product of imperial racial thinking designed to designate ‘Mongolians’. Drawing on copious data, I explain how colour was manipulated to satisfy an overriding discriminatory aim. 

The chapter then proceeds to ask several self-reflective questions, each designed to unsettle the assumed link between race and colour. For example, I ask how one becomes white? If ‘white’ refers to skin colour, is it sufficient — as many have tried with surgery and whitening creams — to paint one’s body? If it is instead a matter of pigment, then people with albinism would also be classified as white. 

Since neither move would render someone racially white, the chapter argues that colours did not function as biological realities but as certificates of entitlement that regulated racial boundaries of exclusion. Imperial powers weaponised visual difference, deploying a ‘pigmentocracy’ as a calculated alienating technique to demarcate and exclude populations earmarked for subjugation. In doing so, imperial projects did not merely observe or comply with innate human variation; rather, they actively ‘invented colours’ to reify their designated racial superiority. The apparent connection between race and colour, the chapter concludes, should therefore be questioned rather than assumed.

Having established the first side of the comparison, I then turn to the second: the (dis)connection between race and citizenship. I ask, first, how international law, and particularly the wording of the Race Convention, separates these concepts. Taking readers through a brief overview of the construction of race within international human rights law, I seek to show that international law treats race and citizenship as independent concepts, unlike race and colour which are fused together. This bifurcation constructs race and citizenship as parallel realities that do not intersect, necessitating independent evidence for each to prove a claim of discrimination before a legal body.

Yet, in practice, race and citizenship have long been foundationally connected, not least because the postcolonial world was racially divided through citizenship. Tendayi Achiume, for instance, identifies the fundamentally ‘racialised character of neo-colonial borders’. This stratifying and exclusionary function of racialised citizenship across borders is illustrated through the Quality of Nationality Index, reproduced in the chapter as a map that shows a global division of value and mobility, and the significance of citizenship within that order.

The chapter argues that the map portrays a disintegrated and racialised view of the world, divided by the value attributed to citizenship. In this stratified world, citizenship shapes the value assigned to a person and the rights they can practically access. Those who hold predominantly ‘white’ citizenships receive what Branko Milanovic calls a ‘citizenship premium’, while those who hold ‘coloured’ citizenships endure a ‘citizenship penalty’. In this account, citizens of predominantly Western nation-states benefit from a ‘birthright lottery’ when compared to those in the global South, who are positioned as the ‘children of a lesser state’. The chapter recalls Kochenov’s classification of citizenship in the postcolonial world order as a tool of:

“hypocrisy, and blunt domination, all dressed up as agency and the pursuit of the common good … a very effective abstract legal tool to justify essentially random violence, humiliation, and exclusion”.

To verify these claims, I return to the matter of Diop v France (recall that he was rejected by the Bar Council of Nice not because he was Senegalese but because he was not French). Mr Diop was not seeking to subvert the validity of nation-state boundaries, nor was he claiming political rights reserved for citizens, a dubious proposition in its own right. To the contrary, he resided in France,  was married to a French citizen, and his child was domiciled next door in Monaco. For all intents and purposes, he was de facto French even if not de jure so. 

Yet, despite meeting all statutory requirements for admission to the profession — except French nationality — he was excluded from practising law at the Bar of Nice. In the end, it was the persona of citizenship that prevented the CERD Committee from confronting the racial dimensions of his case. The citizenship-based defence raised by France erased Mr Diop’s colour, his Senegalese origin, and his disadvantaged position. The chapter discusses several other communications (cases) that reach equivalent outcomes.

Both cases in the comparison are situated in similar circumstances and yet are treated differently and, essentially, unequally. The prohibition of discrimination on the basis of colour seems to have become a saviour of IHRL and, through it, of the liberal legal order. While that prohibition endures, racialised non-citizens are treated discriminatorily on a day-to-day basis. It is as if skin colour has been transposed to the colour of passports, with exclusions on the latter basis openly legitimised. 

To explain this shift, throughout the chapter, I draw upon a ghost metaphor. I argue that race is given a new persona to justify the exclusion of racialised individuals: the persona of citizenship. This persona conceals, justifies, and legitimises racial discrimination, often by recasting it as non-racial. International law is presented through a necro-symbolisation of a graveyard that forbids and seeks to bury practices of racial discrimination on the basis of colour, yet reincarnates the same practices through citizenship. The metaphor of ghosts captures citizenship-based racial discrimination as a form of reincarnation that remains invisible to international law because of its cultivated blindness. These ghosts, the chapter concludes, rise from the graveyard of international law to haunt the present. Due to the disruption that results from their presence, the only option is for imperial powers — and certain complicit legal scholars — to deny they exist. 

I end where I began. Ghosts may haunt but they can also illuminate. I hope Diop’s story will echo, underscoring the way the putatively colourblind form of citizenship produces racialised outcomes that continue to haunt international law.