Racial Discrimination in Nationality Laws A Doctrinal Blind Spot of International Law?

Abstract

Statelessness has historically been overlooked by the international community, but it is now a significant focus of the work of academics, advocates, and international institutions. The United Nations High Commissioner for Refugees’ campaign to end statelessness by 2024 is now past its half-way point. Yet, while it is understood that statelessness is often the result of systemic racial discrimination, the relationship between statelessness, nationality laws, and international norms of racial non-discrimination has received very little scholarly attention.

This Article addresses the lacuna in existing legal scholarship, and indeed in jurisprudential analysis, of racial discrimination in nationality matters, by undertaking the first in-depth examination of the history, interpretation, and application of Article 1(3) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and its consistency with the jus cogens prohibition on racial discrimination. While focused explicitly on a particular treaty provision, this analysis raises larger and vital questions about race, nationality, and statelessness—matters that are historically pertinent and have profound ongoing relevance.

The Article provides a principled, doctrinal interpretive framework within which to “read down” the problematic Article 1(3) so that the ICERD may be invoked to combat racially discriminatory nationality laws. The clarification and articulation of legal norms around Article 1(3), and a justification for its narrow interpretation, add to the existing legal tools for combatting discriminatory citizenship deprivation and denial and narrowing the boundaries of state discretion.