722 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 (CERD) had historically taken a hands-off approach to nationality practices—in line with the limitation of Article 1(3)—it has more aggressively scrutinized state conduct in the area in recent years.176 In a 2004 general comment, CERD called on states parties to “[e]nsure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for long-term or permanent residents.”177 The evolution of CERD’s views, coupled with other international organizations’ recognition of the human rights implications of citizenship practices, points to a growing antidiscrimination metric for practices relating to the acquisition of citizenship.178 As evidence of this change, and in contrast to the Racial Discrimination Convention, the European Convention on Nationality bars discrimination in nationality rules on the basis of race.179 The other driver here is a democracy norm. To the extent that self-governance constitutes a right, citizenship is centrally important. When citizenship—and with it, full equality—is denied to habitual residents, especially from birth or early childhood, democratic values are compromised.180 As Diane Orentlicher observes, “a democratic principles paradigm . . . presents an especially potent challenge to the discretion that states have classically enjoyed in respect of citizenship policies.”181 On this score, Nottebohm may supply a sort of inverse conceptual guide to the future international law of citizenship. The decision itself denied a state’s 176 See ZIEMELE, supra note 139, at 294 (“The view has emerged that the prohibition of discrimination [under the Racial Discrimination Convention] applies fully to nationality legislation, including naturalization.”). 177 CERD, General Recommendation No. 30, supra note 117, para. 13; see also CERD, General Recommendation No. 27, Discrimination Against Roma, UN Doc. A/55/18, Annex V (Aug. 16, 2000) (calling on parties to ensure that legislation relating to citizenship and naturalization does not discriminate against the Roma). 178 See, e.g., MANDBY, STRUGGLES FOR CITIZENSHIP IN AFRICA, supra note 5, at 29 (international human rights treaties “prohibit[] discrimination in granting citizenship”); VAN WAAS, supra note 106, at 97, 98 (asserting that discrimination is the “one uniting element” in denial of citizenship cases; “denial of citizenship is the discriminatory deprivation of citizenship”); Eide, supra note 136, at 121 (“international law is increasingly making its demands felt: there should be no discrimination in the nationality legislation, including the part that deals with naturalization”); Goldston, supra note 119, at 332 (calling for application of nondiscrimination norms to citizenship policies). 179 See European Convention on Nationality, supra note 117, Art. 5(1) (“The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin.”). 180 See, e.g., Rainer Bauböck & Bernhard Perchinig, Evaluation and Recommendations, in 1 ACQUISITION AND LOSS OF NATIONALITY, supra note 5, at 434 (the status of resident aliens blocked from naturalization “becomes almost like that of women, unpropertied citizens or disenfranchised racial and indegenous groups before the introduction of universal suffrage”); Cornelia Sonntag-Wolgast, Opening Speech, in TRENDS AND DEVELOPMENTS IN NATIONAL AND INTERNATIONAL LAW ON NATIONALITY, supra note 159, at 15 (statement of German interior ministry official applauding conclusion of European Convention on Nationality and reform of German nationality law because “[i]t is not tolerable for any state if a large number of citizens stay outside the public community over generations and are excluded from full democratic participation”). 181 See Orentlicher, supra note 155, at 299; see also SHACHAR, supra note 2, at 136 (“contemporary understanding of self-government . . . creates a strong presumption in favor of including all long-term residents in the innermost circle of membership”). This liberal orientation is also found among policymakers. See, e.g., Raimo Pekkanen & Hans Danielus, Human Rights in the Republic of Estonia, 13 HUM. RTS. L.J. 236, para. 36 (1991) (report to the Parliamentary Assembly of the Council of Europe) (“if substantial parts of the population of a country are denied the right to become citizens, . . . this could affect the character of the democratic system in that country”); Commission on Security and Cooperation in Europe, Letter from the CSCE High Commissioner Max van der Stoel to Latvian Foreign Minister Georgs Andrejevs, CSCE Communication No. 8, Ref. No. 1463/93/L (Dec. 10, 1993), at http://www.minelres.lv/count/latvia/931210r.htm (“If the overwhelming majority of non-Latvians in your country is denied the right to become citizens, and consequently the right to be involved in key decisions concerning their own interests, the character of the democratic system in Latvia might even be put into question.”). The democracy objection can alternatively be resolved, in large part, through the mechanism of noncitizen voting—another This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms