716 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 general matter.144 Yet in its first article the Racial Discrimination Convention brackets the use of race as a criterion for citizenship, providing that “[n]othing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”145 The Convention governs citizenship distinctions made within an existing community, precluding, for instance, apartheid-type situations in which native-born residents are denied nationality on the basis of their race.146 But in its original conception, at least, the Convention was not intended to constrain criteria for admission from outside the existing community.147 International law had nothing to say about a citizenship regime that had the clear effect of excluding outsiders on the basis of race. As Joanne Mariner observes, “Practices that would . . . merit the sternest reproach in nearly every other area of government policy are considered permissible in the area of citizenship.”148 II. AN INTERNATIONAL LAW OF CITIZENSHIP? Even today, most leading commentators on citizenship theory— both legal scholars and social scientists— continue to characterize nationality practice as largely outside the ambit of international law.149 But that view is sometimes now subject to nontrivial qualification. 144 The prohibition on race discrimination has since arguably evolved into a jus cogens norm—that is, a norm from which no derogation is permitted. See, e.g., Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (Ser. A) No. 18, para. 101 (Sept. 17, 2003) (finding nondiscrimination to qualify as a jus cogens norm); Goldston, supra note 119, at 328. 145 Racial Discrimination Convention, supra note 142, Art. 1(3). As one commentary on the Convention observes, the clause was intended as a limitation provision designed to assure states parties that due respect is given to state sovereignty in areas concerning naturalization. . . . .... Naturalization laws have always been considered a principle prerogative of state sovereignty. The Committee has accorded due respect to this principle in its discussions of state reports. Consequently, the limitation provisions articulated in Article 1(3) have generated little controversy and merited only minor attention. Drew Mahalic & Joan Gambee Mahalic, The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, 9 HUM. RTS. Q. 74, 79, 82 (1987). 146 At the same time that the Racial Discrimination Convention brackets citizenship practices in Article 1(3), it also provides the guarantee of “a right to nationality” without distinction as to race. See Racial Discrimination Convention, supra note 142, Art. 5(d)(iii). This provision was interpreted contemporaneously to prohibit discrimination in the deprivation of nationality only. See Egon Schwelb, The International Convention on the Elimination of All Forms of Discrimination, 15 INT’L & COMP. L.Q. 996, 1008 (1966). 147 NATÁN LÉRNER, THE U.N. CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION 28 –32 (1980) (noting that paragraphs 2 and 3 of Article 1 were added to limit the scope of “national origin” and to make clear that the Convention was not meant to “affect substantive or procedural norms on citizenship or naturalization”). 148 Joanne Mariner, Racism, Citizenship, and National Identity, DEVELOPMENT (Society for International Development), Sept. 2003, at 64, 65 (noting that it is consistent with the Racial Discrimination Convention for countries “to impose highly discriminatory citizenship rules”). 149 BOLL, supra note 4, at 97–98 (“It is a generally accepted principle of international law that it is up to each state to determine who its nationals are, subject to obligations due to other states. . . . [S]tates have basically unfettered freedom in determining whom they consider a national.”); Goldston, supra note 119, at 323 (“determining membership in a territorially circumscribed political community remains one of the core attributes of state sovereignty”); Hailbronner, supra note 20, at 35 (“public international law has very little to say about the scope and limits of a state’s determination of nationality”); Rubenstein, supra note 10, at 164 (“International law affirms that it is 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