2021]
NATIONALITY LAWS
127
contained in article 27 of the Constitution and the
Alien and the Nationalization Law, which are
contrary to article 2 of the [CRC] Convention.186
The following section argues that jus cogens and antifragmentation (and the interplay between the two) as
interpretive principles are appropriate tools to address this
interpretive gap and provide the framework needed to more
squarely address the fundamental issue of racism in nationality
laws.
V. JUS COGENS AS AN INTERPRETIVE
PRINCIPLE IN THE CONTEXT OF RACIAL
DISCRIMINATION AND NATIONALITY
PRACTICE
While the jus cogens status of the prohibition on racial
discrimination in the context of (or as it extends to matters of)
nationality has received considerable support, it is often asserted
without critical reflection. Writing in 1978, Paul Weis
commented
that
the
prohibition
of
discriminatory
denationalization—particularly
acts
of
collective
denationalization—may be regarded as a general principle of
international law, and “this certainly applies to discrimination
on the basis of race which may be considered as contravening a
peremptory norm of international law.”187 Similarly, Laura van
Waas writes that the jus cogens prohibition “restricts the freedom
of states to legislate on nationality matters by demanding that
such regulations must not differentiate between individuals on
the basis of [race] either in purpose or in effect.”188 According to
van Waas, the prohibition covers laws that provide for both
“access to, [and] withdrawal of, nationality” through “delineating
the scope of” such laws,189 and adds that the prohibition of racial
discrimination “has joined the ranks of jus cogens.” 190 Spiro
likewise contends that “the prohibition on race discrimination
has since arguably evolved into a jus cogens norm—that is, a
norm from which no derogation is permitted,”191 and James A.
Goldston notes that “[t]he prohibition against racial
186 Comm. on Rts. Child, Concluding Observation on Liberia, ¶ 41 U.N.
Doc. CRC/C/LBR/CO/2-4 (Dec. 13, 2012).
187 WEIS, supra note 64, at 125.
188 VAN WAAS, supra note 74, at 103.
189 Id.
190 Id. at 103, 158 n.39 (citing ICERD, supra note 11, art. 5). See also
General Recommendation Thirty, supra note 146.
191 Spiro, supra note 3, at 716 n.144.