2021]
NATIONALITY LAWS
97
Muslims, further underlining the discrimination at the heart of
the contemporary citizenship crisis in India.57
Additionally, many African Commonwealth countries
which, having broadly inherited jus soli systems of citizenship,
almost universally replaced birthright citizenship with laws
based on citizenship by descent following independence, often
“implicitly or explicitly intended to exclude potential citizens of
non-African descent,” 58 and often on a racially or ethnically
discriminatory basis. 59 The legacy of colonization and
decolonization can bring about entrenched cases of racialized
statelessness, as can other forms of state succession. 60 As
addressed further below, it is important to note that such cases
can be characterized by direct or indirect forms of racial
discrimination,61 and can occur in the absence of discriminatory
intent.62
III. NATIONALITY MATTERS: BETWEEN
STATE SOVEREIGNTY AND HUMAN RIGHTS
Under traditional notions of state sovereignty, decisions
relating to the conferral, withdrawal, and regulation of
nationality are, in principle, not a matter for international law.63
57 See Farrah Ahmed, Arbitrariness, Subordination and Unequal
Citizenship, 4 INDIAN L. REV. 121 (2020). See also Abhinav Chandrachud,
Secularism and the Citizenship Amendment Act, 4 INDIAN L. REV. 138 (2020);
Monika Verma, Citizenship (Amendment) Act, 2019: The Pernicious Outcomes of
the Altering Equation of Citizenship in India, CONFLICT, JUST.,
DECOLONIZATION: CRITICAL STUD. INTER-ASIAN SOC’Y (June 24, 2020),
https://www.researchgate.net/publication/342436363_Citizenship_Amendment
_Act_2019_The_Pernicious_Outcomes_of_the_Altering_Equation_of_Citizenshi
p_in_India [https://perma.cc/ZA43-JQ5A]; Atul Alexander, Evaluating the
Citizenship Amendment Act, 2019 in India: Perspectives from International
Refugee
Law,
INT’L
L.
UNDER
CONSTR.
(Feb.
27,
2020),
https://grojil.org/2020/02/27/evaluating-the-citizenship-amendment-act-2019in-india-perspectives-from-international-refugee-law/ [https://perma.cc/C3RF7JKN].
58 BRONWEN MANBY, CITIZENSHIP IN A FRICA 76 (2018).
59 See e.g., THE PUBLIC ORDER ACT [CONSTITUTION] Dec. 31, 1965,
(Sierra Leone); CONSTITUTION OF THE REPUBLIC OF UGANDA [CONSTITUTION]
Oct. 8, 1995, (Uganda). See generally MANBY, supra note 58, at 193–99.
60 de Chickera & Whiteman, supra note 1, at 101.
61 ICERD, supra note 11, art 1(1) (requiring states to eliminate
discrimination in purpose or effect, as well as discrimination that occurs in the
absence of discriminatory intent). See, e.g., THORNBERRY, supra note 2, at 114.
62 Special Rapporteur Report on Contemporary Forms of Racism, supra
note 36, ¶ 18.
63 Manley O. Hudson (Special Rapporteur of the International Law
Commission) Rep. on Nationality, Including Statelessness, at 7, U.N. Doc.
A/CN.4/50 (1952) (“In principle, questions of nationality fall within the domestic