106
COLUM. J. RACE & L.
[Vol. 11:83
unqualified language about the necessity of
eliminating racial and ethnic discrimination in all
of its manifestations, the treaty contains an
explicit exception for countries’ citizenship and
naturalization policies. . . . Practices that would,
in short, merit the sternest reproach in nearly
every other area of government policy are
considered permissible in the area of citizenship.99
Mariner made this observation just a year before the
Committee formulated its General Recommendation Thirty,
which advanced a significantly narrowed interpretation of the
Article 1(3) limitation clauses. This Article returns to the
Committee’s Recommendation below, but for now it is important
to stress that generous scholarly and Committee interpretations
notwithstanding, it is difficult, and possibly counterproductive,
to ignore the fact that on its face, the language of Article 1(3)
undermines the reach and application of the Convention. As
Egon Schwelb rightly points out, with Article 1(3) left
unconstrained, under its terms a provision “depriving of their
citizenship the citizens of a State Party who belong to a specific
racial or ethnic group would be a legal provision ‘concerning
nationality’ and ‘concerning citizenship’ and would” therefore be
compatible with Article 1(3).100 Needed is a principled approach
for “reading down” Article 1(3), one that heeds closely to the
99 Joanne Mariner, Racism, Citizenship and National Identity, 46
DEVELOPMENT 64, 64–65 (2003). Mariner notes in a separate essay that “while
adamantly prohibiting racial and ethnic discrimination in other areas,
international human rights law falters notably with regard to rules regulating
citizenship.” Joanne Mariner, Racism Citizenship and National Identity: A
Conceptual Challenge for the UN Racial Conference, FINDLAW (Sept. 3,
2001), https://supreme.findlaw.com/legal-commentary/racism-citizenship-andnational-identity.html [https://perma.cc/YM8W-SQ6J]. Mariner points to
ICERD’s inclusion of “an explicit exception for countries’ citizenship and
naturalization policies,” noting that this provision specifies “that the
convention’s protections against discrimination do not generally extend to legal
rules on citizenship and naturalization, although they do bar discrimination
against particular nationalities.” Mariner, supra, at 64–65.
100 Egon Schwelb, The International Convention on the Elimination of
All Forms of Racial Discrimination, 15 INT’L & COMP. L.Q. 996, 1009 (1966)
[hereinafter Schwelb, Elimination of All Forms of Racial Discrimination]
(although contending that Article 5(d)(iii) “limits the very wide field of
application of Article 1(3), such . . . a provision of this kind would ultimately be
incompatible with the Convention.”).