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By contrast, nationality matters have been considered
more extensively in the context of the Committee’s examination
of individual country reports, although in that context the issue
is examined relatively infrequently. 142 The Committee was
initially reluctant to criticize states’ treatment of non-citizens
and nationality laws, especially as those laws related to
naturalization and the granting of preferential treatment to
citizens of favored nations. 143 In more recent years, the
Committee’s General Recommendations, and especially General
Recommendation Thirty, have somewhat narrowed the terms of
the Convention so that Article 5 is now seen as limiting the scope
of Articles 1(2) and 1(3). Even with this interpretation advanced
in its General Recommendations, the Committee has been
inconsistent in its willingness to comment directly on racially
discriminatory nationality laws. Our survey of the Committee’s
concluding observations over a thirty-year period reveals that it
is, to a certain degree, still reluctant to call attention clearly and
unequivocally to discriminatory nationality laws, particularly as
they relate to the denial of nationality.
In its General Recommendation Eleven, the Committee
made a preliminary and interesting interpretive maneuver with
respect to Article 1. Noting that Article 1(2) exempts from Article
(Jan. 23, 2017) (Petitioner claimed that his application for naturalization was
rejected based on his national origin and disability.); A.M.M. v. Switzerland,
Communication 50/2012, Opinion, Comm. on Elimination Racial Discrimination,
¶ 3, U.N. Doc. CERD/C/84/D/50/2012 (Mar. 11, 2014) (Petitioner claimed that
the State violated his right not to be arbitrarily discriminated against, on
account of his race and national origin, in his quest to secure refugee status.);
D.R. v. Australia, Communication 42/2008, Opinion, Comm. on Elimination
Racial Discrimination, ¶ 7.3, U.N. Doc. CERD/C/75/D/42/2008 (Sep. 15, 2009)
(Petitioner claimed that in withdrawing him from Social Security and depriving
him of the right to the full benefits of citizenship, the State arbitrarily
discriminated against him because of his race and nationality.). This is current
up to November 19, 2020.
142 The Committee has published concluding observations on 161
countries. The analysis for this article has derived from a review of all of the
concluding observations available in English up until December 2019.
143 Mahalic & Mahalic, supra note 123, at 79 (“States parties hold, and
the Committee has agreed, that a state has the sovereign right to decide who
can enter and remain in its territory provided that no element of racial
discrimination is involved. Committee members have been hesitant to criticize
a state’s naturalization laws unless they reveal a flagrant racially
discriminatory practice. With one exception, the Committee has discovered no
racist provisions on the face of any state party’s naturalization laws.”); Comm.
on Elimination Racial Discrimination, Rep. of Meeting, U.N. Doc.
CERD/C/SR.488 (Aug. 11, 1980); Comm. on Elimination Racial Discrimination,
Provisional Summary Record of Its Twenty-Eighth Session, 643rd mtg. U.N.
Doc. CERD/C/SR.643 (July 22, 1983).