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COLUM. J. RACE & L.
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VI. TOWARD A PRINCIPLED
INTERPRETATION OF ARTICLE 1(3)
Racially discriminatory nationality laws and practices
are often calculated to prevent a group or groups from
participation in the political, social, economic, and cultural life of
the country. Even when they do not discriminate explicitly and
directly, nationality laws can discriminate against certain groups
in effect and produce the same exclusionary result. Indeed, the
application of racially discriminatory nationality laws to a
significant segment of the population of a state is a quintessential
example of systemic racial discrimination under the terms of
international law. In order for Article 1(3) to conform to the
principle of integration, it must be applied consistently with the
peremptory prohibition against systemic racial discrimination.
Article 1(3) must also, as is widely accepted, be read in light of
the broad protection enshrined in Article 5 of ICERD of the right
to nationality for everyone (and arguably together with other
treaty expressions of the right to a nationality) 249 and the
international prohibition against arbitrary deprivation of
nationality.250
Application of the jus cogens norm against systemic racial
discrimination to the more prominent and egregious instances of
denationalization outlined in Part II is straightforward. 251 In
each of those cases, there is a denial of the basic human right to
a nationality to members of a racial group or groups, and a
convincing argument could be made that the relevant measures
leading to this outcome were calculated to prevent the racial
group from participation in the political, social, economic, and
cultural life of the country. Yet, even where denial or deprivation
of nationality does not meet such a high bar, racialized
nationality laws may nonetheless violate the jus cogens norm
given that they will, in many cases, meet the definition of serious
or systemic racial discrimination.
However, does this mean that states can no longer
maintain any discrimination in the content or application of
nationality laws? In this regard, an important question to
249 UDHR, supra note 76, art. 15.
250 Id. See also CRPD, supra note 76, art. 18(1)(a). Article 18(1)(a)
provides an explicit prohibition against arbitrary deprivation of nationality. The
prohibition has also been acknowledged to constitute a rule of customary
international law, and applies whether or not it results in statelessness.
Brandvoll, supra note 75, at 194.
251 See discussion supra Part II.