2021] NATIONALITY LAWS 105 Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance from 2018 highlights this tension in noting that “the regulation of nationality is generally considered to be within the domestic jurisdiction of States,” yet “international law provides that the right of States to decide who their nationals are is not absolute.”96 To be sure, some scholars have acknowledged Article 1(3) as problematic. Peter Spiro observes that while international law has significantly and broadly constrained discriminatory classifications, Article 1(3) “brackets the use of race as a criterion for citizenship.”97 He concludes that “[i]n its original conception . . . the Convention was not intended to constrain criteria for admission from outside the existing community,” citing the Convention as an example of international law’s historical silence about a citizenship regime that had the clear effect of excluding outsiders on the basis of race.98 Joanne Mariner makes a similar observation. Writing in 2003, she comments: the convention shifts gears with regard to rules regulating citizenship. Despite its broad and 96 Special Rapporteur Report on Contemporary Forms of Racism, supra note 36, ¶ 23 (citing U.N. Secretary-General, Human Rights and Arbitrary Deprivation of Nationality, Hum. Rts. Council, ¶¶ 20, 57, U.N. Doc. A/HRC/13/34 (Dec. 14, 2009)) (“The [International Law] Commission also affirmed that the right of States to decide who their nationals are is not absolute and that, in particular, States must comply with their human rights obligations concerning the granting of nationality.”). Accord Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4, ¶ 32 (Jan. 19, 1984) (contending that that “the manners in which States regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the State are also circumscribed by their obligations to ensure the full protection of human rights”); Václav Mikulka (Special Rapporteur), Third Rep. on Nationality in Relation to the Succession of States, at 20–21, U.N. Doc. A/CN.4/480 (Feb. 27, 1997) (indicating that a State must exercise “its discretionary power within the scope of its territorial or personal competence . . . in a manner consistent with its international obligations in the field of human rights.”). See also id. at 20 (indicating that “State sovereignty in the determination of its nationals does not mean the absence of all rational constraints. The legislative competence of the State with respect to nationality is not absolute.”) (citing HENRI BATIFFOL & PAUL LAGARDE, DROIT INTERNATIONAL PRIVÉ 69–70 (7th ed. 1981)). 97 Spiro, supra note 3, at 716. 98 Id. Note, however, Spiro’s treatment of racial discrimination as jus cogens: “The prohibition on race discrimination has since arguably evolved into a jus cogens norm—that is, a norm from which no derogation is permitted.” Id. at 716 n.144 (citing Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 101 (Sept. 17, 2003)).