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Article two, clause five of the United States Constitution states:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;

The USA signed the ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) in 1966, and ratified it in 1994, making it a State Party to the convention. To me, various articles in this convention seem to be at odds with the constitution clause.

For instance, ICERD article 5, clause (c) reads (emphasis mine):

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: [...] Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

Regardless of the original intent of the convention, it seems to me that the quoted US Constitution clause distinguishes citizens by national/ethnic origin when it comes to the political right of participating in Government, and thereby violates this article of the ICERD.

Am I misunderstanding something about treaties in this case? Is the quoted clause from the US Constitution compatible with the ICERD?

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  • Tangentially relevant: Hassan v. Colorado, where the natural-born-citizen clause is contrasted with the Fourteenth Amendment.
    – Rhymoid
    Commented Jul 19, 2016 at 20:41

4 Answers 4

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The ICERD would not apply to the natural born citizens clause by its own definitions. Part 1, Article 1, secs 2 and 3 read:

  1. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
  2. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
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    This answer probably seal the deal. Strictly speaking the natural born citizen clause distinguishes between two different classes of citizenship, but it is a legal provision concerning naturalization that does not discriminate against any particular nationality.
    – ohwilleke
    Commented Mar 20, 2017 at 22:17
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One might think that. However, as the Supreme Court in Reid v. Covert, 354 U.S. 1 held that "no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution", observing that "[t]his Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty".

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    That isn't what was asked: "Which is more supreme." What was asked was do they conflict, the answer is yes, but it doesn't matter because the constitution will always supersede..
    – Insane
    Commented Jul 19, 2016 at 23:58
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    The fact that the constitution prevails doesn't mean that the conflict doesn't matter. Countries may be subjected to penalties under a treaty mechanism because they are domestically incapable of implementing the terms of a treaty they've signed. In WTO law, for instance, the fact that your constitution prevents you from implementing your commitments is no excuse, you'll still be subject to whatever remedies are available.
    – Dan
    Commented Mar 20, 2017 at 22:23
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Apart from the fact that members of the current UN Human Rights Council are, inter alia, China, Saudi-Arabia and Cuba, which underlines the relevance of UN instruments, taking part in the Government is vague or broad enough to say, that access to participation in the Government may not per se denied on the basis of national origin, as opposed to a specific function in a government. Considering the time of adoption, it seems obvious to me that the Convention was adopted with South African apartheid in mind, which supports my argument.

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Maybe and maybe not. "National origin" does not have a universal interpretation as "citizenship". German law (at least until recently, but perhaps still) regards individuals to be "German" only if they can trace their lineage to at least one ancestor living on German territory before 1913. So one may be a German citizen while not being of German "national origin." US law has recently also put in question the meaning of the phrase "natural born citizen".

This creates a situation where a somewhat ambiguous phrase may be contrary to an already somewhat ambiguous requirement. So, without litigation, it's impossible to determine if the requirement is violated.

But in order for litigation to occur, there has to be a party which has a standing to litigate. And as this answer points out, the Constitution supersedes treaties. So it is not possible for anyone to have a standing to litigate (because regardless of the outcome of the litigation, the law precludes them from gaining additional legal benefits).

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  • I think anyone who is not a natural born citizen of the United States, but is a U.S. citizen aged 35 years of age or older who has filled out a petition to run for President would have standing to sue. Standing simply requires an actual injury related to the claim made in the lawsuit. I don't think that they would win on the merits and might even be dismissed on the pleadings, but I don't think that standing would be a problem for an appropriate person bringing suit.
    – ohwilleke
    Commented Mar 20, 2017 at 22:15
  • @ohwilleke, but if the court were to find that the US did violate the treaty, the fact that the Constitution supersedes treaties would force such a violation to be treated as not injurious. So the suit would not establish injury even in the case of a positive outcome for the plaintiff. And without a possibility of establishing injury, there is no standing. In other words, if there is no injury (by law) even if a defendant stipulates to all the facts of the case alleged by the plaintiff, then the plaintiff doesn't have standing.
    – grovkin
    Commented Mar 20, 2017 at 22:42
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    No. Lack of standing is a lack of subject-matter jurisdiction to resolve a disputed question of law. Failure to state a claim upon which relief can be granted does not deprive a court of subject-matter jurisdiction over the claim. This is why standing is evaluated under the alleged cause of action and not based upon an actual legal right to relief which is analytically distinct and procedurally distinct. A mere citizen or taxpayer wouldn't even have standing to raise this issue, but a candidate would have standing even though the question of law he raised he would probably lose.
    – ohwilleke
    Commented Mar 20, 2017 at 22:51
  • @ohwilleke, you are making an argument that a court would have standing to adjudicate the matter. I was not disputing that. I was saying that no plaintiff could make an argument that he/she would have a standing to bring the suit. These are distinct.
    – grovkin
    Commented Mar 20, 2017 at 23:16
  • No. They aren't. A court only has standing to adjudicate the matter if the plaintiff has standing to bring the suit. Operationally, standing is a motion under Fed.R.Civ.Pro. 12(b)(1) and failure to state a claim is a motion under FRCP 12(b)(6). You get to present evidence on 12(b)(1) motions but not on 12(b)(6) motions.
    – ohwilleke
    Commented Mar 20, 2017 at 23:31

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