constitutional-law us-constitution treaty
Does the &quot;natural born Citizen&quot; requirement for presidency violate the ICERD?
<p>Article two, clause five of the United States Constitution states:</p>

<blockquote>
  <p>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;</p>
</blockquote>

<p>The USA signed the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx" rel="noreferrer">ICERD</a> (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.</p>

<p>For instance, ICERD article 5, clause (c) reads (emphasis mine):</p>

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

<p>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.</p>

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

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

<blockquote>
  <ol start="2">
  <li>This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.</li>
  <li>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.</li>
  </ol>
</blockquote>

<p>One might think that. However, as the Supreme Court in <a href="https://www.law.cornell.edu/supremecourt/text/354/1" rel="noreferrer">Reid v. Covert, 354 U.S. 1</a> 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".</p>

<p>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, <strong>taking part in the Government</strong> is vague or broad enough to say, that access to participation in the Government may not <em>per se</em> 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.</p>

<p>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".  </p>

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

<p>But in order for litigation to occur, there has to be a party which has a standing to litigate.  And as <a href="https://law.stackexchange.com/a/11792/11306">this answer</a> 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). </p>
