Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces.
That may now be changing on all levels. These continuities of space, identity, and nationality are eroding. The instability — which is explained, in part, by globalization and increased mobility — is generating intense scholarly attention to citizenship as an institution. The conditions of globalization are necessary, but not sufficient, to decouple citizenship status from other metrics of identity. Reframing citizenship status as an individual right is crucial to the shift. Insofar as citizenship is so framed, its delimitation can no longer turn on traditional membership criteria, many of which collide with other norms of both liberal democracy and international law.
The result may be a new international law of citizenship. Although international law has regulated nationality practice as a matter of conflict of laws, it has largely demurred from dictating to states the terms of their membership rules. That is now changing. Bars on gender discrimination in citizenship practice, as well as constraints on the termination of citizenship, are hardening. Recent developments point to the emergence of norms that require the extension of territorial birthright citizenship in some cases and that limit discretion concerning naturalization thresholds. International law may also come to protect an individual’s right to maintain multiple nationality. These and other elements of a new regime relating to citizenship practice are emerging through multiple channels of decentralized international lawmaking. Some are found in international human rights instruments; In recent years the treaty committees associated with these regimes have moved aggressively in applying treaty terms to citizenship practice. Regional institutions, especially those of Europe and the Americas, have been receptive to a rights conception of citizenship practice. State practice also points toward the new frame, the result of both horizontal and vertical pressures, including as applied by nonstate actors.
These trends reflect a reconceptualization of citizenship status, shifting from an identity to a rights frame. (The reconceptualization has reflected the shift away from the use of the term “nationality” to denote the formal tie between the individual and the state, and toward the now more appropriate use of “citizenship.”) It is still not possible, however, to speak generally of a “right to citizenship” (at least not one enforceable on particular states), and it remains difficult even to speak of a right to citizenship in particular cases. The trend in practice is not a concerted or broadly conscious one and would not satisfy traditional doctrinal standards for establishing customary law. Nevertheless, the shift is reflected in recent work of prominent political theorists, who are increasingly articulating a right to citizenship. This theoretical work supplies coherence to developments on the ground and may undergird the eventual hardening of an international law of citizenship. It is thus not too early to consider the contours of citizenship in a rights frame.
The emergence of an international law of citizenship has broad implications for the nature of the state. To the extent that an international right to citizenship status helps decouple citizenship from organic forms of community, the new law of citizenship could undermine the solidarities on which state capacities may depend. In other words, the unintended long-term result of situating citizenship practice in the realm of human rights may be to diminish the value of citizenship. As more individuals come to enjoy an entitlement to that status, citizenship may come to be worth less.
This is not to argue against efforts to advance an international law of citizenship. In the short and medium term, a right to citizenship will indirectly advance the protection of a range of other rights on national turf. The right to citizenship may serve a transitional purpose, cementing the protection of other rights through the still-vigorous institutional vehicle of the state. In the longer run, however, the right to citizenship may compound other forces that are eroding state power. This possibility points, in turn, to international law and institutions as the primary location for the protection of rights. Contrary to important recent scholarship, I do not believe that the development of stronger international human rights regimes will reinforce state power, in part because states will be less representative of organic community. The emergence of international citizenship law figures centrally to this critique.
Part I of this article describes what I call the early and middle eras of international law’s approach to citizenship practice. In the early period international law had little to say about nationality determinations. More precisely, international law did constrain state practice, but only insofar as state practice implicated the interests of other states, that is, as a matter of conflict of laws. The middle period, spanning the human rights revolution of the mid- and late-twentieth century, saw the advent of limited incursions on state discretion in the context of statelessness, gender equality, and denationalization. None of these constraints, however, significantly affected state capacity to define membership. Even today, many international law commentators characterize citizenship practice as a matter of sovereign power.
Part II sets out the contours of an international law of citizenship that does constrain national self-definition. This part highlights elements of citizenship practice that are moving into the orbit of international law. In contrast to developments in the early and middle eras, these new constraints affect the admissions component of citizenship practice and dictate to states — in a broadening range of situations — who is entitled to citizenship, either at birth or through naturalization. Moreover, to the extent that international law recognizes an individual right to maintain plural nationality in certain contexts, international law may further undermine state capacity to delimit themselves relative to other states.
Part III situates these developments in a theoretical framework and confronts their significance for the future of the state as well as for the mediation of the individual and the global. Liberal political theory has long vouched for, or has at least assumed, the possibility of community closure and exclusion, — which has typically translated into an acceptance of immigration controls and an insistence on minimal barriers to naturalization. As immigration, both legal and illegal, has swelled, the arguments for citizenship have moved to a rights frame. I accept this framing but question its putative instrumental purpose — namely, to buttress the liberal state. I argue, on the contrary, that a right to citizenship is made possible only by weakening the state as a location for identity. To the extent that this nexus supplies a liberal basis for maintaining state discretion in setting citizenship criteria, the position is overcome by other liberal values. In any event, attempts on the ground to resist expanding the right to citizenship are likely to fail.
“Nationality has no positive, immutable meaning,” the Harvard Research in International Law project (Harvard Research) concluded 1929. “On the contrary its meaning and import have changed with the changing character of states. ... It may acquire a new meaning in the future as the result of further changes in the character of human society and developments in international organization.” This observation has held true through the modern age, which has been characterized by the primacy of states, but it will hold no less true as that age enters its late phases.
11 October 2011
The 94 page 'A New International Law of Citizenship' by Peter Spiro (forthcoming in the American Journal of International Law) asks -