Wednesday, October 19, 2011
ABSTRACT: 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. That is now changing. 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 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. The shift is also reflected in recent work of prominent political theorists, who are increasingly articulating a right to citizenship. The new 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, it could be subversive of the communal solidarities on which state capacities may depend. This magnifies the importance of building capacity at the international level. The article charts the history of and suggests a future for the international law of citizenship.