A New International Law of Citizenship

Peter J. Spiro

doi:10.5305/amerjintelaw.105.4.0694

1 See, e.g., Sassen, Saskia, Territory, Authority, Rights (2006); Maier, Charles S., “Being There”: Place, Territory, and Identity, in Identities, Affiliations, and Allegiances 67 (Benhabib, Selya, Shapiro, Ian, & Petranovich, Danilo eds., 2007)Google Scholar.

2 See, e.g., Rainer, Bauböck, Transnational Citizenship: Membership and Rights in International Migration (1995)Google Scholar; Bosniak, Linda, the Citizen and the Alien: Dilemmas of Contemporary Membership (2008)Google Scholar; Castles, Stephen & Davidson, Alastair, Citizenship and Migration: Globalization and the Politics of Belonging (2000); Christian Joppke, Selecting By Origin: Ethnic Migration in the Liberal State (2005)Google Scholar; Ruth, Rubio-Marín, Immigration as A Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000)Google Scholar; Shachar, Ayelet, The Birthright Lottery: Citizenship and Global Inequality (2009)Google Scholar. The place of American citizenship against the transformed global backdrop has also garnered renewed interest among legal scholars and social scientists. See, e.g., Alexander Aleinikoff, T., Semblances of Sovereignty: The Constitution, The State, and American Citizenship (2002)Google Scholar; Motomura, Hlroshi, Americans in Waiting: The Lost Story of Immigration and Citizenship in The United States (2006)Google Scholar; Neuman, Gerald L., Strangers to The Constitution (1996)Google Scholar; Pickus, Noah, True Faith and Allegiance: Immigration and American Civic Nationalism (2007)Google Scholar; Spiro, Peter J., Beyond Citizenship: American Identity After Globalization (2008)Google Scholar; Smith, Rogers, Beyond Sovereignty and Uniformity: The Challenges for Equal Citizenship in the Twenty-First Century, 122 Harv. L. Rev. 907 (2009)Google Scholar

3 See, e.g., Donner, Ruth, The Regulation of Nationality in International Law 17 (2d ed. 1994)Google Scholar (“ [n] ationality may only be handled as a problem of the choice of law, when a tribunal has to decide what nationality law to apply”).

4 On top of the general interest in citizenship theory, dual citizenship has attracted particular attention. See, e.g., Boll, Alfred M., Multiple Nationality and International Law (2007)Google Scholar; Dual Citizenship in Europe: From Nationhood to Societal Integration 171, 174 (Thomas Faist ed., 2007); Dual Citizenship in Global Perspective: From Unitary to Multiple Citizenship (Thomas Faist & Peter Kivisto eds., 2007); Dual Nationality, Social Rights and Federal Citizenship in The U.S. and Europe: The Reinvention of Citizenship (Randall Hansen & Patrick Weil eds., 2002); Rights And Duties of Dual Nationals: Evolution And Prospects (Kay Hailbronner & David A. Martin eds., 2003). The classic earlier treatment of the subject is Nissim Bar-Yaacov’s 1961 study, Dual Nationality 266 (1961).

5 In addition to theory-oriented work, major recent collective initiatives have undertaken empirical studies of state citizenship practice. The European Union has funded a continuing project to document citizenship practices in Europe. See Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries ( Rainer, Bauböck, Ersboll, Eva, Groenendijk, Kees, & Waldrauch, Harald eds., 2005); Citizenship Policies in the New Europe Google Scholar ( Rainer, Bauböck, Perchinig, Bernhard, & Sievers, Wiebke eds., 2007). The Carnegie Endowment for International Peace sponsored a three-volume initiative on die subject: Citizenship Policies for an Age of Migration Google Scholar ( Alexander Aleinikoff, T. & Klusmeyereds, Douglas., 2002); Citizenship Today: Global Perspectives and Practices Google Scholar ( Alexander Aleinikoff, T. & Klusmeyer, Douglas eds., 2001); From Migrants to Citizens: Membership in a Changing World Google Scholar ( Alexander Aleinikoff, T. & Klusmeyer, Douglas eds., 2000)Google Scholar; see also Bloemraad, Irene, Becoming a Citizen: Incorporating Immigrants and Refugees in the United States and Canada (2006)Google Scholar (comparative study of naturalization); Marc, Morjé Howard, the Politics of Citizenship in Europe (2009)Google Scholar (undertaking quantitative empirical survey). Although much of this work has been focused on European and North American practice, important work has been undertaken on other regions. See, e.g., Erin, Aeran Chung, Immigration and Citizenship in Japan (2010)Google Scholar; Citizenship and the State in the Middle East ( Butenschon, Nils A., Davis, Uri, & Hassassian, Manuel eds., 2000)Google Scholar; Manby, Bronwen, Citizenship Laws in Africa: A Comparative Study (2009)Google Scholar; Manby, Bronwen, Struggles for Citizenship in Africa 5 (2009)Google Scholar.

6 In the modern era, “nationality” was used to designate the status by which an individual is tied to a state for international purposes, whereas “citizenship” denoted the status for purposes of municipal law. See, e.g., 3 John, Bassett Moore, A Digest of International Law 273 (1906)Google Scholar; Koessler, Maximilian, Subject, Citizen, National, and Permanent Allegiance, 56 Yale L.J. 58, 62-63 (1946-47)Google Scholar. The distinction was necessary in a world in which status was variable under domestic law, especially as between republican and nonrepublican systems, the latter denominating individuals as subjects (or slaves) rather than as citizens. Today, the distinction is vanishingly small. Many commentators use the terms interchangeably. See, e.g., Rubio-MarÌn, supra note 2, at 19 n.7; Barry, Kim, Home and Away: The Construction of Citizenship in an Emigration Context, 81 NYU L. Rev. 11, 14 n.6 (2006)Google Scholar; Knop, Karen, Citizenship, Public and Private, 71 Law & Contemp. Prob. 309, 309 n. 1 (2008)Google Scholar; see also Rainer, Bauböck, Transnational Citizenship: Membership and Rights in International Migration 24 (1994)Google Scholar (finding “nationality” to be “an unfortunate terminology” in face of plurinational states); Boll, supra note 4, at 60 (although maintaining utility of distinction, conceding that the terms “have largely converged”). This article will use “nationality” in its historically appropriate context and “citizenship” for purposes of designating contemporary political membership for both domestic and international purposes.

7 See, e.g., Bauböck, supra note 2; Benhabib, Seyla, The Rights of Others: Aliens, Residents and Citizens (2004)Google Scholar; Honig, Bonnie, Democracy and The Foreigner (2001)Google Scholar; Kymlicka, Will, Multicultural Citizenship (1996)Google Scholar; Miller, David, Citizenship and National Identity (2000)Google Scholar; Nussbaum, Martha, Frontiers of Justice: Disability, Nationality, Species Membership (2006)Google Scholar; Carens, Joseph, Immigration, Democracy, Citizenship, in of States, Rights, and Social Closure: Governing Migration and Citizenship 17 Google Scholar (Saime Ozcurumez & Oliver Schmidtke eds., 2008); see also Kymlicka, Will & Norman, Wayne, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 104 Ethics 352 (1994)Google Scholar (surveying literature). Michael, Walzer’s Spheres of Justice set the baseline for liberal approaches to citizenship and naturalization. Michael Walzer, Spheres of Justice, ch. 2 (1984)Google Scholar.

8 See Jacobson, David, Rights Across Borders: Immigration and the Decline of Citizenship (1997)Google Scholar (arguing that states will be empowered in administering international human rights regimes); Sassen, supra note 1, at 309 (“in most of the world, human rights are enforced through national law or not at all”); Kim Lane Scheppele, The International State of Emergency: Challenges to Constitutionalism After September 11 (forthcoming 2011) (arguing that national executives use the cover of international law to undermine domestic constitutions at home); Hathaway, Oona A., International Delegation and State Sovereignty, 71 Law & Contemp. Probs. 115 (2008)Google Scholar (arguing that delegation to international institutions may enhance state capacity).

9 Research in International Law of the Harvard Law School, The Law of Nationality, 23 AJIL 1,21 (Special Supp. 1929) [hereinafter Harvard Research].

10 See Rubenstein, Kim, Globalization and Citizenship and Nationality in, Jurisprudence for an Interconnected Globe 159, 159 Google Scholar (Catherine Dauvergne ed., 2003) (“citizenship, in its traditional meaning of participation in and membership of the nation state, will be fundamentally altered by globalization and will not continue to travel in the same manner that it has”).

11 Nottebohm (Liech. v. Guat.), 1955 ICJ Rep. 4 (Apr. 6).

12 William, Edward Hall, A Treatise on International Law 200 (2d ed. 1884)Google Scholar.

13 See League of Nations Committee of Experts for the Progressive Codification of International Law, Nationality, 20 AJIL 21, 23 (Special Supp. 1926) [hereinafter League of Nations Experts Committee] (“There is no rule of international law, whether customary or written, which might be regarded as constituting any restriction of, or exception to” the exclusive jurisdiction of individual states.); see also, e.g., Weis, Paul, Nationality and Statelessness in International Law 102 (1956)Google Scholar (“The power of a state to confer its nationality is derived from its sovereignty. It is an attribute of territorial supremacy.”); Fraser, R. S., Nationality and Expatriation, in International Law Association, Report of the Thirty-Third Conference 54, 57 (1924)Google Scholar (“With the rise and growth of nations in Europe the doctrine of absolute sovereignty developed pari passu and carried with it a corresponding development of the doctrine of nationality.”).

14 Harvard Research, supra note 9, at 26 (further suggesting that if a state “should attempt to naturalize all persons living outside its territory but within 500 miles of its frontier, it would clearly have passed those limits; or similarly if [it] should attempt to naturalize all persons in the world holding a particular political or religious faith or belonging to a particular race”); Brownlie, Ian, The Relations of Nationality in Public International Law, 1963 Brit. Y.B. Int’L L. 284, 295 Google Scholar (“If the United Kingdom were to declare that all French nationals living in Brittany were henceforth to be United Kingdom nationals,. . . then prima facie certain general principles of international law would have been violated.”).

15 Hall, supra note 12, at 195.

16 Brownlie, supra note 14, at 304-05; see also Convention on Certain Questions Relating to the Conflict of Nationality Laws, Art. 12, Apr. 12, 1930, 179 LNTS 89, at http://www.unhcr.org/refworld/docid/3ae6b3b00. html [hereinafter Hague Convention on Nationality] (“Rules of law which confer nationality by reason of birth on the territory of a State shall not apply automatically to children born to persons enjoying diplomatic immunities in the country where the birth occurs.”).

17 International Law Commission, Report on Nationality, Including Statelessness, 1952 Y.B. Int’l L. Comm’n 3,8, UN Doc. A/CN.4/50/1952 (1952) (prepared by Special Rapporteur ManleyO. Hudson) [hereinafter Hudson Report on Nationality].

18 See 3 MOORE, supra note 6, at 302-03 (describing 1840 U.S. protest of Peruvian law extending citizenship on the basis of property ownership); id. at 308 (in response to 1890 Brazilian law, U.S. secretary of state asserted that “[t]o hold that the mere residence of an individual in a foreign country was conclusive evidence of his desire and intention to become one of its citizens would. . . involve an assumption of the most violent character”); see also Borchard, Edwin, The Diplomatic Protection of Citizens Abroad 43 (1919)Google Scholar (a state “cannot confer citizenship upon [an individual] against his will, or without his manifesting an intention to change nationality”). But see Brownlie, supra note 14, at 306—07 (questioning rule against “involuntary” naturalization).

19 See, e.g., John c., Torpey, the Invention of The Passport: Surveillance, Citizenship, and the State 72 (2000)Google Scholar.

20 Hall, supra note 12, at 233; see also Hailbronner, Kay, Nationality in Public International Law and European Law, in 1 Acquisition and Loss of Nationality, supra note 5, at 35, 54 Google Scholar (“[scarcely any dispute exists that the two criteria are sanctioned by customary international law”).

21 See, e.g., Weil, Patrick, How to Be French: Nationality in the Making Since 1789, at 258-259 (2008)Google Scholar (explaining origins of term); Donner, supra note 3, at 21 (noting that Grotius did not address the concept of nationality as such).

22 See, e.g., Calvin’s Case, (1608) 77 Eng. Rep. 377 (K.B.).

23 Koessler, supra note 6, at 67.

24 See Spiro, Peter J., Dual Nationality and the Meaning of Citizenship, 46 Emory L.J. 1411, 1422-23 (1997)Google Scholar (describing how conflicts over U.S. naturalization contributed to War of 1812).

25 See Harvard Research, supra note 9, at 39; see also id. at 118-26 (reproducing bar association resolutions).

26 Garner, J. W., Uniformity of Law in Respect to Nationality, 19 AJIL 547, 550 (1925)Google Scholar (noting “regrettable situation” resulting from conflicting nationality laws).

27 Id. at 550.

28 See Institut de droit international, Résolutions relatives aux conflits de lois en matiére de nationalité (1896), at http://www.idi-iil.org/idiF/resolutionsF/1896_ven_02_fr.pdf.

29 See Report of the Nationality and Naturalisation Committee, in Report of the Thirty-Third Conference, supra note 13, at 25; see also id. at 46 (statement of Arthur Kuhn: “It seems to me that we are confronted with a very acute situation internationally.”).

30 For background, see Historical Survey of Development of International Law and Its Codification by International Conferences, UN Doc. A/AC. 10/5 (1947), reprinted in 41 AJIL 32, 66 (Special Supp. 1947).

31 See id., 41 AJIL at 105-07 (reproducing League of Nations Resolution approving codification conference).

32 See id. at 107 (stating that the “spirit of the codification . . . should not confine itself to the mere registration of existing rules, but should aim at adapting them as far as possible to contemporary conditions of international life”).

33 Scott served for many years as the editor in chief of the American Journal of International Law and then as president of the American Society of International Law. See Klrgis, Frederic L., The American Society of International Law’s First Century 1906-2006, AT 16, 37 (2006)Google Scholar.

34 James, Brown Scott, Observations on Nationality 6 (1931)Google Scholar. Scott’s short book on nationality is evidence of how loaded the subject of nationality was in the years surrounding the Hague Conference. It is a highly charged, openly emotional consideration of the subject, expressly denominated as “a plea” and reading as such. See also Garner, supra note 26, at 552 (concluding that “there ought to be no dissent as to the desirability of agreement” among states regarding nationality).

35 Among those included on the project’s advisory committee were Benjamin Cardozo, former secretary of state Elihu Root, and American Law Institute President George Wickersham. Among the academics were Edwin Borchard (Yale Law School), Charles Cheney Hyde (Columbia Law School), Philip Jessup (Columbia Law School), Francis Sayre (Harvard Law School), Quincy Wright (University of Chicago), and Manley O. Hudson (Harvard Law School), who directed the project (and would more than twenty years later himself undertake an important study of nationality practices). See Harvard Research, supra note 9, at 4 - 8. The effort was thus equivalent to a modern-day blue-ribbon commission. Hudson, Hyde, Jessup, and Wickersham were included on the subcommittee on nationality, of which Richard Flournoy Jr. served as reporter. Flournoy, an assistant to the solicitor of the Department of State, was a prolific writer on nationality issues. See, e.g., A Collection of Nationality Laws of Various Countries (Richard W. Flournoy Jr. & Manley O. Hudson eds., 1929); Richard W., Flournoy Jr., Nationality Convention, Protocols and Recommendations Adopted by the First Conference on the Codification of International Law, 24 AJIL 467 (1930)Google Scholar [hereinafter Flournoy, Nationality Convention]; Richard W., Flournoy Jr., Suggestions Concerningan International Code on the Law of Nationality, 35 Yale L.J. 939 (1926)Google Scholar; Richard W., Flournoy Jr., Dual Nationality and Election, 30 Yale L.J. 693 (1921)Google Scholar.

36 See Grant, John P. & Craig Barker, J., The Harvard Research: Genesis to Exodus and Beyond, in The Harvard Research in International Law: Contemporary Analysis and Appraisal L Google Scholar (John P. Grant & J. Craig Barker eds., 2007).

37 Harvard Research, supra note 9, at 21; see also Flournoy, Nationality Convention, supra note 35, at 468.

38 Harvard Research, supra note 9, Art. 4.

39 Id., Art. 10 cmt. (“it is necessary to realize the fact that dual nationality does exist and will continue to exist unless all states will agree to adopt a single rule for nationality at birth”).

40 Id., Art. 12 cmt. at 41 (stating that the “object of the article is to afford a means by which dual nationality may be ended”).

41 Id., Art. 13.

42 See id. at 46 (“ [a] t present it cannot be said that there is any general agreement upon the ‘right of expatriation’“).

43 Id., Art. 2.

44 See League of Nations Experts Committee, supra note 13, at 59-60. The experts committee was chaired by former Swedish prime minister Hjalmar Hammarskjold (father of the future UN secretary-general Dag Hammarskjold) and was dominated by European jurists. See Letter from the Director of the Legal Section of the League of Nations to the President of the International Society of International Law (Apr. 1,1925), reprinted in 20 AJIL 1 n. 1 (Special Supp. 1926) (listing members of the League of Nations committee). The United States was represented by George Wickersham, who also participated in the Harvard project. The committee’s report on nationality was drafted by Szymon Rundstein, a distinguished Polish lawyer. See id.; see also Anna Maria, Szczepan Wojnarska, Syzmon Rundstein, Museum of the History of Polish Jews, at http://www.sztetl.org.pl/en/person/45,szymonrundstein/ Google Scholar.

45 See League of Nations Experts Committee, supra note 13, at 32; Flournoy, Nationality Convention, supra note 35, at 471 (“agreement upon a single rule will be difficult to accomplish”).

46 See League of Nations Experts Committee, supra note 13, at 59-60. Article 1 of the draft would have required parties to refrain from exercising protection against a state of which an individual was considered a national from “the moment of [his] birth.” Article 6 provided that a state of naturalization could not exercise protection against “the State whose subject he originally was,” if still considered a national of that state. See id.

47 Hague Convention on Nationality, supra note 16, Arts. 1, 2.

48 See Donner, Ruth, Nationality, in Harvard Research: Contemporary Analysis, supra note 36, at 62-65 Google Scholar (systematically comparing Harvard recommendations with results of Hague Convention).

49 Hague Convention on Nationality, supra note 16, Art. 6; see also Flournoy, Nationality Convention, supra note 35, at 472 (“Since the article places no limitation upon these ‘conditions,’ presumably the state in question may make them as drastic, difficult and unreasonable as it may choose.”).

50 Hague Convention on Nationality, supra note 16, Arts. 8 —9.

51 Id., Arts. 13-16. As Rundstein noted, these mechanisms addressed cases “so rare that [a solution] would not be likely to encounter political obstacles.” League of Nations Experts Committee, supra note 13, at 30.

52 Scott, supra note 34, at 65-66; see also Donner, supra note 48, at 67 (noting that “[c]riticism of the Convention and characterization of it as a failure was widespread”).

53 See Hague Convention on Nationality, supra note 16; see also Hudson Report on Nationality, supra note 17, at 7 (results of the Hague Conference “were relatively modest”).

54 Weis, supra note 13, at 31; see also Flournoy, Nationality Convention, supra note 35, at 484 (discussions surrounding the Convention “served to bring out in sharp relief the position of the various states with regard to important problems”).

55 Rundstein repeatedly used the phrase in discounting the possibilities for broad agreement. See League of Nations Experts Committee, supra note 13, at 25 (highlighting political aspects of nationality questions;” [n] o solution can be hoped for where there is the slightest suspicion that the problem is of a political nature”), 30,34; see also Weis, supra note 13, at 90 (noting as obstacle to development of international law in the area “the frequently noticeable tendency of States to uphold, for political reasons, their own law even if it is at variance with that of the majority of States”); Flournoy, Nationality Convention, supra note 35, at 467 (“There is one point which has been stressed by nearly everyone who has discussed the inclusion of nationality in the codification of international law,. . . that is, that this subject is especially difficult because of the fact that it is to a great extent ‘political.’“).

56 See generally, e.g., Borchard, supra note 18.

57 See, e.g., Brierly, J. L., The Law of Nations 204 (4th ed. 1949)Google Scholar (“a large part of the time of the legal department of every foreign office is taken up with” controversies relating to diplomatic protection).

58 Annemarieke, Vermeer-Künzli, As If: The Legal Fiction in Diplomatic Protection, 18 Eur. J. Int’L L. 37, 38 (2007)Google Scholar.

59 Thus, states have (at least under traditional doctrine on the question) no duty to exercise the right of diplomatic protection on behalf of a national who has been harmed. See Borchard, supra note 18, at 18; Vermeer-Künzli, supra note 58, at 63 (noting that state’s exercise of its right to diplomatic protection is discretionary).

60 “[I]t is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection.” Panevezys-Saldutiskis Railway (Est. v. Lith.), 1939 PCIJ (ser. A/B) No. 76, at 16 (Feb. 28); see also Brownlie, supra note 14, at 290 (source of the “high significance which the concept of nationality has in the law”); Guy I. F., Leigh, Nationality and Diplomatic Protection, 20 Int’L & Comp. L.Q453, 453 (1971)Google Scholar (“Without this connecting factor of nationality there can normally be no diplomatic protection.”).

61 Nottebohm (Liech. v. Guat.), 1955 Icj Rep. 4 (Apr. 6).

62 Id. at 13; see also Kunz, Josef L., The Nottebohm Judgment (Second Phase), 54 AJIL 536 (1960)Google Scholar; Sloane, Robert D., Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality, 50 Harv. Int’L L.J. 1 (2009)Google Scholar.

63 The facts as presented thus appeared to qualify as an early example of the contemporary phenomenon of “citizenship for sale.” See, e.g., Citizenship for Sale: Pledge of Allegiance, Economist, Feb. 1, 2007, at 45 (discussing states which offer citizenship or related benefits in exchange for money). Nottebohm subsequently developed what would clearly have qualified as a “real and effective” link to Liechtenstein, in the form of nine years’ residence prior to the issuance of the judgment. Nottebohm, 1955 ICJ Rep. at 44 - 45 (Read, J., dissenting) (taking Court to task for ignoring evidence of genuine connection).

64 1955 ICJ Rep. at 15-16.

65 Id. at 23-24.

66 Id. at 25-26.

67 Id. at 20.

68 See Kunz, supra note 62, at 550 (“The judgment does not adjudicate upon the validity of the acquisition of Liechtenstein nationality by Nottebohm.”); Mervyn Jones, J., The Nottebohm Case, 5 Int’L & Comp. L.Q. 230, 234 (1956)Google Scholar (“In the result it seems clear that [Nottebohm] did in fact become a Liechtenstein national, and the Court in its judgment did not question this fact.”). There is some tension internal to the opinion on this point. The Court at one point, for example, describes Liechtenstein as Nottebohm’s “nominal country.” Nottebohm, 1955 ICJ Rep. at 22.

69 To the extent that the decision was perceived by contemporary observers not to reflect positive law, it was highly controversial. See Kunz, supra note 62, at 537-39 (describing critical attacks and controversy surrounding the decision); see also Sloane, supra note 62, at 17-24 (dismissing genuine-link theory as dictum not reflecting positive law at time of decision).

70 See supra text accompanying notes 14-18;see also van Panhuys, H. F., The Role of Nationality in International Law 156 (1959)Google Scholar (characterizing decision as continuous with existing approaches to nationality); Brownlie, supra note 14, at 349 (same). The decision repeatedly framed the question as whether Liechtenstein had sufficient “title” to exercise protection, as if its national were a kind of property. See Nottebohm, 1955 ICJ Rep. at 17-20. This vocabulary reinforces the comparison between sovereign claims to territory and to people.

71 Nottebohm held nationality only in Liechtenstein. His German nationality was terminated upon naturalization there; under section 25 of the 1913 German law on citizenship, a German not resident in Germany lost his citizenship on acquiring a foreign citizenship. See 8 AJIL Supp. 217(1914) (reproducing 1913 German law). Nor did he hold Guatemalan nationality. See 1955 ICJ Rep. at 41-42 (Read, J., dissenting) (asserting inapplicability of practice relating to dual nationality to Nottebohm’s case); see also Sloane, supra note 62, at 15.

72 The Court itself clearly saw the case as salient to dual nationality, drawing on the approach of arbitral tribunals to cases involving dual nationals. See Nottebohm, 1955 ICJ Rep. at 21-23 Google Scholar.

73 See Spiro, supra note 24, at 1431 n.84.

74 This problem was a far more pressing one than that resulting from the unusual fact pattern in Nottebohm.

75 See Spiro, supra note 24; see also League of Nations Experts Committee, supra note 13, at 32 (“double nationality . . . represents an absolutely abnormal phase in international life”).

76 As one prominent U.S. official observed in 1849, states should “as soon tolerate a man with two wives as a man with two countries; as soon bear with polygamy as that state of double allegiance which common sense so repudiates that it has not even coined a word to express it.” Bancroft, George, Letter to Lord Palmerston (Jan. 26, 1849)Google Scholar, reprinted in S.EXEC. DOC. 36-38, at 164 (1850); see also Spiro, supra note 24, at 1430-31 Google Scholar (citing other examples). The analogy lingers even today. See, e.g., Georgie, Anne Geyer, Americans No More 68 (1996)Google Scholar (asserting that dual citizenship is “akin to bigamy”).

77 Article 4 provided that a “State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.” Hague Convention on Nationality, supra note 16, Art. 4.

78 Weis, supra note 13, at 135; see also Spiro, supra note 24, at 1424-30.

79 See Spiro, supra note 24, at 1424-30.

80 See Nottebohm, 1955 ICJ Rep. at 22 (noting approach of arbitral bodies to claims of dual nationals to give “their preference to the real and effective nationality. . . that based on stronger factual ties between the person concerned and one of the States whose nationality is involved”); see also Donner, supra note 3, at 389 (dual nationality can be “controlled by an application of the concept of dominant and effective nationality”).

81 See Kunz, supra note 62, at 547 (noting that Nottebohm reflected “functional approach” favored by United States); see also Right of Expatriation, 9 Op. Att’yGen. 356, 360-61 (1859) (recognizing that naturalized citizen should be protected even in his country of birth by rejecting argument that other nation could conscript naturalized U.S. citizen); Spiro, supra note 24, at 1427-28 (noting position of many U.S. officials that United States should defend interests of naturalized citizens against claims of other states).

82 See, e.g., Iran v. United States, Case A/18, 5 Iran-U.S. CI. Trib. Rep. 428 (1984), reprintedin 23 ILM 489 (1984); Leigh, Monroe, Nationality and Diplomatic Protection, 20 Int’L & Comp. L.Q. 453 (1971)Google Scholar.

83 See Sloane, supra note 62, at 10 - 11 . As the Iran-U.S. Claims Tribunal observed in Case A/18,23 ILM at 497, international law “does not determine who is a national, but rather sets forth the conditions under which that determination must be recognized by other States.”

84 Expatriation Act of 1868, ch. 249, sec. 3,15 Stat. 223,224 (codified at 22 U.S.C. §1732 (2010)); see also Mikva, Abner J. & Neuman, Gerald L., The Hostage Crisis and the “Hostage Act, “49 U. Chi. L. Rev. 292 (1982)Google Scholar (discussing the Expatriation Act in the context of the Iran hostage crisis); Spiro, supra note 24, at 1426-28 (describing nineteenth-century U.S. position on right of expatriation).

85 See Price, Polly J., Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 Yale J. L. & Human. 73 (1997)Google Scholar.

86 One survey found that, as of 1935, forty-three of seventy-seven states—including Canada, Germany, Italy, Japan, Mexico, and the United Kingdom—provided for automatic loss of nationality upon naturalization in another state. Other states consented to expatriation in certain cases, often conditioned on the satisfaction of military service obligations. Sandifer, Duward V., A Comparative Study of Laws Relating to Nationality at Birth and to Loss of Nationality, 29 AJIL 248, 272 (1935)Google Scholar. The Hague Convention provided only that expatriation could not be refused when an individual had fulfilled conditions for expatriation as laid down by law. Hague Convention on Nationality, supra note 16, Art. 6(2). The provision did not mandate the substantive conditions for expatriation. The 1933 Montevideo Convention, by contrast, did provide for automatic loss of nationality upon naturalization before another state party. Montevideo Convention on the Rights and Duties of States, Art. 1, Dec. 26, 1933,49 Stat. 3097, 165 LNTS 19.

87 See 3 Moore, supra note 6, §§390-400; Spiro, supra note 24, at 1428.

88 See Borchard, supra note 18, at 550-52.

89 See, e.g., Expatriation Act of 1907, Pub. L. No. 59-193, 34 Stat. 1228 (repealed 1940) (creating presumption that naturalized citizens who reestablished residence in original country renounced citizenship). “In foreign countries a subject who has lost his status through naturalization elsewhere can usually resume his national character as soon as he returns with the intention of residing.” Edward Louis de, Hart, The English Law of Nationality and Naturalization, 2 J Soc’y Comp. Legis. 11, 19 (1900)Google Scholar.

90 See Brownlie, supra note 14, at 343 (“it is not the case, in the light of existing practice, that the individualhas such a right [of expatriation]”).

91 See Spiro, supra note 24, at 1423-24.

92 See Weis, supra note 13, at 132-33.

93 See Bar-Yaacov, supra note 4, at 266.

94 Hudson Report on Nationality, supra note 17, at 11 (“In the present stage of development of international law it cannot, in view of the divergences of State practice, be said that there is, under international law, a duty of States to withdraw their nationality upon foreign naturalization.”).

95 Universal Declaration of Human Rights, G.A. Res. 217(III)A, Art. 15 (Dec. 12,1948) (“[n]o one shall be. . . denied the right to change his nationality”); see also, e.g., Weis, supra note 13, at 137 (practice has “restricted the right of States to refuse release from their nationality on acquisition of a new nationality”).

96 See supra text accompanying notes 14-18.

97 John H. Wigmore, Domicile, Double Allegiance, and World Citizenship, 21 U. Ill. L. Rev. 761, 764 (1927).

98 Weis, supra note 13, at 162. For contemporary articulations along the same lines, see Commission on Human Security, Human Security Now 30-33 (2003), at http://ochaonline.un.Org/Reports/tabid/2186/language/en-US/Default.aspx, and Jelena Pejic, The International Legal Aspects of Citizenship, 3 Croat. CRITICAL L.R. 303, 313 (1998).

99 Catheryn, Seckler-Hudson, Statelessness: with Special Reference to the United States 251 (1934)Google Scholar; see also Boll, supra note 4, at 102 (noting “incentive for states to promote the development of international norms that prevent states from rejecting or abandoning their nationals in a way that has negative repercussions on other states”).

100 1 L. Oppenheim, International Law 522 (4th ed. 1928).

101 Hague Convention on Nationality, supra note 16, Art. 8.

102 Id., Art. 13.

103 Arendt, Hannah, the Origins of Totalitarianism 267 (2d ed. 1973)Google Scholar.

104 Universal Declaration of Human Rights, supra note 95, Art. 15.

105 See Robinson, Nehemiah, the Universal Declaration of Human Rights: its Origin, Significance, Application, and Interpretation 123 (1958)Google Scholar (characterizing Article 15 as “a total innovation in the history of international law”).

106 See, e.g., Laura, Van Waas, Nationality Matters: Statelessness Under International Law 41 (2008)Google Scholar (noting that these instruments “left vital questions such as ‘which nationality’ unanswered”); Ruth, Rubio-Marin, Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants, 81 N.Y.U. L. Rev. 117, 135 (2006)Google Scholar; see also Johannes M. M., Chan, The Right to a Nationality as a Human Right, 12 Hum. Rts. L.J. 1,3 (1991)Google Scholar (“As long as no State could be compelled to grant its nationality to the individual, the right to nationality is largely meaningless.”). Although Article 15 of the Universal Declaration had nowhere near the run-up as did the 1930 Hague Convention on Nationality, see supra notes 25-46 and accompanying text, at least one prominent international law jurist had called for the pronouncement of a more concrete right to nationality. Much as James Brown Scott had done twenty years before, Hersch Lauterpacht advocated the adoption of jus soli as a rule of international law. See Lauterpacht, H., International Law and Human Rights 315 (2nd ed. 1950)Google Scholar (proposing language under which “[e] very person shall be entitled to the nationality of the State where he is born unless and until at majority he declares for the nationality open to him by virtue of descent”).

107 Hailbronner, supra note 20, at 37 (Universal Declaration did not “replace [] the traditional understanding of nationality as a sovereign prerogative of the state”).

108 International Covenant on Civil and Political Rights, Art. 24, Mar. 23, 1976,999 UNTS 171 (“Every child has the right to acquire a nationality.”).

109 Convention on the Reduction of Statelessness, Art. 1, Aug. 30, 1961, 989 UNTS 175.

110 See 1 Multilateral Treaties Deposited with the Secretary-General, ch. V.4, UN Doc. ST/LEG/SER.E/25 (2009), at http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-4.en.pdf.

111 Nor did the post-World War II regime relating to refugees materially constrain citizenship practices. The 1951 Convention Relating to the Status of Refugees provides only that parties “shall as far as possible facilitate the assimilation and naturalization of refugees”—in particular, by minimizing naturalization fees. Convention Relating to the Status of Refugees, Art. 34, G.A. Res. 429(V) (July 28, 1951).

112 Convention on the Reduction of Statelessness, supra note 109, Art. 9.

113 Morsink, Johannes, the Universal Declaration of Human Rights: Origins, Drafting and Intent 80 - 83 (1999)Google Scholar; Pejic, supra note 98, at 312.

114 Morsink, supra note 113, at 80.

115 See Hudson Report on Nationality, supra note 17, at 10 (“The extent to which mass denationalization is prohibited by international law is not clear.”)

116 See Weis, supra note 13, at 128 (rule against denationalization, although “certainly. . . a sound and desirable rule for the future, find[s] no justification in the present state of international law. . . . as distinct from the conferment of nationality, withdrawal of nationality does not involve a direct infraction of the rights of other states”); see also Van Panhuys, supra note 70, at 163 (“it remains to be seen whether, from the point of view of positive international law, this type of denationalisation must be regarded as illegal and void”).

117 As arguably they came to be. See, e.g., Hailbronner, supra note 20, at 70 (“There is substantial authority for a general recognition of the principle of prohibition of arbitrary deprivation of nationality as a part of customary international law.”); European Convention on Nationality, Art. 4, Nov. 6,1997,37 ILM 44 (setting forth principle that “no one shall be arbitrarily deprived of his or her nationality”); id., Art. 7 (limiting grounds for loss of nationality); Committee on the Elimination of Racial Discrimination [hereinafter CERD], General Recommendation No. 30, Discrimination Against Non-citizens, para. 14, UN Doc. HRI/GEN/1/Rev.7/Add.l (May 4,2005) (recognizing “that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties’ obligation to ensure non-discriminatory enjoyment of the right to nationality”); Open Society Justice Initiative, More Primitive Than Torture: Statelessness and Arbitrary Denial of Citizenship in Africa (2007), at http://www.citizenshiprightsinafrica.org/Publications/2007/MorePrimitivethanTorture.02.07.pdf (condemning discriminatory mass denationalizations in Africa as arbitrary denials of citizenship inconsistent with human rights).

118 See Hailbronner, supra note 20, at 71.

119 See Trop v., Dulles, 356 U.S. 86, 92-93 (1958)Google Scholar (plurality opinion) (stating that “deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be”); id. at 102— 03 (citing international practice); Hudson Report on Nationality, supra note 17, at 18 (noting statelessness resulting from denationalization on ground of disloyalty); see also Goldston, James A., Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights of Noncitizens, 20 Ethics & Int’L Aff. 321, 326-27 (2006)Google Scholar; Manby, Citizenship Laws in Africa, supra note 5, at 25-27 (describing cases in Africa in which denationalization has been used as a political weapon).

120 Spiro, Peter J., Dual Citizenship: A Postnational View, in Dual Citizenship in Global Perspective, supra note 4, at 189, 197-98 Google Scholar; see also Bosniak, Linda, Multiple Nationality and the Postnational Transformation of Citizenship, 42 VA. J. Int’L L. 979, 982-83 (2002)Google Scholar (examining the effect of multiple citizenship on national ties).

121 See, e.g., Borchard, supra note 18, at 605,685; Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 15-17 (1998); Kerber, Linda K., no Constitutional Rightto Be Ladies: Women and The Obligations of Citizenship 37 (1998)Google Scholar; Cott, Nancy F., Marriage and Women’s Citizenship in the United States, 1830-1934, 103 AM. Hist. Rev. 1440, 1455-58 (1998)Google Scholar; see also Manby, Struggles for Citizenship in Africa, supra note 5, at 5 (noting common “gender bias” among African citizenship laws at time of independence, reflecting European practice).

122 See Scott, supra note 34 (lamenting sex inequality of nationality practices); Garner, supra note 26, at 551 (noting desirability of international agreement, “especially as to the effect of marriage upon the nationality of women”).

123 See Hague Convention on Nationality, supra note 16, Art. 8; see also Hudson, Manley O., The Hague Convention of 1930 and the Nationality of Women , 27 AJIL 117 (1933)Google Scholar. The women’s suffrage movement vigorously lobbied the Hague gathering for the provision. See Rupp, Leila J., Worlds of Women: the Making of an International Women’s Movement 146-48 (1997)Google Scholar; Samore, William, Statelessness as a Consequence of the Conflict of Nationality Laws, 45 AJIL 476, 490 (1951)Google Scholar (“Not unheard were the various women’s organizations crusading for the ‘equality’ of the sexes.”).

124 Hague Convention on Nationality, supra note 16, Art. 10; see also International Law Association Committee ON Feminism and International Law, Final Report on Women’S Equality and Nationality in International Law 29 (2000) [hereinafter ILA Report].

125 Organization of American States, Convention on the Nationality of Women, Art. 1, Dec. 26,1933, OASTS No. 4,49 Stat. 2957, 2960 (1936) (“There shall be no distinction based on sex as regards nationality, in their legislation or in their practice.”).

126 Convention on the Nationality of Married Women, Art. 1, Feb. 20, 1957, 309 UNTS 65.

127 See 2 Multilateral Treaties Deposited with the Secretary-General, ch. XVI, UN Doc. ST/LEG/SER.E/25, at http://treaties.un.org/doc/Publication/MTDSGA/Volume%20II/Chapter%20XVI/XVI-2.en.pdf.

128 Convention on the Elimination of All Forms of Discrimination Against Women, Art.9, Dec. 18,1979,1249 UNTS 13, 19 ILM 33 (1980). Article 9 provides:

1.
1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.
2.
2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

129 See id.; see also Shachar, supra note 2, at 153-54.

130 See ILA Report, supra note 124, at 8, 39-40. At least twenty states have attached reservations to Article 9, including France, Singapore, the United Kingdom, and a number of Middle Eastern states. See 1 Multilateral Treaties Deposited with the Secretary-General, ch. IV.8, UN Doc. ST/LEG/SER.E/25, at http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-8.en.pdf; see also Knop, Karen & Chinkin, Christine, Remembering Chrystal Macmillan: Women’s Equality and Nationality in International Law, 22 Mich. J. Int’L L. 523, 573 (2001)Google Scholar (“The progress represented by article 9 of the Women’s Convention is hampered by the large number of reservations, made by a range of states, to all or part of that article.”). In recent years, some states, including Egypt, South Korea, and Thailand, have withdrawn reservations to Article 9. See id.

131 Reports of the human rights treaty bodies are replete with examples. See, e.g., CERD, Concluding Observations: Egypt, para. 288, UN Doc. A/56/18 (2001) (expressing concern over gender discriminatory jus sanguinis regime); Human Rights Committee, Concluding Observations: Monaco, para. 84(10), UN Doc. A/56140 (2001) (same); Committee on the Elimination of Discrimination Against Women, Concluding Observations: Venezuela, para. 239, UN Doc. A/52/38/Rev. 1 (1997) (expressing concern that Venezuelan men have the right to confer nationality on foreign wives, a right not afforded to Venezuelan women and their foreign husbands); see also, Manby, Struggles for Citizenship in Africa, supra note 5, at 23 (noting that “a majority of African countries still do not allow women to pass citizenship to both their husbands and children on an equal basis with men”). In a much more limited number of cases, citizenship laws discriminate against men. See, e.g., Nguyen v. INS, 533 U.S. 53 (2001) (upholding nationality provision discriminating against child born out of wedlock to citizen fathers relative to citizen mothers).

132 Cf Knop, Karen, Relational Nationality: On Gender and Nationality in International Law, in Citizenship Today, supra note 5, at 89, 103 Google Scholar (“while a state must provide [special] treatment to foreign wives and foreign husbands equally if it provides it to either, the state is under no obligation to provide special treatment in the first place”). As Patrick Weil documents, nationality reforms in some states were driven by factors other than sex equality. In the United States the Cable Act of 1922, Pub. L. No. 67-346, 42 Stat. 1021, was congruent with the restrictionist agenda insofar as it eliminated automatic citizenship for foreign women marrying U.S. citizen men. In France, demographic policy (“populationism”) coincided with the feminist agenda to end expatriation of French women marrying foreign husbands. See WEIL, supra note 21, at 197-204.

133 Of course, they may reflect national self-definition with respect to questions of sex equality. They may also reflect how community lines are dictated at the family level (whether, most notably, spouses can maintain a transnational divide). But they do not implicate first-level community boundaries, as do, for instance, eligibility requirements relating to ethnicity, language, or residence.

134 See, e.g., Georg Schwarzenberger, A Manual of International Law 141 (5th ed. 1967) (“in principle, international law leaves each territorial sovereign to decide which of his inhabitants he wishes to grant nationality”); Weis, supra note 13, at 65-66 (“[t]he right of a State to determine who are, and who are not, its nationals is an essential element of its sovereignty”); Otto Kimminich, The Conventions for the Prevention of Double Nationality and Their Meaning for Germany and Europe in an Era of Migration, 1996 Ger. Y.B. Int’L L. 224 ,240 (affirming contemporary force of Hague Convention’s provision that” [i] t is for each State to determine under its own law who are its nationals”).

135 See, e.g., Brubaker, Rogers, Citizenship and Nationhood in France and Germany 180 (1998)Google Scholar (characterizing nationality practice as the “last bastion of sovereignty”); Saskia Sassen, Territory, Authority, Rights: from Medieval to Global Assemblages 2 81 - 82 (2006) (“International law affirms that each state may determine who will be considered a citizen of that state.”).

136 See, e.g., Weis, supra note 13, at 102 (“There is, in truth, no rule of international law restricting the qualifying conditions for naturalisation so long as the naturalisation is based on a voluntary act of the individual.”); Asbjørn, Eide, Citizenship and International Human Rights Law, in Citizenship and the State in the Middle East, supra note 5, at 88, 118 Google Scholar (naturalization an area in which “states have so far considered themselves entirely free to make their own rules”). At the same time that he passionately advocated a harmonized regime of birth nationality, James Brown Scott conceded state discretion concerning naturalization criteria. See Scott, supra note 34, at 17 (“The process of naturalization being an internal matter might, and probably should, be left to the domestic legislation of each and every State which is a party to the treaty or convention.”); see also League of Nations Experts Committee, supra note 13, at 34 (with respect to naturalization, “it is obvious that each State must be free to enact whatever rules it may think fit. . . . Naturalisation is an act of sovereignty, and any limitation of the powers of a State in such a matter is not to be thought of.”). While lamenting barriers to naturalization, Manley Hudson thought it “unlikely that Governments would be prepared to undertake obligations by international agreement regarding naturalization.” Hudson Report on Nationality, supra note 17, at 22.

137 See Shachar, supra note 2, at 136 (noting that “international law has traditionally refrained from intervening in the sovereign prerogative of states to define their citizenship laws, including their decision to rely upon particular birthright principles in the transmission of membership”). It was generally understood through the modern commentary that as a matter of positive law, jus soli and jus sanguinis were equally acceptable by way of determining citizenship at birth. See, e.g., WEIS, supra note 13, at 97-98.

138 Quite the contrary, of course: through the middle of the twentieth century, states were encouraged to eliminate the incidence of dual nationality, with no consideration of the possible individual interest in maintaining the status. See generally Bar-Yaacov, supra note 4.

139 See, e.g., Donner, supra note 3, at 17; Ineta Zlemele, State Continuity and Nationality: the Baltic States and Russia: Past, Present and Future AS Defined by International Law 195 (2005). That nationality in international law has been conceived as a matter of resolving conflicts is distinct from the role it has played—or not played—in choice-of-law issues (often denominated as “conflicts of laws”). Nationality has figured in choice-of-law issues, especially in civil law jurisdictions. In the common law, the concept of domicile has figured more prominently. See Knop, Karen, Citizenship, Public and Private, 71 Law & Contemp. Probs. 309, 319-21 (2008)Google Scholar (explaining use of domicile in private international law); see also infra note 271 and accompanying text (describing significance of residence and domicile in determining obligations to states).

140 Brownlie, supra note 14, at 300, 364; see also Chan, supra note 106, at 6 (commending “cautious approach” of Inter-American Court of Human Rights on the issue, “since probably no area is more sensitive to State sovereignty than the conferment or withdrawal of nationality”).

141 See Brownlie, supra note 14, at 290 (“Nationality is a problem, inter alia, of attribution, and regarded in this way resembles the law relating to territorial sovereignty.”); see also Van Panhuys, supra note 70, at 155.

142 International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 UNTS 195 [hereinafter Racial Discrimination Convention].

143 UN General Assembly, Status of the International Convention on the Elimination of All Forms of Racial Discrimination, Aug. 15,2006, A/61/260, at http://www.unhcr.org/refworld/docid/453780f40.html; 1 Multilateral Treaties Deposited with the Secretary-General, ch. IV.2, UN Doc. ST/LEG/SER.E/25, UN Sales No. E.07.V.3 (2007), at http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-2.en.pdf.

144 The prohibition on race discrimination has since arguably evolved into a jus cogens norm—that is, a norm from which no derogation is permitted. See, e.g., Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (Ser. A) No. 18, para. 101 (Sept. 17, 2003) (finding nondiscrimination to qualify as a. jus cogens norm); Goldston, supra note 119, at 328.

145 Racial Discrimination Convention, supra note 142, Art. 1(3). As one commentary on the Convention observes, the clause was intended as

a limitation provision designed to assure states parties that due respect is given to state sovereignty in areas concerning naturalization. . . .

. . . .

Naturalization laws have always been considered a principle prerogative of state sovereignty. The Committee has accorded due respect to this principle in its discussions of state reports. Consequently, the limitation provisions articulated in Article 1 (3) have generated little controversy and merited only minor attention.

Mahalic, Drew & Joan, Gambee Mahalic, The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, 9 Hum. Rts. Q. 74, 79, 82 (1987)Google Scholar.

146 At the same time that the Racial Discrimination Convention brackets citizenship practices in Article 1 (3), it also provides the guarantee of “a right to nationality” without distinction as to race. See Racial Discrimination Convention, supra note 142, Art. 5(d)(iii). This provision was interpreted contemporaneously to prohibit discrimination in the deprivation of nationality only. See Schwelb, Egon, The International Convention on the Elimination of All Forms of Discrimination, 15 Int’L & Comp. L.Q. 996, 1008 (1966)Google Scholar.

147 Natán, Lérner, The UN. Convention on the Elimination of all Forms of Racial Discrimination 28-32 (1980)Google Scholar (noting that paragraphs 2 and 3 of Article 1 were added to limit the scope of “national origin” and to make clear that the Convention was not meant to “affect substantive or procedural norms on citizenship or naturalization”).

148 Mariner, Joanne, Racism, Citizenship, and National Identity, Development (Society for International Development), Sept. 2003 Google Scholar, at 64, 65 (noting that it is consistent with the Racial Discrimination Convention for countries “to impose highly discriminatory citizenship rules”).

149 Boll, supra note 4, at 97-98 (“It is a generally accepted principle of international law that it is up to each state to determine who its nationals are, subject to obligations due to other states. . . . [S]tates have basically unfettered freedom in determining whom they consider a national.”); Goldston, supra note 119, at 323 (“determining membership in a territorially circumscribed political community remains one of the core attributes of state sovereignty”); Hailbronner, supra note 20, at 35 (“public international law has very little to say about the scope and limits of a state’s determination of nationality”); Rubenstein, supra note 10, at 164 (“International law affirms that it is for each state to determine who are its nationals.”); Sloane, supra note 62, at 7 (“international law still does not, with few and vague exceptions, seek to regulate the sovereign competence of states to designate national or juridical persons as their nationals”).

150 See, eg., Zllbershats, Yaffa, The Human Right to Citizenship 5 (2002)Google Scholar (noting that the “instances in which a difference still exists between nationality and citizenship are rare”); see also supra text accompanying note 6.

151 See Rubenstein, supra note 10, at 161 (highlighting “confident, even triumphalist discourse of citizenship as emancipation”).

152 See, e.g., Cerd, General Recommendation No. 30, supra note 117, pt. 4; Christian Joppke, Citizenship and Immigration 36 (2010); Sokoloff, Constantin, Advisory Board on Human Security, Denial of Citizenship: A Challenge to Human Security (2005)Google Scholar; Van Waas, supra note 106, at 96 (highlighting “the development of the newest catchphrase relating to nationality matters to emerge in the international arena, namely ‘denial of citizenship’ “); Goldston, supra note 119, at 321; More Primitive Than Torture, supra note 117 (2007).

153 See, e.g., Human Security Now, supra note 98, at 51.

154 European Convention on Nationality, supra note 117, pmbl.; Girls Yean v. Dominican Republic, Judgment, Inter-Am. Ct. H.R., para. 140 (Sept. 8, 2005), at http://www.unhcr.org/refworld/docid/44e497d94.html (“The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States.”); International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, cmt. 5, UN Doc. A/54/10, at 20, 24 (Apr. 3, 1999) (“As a result of th[e] evolution in the field of human rights, the traditional approach based on the preponderance of the interests of States over the interests of individuals has subsided.”).

155 See, e.g., VAN Waas, supra note 106, at 39 (“there is absolutely no doubt that. . . nationality matters no longer fall within the exclusive jurisdiction of states”); Chan, supra note 106, at 10 (“It is perhaps high time to recognize that nationality necessarily involves a human dimension, is inherent in the respect for human dignity, and is no longer within the sole purview of State sovereignty.”); Eide, supra note 136, at 122 (noting that “human rights considerations are becoming increasingly prominent in nationality matters”); Orentlicher, Diane F., Citizenship and National Identity, in International Law and Ethnic Conflict 299 Google Scholar (David Wippman ed., 1998) (noting consequence for nationality practice of the rise of “postwar law of human rights, which has progressively, indeed radically, diminished even this last great preserve of state privilege”); Pejic, supra note 98, at 333 (“advances in international human rights law have placed fairly clear limits on states’ freedom of action in the area of citizenship”).

156 See, e.g., Hailbronner, supra note 20, at 38,45 (while deeming nationality practices as remaining largely within state discretion, noting human rights “implications” and “aspects” with respect to some issues); Chan, supra note 106, at 10 (“It is probably true that there is no rule of international law imposing a duty on States to confer their nationality.”).

157 Benhabib, supra note 7, at 134-43 (framing “right to membership”); Carens, Joseph H., Immigrants and the Right to Stay 18 (2010)Google Scholar; see also Joppke, supra note 152, at 27 (citizenship has become “infused with a human rights logic”).

158 Cf Sokoloff, supra note 152, at 36 (“Denial of citizenship worldwide bears further investigation.”); Brownlie, supra note 14, at 312 (discerning “general principles” of nationality law notwithstanding “possible points of conflict in legislation on a subject-matter so mobile and complex”); Flournoy, Nationality Convention, supra note 35, at 467 (detecting emerging salience of international law to nationality practice: “Wherever international relationships arise international law must follow, in one form or another, although its development and crystallization into definable rules may be a slow process.”).

159 The Convention, supra note 117, Art. 27, is open for accession not only by members of the Council of Europe, but also those states who “participated” in the Convention’s “elaboration,” including Bosnia and Herzegovina, Canada, Kyrgyzstan, and the United States. Zlemele, supra note 139, at 8. As Norman Sabourin observes, the European Convention on Nationality “could well play a significant role beyond European borders. It can encourage other regional or international organizations to take similar initiative in developing declarations or conventions, introduce new principles into international law, or influence the development of nationality laws in countries around the world.” Norman Sabourin, The Relevance of the European Convention on Nationality for Non-European States, in Council of Europe, Trends and Developments in National and International Law on Nationality: Proceedings of the 1st European Conference on Nationality 113, 114 (1999) (describing how European Convention has affected lawmaking in Canada).

160 See, e.g., Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (Ser. A) No. 4, para. 32 (Jan. 19, 1984):

It is generally accepted today that nationality is an inherent right of all human beings. . . . . . .

. . . [D] espite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each State to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by states in that area, and that the manners in which States regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction . . . .

161 See, e.g., supra text accompanying notes 237-46 (describing treaty committee critiques of discriminatory birthright citizenship practices); see also Steiner, Henry J., Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee, in The Future of U.N. Human Rights Treaty Monitoring 16 Google Scholar (Philip Alston & James Crawford eds., 2000) (noting importance of the Human Rights Committee).

162 See generally Zlemele, supra note 139, at 63-72 (describing work of United Nations, Council of Europe, and Organization for Security and Co-operation in Europe regarding nationality practices of Latvia and Estonia); Goldston, supra note 119, at 342-43 (suggesting that issues of citizenship access be mainstreamed into human rights reporting of UN human rights bodies).

163 Most notably among them, the Open Society Institute has focused on equality and justice in the context of naturalization and citizenship as part of an international migration initiative. See Open Society International Migration Initiative, at http://www.soros.org/initiatives/migration/focus_areas/equality-justice; see also Manby, Citizenship Law in Africa, supra note 5 (Open Society Institute-sponsored study calling for citizenship law reforms); Goldston, supra note 119, at 322 (analysis calling for “clarification and articulation of new legal norms that narrow boundaries of state prerogative” over citizenship access by executive director of Open Society Institute Justice Initiative).

164 See, e.g., Eide, supra note 136, at 122 (“The regulation of citizenship in international law is therefore very much in the making, but the direction is clear.”).

165 For two recent works by political scientists arguing from case studies that international norms have been effectively deployed as a “political resource” by citizenship reformers in Germany and Japan, see Gurowitz, Amy, International Norms: Domestic Actors, Immigrants, and the Japanese State, 51 World Pol. 413 (1999)Google Scholar, and Ingram, James D. & Triadafilopoulos, Triadafilos, Rights, Norms, and Politics: The Case of German Citizenship Reform, 77 Soc. Res. 353 (2010)Google Scholar. Cf Melish, Tara, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies, 34 Yale J. Int’l L. 390 (2009)Google Scholar (describing disaggregated mechanisms for incorporation of human rights norms into U.S. law).

166 Cf Goldston, supra note 119, at 338 (noting that “a great deal remains to be clarified” regarding application of human rights to citizenship practice); Orentlicher, supra note 155, at 299 (noting that nationality-related issues surrounding independence of Baltic states “have laid bare a profound but heretofore largely subterranean shift in international legal doctrine governing matters of citizenship”).

167 See, e.g., Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J., dissenting) (“Citizenship is man’s basic right for it is nothing less than the right to have rights.”); see also Sokoloff, supra note 152, at 19-22 (describing threat to basic rights of noncitizens); infra notes 317-21 and accompanying text. That said, the gap between citizen and noncitizen rights has narrowed considerably with the maturation of human rights regimes based on personhood rather than nationality. See generally David Weissbrodt, the Human Rights of Non-Citizens (2008); see also Spiro, supra note 2, ch. 4 (describing near identity of rights and obligations for citizens and permanent resident aliens in the U.S. context); Rubenstein, supra note 10, at 171-72 (“The value of citizenship for political governance has been drastically reduced . . . . Citizenship is no longer legitimately the major foundation upon which rights are restricted and determined, even within the nation state.”). Parallel to efforts to improve access to citizenship are those aimed at enhancing the rights of noncitizens. See, e.g., Goldston, supra note 119 (linking the two). For one example of a minority group preferring the latter track, see Kashiwazaki, Chikako, Citizenship in Japan: Legal Practice and Contemporary Development, in From Migrants to Citizens, supra note 5, at 434, 458 Google Scholar (recounting that the longtime Korean minority in Japan “retained a negative evaluation on acquiring Japanese nationality,” focusing instead on expanding rights of denizenship).

168 See, e.g., Rubenstein, supra note 10, at 184 (arguing that the diminishing importance of nationality will result in a “movement away from the centrality of the state in international law”). On the declining valence of the state, see generally, for example, Martin Van Creveld, The Rise AND Decline OF THE State (1999), Jeanmarie Guehenno, The End OF THE Nation-State (1995), Saskia Sassen, Losing Control? Sovereignty IN AN Age OF Globalization (1996), and Oscar Schachter, The Decline of the Nation-State and Its Implications for International Law, 36 Colum J. Transnat’L. L. 7 (1997).

169 See, e.g., Orentlicher, supra note 155, at 299 (“these assessments capture in microcosm the evolution across decades of legal paradigms governing citizenship determinations by states”); see also Ratner, Steven R., Does International Law Matter in Preventing Ethnic Conflict?, 32 N.Y.U. J. Int’l L & pol. 591, 630-33 (2000)Google Scholar (describing interaction of Organization for Security and Co-operation in Europe high commissioner on national minorities and Latvia regarding citizenship acquisition by Russian minority).

170 See VAN Waas, supra note 106, ch. 6.

171 In this respect, “access to citizenship” differs from a “right to nationality” in the sense that the latter is satisfied by the holding of any nationality. See, e.g., Chan, supra note 106, at 13 (characterizing the “negative form” of “right to have a nationality” as “the right to be protected from statelessness”).

172 Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, supra note 154; see Zlemele, supra note 139, at 210-16; see also Convention on the Avoidance of Statelessness in Relation to State Succession, May 19, 2006, ETS No. 200, at http://conventions.coe.int/Treaty/EN/Treaties/Html/200.htm.

173 Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, supra note 154, pmbl., Art. 15; see also European Commission for Democracy Through Law (Venice Commission), Declaration on the Consequences of State Succession for the Nationality of Natural Persons, COE Doc. CDL-INF(1997)001 (Feb. 10,1997), at http://www.venice.coe.int/docs/1997/CDL-INF%281997%29001-e.asp; European Convention on the Avoidance of Statelessness in Relation to State Succession, supra note 172.

174 See Orentlicher, supra note 155, at 300. Decades ago, Brownlie asserted a norm under which habitual residents would, under international law, acquire nationality in a successor state. See Brownlie, supra note 14, at 320 - 24. But see 1 Daniel P., O’Connell, 1 State Succession in Municipal and International Law 503 (1967)Google Scholar (“it cannot be asserted with any measure of confidence that international law, at least in its present stage of development, imposes any duty on the successor State to grant nationality”); Weis, supra note 13, at 149 (“it may be said that there is no rule under which nationals of the predecessor State acquire the nationality of the successor State”).

175 See, e.g., Autem, Michael, The European Convention on Nationality: Is a European Code of Nationality Possible?, in Trends and Developments in National and International Law on Nationality, supra note 159, at 19, 32 Google Scholar (“lawful and habitual residence is no longer considered as one of the conditions that has to be fulfilled for acquiring the nationality of a State Party, but almost as a ground for becoming entitled to the right to acquire that nationality”).

176 See Zlemele, supra note 139, at 294 (“The view has emerged that the prohibition of discrimination [under the Racial Discrimination Convention] applies fully to nationality legislation, including naturalization.”).

177 Cerd, General Recommendation No. 30, supra note 117, para. 13; see also CERD, General Recommendation No. 27, Discrimination Against Roma, UN Doc. A/55/18, Annex V (Aug. 16,2000) (calling on parties to ensure that legislation relating to citizenship and naturalization does not discriminate against the Roma).

178 See, e.g., Mandby, Struggles for Citizenship in Africa, supra note 5, at 29 (international human rights treaties “prohibit[] discrimination in granting citizenship”); Van Waas, supra note 106, at 97, 98 (asserting that discrimination is the “one uniting element” in denial of citizenship cases; “denial of citizenship is the discriminatory deprivation of citizenship”); Eide, supra note 136, at 121 (“international law is increasingly making its demands felt: there should be no discrimination in the nationality legislation, including the part that deals with naturalization”); Goldston, supra note 119, at 332 (calling for application of nondiscrimination norms to citizenship policies).

179 See European Convention on Nationality, supra note 117, Art. 5(1) (“The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin.”).

180 See, e.g., Rainer, Bauböck & Perchinig, Bernhard, Evaluation and Recommendations, in 1 Acquisition and Loss of Nationality, supra note 5, at 434 Google Scholar (the status of resident aliens blocked from naturalization “becomes almost like that of women, unpropertied citizens or disenfranchised racial and indegenous groups before the introduction of universal suffrage”); Cornelia, Sonntag-Wolgast, Opening Speech, in Trends and Developments in National and International Law on Nationality, supra note 159, at 15 Google Scholar (statement of German interior ministry official applauding conclusion of European Convention on Nationality and reform of German nationality law because “[i]t is not tolerable for any state if a large number of citizens stay outside the public community over generations and are excluded from full democratic participation”).

181 See Orentlicher, supra note 15 5, at 299; see also Shachar, supra note 2, at 136 (“contemporary understanding of self-government. . . creates a strong presumption in favor of including all long-term residents in the innermost circle of membership”). This liberal orientation is also found among policymakers. See, e.g., Pekkanen, Raimo & Danielus, Hans, Human Rights in the Republic of Estonia, 13 Hum. Rts. L.J. 236, para. 36 (1991)Google Scholar (report to the Parliamentary Assembly of the Council of Europe) (“if substantial parts of the population of a country are denied the right to become citizens, . . . this could affect the character of the democratic system in that country”); Commission on Security and Cooperation in Europe, Letter from the CSCE High Commissioner Max van der Stoel to Latvian Foreign Minister Georgs Andrejevs, CSCE Communication No. 8, Ref. No. 1463/93/L (Dec. 10,1993), at http://www.minelres.lv/count/latvia/931210r.htm (“If the overwhelming majority of non-Latvians in your country is denied the right to become citizens, and consequently the right to be involved in key decisions concerning their own interests, the character of the democratic system in Latvia might even be put into question.”). The democracy objection can alternatively be resolved, in large part, through the mechanism of noncitizen voting—another respect in which the citizen/noncitizen gap is closing. See Earnest, David C., Old Nations, New Voters (2008)Google Scholar (describing political incorporation of resident aliens); supra text accompanying note 167.

182 See supra notes 61-70 and accompanying text.

183 See Orentlicher, supra note 155, at 306, 308, 320 (deploying “effective link” premise to assert claim to citizenship in Baltic context); see also UN High Commissioner for Refugees, Nationality and Statelessness: A Hand book for Parliamentarians 9 (2008) (asserting that the “right to a nationality” set forth in the Universal Declaration of Human Rights “is founded on the existence of a genuine and effective link between an individual and a State”).

184 With a notable focus on the Baltic states. See, e.g., Zlemele, supra note 139; Orentlicher, supra note 155.

185 European Convention on Nationality, supra note 117, Art. 6(3).

186 Betty de, Hart & Ricky van, Oers, European Trends in Nationality Law, in 1 Acquisition and Loss of Nationality, supra note 5, at 317, 323 Google Scholar; see also Joppke, supra note 152, at 46 (highlighting “as of right” component in European naturalization regimes).

187 Benhabib, supra note 7, at 141.

188 Exceptions include Israel, in which an individual who qualifies under the Law of Return acquires citizenship upon entry, and the former law of Germany, under which certain ethnic Germans long resident in eastern Europe and central Asia were considered as “repatriates” who had a kind of inchoate citizenship activated upon immigration to Germany. See Hailbronner, Kay, Germany, in 2 Acquisition and Loss of Nationality , supra note 5, at 213, 234-36 Google Scholar. The laws of many states include discretionary provisions for waiving residency requirements altogether in exceptional cases or for service to the state; it was pursuant to such a provision that Nottebohm was himself naturalized in Liechtenstein. See Jones, supra note 65, at 236—37 (cataloguing states with exceptional naturalization provisions as of 1956). In the United States, noncitizen members of the armed forces are eligible to naturalize without any requirement of residence during periods of military hostilities. See8 U.S.C. §1440 (2010); Exec. Order No. 13269,67 Fed. Reg. 45287 (July 8,2002) (designating period after September 11,2001, as period of military hostilities for this purpose).

189 See, e.g., Carens, supra note 157, at 20-24.

190 European Convention on Nationality, supra note 117, Art. 6(3).

191 See Weil, Patrick, Access to Citizenship: A Comparison of Twenty-five Nationality Laws, in Citizenship Today, supra note 5, at 17, 22-23 Google Scholar (setting forth naturalization requirements of various states, none of which include a residency requirement longer than ten years); see also Joppke, supra note 152, at 175 n. 14 (“there is an emergent sense in Europe that five years’ legal residence time as prerequisite to naturalization is ‘best practice’“); Manby, Citizenship Law in Africa, supra note 5, at 14 (calling for right to acquire naturalization after habitual residence of five years among African states, some of which have residency requirements as long as thirty-five years); Goldston, supra note 119, at 344 (calling for entitlement to citizenship after continuous residence “for a reasonable period of time—perhaps five years”).

192 Orentlicher, supra note 155, at 301.

193 See Citizenship Policies in the New Europe, supra note 5, at 52-53 (Estonia), 66 - 67 (Latvia). In the face of the European pressure, both Estonia and Latvia have implemented laws and other administrative practices to facilitate the naturalization of Russian residents. Reform in the Baltics was motivated by entry barriers to the Council of Europe and the European Union. See Zlemele, supra note 139, at 321 (delay in Latvia’s admission to Council of Europe “primarily dependent” on issues relating to naturalization practices). The subsequent admission eliminated a major leverage point, however, see Howard, supra note 5, at 183, and concerns continue to be voiced regarding citizenship policies in the Baltics. See, e.g., Cerd, Annual Report: Latvia, UN Doc. A/58/18 (Nov. 1, 2003); see also Office of the High Commissioner on Human Rights, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum: Mission to Latvia, UN Doc. A/HRC/7/19/Add.3 (Mar. 5, 2008).

194 CERD, Concluding Observations: Liechtenstein, para. 17, UN Doc. CERD/C/LIE/CO/3 (May 7, 2007).

195 See Hailbronner, supra note 188, at 215-224. Even so, implementation of the naturalization reforms in Germany have been questioned to the extent that they have not sufficiently raised naturalization rates, implying an affirmative duty to facilitate the acquisition of citizenship. See CERD, Concluding Observations: Germany, para. 20, UN Doc. CERD/C/DEU/CO/18 (Sept. 22,2008) (“While taking note of the amendments to the Nationality Law simplifying the acquisition of German citizenship by long-term residents, the Committee regrets that a considerable proportion of non-citizens who may fulfil the requirements to obtain naturalization still live in the State party without citizenship, in particular persons of Turkish origin.”); see also Office of the High Commissioner on Human Rights, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum: Mission to Italy, UN Doc. A/HRC/4/19/Add.4, at 15, 27 (Feb. 15, 2007) (welcoming draft citizenship law under which residency period would be reduced from ten years to five).

196 See 8 U.S.C. §1423(2010).

197 See Peter J. Spiro, Questioning Barriers to Naturalization, 13 GEO. IMMIGR. L.J. 479, 509 (1999).

198 Compare Carens, Joseph, Why Naturalization Should Be Easy: A Response to Noah Pickus, in Immigration and Citizenship in the 21ST Century 141 Google Scholar (Noah M. J. Pickus ed., 1998) (no requirements justified beyond durational residency) with Benhabib, supra note 7, at 139 (language competency and proof of civil literacy do not violate “self-understanding of liberal democracies as associations”); see also Bauböck & Perchinig, supra note 180, at 451-52 (accepting legitimacy of language, but not civics, tests). For a range of views, see Rainer Bauböck & Christian Joppke, How Liberal Are Citizenship Tests? (Robert Schuman Centre for Advanced Studies, European Union Institute, Working Paper No. RSCAS 2010/41,2010) (with contributions from Christian Joppke, Joseph Carens, Randall Hansen, and Dora Kostakopoulou, among others); see also Michalowski, Ines, Citizenship Tests in Five Countries—An Expression of Political Liberalism? (Wissenschaftszentrum Berlin fur Socialforschung Discussion Paper, Oct. 2009), at http://bibliothek.wzb.eu/pdf/2009/iv09-702.pdf Google Scholar.

199 See infra notes 257-60 and accompanying text.

200 See, e.g., Mandby, Struggles for Citizenship in Africa, supra note 5, at 142-43 (noting that language and cultural requirements for naturalization in African states “may be used in practice to restrict citizenship on an ethnic basis”); Sokoloff, supra note 152, at 28 (“Language proficiency in the main national language is a condition widely used to reject citizenship claims from non-mainstream ethnic groups.”).

201 See, e.g., Human Rights Committee, Consideration of Reports: Estonia, para. 110, UN Doc. A/51/40, vol. I (Sept. 16, 1996) (expressing concern at the “stringency of the language criterion” for naturalization); Report of the Secretary-General, The Situation of Human Rights in Estonia and Latvia, UN Doc. A/47/748, Annex, at 8 (Oct. 26,1993) (calling on Latvia to exempt residents over fifty from satisfaction of language requirement); Report of the Secretary-General, The Situation of Human Rights in Estonia and Latvia, UN Doc. A/48/511, Annex, at 16-17 (Oct. 26, 1993) (recommending exemption for those over sixty and for invalids).

202 See infra text accompanying note 259.

203 See, e.g., Manby, Citizenship Law in Africa, supra note 5, at 65 (noting amendment of Ethiopian naturalization law to eliminate requirement that applicants “know [the] Amharic language perfectly, speaking and writing it fluently” and to require only ability “to communicate in any one of the languages spoken” in Ethiopia).

204 Bauböck & Perchinig, supranote 180, at 452; waZro8U.S.C.§l423(b)(1) (2011) (U.S. law exempting those with “physical or developmental disability or mental impairment” from language and civics tests).

205 See Office of the High Commissioner for Human Rights, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum: Mission to Latvia, supra note 193, para. 88 (recommending that Latvia relax naturalization requirements, in particular language proficiency exams, for elderly persons); see also CERD, Concluding Observations: Norway para. 19, UN Doc. CERD/C/NOR/CO/18 (Oct. 19, 2006) (“While noting the importance of adequate command of the State language as a vehicle of social integration, the Committee is concerned about the strictness of the language requirements for acquiring Norwegian citizenship”).

206 See Bauböck & Perchinig, supra note 180, at 450.

207 See Andrea, Baršová, Czech Citizenship Legislation Between Past and Future, in Citizenship Policies in the New Europe, supra note 5, at 163, 167 Google Scholar; Siklova, Jirina & Mikluskova, Marta, Denying Citizenship to the Czech Roma , 7 E. Eur. Const. Rev. 58, 62 (1998)Google Scholar.

208 Directorate of Legal Affairs, Council of Europe, Report of the Experts of the Council of Europe on the Citizenship Laws of the Czech Republic and Slovakia and their Implementation, para. 76, COE Doc. DIR/JUR(96)4 (1996).

209 Baršová, supra note 207, at 167 & n.24.

210 ZlEMELE, supra note 139, at 318.

211 CERD, Annual Report: Japan, para. 176, UN Doc. A/56/18 (Oct. 30, 2001); Yujiiwasawa, International Law, Human Rights, AND Japanese Law 138-40 (1998); see also Human Rights Committee, Concluding Observations: Iceland, para. 78, UN Doc. A/49/40, vol. I (Sept. 21,1994) (also relating to required name change).

212 CERD, Annual Report: Republic of Korea, para. 328, UN Doc. A/51/18 (Sept. 30, 1996).

213 Human Rights Committee, Concluding Observations: Panama, para. 8, UN Doc. CCPR/C/PAN/CO/3 (Apr. 17, 2008).

214 Human Rights Committee, Concluding Observations: Kuwait, paras. 479-84, UN Doc. A/55/40, vol. I (Oct. 18,2000); Committee on Economic, Social & Cultural Rights, Report on the Thirty-second and Thirty-third Sessions, Apr. 26-Mayl4, Nov. 8-Nov. 26,2004, para. 185, UN Doc. E/2005/22 (2005); see also CERD, Annual Report: Yemen, para. 464, UN Doc. A/57/18 (Jan. 11, 2002). For further background on the relationship of citizenship and religion in the context of Kuwait and the Islamic world more generally, see Anh Nga Longva, Citizenship in the Gulf States, in Citizenship AND THE State IN THE Middle East, supra note 136, at 179.

215 See Human Rights Watch, Statement by Human Rights Watch to the Inter-sessional Working Group for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001) [hereinafter Human Rights Watch Statement], at http://www.hrw.org/campaigns/race/intersessional.htm (“Naturalization policies, too, may be wholly or largely founded on discriminatory grounds. Denial of citizenship on racial or national grounds may be a norm even for people who have established deep roots in a country and have retained no connections with any other.”).

216 Goldston, supra note 119, at 334. The test would track the strict scrutiny applied to racial classifications under U.S. constitutional jurisprudence.

217 See, e.g., Ruth, Rubio-Marín, Spain, in 2 Acquisition and Loss of Citizenship, supra note 5, at 477 Google Scholar. These preferences are undertaken on a bilateral basis, reducing the naturalization period for nationals of each state and recognizing dual nationality between the two.

218 Shachar, Ayelet, Citizenship and Membership in the Israeli Polity, in Fro Migrants to Citizens, supra note 5, at 386, 390 Google Scholar.

219 Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (Ser. A) No. 4 (Jan. 19, 1984).

220 Council of Europe, Explanatory Report to The European Convention on Nationality, ETS NO. 166, para. 41 (1997), at http://conventions.coe.int/Treaty/en/reports/html/166.htm.

221 Bauböck & Perchinig, supra note 180, at 459.

222 Rubio-Marín, supra note 217, at 510; see also Mariner, supra note 148, at 66 (noting “surprising latitude” that states enjoy with respect to such affinity regimes); Orentlicher, supra note 15 5, at 324 (questioning whether “democratic values might be offended by naturalization policies that favor particular ethnic groups”). Seyla Benhabib finds such policies acceptable “ [a]s long as a state does not deny those of different ethnicity and religion equivalent rights to seek entry and admission to a country,” but finds them to violate human rights when they “are combined with the goals of preserving ethnic majorities and ethnic purity.” Benhabib, supra note 7, at 138 n.2. On that basis, she finds Israeli citizenship practices to violate the human rights of Palestinian refugees. See id.; see also Goldston, supra note 119, at 335 (“there may well be strong justifications for these preferential policies, but their ultimate legitimacy depends on the specificities of time, place, and circumstance”; questioning Israeli regime on that basis). But cf. Schwelb, supra note 146, at 1009 (observing in 1966 that prohibition of affinity preferences in extension of nationality “can hardly have been intended” by the Racial Discrimination Convention).

223 Rubio-Marín, supra note 217, at 506.

224 Howard, supra note 5, at 123; see also Hailbronner, supra note 188, at 234-36 (describing legislative implementation of restrictive policies regarding “repatriation” of ethnic Germans from central and eastern Europe).

225 Committee on Economic, Social & Cultural Rights, Report on the Thirtieth and Thirty-first Sessions, May 5-23, Nov. 10-28, 2003, Concluding Observations: Israel, para. 261, UN Doc. E/2004/22 (Mar. 8, 2004).

226 CERD, Concluding Observations: Qatar, para. 11, UN Doc. CERD/C/60/CO/11 (May 21, 2002).

227 CERD, Annual Report: Czech Republic, para. 124, UN Doc. A/53/18, (Sept. 10, 1998); see also CERD, Concluding Observations: Croatia, para. 316, UN Doc. A/53/18 (Sept. 10, 1998) (highlighting “delays in processing of applications for citizenship”).

228 CERD, Concluding Observations: Croatia, para. 497, UN Doc. A/48/18 (Sept. 15, 1993); CERD, Concluding Observations: Croatia, para. 316, UN Doc. A/53/18 (Sept. 10, 1998 ) ; See also CERD, Concluding Observations: Croatia, para. 17, UN Doc. CERD/C/HRV/CO/8 (Mar. 24, 2009) (calling for Croatia to “remove any administrative and other obstacles and assist persons whose access to obligatory documentation is limited, such as persons of Roma, Serb and Bosniak origin”).

229 Human Rights Committee, Concluding Observations: Latvia, para. 350, UN Doc. A/50/40, vol. I (Oct. 3, 1995). CERD likewise called on Latvia to “streamline the process of naturalization.” CERD, Concluding Observations: Latvia, para. 404, UN Doc. A/54/18 (Sept. 29, 1999).

230 See Girls Yean v. Dominican Republic, Judgment, Inter-Am. Ct. H.R., para. 171 (Sept. 8,2005). The practice was found discriminatory, inconsistent with Article 20 of the American Convention of Human Rights, Nov. 22, 1969, 1144 UNTS 123, which provides that individuals should not be arbitrarily deprived of nationality. See Girls Yean, para. 174; see also Neuman, Gerald L., The Resilience of Nationality, 101 ASIL Proc. 97, 98 (2007)Google Scholar (“a remarkable example of international constraint on a state’s power to determine who its nationals are”); Committee on the Rights of the Child, Concluding Observations: Nepal, paras. 42-44, UN Doc. CRC/C/15/Add.261 (Sept. 21,2005) (criticizing birth registration system having the effect of discriminating against individuals born to single mothers).

231 Committee on Economic, Social & Cultural Rights, Concluding Observations: Macedonia, para. 32, UN Doc. E/C.12/MKD/CO/1 (Jan. 15, 2008) (calling for removal of “administrative obstacles” to securing of citizenship by Roma).

232 Office of the High Commissioner on Human Rights, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum: Mission to the United States of America, para. 70, UN Doc. A/HRC/1 l/36/Add.3 (Apr. 28,2009) (expressing “serious concern” regarding “long delay in the processing of citizenship applications” following the September 11 attacks).

233 Mandby, Struggles for Citizenship in Africa, supra note 5, at 141

234 Bauböck & Perchinig, supra note 180, at 439; see also Manby, Citizenship Laws in Africa, supra note 5, at 14 (calling for provision of written reasons for rejection of naturalization application and for right to judicial review); Sokoloff, supra note 152, at 29 (“ [r] ed tape is an effective means of discouraging people from regularizing their situation”).

235 Supra note 117, Arts. 10-13.

236 See HOWARD, supra note5,at217 (table showing increased naturalization rates in eleven of fifteen core European Union states); Gurowitz, supra note 165, at 439.

237 CERD, Concluding Observations: Cambodia, para. 290, UN Doc. A/53/18 (Sept. 10, 1998).

238 Committee on the Rights of the Child, Concluding Observations: Central African Republic, paras. 435-36, UN Doc. CROC/100 (Nov. 14, 2000).

239 Committee on the Rights of the Child, Concluding Observations: Democratic Republic of the Congo, paras. 177-78, UN Doc. CRC/C/108 (July 23, 2001).

240 Human Rights Committee, Annual Report: Dominican Republic, para. 78, UN Doc. A/56/40, vol. I (Oct. 26, 2001).

241 See CERD, Concluding Observations: Kuwait, para. 376, UN Doc. A/48/18 (Sept. 15, 1993); see also Human Rights Watch, the Bedoons OF Kuwait: “Citizens Without Citizenship” (1995).

242 CERD, Concluding Observations: Sri Lanka, para. 334, UN Doc. CERD/A/56/18 (Aug. 15, 2001) (discrimination against Tamils).

243 CERD, Concluding Observations: Syria, para. 176, UN Doc. A/54/18 (Sept. 29,1999) (Syrian-born Kurds).

244 CERD, Concluding Observations: Zaire, para. 525, UN Doc. A/51/18 (Sept. 30, 1996).

245 See, e.g., Human Rights Committee, Concluding Observations: San Marino, para. 9, UN Doc. CCPR/C/SMR/CO/2 (July 31, 2008) (noting a particular concern about a law that discriminated against children, one of whose parents was a naturalized citizen: “The State party should amend the law so as to ensure that children are not discriminated against on the ground of the nationality of any one parent and in particular ensure equal right to acquisition of citizenship, irrespective of whether both or only one of the parents are naturalized San Marino citizens.”).

246 Committee on the Rights of the Child, Concluding Observations: Liberia, paras. 334-35, UN Doc. CRC/C/140 (Sept. 27, 2004); see also Mandby, Struggles FOR Citizenship IN Africa, supra note 5, at 56-66 (describing racially discriminatory citizenship regime in Sierra Leone); American Bar Association Rule OF Law Initiative, Analysis OF THE Aliens AND Nationality Law OF the Republic OF Liberia 13-14 (May 2009), at http://apps.americanbar.org/rol/publications/liberia_analysis_of_the_aliens_and_nationality_ law.pdf (finding Liberian measure inconsistent with international norms).

247 European Convention on Nationality, supra note 117, Art. 6(4) (e).

248 As the Open Society Institute Justice Initiative notes:

Jus sanguinis is the principle most subject to abuse. Rather than treating descent as a predictor of the state to which an individual will be tied, and the citizenship that individual will logically need, the worst citizenship policies elevate descent to the sole qualification for state protection—as if having a parent born in another country (which might not even have been a separate country at the time) were proof of fundamental unfitness for belonging to a society. ]us sanguinis is also often a proxy for some other immutable characteristic such as ethnicity, language or religion. If citizenship is based on these, then no amount of loyalty to the state, no number of years lived or social ties or great deeds done will make an individual qualify for citizenship. The greater the individual’s ties to a country, the crueler is denationalization.

Open Society Justice Initiative, The Face of Statelessness: A Call for African Norms on the Right to Citizenship 4 (2007), at http://www.citizenshiprightsinafrica.org/Publications/2007/TheFaceofStatelessness.02.07.pdf; see also Manby, Citizenship Laws in Africa, supra note 5, at 11—12 (calling for recognition of right to nationality to include territorial birthright citizenship for children of habitual residents); Human Rights Watch Statement, supra note 215 (“The racially discriminatory aspects of policies to acknowledge nationality on the grounds of blood ties alone {jus sanguinis), with no provision for nationality to be conferred on the basis of place of birth {jus soli) or on other grounds, require particular scrutiny. The rigid and exclusive implementation of jus sanguinis, if in practice implemented along racial lines, can serve to deny whole populations of rights in what is often the only country they have ever known.”)

249 See, e.g., Bauböck, supra note 2, at 44 - 45 .

250 See de Hart & van Oers, supra note 186, at 320.

251 See also Joppke, supra note 152, at 40 (characterizing pre-1999 German regime as “extreme”).

252 On the Germany nationality law before the reforms of 1999, see generally Neuman, Gerald L., Nationality Law in the United States and the Federal Republic of Germany, in Paths to Inclusion: the Integration of Migrants in the United States and Germany 263-85 Google Scholar (Peter H. Schuck & Rainer Münz eds., 1998).

253 The reform has been characterized as “represent[ing] nothing short of a revolution, ending Germany’s ‘exceptionalism’ by entrenching the principle of jus soli in German law.” Ingram & Triadafilopoulos, supra note 165, at 356.

254 Howard, supra note 5, at 124. As political scientist Marc Howard reports on the basis of an interview with a German Interior Ministry official:

As international bodies such as the Council of Europe, the European Court of Justice, and the European Court of Human Rights began to play an increasingly important political, moral, and judicial role in Europe, there was a sense that Germany’s law stood out at antiquated, inhumane, and in need of modernization, all of which had a steady, if subtle, impact on key decision makers

Id.; see also Ingram & Triadafilopoulos, supra note 165, at 359 (“transnational norms played an important role in the process leading to German citizenship reform”).

255 “Germany for Germans”: Xenophobia and Racist Violence in Germany (1995).

256 E.g., CERD, Concluding Observations: Germany, para. 109, UN Doc. A/56/18 (Oct. 30, 2001) (“[t]he committee notes with satisfaction the improvements brought by the recent reform of the nationality law”).

257 See, e.g., Howard, supra note 5, at 89 (Portugal). Greece recently adopted double jus soli, under which the child of a person born and residing in Greece automatically acquires citizenship at birth. See Christopoulos, Dimitris, Greece: Comprehensive Citizenship Reform Passed in Parliament on 11 March, European Union Democracy Observatory on Citizenship (Mar. 13, 2010), at http://eudo-citizenship.eu/citizenship-news/ Google Scholar.

258 Portugal and the United Kingdom scaled backjussoli in this respect in the 1980s. In the wake of a referendum amendment to its constitution, so, too, did Ireland in 2004. See Irish Nationality and Citizenship Act of 2004 (Act No. 38); Howard, supra note 5, at 164.

259 Luxemburg has increased its residency requirement from five to seven years, and Denmark from seven to nine. See HOWARD, supra note 5, at 82, 101.

260 Those adopting a citizenship test include Australia, Australia, Denmark, France, and the United Kingdom. The Netherlands has introduced tests for admission and for obtaining long-term residence status. See Michalowski, supra note 198; Harald Waldrauch, Acquisition of Nationality, in 1 Acquisition and Loss OF Nationality, supra note 5, at 121, 156.

261 See Ingram & Triadafilopoulos, supra note 165, at 353.

262 See Howard, supra note 5, at 30 (even taking account of countertrends, “the recent liberalization of citizenship policies is undeniable”); Weil, supra note 191, at 34 (“ [a] 11 stable, democratic nation-states with immigrant populations have moved in the same legislative direction” with respect to citizenship acquisition practices).

263 See Who Wants a Passport? Minuscule Fail Rate for German Citizenship Test, Spiegel Online Int’L (Jan. 2, 2009) (reporting 99.4 percent pass rate), at http://www.spiegel.de/international/germany/0,l518,599131,00. html; see also Howard, supra note 5, at 83 (on a liberalization scale of 1 to 5, Dutch citizenship policy has increased from 2.72 to 4.22 in the period 1980-2008, notwithstanding adoption of recent restrictionist policies); Joppke, supra note 152, at 127-28 (describing watered-down nature of test).

264 See Joppke, supra note 152, at 44 - 45 , 147 (noting convergence of citizenship regimes).

265 See, e.g., Equal Opportunity Commission Victoria, Citizenship Testing: A Human Rights Issue (2006) (critiquing Australian citizenship test); European Commission Against Rascism AND Intolerance, Ecri REPORT ON Germany 12 (2009) (critiquing discriminatory tendencies of German citizenship test); More Primitive Than Torture, supra note 117.

266 Constantin Sokoloff explains in distinguishing statelessness from “non-citizenship” as follows:

Statelessness focuses on the inability of some individuals to avail themselves of the protection of a State, be it the State they reside or were born in. From a human security perspective, the concern with the noncitizen lies primarily on an individual’s inability to obtain participative membership in a given State despite that individual’s meeting the citizenship requirements generally identified under international standards.

Sokoloff, supra note 152, at 6 n.8. The Baltic episodes illustrate the point. Many ethnic Russians resident in Latvia and Estonia were eligible for citizenship in Russia. Thus, they were not threatened with statelessness. The issue was whether they should be entitled to citizenship in their states of residence notwithstanding eligibility for citizenship in another state.

267 See Orentlicher, supra note 155, at 296.

268 See Weil, supra note 191, at 25-26, for a survey of state practices concerning second-generation immigrants. Of twenty-five major democratic nations, only five (Austria, Greece, Israel, Luxembourg, and Russia) do not entitle second-generation residents to citizenship in at least some cases (the variable being the period of residence required of the first-generation immigrant parent).

269 See Ingram & Triadafilopoulos, supra note 165, at 375 (describing how international norms were “omnipresent” in German citizenship reform debates). As Lesley Wexler demonstrates in the parallel context of immigration law, international human rights norms can perform a “non-legal function” and insinuate themselves into national practice by “producing and codifying a human rights discourse,” even in the absence of binding obligation. Lesley Wexler, The Non-legal Role of International Human Rights Law in Addressing Immigration, 2007 U. Chi. Legal F. 359, 360.

270 See supra notes 71-76 and accompanying text.

271 See Bar-Yaacov, supra note 4, at 265 (highlighting “the physical impossibility of performing simultaneously the rights and duties of citizenship in different geographical locations”).

272 See Legomsky, Stephen H., Dual Nationality and Military Service: Strategy Number Two, in Rights and Duties of Dual Nationals, supra note 4, at 79 Google Scholar. Domicile, rather than citizenship, is thus increasingly important as a determinant of obligations owed to states. Cf. Restatement (third) OF The Foreign Relations Law OF The United States §402 reporters’ note 1 (1987) (noting that domicile, rather than nationality, has typically governed family and estate law in common law tradition).

273 Nissim Bar-Yaacov’s major, 1961 study of dual nationality, for instance, continued to attribute serious “psychological conflicts” to the status, making it “detrimental t o . . . the well-being of the individuals concerned,” Baryaacov, supra note 4, at 266.

274 See Spiro, Peter J., Dual Citizenship as Human Right, 8 Int’L J. Const. L. 111 (2010)Google Scholar; see also Faist, Thomas, Dual Citizenship: Change, Prospects, and Limits, in Dual Citizenship in Europe, supra note 4, at 171, 174 Google Scholar (“If pressed to single out one key factor influencing the increase in tolerance of dual citizenship, it is perhaps the growing importance of human rights in international and national law.”); Knop, supra note 132, at 118 (dual nationality “is one possible solution to the problem of equality and nationality”); Rubenstein, supra note 10, at 174 (arguing that “principles against dual or multiple nationality are no longer valid in the current framework and that multiple citizenships are in fact the norm and will be embraced in the future”); Rubio-Marln, supra note 106, at 142-43 (arguing that emigrants should have a right to retain their original nationality upon naturalization in another state); see also Rainer, Bauböck, Towards a Political Theory of Migrant Transnationalism, 37 Int’L Migration Rev. 700, 711 (2003)Google Scholar (“after some time of legal residence immigrants acquire a right to naturalization that should not depend on renouncing their previous citizenship”). Dual nationality has been the subject of substantial scholarly interest in recent years. See supra note 4 and accompanying text.

275 See, e.g., Manby, Citizenship Laws in Africa, supra note 5, at 15-16 (Open Society Institute-sponsored study calling for acceptance of dual citizenship by African states).

276 See Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, pmbl., May 6,1963, ETS No. 43,634 UNTS 221 (“Considering that cases of multiple nationality are liable to cause difficulties and that joint action to reduce as far as possible the number of cases of multiple nationality, as between member States, corresponds to the aims of the Council of Europe[.]”).

277 European Convention on Nationality, supra note 117, pmbl.

278 See id, An. 14.

279 See, e.g., Boll, supra note 4, at 242-48; Faist, supra note 274, at 174; Knop, supra note 132, at 109-10.

280 See Spiro, supra note 274, at 124.

281 European Convention on Nationality, supra note 117, Art. 16.

282 See Sabourin, supra note 159, at 114 (describing the Convention’s significance beyond Europe).

283 See Rubenstein, supra note 10, at 184 (predicting “increasing willingness in international treaty law to acknowledge and encourage dual and multiple nationality”).

284 Spain is notable in undertaking such arrangements with Latin American states. See Boll, supra note 4, at 51 -57; see also supra notes 217-20 and accompanying text (describing preferential naturalization regimes) cf Gio-vanni, Kojanec, ”Multiple Nationality, in Trends and Developments in National and international Law on Nationality, supra note 159, at 37 Google Scholar (suggesting that in the absence of customary norms, regulation of multiple nationality should be addressed by treaty).

285 See, e.g., Renshon, Stanley A., The 50% American: Immigration and National Identity in an Age of Terror, ch. 1 (2005)Google Scholar.

286 Japan is a notable exception. See Kashiwazaki, supra note 167, at 450-51.

287 See, e.g., Boll, supra note 4, at 274. On Japan, see Kashiwazaki, supra note 167, at 451 (“Insisting on the desirability of ‘only one’ nationality, the official stance of the Japanese government therefore deviates from the current international legal norm.”).

288 See Manby, Citizenship Law IN Africa, supra note 5, at 58. A clear majority now accepts the status. See id. at 63 (table with state practice showing that thirty of fifty-three African states now permit dual citizenship).

289 See, e.g., Chander, Anupam, Diaspora Bonds, 76 N.Y.U. L. Rev. 1005 (2001)Google Scholar.

290 On the German reforms as relating to dual citizenship, see, for example, Enikõ Horváth & Ruth Rubio- Marín, “Alles Oder Nichts “? The Outer Boundaries of the German Citizenship Debate, 8 Int’L J. Const. Law 72 (2010), and Jürgen Gerdes, Thomas Faist, & Beate Rieple, “We Are All ‘Republican ‘Now “: The Politics of Dual Citizenship in Germany, in Dual Citizenship IN Europe, supra note 4, at 45.

291 See Horváth & Rubio-Marín, supra note 290, at 79.

292 Id. at 80-82 (noting that option model remains contested).

293 See de Hart & van Oers, supra note 186, at 356 n.37 (45 percent of naturalizing Germans permitted to retain original citizenship).

294 In a 1974 decision, for instance, the German Constitutional Court denounced the status “as an evil that should be avoided or eliminated in the interest of states as well as the interests of the affected citizen,” giving rise to the so-called Ubeldoktrin (“evil doctrine”). See Spiro, supra note 24, at 1448 & n.161.

295 See Howard , supra note 5, at 139 (arguing that 1999 law “includes movement in a liberalizing direction on dual citizenship”); Yvonne, Schröter, Mengelkamp, Christoph, & Reinhold, Jäger, Key Concept Multiculturalism: Survey of Elites on Dual Citizenship in Germany, in An Emerging Institution? Multiple Citizenship in Europe—Views of Officials 91, 113 Google Scholar (Devorah Kalekin-Fishman & Pirkko Pitkänen eds., 2008) (on basis of survey data, concluding that “change is taking place” in attitudes of Germans to dual citizenship); Horvíth & Rubio-Marín, supra note 291, at 83 (“the general principle of avoidance has clearly weakened”).

296 See Gerdes, supra note 290, at 69.

297 Ecri Report on Germany, supra note 265, at 12; Horváth & Rubio-Marín, supra note 291, at 80-82; see also Goebel, Nicole, German NGOs Urge Government to Allow Full Dual Citizenship, Deutsche Welle (Aug. 23, 2010), at http://www.dw-world.de/dw/article/0„5936606,00.html Google Scholar.

298 Tihoro v. Minister of Home Affairs, Case No. (P)A159/2000 [2008] NAHC 65 (July 8, 2008) (Namib.). Six other African states allow dual citizenship for native-born citizens only. See Manby, Citizenship Law IN Africa, supra note 5, at 63.

299 As the leading authority on Australian citizenship observed, “there was a basic inequality in the former system . . . . some people were able to be dual citizens and others were not entitled to this privilege; it depended upon the order of obtaining the citizenship.” Kim Rubenstein, Australian Citizenship Law in Context, para. 4.6.1.1 (2002). The dual-citizenship fix in Australia was also motivated by the fact that “ [t]he law and practice of most countries with which Australia likes to compare itself permits Citizens of those countries to obtain another Citizenship without losing their original Citizenship.” Australian Citizenship Council, Australian Citizenship for a New Century 65 (2000). This suggests a constructivist explanation for the acceptance of dual citizenship and that such acceptance will become integral to state identity as such. See Wendt, Alexander, Social Theory of International Politics (1999)Google Scholar (explaining state behavior in terms of the construction of state identity); see also Gibney, Matthew, Citizens into Aliens: Denationalization in Ethical Perspective, in Citizenship in a Globalised World: Perspectives from the Immigrant Democracies Google Scholar (Geoffrey Levey & Ayelet Shachar eds., forthcoming 2012) (arguing that British denationalization law is normatively problematic insofar as it discriminates against dual citizens).

300 Joppke supra n o t e 2, at 63-64.

301 See Faist, supra note 274, at 176 (noting that proliferation of “exception groups” from bars on dual citizenship could broaden acceptance of the status).

302 See, e.g., Michael, Jones Correa, Under Two Flags: Dual Nationality in Latin America and Its Consequences for Naturalization in the United States, in Rights and Duties of Dual Nationals, supra note 4, at 303 Google Scholar (establishing empirically that dual citizenship rules affect naturalization rates).

303 Spiro, supra note 274, at 124-26; see also Gerdes, supra note 290, at 63-64 (noting prominence of equality argument among proponents of dual citizenship in Germany); Schröter, supra note 295, at 113, 115 (reporting German perception that dual citizenship will ease integration and advance equality).

304 CERD, Concluding Observations: Germany, para. 20, UN Doc. CERD/C/DEU/CO/18 (2008) (“The Committee recommends that the State party facilitate acquisition of German citizenship by long-term residents and persons born in Germany in order to promote the integration of such residents as may wish to acquire German citizenship without relinquishing their own.”)

305 Australian Constitution s 44 (disqualifying any person who “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”); Australian Electoral Commission, Electoral Backgrounder: Constitutional Disqualifications and Intending Candidates 3 (2010), at http://www.aec.gov.au/About_AEC/Publications/backgrounders/files/2010-eb-constitutional-disqual-intending-candidates. pdf (dual citizens barred from running for parliament).

306 Constitution of The People’s Republic of Bangladesh Art. 66.

307 Constitution of The Republic of Ghana Art. 94 (person who “owes allegiance to a country other than Ghana” disqualified from running for parliament).

308 Jamaica Order in Council, 1962 [Constitution] sec. 40.

309 Constitution of The Republic OF Latvia Art. 37 (“A person with dual citizenship may not be elected President.”).

310 Constitution of The Republic of Malawi Arts. 51, 80.

311 See, e.g., Manby, Citizenship Laws in Africa, supra note 5, at 74-75 (describing controversy in Egypt over court-imposed bar on dual nationals in parliament); Zappala, Gianni & Castles, Stephen, Citizenship and Immigration in Australia, in From Migrants to Citizens, supra note 5, at 32, 58 - 62 Google Scholar (describing debate in Australia); Referendum Necessary to Change Dual-Citizenship Laws, Gleaner (Apr. 9, 2009), at http://www.jamaica-gleaner. com/gleaner/20090409/lead/lead6.html (Jam.) (characterizing ban on dual citizen officeholders as “absurd”); Agyenim Boateng, Ghana Dual Citizens Demand for Equal Rights: A Human Rights Issue, Mod. Ghana (Oct. 23, 2008), at http://www.modernghana.eom/news/187757/l/ghana-dual-citizens-demand-for-equal-rights-a-huma. html; George Graham, Banning Dual Citizens from Public Service May Be Cutting Off Jamaica’s Nose to Spite Its Face, Jamaicans.Com (Aug. 31, 2009), at http://www.jamaicans.com/articles/primecomments/banning-dualcitizens-from-public-service-may-be-c.shtml; Nkansah, Charles N., Ghana’s Dual Citizenship Law: A Case for Reexamination?, Ghanaweb.Com (Nov. 30, 2007), at http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID= 134856 Google Scholar.

312 See Office ofthe Director of National Intelligence, Intelligence Community Policy Guidance No. 704.2: Personnel Security Adjudicative Guidelines for Determining Eligibility for Access to Sensitive Compartmented Information and Other Controlled Access Program Information, at A-5 (Oct. 2,2008), available at http://www.dni.gov/electronic_reading_room/ICPG_704_2.pdf (“[T]he fact that a U.S. citizen is or has become a citizen of another country does not establish preference for a foreign country. Being a U.S. citizen and a citizen of another country is not prohibited or disqualifying absent a showing of heightened risks to national security.”).

313 For an argument that dual citizenship and high elective office “cannot be easily reconciled with the idea of democratic representation and accountability,” see Bauböck, supra note 274, at 717.

314 Among the few examples of retrenchment are the reinstatement of a renunciation requirement for naturalization applicants in the Netherlands. See Betty de, Hart, The End of Multiculturalism: The End of Dual Citizenship? Political and Public Debates on Dual Citizenship in the Netherlands (1980-2004), in Dual Citizenship in Europe, supra note 4, at 77 Google Scholar (describing 2003 amendment of Dutch nationality law).

315 See, e.g., Explanatory Report to European Convention on Nationality, supra note 220, paras. 9-10 (“9. The question of allowing persons, who voluntarily acquire another nationality, to retain their previous nationality will depend upon the individual situation in States. . . . 10. Consequently, States should remain free to take into account their own particular circumstances in determining the extent to which multiple nationality is allowed by them . . . .”); See Hailbronner, supra note 20, at 84 (“[n]o customary international law can be drawn from the state practice”); Kojanec, supra note 284, at 40 (“It is clear, in this situation, that no general international rule can be said to exist with regard to multiple nationality.”). But see Faist, supra note 274, at 176 (identifying human rights as major driver in “the increase in tolerance of dual citizenship”).

316 See supra note 95 and accompanying text.

317 See supra text accompanying note 167; see also, e.g., Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (Ser. A) No. 18 (Sept. 17, 2003) (finding undocumented immigrants entitled as matter of human rights to full protection of employment laws); A (FC) v. Secretary of State for the Home Department, [2004] UKHL 56 (finding discriminatory treatment of noncitizens for purposes of antiterror laws to violate European human rights standards).

318 See, e.g., International Covenant on Civil and Political Rights, supra note 108, Art. 25 (guaranteeing political rights to citizens only); see also, e.g., Walter, Kälin, Human Rights and the Integration of Migrants, in Migration and International Legal Norms 271, 276-78 Google Scholar (T. Alexander Aleinikoff & Vincent Chetail eds., 2003) (describing permissible discrimination against noncitizens).

319 See, e.g., Rubenstein, supra note 10, at 164.

320 See, e.g., Joppke, Christian, Immigration and the Nation-State 187 (1999)Google Scholar; ILA REPORT, supra note 124, at 10 - 14 . Indeed, among social scientists there has been a turn away from postnationalism. See, e.g., Benhabib, supra note 7, at 6 (noting “exaggerated claims about the ‘end’ of the state system”); Hansen, Randall, The Poverty of Postnationalism: Citizenship, Immigration, and the New Europe, 38 Theory & Soc’y 1 (2008)Google Scholar. The “postnational” model posits the declining salience of citizenship status in the wake of perfected human rights protections based on personhood. See Soysal, Yasemin, Limits of Citizenship: Migrants and Postnational Membership in Europe (1995)Google Scholar.

321 See Spiro, supra note 274.

322 Joppke, supra note 152, at 36; see also Benhabib, supra note 7, at 181 (democratic people shows itself “to be not only the subject but also the author of the laws”).

323 Benhabib, supra note 7, at 141.

324 Michael Walzer most notably among them. See Walzer, supra note 7, at 52-61. Some theorists would go so far as to make citizenship automatic after a certain period of residence, even for those who would prefer noncitizen status. See Rubio -Marín, supra note 2. This proposal is in tension with basic liberal premises of autonomy insofar as it would impose identity. The proposal may also be symptomatic of emerging post national conditions in some states. Assuming that naturalization barriers are already low, the need to resort to automatic naturalization evidences diminished perceived benefits in acquiring citizenship status. See Spiro, supra note 2. In any case, the proposal would probably also violate long-standing international norms that prohibit states from overreaching in ascribing nationality. See supra note 18 and accompanying text (noting accepted international norm against nonvolitional naturalization). Ayelet Shachar avoids this difficulty by devising a. jus nexi in which citizenship turns on the social fact of membership. See Shachar, supra note 2, ch. 6. Territorial presence would be a primary, though not exclusive, metric of eligibility; the scheme would seek to bring noncitizen “resident stakeholders” into the citizenship fold by way of achieving a better fit between “democratic voice, factual membership, and citizenship entitlement.” Id. at 181.

325 See Benhabib, supra note 7; Carens, supra note 157.

326 See, e.g., Mary, Ellen O’Connell, The Power and Purpose of International Law 132-44 (2008)Google Scholar.

327 Cf. Joppke, supra note 152, at 36 (“In a liberal-democratic context, the presence of sizeable, long-settled immigrant populations cannot but exert pressure toward making citizenship more accessible to and inclusive of immigrants.”).

328 See supra notes 14-18 and accompanying text.

329 See supra notes 95-97 and accompanying text.

330 See supra notes 123-29 and accompanying text.

331 See, e.g., Knop, supra note 132, at 111-16.

332 To the extent that such a period of residence did not reflect a longer-term commitment to permanent residence in the country of immigration, practice through the mid-twentieth century provided for the forfeiture of naturalized citizenship upon return as a resident to the immigrant’s country of origin. See Spiro, supra note 24, at 1442. Such enforcement of adopted community attachment is no longer undertaken today. A naturalized citizen retains his citizenship even if she abandons all ties to her country of naturalization and revives those of her country of origin.

333 Orentlicher, supra note 155, at 317; see also Benhabib, supra note 7, at 219 (noting “crucial link between democratic self-governance and territorial representation”; conceiving the “scope of democratic legitimacy” to be contingent on “the demos which has circumscribed itself as a people upon a given territory”).

334 See, e.g., Plckus, supra note 2, at 175-78.

335 See Benhabib, supra note 7, at 178 (“We are at a point in political evolution when the unitary model of citizenship, which bundled together residency upon a single territory with die subjection to a single administration of a people perceived to be more or less cohesive entity, is at an end.”).

336 See United Nations Population Division, Trends in International Migrant Stock: The 2008 Revision 1-3 (report with summary of UN Database POP/DB/MIG/Stock/Rev.2008 (2009)), at http://www.un.org/esa/population/migration/UN_MigStock_2008.pdf (describing increase in global migration, especially to developed countries).

337 See, e.g., Rainer, Bauböck, Reinventing Urban Citizenship , 7 Citizenship Stud. 139, 149 - 50 (2003)Google Scholar; Blank, Yishai, Spheres of Citizenship, 8 Theoretical Inquiries L. 411, 426 (2007)Google Scholar (both noting possibility of local identity detached from national one).

338 See, e.g., Barry, Kim, The Construction of Citizenship in an Emigration Context, 81 N.Y.U. L. Rev. 11 (2006)Google Scholar; Maier, supra note 1, at 83 - 84 (suggesting that” a sense of diaspora identity, or at least a sense of multiple homelands, will become increasingly generalized”); cf Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization 171(1996) (concluding that United States has been transformed from “a land of immigrants” to “being one node in a post national network of diasporas”).

339 Anecdotal evidence suggests that, in the U.S. context, some people secure naturalization as a form of protected exit strategy, allowing return to homeland while insuring continued access to the United States. See Gilbertson, Greta & Singer, Audrey, The Emergence of Protective Citizenship in the USA: Naturalization Among Dominican Immigrants in the Post-1996 Welfare Reform Era, 26 Ethnic & Racial Stud. 25, 37-39 (2003)Google Scholar (describing cases in which naturalization was undertaken at time that applicants contemplated leaving country of naturalization and returning to country of origin).

340 Maier, supra note 1, at 84.

341 The dependence of democratic governance capacity on solidarity is a defining feature of liberal nationalism. See, e.g., Miller, David, On Nationality 90-99 (1995)Google Scholar; Shachar, supra note 2, at 47 (noting “social bonds and mutual responsibilities that, through joint action and decision making, help bind a people together and motivate them to redistribute internally the benefits of membership in a relatively stable and self-ruling political community”); Abraham, David, The Boundaries and Bonds of Citizenship: Recognition and Redistribution in the United States, Germany, and Israel, in Migration in History: Human Migration in Comparative Perspective 201 Google Scholar (Marc S. Rodriguez & Anthony Grafton eds., 2007).

342 See Bosniak, supra note 120, at 979.

343 Not that all or even most of them do, at least when the individual eligible for additional citizenship is required to undertake an affirmative act. When Mexico in 1998 made possible the restoration of citizenship for the hundreds of thousands who had previously lost it by naturalizing in the United States, only sixty-seven thousand availed themselves of the offer in the initial five-year window. See Fitzgerald, David, A Nation of Emigrants: How Mexico Manages ITS Migration 161 (2009)Google Scholar. Now, however, dual citizenship is the default position of naturalizing immigrants, who retain their original citizenship while acquiring a new one.

344 See Spiro, Peter J., Dual Citizenship: A Postnational View, in Dual Citizenship in Global Perspective, supra note 4, at 189 Google Scholar.

345 See supra text accompanying note 272.

346 See Geyer, supra note 74; Renshon, supra note 285.

347 Walzer, supra note 7, at 32. Benhabib similarly frames membership rules as “an ongoing process of constitutional self-creation.” Benhabib, supra note 7, at 177 (asserting that “admittance does not imply automatic membership” and that “[d]emocratic peoples will still have to devise rules of membership at the national, subnational, regional, and municipal levels”).

348 WALZER, supra note 7, at 62.

349 See, e.g., Papademetriou, Demetrios G., The Global Struggle with Illegal Migration: No End in Sight, Migration Policy Institute (Sept. 2005), at http://www.migrationinformation.org/feature/display.cfm?ID=336 Google Scholar.

350 See, e.g., Joppke, Christian, The Retreat of Multiculturalism in the Liberal State: Theory and Policy, 55 Brit. J. Soc. 237 (2004)Google Scholar (describing growing liberal opposition to multicultural policies, including those implicating citizenship, in Australia, the Netherlands, and the United Kingdom).

351 See supra 197 and accompanying text.

352 See, e.g., Martin, David A., New Rules on Dual Citizenship for a Democratizing Globe: Between Rejection and Embrace, 14 Geo. Immigr. L.J. 1 (1999)Google Scholar.

353 Walzer was alone in confronting issues posed by immigration and citizenship. By contrast, John Rawls avoided questions relating to immigration and citizenship by assuming a society into which everyone was born. See Rawls, John, Political Liberalism 12 (1993)Google Scholar.

354 See Goldston, supra note 119, at 338; see also Christopher, Heath Wellman, Immigration and Freedom of Association, 119 Ethics 109 (2008)Google Scholar.

355 See, e.g., Ackerman, Bruce, Social Justice in the Liberal State 95 (1980)Google Scholar (“the only reason for restricting immigration is to protect the ongoing process of liberal conversation itself”).

356 Such was the case when two respected academics made the liberal constitutional case against birthright citizenship in the United States. See Smith, Rogers & Schuck, Peter, Citizenship Without Consent: Illegal Aliens in the American Polity (1985)Google Scholar. For critical responses, see, for example, Neuman, Gerald L., Back to Dred Scott, 24 San Diego L. Rev. 485 (1987)Google Scholar, Carens, Joseph, Who Belongs? Theoretical and Legal Questions About Birthright Citizenship in the United States, 37 U. Toronto L.J. 413 (1987)Google Scholar, and Martin, David A., Membership and Consent: Abstract or Organic?, 11 Yale J. Int’l L. 278 (1985)Google Scholar.

357 This problem supplies an important explanation not only for the embrace of dual citizenship by sending states from the South, but also for the ethnizenship model adopted by European states in allowing citizenship to be retained by emigrants and their descendants. See Joppke, supra note 2; see also supra text accompanying note 324.

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