Summary
Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion
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Roundtable on citizenship.
The roundtable was convened at 9:00 a.m. on Thursday, March 29, by its moderator, Peter Spiro of Temple University School of Law, who introduced the panelists: Linda Bosniak of Rutgers University; Karen Knop of the University of Toronto; Gerald Neuman of Harvard Law School; and Kim Rubenstein of the Australian National University.
AN EMERGING INTERNATIONAL LAW OF CITIZENSHIP? By Peter J. Spiro ([dagger]) International law hasn't had much to say about citizenship practices. Until recently, citizenship law was firmly planted in the domain reserve at the core of sovereignty, insulated from the constraint of international norms. As noted in the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, "it is for each state to determine under its own law who are its nationals." That discretion was circumscribed in the mid-20th century to limit state capacity arbitrarily to de-nationalize citizens as well as to discriminate against women in nationality practice. However, as Georg Schwarzenberger observed in 1967, "[i]n principle, international law leaves each territorial sovereign to decide which of his inhabitants he wishes to grant nationality." (1) At the same time, nationality was crucial to an individual's well-being at the international level in a system that recognized the legal personality of states and states alone. It was to that effect that Hannah Arendt delivered her dictum that nationality is the "right to have rights." Those who enjoyed the diplomatic protection of their state of nationality were shielded from mistreatment by other states. Statelessness, by contrast, was a perilous condition; without diplomatic protection an individual was in effect bare to the international elements. The stateless individual could find no solace in international law, and states could treat them as the human equivalent of strays, with respect to which states were unanswerable to external authority. Today, individuals have rights as such under a thickening regime of international human rights. Attribution of nationality may also come to be constrained by international law. These developments point to a possible devaluation of nationality, both as a matter of international law and as a matter of individual identity and human community. To the extent that international human rights affords individuals protection equivalent to that extended to nationals under domestic regimes, nationality becomes surplusage. To the extent that international law mandates the extension of nationality to particular classes of individuals against state preference, it will weaken national solidarities. He...See the full content of this document
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