Roundtable on citizenship.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

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.

Hence the purpose of this panel on international law and citizenship, to consider how citizenship continues to make a difference and whether international law is coming to bear on state practice relating to the citizenship attribution. For my own part, I believe that national ties and identity are irreversibly diminishing before the logic of globalization and its reflection in international norms, consistent with a postnational perspective on the evolving international order.

Human rights norms now afford individuals some measure of security. Whether citizenship status continues to be of consequence is another question. The citizenship differential works along two dimensions. First, there is the differential in the treatment of citizens and noncitizens within domestic regimes. What is the added value of holding citizenship in the state in which one is present? Second, there is the possible differential within the class of noncitizens between those who are stateless and those who hold some nationality, with further possible differentials in the value of particular nationalities. To what extent does the possession of some citizenship (or of certain citizenships) make a difference, especially against potential mistreatment by a state?

The citizen/non-citizen divide clearly still makes a difference, but just as clearly it makes less of a difference than it once did. Legal immigrants, at least, are being normalized before the state. In much of the North, those with permanent resident status are disadvantaged in few respects. Permanent residents are eligible for most social benefits and can pursue most forms of economic opportunity. Even in the political sphere, the differential is diminishing. In many countries, legal immigrants can vote in local elections. In the United States, they are (with some minor exceptions) ineligible to vote, but they can make financial contributions to candidates for federal office and may enjoy other channels of political influence. Although non-citizens may be subject to removal, this discretion is usually not exercised absent criminal conduct or violation of immigration control measures on the part of the individual. Most permanent residents enjoy a great measure of locational security.

Although equalization of citizen and non-citizen rights has largely been undertaken as a matter of state discretion, non-citizen rights are increasingly framed within a human rights discourse. For example, rights advocates and scholars are now asserting that long-term resident aliens should be insulated from removal even where they have engaged in criminal conduct. As state practice converges around certain norms, that discourse should be facilitated. Immigrant rights approaching those of citizens may be entrenched within an international norm set.

As for the differential within the class of non-citizens between the stateless and those with some nationality, it also appears to be diminishing, perhaps more dramatically than the citizen/non-citizen differential. As a legal matter, diplomatic protection affords the individual little more than she enjoys under the human rights regime, and then primarily in the context of commercial dealings. It is also the case that diplomatic protection is exercised at the state's option; it is a right devolving to the state, not to the individual, who is the incidental beneficiary, and therefore does not operate as a guarantee.

As a practical matter, the possession of some nationality--and perhaps more so, the possession of certain nationalities--still makes a difference on the ground, as demonstrated in the wake of 9/11. If you are detained at Guantanamo and hold British nationality, for instance, you are much better positioned than someone with Pakistani nationality. But that is an outlier situation. It is also true that some states are now more aggressively and creatively exercising diplomatic protection to further the social, economic, and legal position of nationals abroad, as is true of Mexican government actions on behalf of Mexican nationals in the United States. But such action seems not so distinctively sovereign; rather, it is more in the way of what religions and corporations might do to advance the interests of adherents or employees.

In more ordinary realms, nationality, even of the premium class, may not get you very much. Witness the shoddy service extended by the U.S. government to Americans endangered by the summer 2006 conflict in Lebanon, Ivy League students enjoying the services of a private evacuation service (SOS International) excepted. Still better to be an American out in the world, no doubt, than a stateless person, but the differential is surely less than it once was. Citizenship is in this respect less meaningful to international legal status. As human rights protections become more robust, it is not clear how nationality becomes reinscribed as the dominant component of international legal identity.

At the same time that citizenship becomes less salient to the international legal standing of the individual, international law is having more to say about national citizenship practices. Since World War II, at least, international law has constrained nationality practice in some respects. There are fairly clear norms against arbitrary restrictions on the right of voluntary expatriation and against arbitrary compelled denationalization. States may not discriminate on the basis of gender in nationality practice. Although international law is clearly directed at reducing statelessness, that regime has only in marginal situations resulted in a particularized obligation on the part of a state to extend nationality to particular individuals. Otherwise, in matters of the attribution of nationality, international law has been largely silent.

That may now be changing. With respect to naturalization requirements and birthright citizenship, as well as the maintenance of plural nationality, there is preliminary evidence of emerging international norms. (2) The trajectory of state practice is clear on each issue. It is universal practice now to allow for the possibility of naturalization, on increasingly relaxed terms. More states now extend citizenship on a jus soli basis, at least to the children of long-term legal residents. Recent changes in German practice are signal on both. There is a dramatic trend towards wider acceptance of plural nationality, where acquired at birth and through naturalization. Reflecting these trends, the 1997 European Convention on Nationality protects the maintenance of dual nationality where acquired through mixed-national parentage and requires states-party to provide for the possibility of naturalization of lawful residents, with a residency requirement not exceeding ten years.

These emerging norms are another reflection of the human rights agenda. To the extent they are effective in securing citizenship status for otherwise marginalized populations, that agenda will be served. Over the long run, however, by mandating the attribution of membership, these norms may undermine the organic sense of national community which has supported the liberal state. That should present a dilemma for those seeking to press an international law of citizenship going forward.

REMARKS BY LINDA BOSNIAK *

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