A NEW INTERNATIONAL LAW OF CITIZENSHIP Peter J. Spiro* Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces. That may now be changing on all levels. These continuities of space, identity, and nationality are eroding.1 The instability—which is explained, in part, by globalization and increased mobility—is generating intense scholarly attention to citizenship as an institution.2 The conditions of globalization are necessary, but not sufficient, to decouple citizenship status from other metrics of identity. Reframing citizenship status as an individual right is crucial to the shift. Insofar as citizenship is so framed, its delimitation can no longer turn on traditional membership criteria, many of which collide with other norms of both liberal democracy and international law. The result may be a new international law of citizenship. Although international law has regulated nationality practice as a matter of conflict of laws, it has largely demurred from dictating * Charles Weiner Professor of Law, Temple University Law School. Thanks to participants in faculty colloquia and workshops at Georgetown Law Center, Fordham Law School, University of Cincinnati Law School, Arizona State University College of Law, Australian National University, and the Minerva Center for Human Rights at the Hebrew University of Jerusalem for helpful suggestions on earlier drafts. 1 See, e.g., SASKIA SASSEN, TERRITORY, AUTHORITY, RIGHTS (2006); Charles S. Maier, “Being There”: Place, Territory, and Identity, in IDENTITIES, AFFILIATIONS, AND ALLEGIANCES 67 (Selya Benhabib, Ian Shapiro, & Danilo Petranovich eds., 2007). 2 See, e.g., RAINER BAUBÖCK, TRANSNATIONAL CITIZENSHIP: MEMBERSHIP AND RIGHTS IN INTERNATIONAL MIGRATION (1995); LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP (2008); STEPHEN CASTLES & ALASTAIR DAVIDSON, CITIZENSHIP AND MIGRATION: GLOBALIZATION AND THE POLITICS OF BELONGING (2000); CHRISTIAN JOPPKE, SELECTING BY ORIGIN: ETHNIC MIGRATION IN THE LIBERAL STATE (2005); RUTH RUBIO-MARÍN, IMMIGRATION AS A DEMOCRATIC CHALLENGE: CITIZENSHIP AND INCLUSION IN GERMANY AND THE UNITED STATES (2000); AYELET SHACHAR, THE BIRTHRIGHT LOTTERY: CITIZENSHIP AND GLOBAL INEQUALITY (2009). The place of American citizenship against the transformed global backdrop has also garnered renewed interest among legal scholars and social scientists. See, e.g., T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP (2002); HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006); GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION (1996); NOAH PICKUS, TRUE FAITH AND ALLEGIANCE: IMMIGRATION AND AMERICAN CIVIC NATIONALISM (2007); PETER J. SPIRO, BEYOND CITIZENSHIP: AMERICAN IDENTITY AFTER GLOBALIZATION (2008); Rogers Smith, Beyond Sovereignty and Uniformity: The Challenges for Equal Citizenship in the Twenty-First Century, 122 HARV. L. REV. 907 (2009). 694 This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms