736 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 nationality in almost half of approved applications for naturalization.293 Once visibly and staunchly opposed to dual nationality,294 Germany has withdrawn from its previous, principled stance against the status.295 Antidiscrimination norms have been deployed to expand the availability of multiple citizenship. In this context equality issues are implicated whenever dual citizenship is accepted for some classes of citizens but not others. When dual citizenship has been accepted in one context, it has been pressed in others. In Germany, the fact that emigrant Germans are increasingly able to retain their citizenship may explain the high proportion of waivers from a renunciation condition for immigrant naturalization applicants and the growing tolerance of the status there.296 It has been suggested that German acceptance of dual citizenship with the European Union and Switzerland refutes any argument that dual citizenship is unacceptable in principle; some have argued that the current scheme intolerably discriminates against nationals of other states.297 The High Court of Namibia struck down as discriminatory a prohibition against dual nationality on the part of naturalized citizens but not native-born ones.298 In Australia, the fact that immigrants were allowed to keep their original citizenship upon naturalization in Australia was an important factor in allowing native-born Australians to keep their original citizenship after naturalizing elsewhere.299 These challenges to prohibitions on dual citizenship have been launched under domestic constitutional law. They suggest, however, a rights-based foundation. As part of what political scientist Christian Joppke labels the “re-ethnicization of citizenship,” many states have moved 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 Ubel doktrin (“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, Christoph Mengelkamp, & 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 (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); Horváth & Rubio-Marı́n, 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-Marı́n, supra note 291, at 80 – 82; see also Nicole Goebel, 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. 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 ALEXANDER WENDT, SOCIAL THEORY OF INTERNATIONAL POLITICS (1999) (explaining state behavior in terms of the construction of state identity); see also Matthew Gibney, Citizens into Aliens: Denationalization in Ethical Perspective, in CITIZENSHIP IN A GLOBALISED WORLD: PERSPECTIVES FROM THE IMMIGRANT DEMOCRACIES (Geoffrey Levey & Ayelet Shachar eds., forthcoming 2012) (arguing that British denationalization law is normatively problematic insofar as it discriminates against dual citizens). 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