2011] AN INTERNATIONAL LAW OF CITIZENSHIP 723 capacity to extend nationality (at least for international purposes) in the absence of a genuine link.182 The genuine-link test could be turned around to require the extension of citizenship to individuals in the presence of such a link.183 The thresholds would differ. The link required to validate the extension of nationality is low, even under Nottebohm itself. When a state has refused nationality, the link required to compel its extension would be high. Underlying both is an assumption that nationality should comport with the social facts of community on the ground. Practice and commentary have tended to be narrowly focused, with a particularistic orientation.184 It is now possible, however, to break out various components of citizenship acquisition regimes and assess their conformity with emerging international norms. These components are increasingly filtered through a human rights optic. Eligibility to naturalize and durational residency requirements. As a matter of practice, all states provide for the possibility of naturalization (that is, the acquisition of citizenship after birth). Availability of naturalization may now be required as a matter of international law. The 1997 European Convention on Nationality requires that states parties provide for “the possibility of naturalisation of persons lawfully and habitually resident on its territory.”185 Naturalization has become “more of a right than a favour.”186 As the political theorist Seyla Benhabib concludes in sketching a “human right to membership,” it “would be objectionable from a moral point of view [not to provide] any procedure or possibility for foreigners and resident aliens to become citizens at all; that is, if naturalization were not permitted at all.”187 Most states require some period of residence as a qualification for naturalization.188 Such requirements are clearly consistent with international human rights norms. Even the more radical among theorists on immigration and citizenship accept their legitimacy by way of establishing the social membership of prospective citizens.189 respect in which the citizen/noncitizen gap is closing. See DAVID C. EARNEST, OLD NATIONS, NEW VOTERS (2008) (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 HANDBOOK 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., ZIEMELE, 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; 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 Kay Hailbronner, Germany, in 2 ACQUISITION AND LOSS OF NATIONALITY, supra note 5, at 213, 234 –36. 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. See 8 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. 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