740 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 right to citizenship.325 As such (and to the extent that international human rights has been flirting with natural law),326 theory is likely to facilitate the recognition—as law— of emerging norms relating to naturalization and birthright citizenship.327 The legal recognition of these rights could have unintended consequences. Emerging constraints on nationality practices are more determinative of identity than previous constraints, such as they existed. Earlier international norms in the area policed state discretion to define community, thereby ensuring that states did not overreach actual community lines.328 With respect to expatriation, for example, recognition of a right to transfer attachment from one state to another validated a change in community affiliation.329 In the absence of such a norm, states could persist in defining their communities in ways that did not reflect actual community boundaries. Likewise with respect to international norms on the nationality of women.330 As the construction of marriage and family changed during the mid-twentieth century, measures providing for the automatic transfer of a woman’s nationality upon marriage to a foreigner may not have accurately reflected the national identities or attachments of women.331 The more recent prospective norms, by contrast, impose constraints that are not correlated with identity or that blur identity boundaries. The emerging territorial citizenship norm mandates membership for those who have no tie to the citizenry other than place of residence. That tie may be insubstantial and subordinate to other attachments. In the past, territorial presence has in most contexts presented a reliable surrogate for other, sometimes unmanageable tests of membership. Under an assimilationist model of immigration, presence over time correlated with actual membership. One could assume that a resident of several years would be, on average, committed to permanent residence332 and would have attained some level of community membership. As a general matter, the territorial/civic approach to membership expects that “a particular bounded territorial space within which people obey the same political and legal authorities . . . also demarcates the boundaries of their shared political diminished perceived benefits in acquiring citizenship status. See SPIRO, supra note 2. In any case, the proposal would probably also violate long-standing international norms that prohibit states from overreaching in ascribing nationality. See supra note 18 and accompanying text (noting accepted international norm against nonvolitional naturalization). Ayelet Shachar avoids this difficulty by devising a jus nexi in which citizenship turns on the social fact of membership. See SHACHAR, supra note 2, ch. 6. Territorial presence would be a primary, though not exclusive, metric of eligibility; the scheme would seek to bring noncitizen “resident stakeholders” into the citizenship fold by way of achieving a better fit between “democratic voice, factual membership, and citizenship entitlement.” Id. at 181. 325 See BENHABIB, supra note 7; CARENS, supra note 157. 326 See, e.g., MARY ELLEN O’CONNELL, THE POWER AND PURPOSE OF INTERNATIONAL LAW 132– 44 (2008). 327 Cf. JOPPKE, supra note 152, at 36 (“In a liberal-democratic context, the presence of sizeable, long-settled immigrant populations cannot but exert pressure toward making citizenship more accessible to and inclusive of immigrants.”). 328 See supra notes 14 –18 and accompanying text. 329 See supra notes 95–97 and accompanying text. 330 See supra notes 123–29 and accompanying text. 331 See, e.g., Knop, supra note 132, at 111–16. 332 To the extent that such a period of residence did not reflect a longer-term commitment to permanent residence in the country of immigration, practice through the mid-twentieth century provided for the forfeiture of naturalized citizenship upon return as a resident to the immigrant’s country of origin. See Spiro, supra note 24, at 1442. Such enforcement of adopted community attachment is no longer undertaken today. A naturalized citizen retains his citizenship even if she abandons all ties to her country of naturalization and revives those of her country of origin. 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