720 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 citizenship status to some who would otherwise be denied it, the result will be the enhanced protection of rights. In the longer run, however, mandated inclusion may undermine the protective elements of citizenship. Insofar as the international law of citizenship would require the extension of citizenship without any correlation to community on the ground, it may contribute to the migration of governance functions away from the state. An international law of citizenship may undermine the state itself and its many liberal virtues. This prospect may supply a progressive basis for opposing the establishment of a right of access to citizenship. It may also have contributed to a recent countertrend among some European states away from expanded access. From a liberal perspective, however, concretely advancing the human rights of individuals should trump efforts only speculatively aimed at maintaining the institutional health of the liberal state. To the extent that mandated citizenship (along with other forces) threatens the state, the more appropriate response would be to advance the turn to international institutions as the ultimate guarantor of human rights.168 The new international law of citizenship is evidenced by recent developments concerning dual citizenship and the acquisition of citizenship. International law has, until recently, been unwilling to impose standards of conduct regarding either question. With respect to dual citizenship, international law—reversing past disfavor—may come to recognize an individual right to maintain the status. With respect to the acquisition of citizenship, emerging norms point to limitations on threshold naturalization requirements for long-term residents, and the trajectory suggests a move toward the required adoption, at least in some contexts, of a jus soli basis for birthright citizenship. Both developments suggest that the balance is tipping toward a rights metric in how international law understands nationality questions. If so, international norms regarding nationality determinations are likely to harden in the medium to long term. Acquisition of Citizenship In the context of stable territorial boundaries, citizenship is acquired either at birth or through naturalization. Citizenship after birth can also be acquired in the face of state transformation. These channels of citizenship acquisition are coming into the ambit of international law under the moniker of “access to citizenship.” The prospective norm holds that habitual residents and their progeny should not be relegated to noncitizen status indefinitely and that at some point in time, territorial presence should give rise to baseline eligibility for citizenship acquisition. Although states retain broad discretion to impose requirements beyond residency for purposes of citizenship eligibility, to the extent that such requirements are unreasonable or bar individuals on the basis of group status, they are being challenged by human rights actors. The trajectory here points toward the greater constraint of citizenship practices as they relate to the extension of citizenship status. longtime Korean minority in Japan “retained a negative evaluation on acquiring Japanese nationality,” focusing instead on expanding rights of denizenship). 168 See, e.g., Rubenstein, supra note 10, at 184 (arguing that the diminishing importance of nationality will result in a “movement away from the centrality of the state in international law”). On the declining valence of the state, see generally, for example, MARTIN VAN CREVELD, THE RISE AND DECLINE OF THE STATE (1999), JEANMARIE GUÉHENNO, THE END OF THE NATION-STATE (1995), SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996), and Oscar Schachter, The Decline of the Nation-State and Its Implications for International Law, 36 COLUM J. TRANSNAT’L. L. 7 (1997). 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