732 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 oriented to jus sanguinis criteria.264 Under this account, recent activity will not reverse the longer-term trend. Moreover, pushback against moves to restrict citizenship policies has been framed in human rights terms. That more restrictive citizenship policies have provoked opposition is unsurprising. But opposition appears to be premised, in part, on an assumption that human rights constrain the denial of citizenship. If so, moves toward more restrictive citizenship acquisition policies could activate an expanded human rights consciousness in citizenship practice. Restrictive policies in Europe and elsewhere are being described as discriminatory.265 If these critiques gain traction, they are likely to find an audience in institutional infrastructures. These developments can be characterized as evolutionary, rooted in existing international law constraints on nationality practice. Many of the developments implicate the norm against statelessness—a particular concern in the context of state succession. But it is also possible to paint the changes as a departure from past premises.266 Diane Orentlicher argues that the international response to these measures evidences a shift to a “territorial/civic” model of citizenship enforced through international norms, in which the availability of citizenship to residents is considered necessary to the full realization of human rights.267 This conception represents a departure from past approaches to statelessness in two respects. First, as an operative matter, it devolves an obligation onto a particular state; the right to nationality becomes a right to a particular nationality. Second, as a normative matter, it recognizes core self-governance values; the point now is to guarantee political participation in a person’s place of residence. By contrast, the right to some nationality—the object of efforts to combat statelessness—reflects an international protection norm, working from the premise that individuals should have some state to turn to protect them against mistreatment by other states. An emerging international regime regarding the acquisition of citizenship suggests the emergence of an international norm requiring the adoption of jus soli in certain cases (most notably, those involving secondgeneration residents),268 even where statelessness is not a concern. 264 See JOPPKE, supra note 152, at 44 – 45, 147 (noting convergence of citizenship regimes). See, e.g., EQUAL OPPORTUNITY COMMISSION VICTORIA, CITIZENSHIP TESTING: A HUMAN RIGHTS ISSUE (2006) (critiquing Australian citizenship test); EUROPEAN COMMISSION AGAINST RASCISM AND INTOLERANCE, ECRI REPORT ON GERMANY 12 (2009) (critiquing discriminatory tendencies of German citizenship test); More Primitive Than Torture, supra note 117. 266 Constantin Sokoloff explains in distinguishing statelessness from “non-citizenship” as follows: 265 Statelessness focuses on the inability of some individuals to avail themselves of the protection of a State, be it the State they reside or were born in. From a human security perspective, the concern with the noncitizen lies primarily on an individual’s inability to obtain participative membership in a given State despite that individual’s meeting the citizenship requirements generally identified under international standards. Sokoloff, supra note 152, at 6 n.8. The Baltic episodes illustrate the point. Many ethnic Russians resident in Latvia and Estonia were eligible for citizenship in Russia. Thus, they were not threatened with statelessness. The issue was whether they should be entitled to citizenship in their states of residence notwithstanding eligibility for citizenship in another state. 267 See Orentlicher, supra note 155, at 296. 268 See Weil, supra note 191, at 25–26, for a survey of state practices concerning second-generation immigrants. Of twenty-five major democratic nations, only five (Austria, Greece, Israel, Luxembourg, and Russia) do not entitle second-generation residents to citizenship in at least some cases (the variable being the period of residence required of the first-generation immigrant parent). 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