2011] AN INTERNATIONAL LAW OF CITIZENSHIP 733 At this time, these trends qualify as no more than the softest kind of law, representing aspirational norms that are not yet amenable to direct enforcement against states. The emerging norms in this context will be contested, and some states are attempting to reinscribe restrictive citizenship policies. The prospective regime could sputter before it takes hold. But the fact that the regime is being contested evidences potentialities in international law that were historically absent.269 Soft law norms often harden. It is now possible to envision international law standards governing core nationality determinations. Maintenance of Dual Citizenship Evidence suggests that international norms are emerging to protect an individual right to maintain dual citizenship. Both practice and theory have become dramatically more receptive to that status. Although states retain clear discretion concerning dual citizenship as a formal matter, pressure is growing on holdout states to liberalize their practices. As with norms concerning the acquisition of citizenship, norms against discrimination are being effectively deployed to expand state acceptance of dual citizenship. Although a formal human right to maintain dual citizenship remains a distant prospect, developments pointing to the possibility warrant attention. As described above,270 dual nationality was the bane of an order-based norms system to the extent that it sparked the human equivalent of turf battles among states with competing claims to individuals. Although international law was ultimately incapable of resolving the problem at its roots (failing to establish a harmonization of nationality laws), the status was universally deplored. That was, in part, because dual nationality may itself have infringed individual rights. In the nineteenth-century context of the expatriation controversy, dual nationality often translated into multiple and conflicting obligations, including mandatory military service.271 But the prospect of burdensome obligations dissipated from the middle of the twentieth century onward, as states either abandoned conscription or made it contingent on residence (also the case with taxation).272 Dual nationality became a status that an individual might seek to maintain either for material or associational reasons. And yet into the late twentieth century, it was never addressed from the perspective of individual interests, even in a suggestive manner.273 269 See Ingram & Triadafilopoulos, supra note 165, at 375 (describing how international norms were “omnipresent” in German citizenship reform debates). As Lesley Wexler demonstrates in the parallel context of immigration law, international human rights norms can perform a “non-legal function” and insinuate themselves into national practice by “producing and codifying a human rights discourse,” even in the absence of binding obligation. Lesley Wexler, The Non-legal Role of International Human Rights Law in Addressing Immigration, 2007 U. CHI. LEGAL F. 359, 360. 270 See supra notes 71–76 and accompanying text. 271 See BAR-YAACOV, supra note 4, at 265 (highlighting “the physical impossibility of performing simultaneously the rights and duties of citizenship in different geographical locations”). 272 See Stephen H. Legomsky, Dual Nationality and Military Service: Strategy Number Two, in RIGHTS AND DUTIES OF DUAL NATIONALS, supra note 4, at 79. Domicile, rather than citizenship, is thus increasingly important as a determinant of obligations owed to states. Cf. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §402 reporters’ note 1 (1987) (noting that domicile, rather than nationality, has typically governed family and estate law in common law tradition). 273 Nissim Bar-Yaacov’s major, 1961 study of dual nationality, for instance, continued to attribute serious “psychological conflicts” to the status, making it “detrimental to . . . the well-being of the individuals concerned.” BARYAACOV, supra note 4, at 266. 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