2011] AN INTERNATIONAL LAW OF CITIZENSHIP 697 nationality determinations. More precisely, international law did constrain state practice, but only insofar as state practice implicated the interests of other states—that is, as a matter of conflict of laws. The middle period, spanning the human rights revolution of the mid- and latetwentieth century, saw the advent of limited incursions on state discretion in the context of statelessness, gender equality, and denationalization. None of these constraints, however, significantly affected state capacity to define membership. Even today, many international law commentators characterize citizenship practice as a matter of sovereign power. Part II sets out the contours of an international law of citizenship that does constrain national self-definition. This part highlights elements of citizenship practice that are moving into the orbit of international law. In contrast to developments in the early and middle eras, these new constraints affect the admissions component of citizenship practice and dictate to states—in a broadening range of situations—who is entitled to citizenship, either at birth or through naturalization. Moreover, to the extent that international law recognizes an individual right to maintain multiple nationality in certain contexts, international law may further undermine the capacity of states to delimit themselves relative to other states. Part III situates these developments in a theoretical framework and confronts their significance for the future of the state as well as for the mediation of the individual and the global. Liberal political theory has long vouched for, or has at least assumed, the possibility of community closure and exclusion, which has typically translated into an acceptance of immigration controls and an insistence on minimal barriers to naturalization. As immigration, both legal and illegal, has swelled, the arguments for citizenship have moved to a rights frame. I accept this framing but question its putative instrumental purpose—namely, to buttress the liberal state. I argue, on the contrary, that a right to citizenship is made possible only by weakening the state as a location for identity. To the extent that this nexus supplies a liberal basis for maintaining state discretion in setting citizenship criteria, the position is overcome by other liberal values. In any event, attempts on the ground to resist expanding the right to citizenship are likely to fail. “Nationality has no positive, immutable meaning,” the Harvard Research in International Law project (Harvard Research) concluded in 1929. “On the contrary its meaning and import have changed with the changing character of states. . . . It may acquire a new meaning in the future as the result of further changes in the character of human society and developments in international organization.”9 This observation has held true through the modern age, which has been characterized by the primacy of states, but it will hold no less true as that age enters its late phases.10 I. A SHORT HISTORY OF NATIONALITY PRACTICE AND SOVEREIGN DISCRETION Through the mid-twentieth century, nationality practices were considered to be almost entirely outside the scope of international law, except when states stood consensually bound by treaty. This view was reflected in both commentary and practice. Derogations from the rule 9 Research in International Law of the Harvard Law School, The Law of Nationality, 23 AJIL 1, 21 (Special Supp. 1929) [hereinafter Harvard Research]. 10 See Kim Rubenstein, Globalization and Citizenship and Nationality, in JURISPRUDENCE FOR AN INTERCONNECTED GLOBE 159, 159 (Catherine Dauvergne ed., 2003) (“citizenship, in its traditional meaning of participation in and membership of the nation state, will be fundamentally altered by globalization and will not continue to travel in the same manner that it has”). 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