2011] AN INTERNATIONAL LAW OF CITIZENSHIP 717 In both practice and scholarship, the evidence suggests a shift away from the traditional, sovereignty-oriented perspective on nationality practice. This development is exemplified by the shifting vocabulary of membership in the state. “Nationality” and “citizenship” used to be clearly distinguishable; only the former was salient in the international context. Today, many commentators consider them interchangeable.150 “Citizenship” may emerge the more dominant descriptor, with all of its implications of equality and rights.151 The emergence of an international law of citizenship is also suggested by an emerging discourse that frames the “denial of citizenship” as violating a right of “access to citizenship.”152 This vocabulary, which would have been unimaginable in the traditional international legal conception of nationality and sovereign discretion, points to nondiscrimination norms in the allocation of citizenship status. Racial, ethnic, and gender classifications in the context of birthright citizenship, naturalization, denationalization, and state succession are under stress. This new discourse also supports arguments that habitual territorial residents should enjoy access to citizenship.153 With respect to these practices, it is becoming increasingly clear that state discretion is no longer unfettered and that citizenship practice must account for the interests of individuals as well as those of states.154 Scholars are coming to recognize the new relevance of international law to citizenship practice,155 albeit in many cases for each state to determine who are its nationals.”); Sloane, supra note 62, at 7 (“international law still does not, with few and vague exceptions, seek to regulate the sovereign competence of states to designate national or juridical persons as their nationals”). 150 See, e.g., YAFFA ZILBERSHATS, THE HUMAN RIGHT TO CITIZENSHIP 5 (2002) (noting that the “instances in which a difference still exists between nationality and citizenship are rare”); see also supra text accompanying note 6. 151 See Rubenstein, supra note 10, at 161 (highlighting “confident, even triumphalist discourse of citizenship as emancipation”). 152 See, e.g., CERD, General Recommendation No. 30, supra note 117, pt. 4; CHRISTIAN JOPPKE, CITIZENSHIP AND IMMIGRATION 36 (2010); CONSTANTIN SOKOLOFF, ADVISORY BOARD ON HUMAN SECURITY, DENIAL OF CITIZENSHIP: A CHALLENGE TO HUMAN SECURITY (2005); VAN WAAS, supra note 106, at 96 (highlighting “the development of the newest catchphrase relating to nationality matters to emerge in the international arena, namely ‘denial of citizenship’ ”); Goldston, supra note 119, at 321; More Primitive Than Torture, supra note 117 (2007). 153 See, e.g., HUMAN SECURITY NOW, supra note 98, at 51. 154 European Convention on Nationality, supra note 117, pmbl.; Girls Yean v. Dominican Republic, Judgment, Inter-Am. Ct. H.R., para. 140 (Sept. 8, 2005), at http://www.unhcr.org/refworld/docid/44e497d94.html (“The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States.”); International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, cmt. 5, UN Doc. A/54/10, at 20, 24 (Apr. 3, 1999) (“As a result of th[e] evolution in the field of human rights, the traditional approach based on the preponderance of the interests of States over the interests of individuals has subsided.”). 155 See, e.g., VAN WAAS, supra note 106, at 39 (“there is absolutely no doubt that . . . nationality matters no longer fall within the exclusive jurisdiction of states”); Chan, supra note 106, at 10 (“It is perhaps high time to recognize that nationality necessarily involves a human dimension, is inherent in the respect for human dignity, and is no longer within the sole purview of State sovereignty.”); Eide, supra note 136, at 122 (noting that “human rights considerations are becoming increasingly prominent in nationality matters”); Diane F. Orentlicher, Citizenship and National Identity, in INTERNATIONAL LAW AND ETHNIC CONFLICT 299 (David Wippman ed., 1998) (noting consequence for nationality practice of the rise of “postwar law of human rights, which has progressively, indeed radically, diminished even this last great preserve of state privilege”); Pejic, supra note 98, at 333 (“advances in international human rights law have placed fairly clear limits on states’ freedom of action in the area of citizenship”). 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