718 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 with caution,156 and political theorists are framing citizenship acquisition as a right in some contexts.157 These developments depart from historical understandings of nationality practice. In contrast to earlier, minimal constraints on state practice, these prospective norms would mandate inclusive citizenship practices. That is, whereas earlier international law constrained states only by telling them whom they could not include as nationals (for example, barring them from extending citizenship to those with whom they have no connection), more recently evolving norms tell states whom they must include as citizens. The difference is radical. The old law of nationality, such as it existed, in no case dictated the adulteration of national community by directing the inclusion of individuals who would otherwise (as a matter of endogenous processes) be excluded. The old law of citizenship had almost nothing to say about birthright citizenship and naturalization. The new law of citizenship, by contrast, may dictate citizenship eligibility for habitual residents and their children, with implications for the character of national community. Norms establishing a right to retain multiple nationality may similarly affect the contours of community. Before describing recent developments suggesting the emergence of an international law of citizenship, two qualifications are necessary. First, these developments are only suggestive of the ultimate crystallization of an international regime regarding citizenship practices. For now, the prospective norms are provisional, fragile, and unstable. The subject nonetheless warrants scholarly exploration.158 As demonstrated below, recent developments suggest the parameters of a new regime. These developments are found in conventions, most notably the 1997 European Convention on Nationality;159 in the work of international tribunals160 and the human 156 See, e.g., Hailbronner, supra note 20, at 38, 45 (while deeming nationality practices as remaining largely within state discretion, noting human rights “implications” and “aspects” with respect to some issues); Chan, supra note 106, at 10 (“It is probably true that there is no rule of international law imposing a duty on States to confer their nationality.”). 157 BENHABIB, supra note 7, at 134 – 43 (framing “right to membership”); JOSEPH H. CARENS, IMMIGRANTS AND THE RIGHT TO STAY 18 (2010); see also JOPPKE, supra note152, at 27 (citizenship has become “infused with a human rights logic”). 158 Cf. SOKOLOFF, supra note 152, at 36 (“Denial of citizenship worldwide bears further investigation.”); Brownlie, supra note 14, at 312 (discerning “general principles” of nationality law notwithstanding “possible points of conflict in legislation on a subject-matter so mobile and complex”); Flournoy, Nationality Convention, supra note 35, at 467 (detecting emerging salience of international law to nationality practice: “Wherever international relationships arise international law must follow, in one form or another, although its development and crystallization into definable rules may be a slow process.”). 159 The Convention, supra note 117, Art. 27, is open for accession not only by members of the Council of Europe, but also those states who “participated” in the Convention’s “elaboration,” including Bosnia and Herzegovina, Canada, Kyrgyzstan, and the United States. ZIEMELE, supra note 139, at 8. As Norman Sabourin observes, the European Convention on Nationality “could well play a significant role beyond European borders. It can encourage other regional or international organizations to take similar initiative in developing declarations or conventions, introduce new principles into international law, or influence the development of nationality laws in countries around the world.” Norman Sabourin, The Relevance of the European Convention on Nationality for Non-European States, in COUNCIL OF EUROPE, TRENDS AND DEVELOPMENTS IN NATIONAL AND INTERNATIONAL LAW ON NATIONALITY: PROCEEDINGS OF THE 1ST EUROPEAN CONFERENCE ON NATIONALITY 113, 114 (1999) (describing how European Convention has affected lawmaking in Canada). 160 See, e.g., Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (Ser. A) No. 4, para. 32 ( Jan. 19, 1984): It is generally accepted today that nationality is an inherent right of all human beings. . . . . . . [D]espite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each State to decide, contemporary developments indicate that international law does impose certain 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