696 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 a “right to citizenship” (at least not one enforceable on particular states), and it remains difficult even to speak of a right to citizenship in particular cases. The trend in practice is not a concerted or broadly conscious one and would not satisfy traditional doctrinal standards for establishing customary law. Nevertheless, the shift is reflected in recent work of prominent political theorists, who are increasingly articulating a right to citizenship.7 This theoretical work supplies coherence to developments on the ground and may undergird the eventual hardening of an international law of citizenship. It is thus not too early to consider the contours of citizenship in a rights frame. The emergence of an international law of citizenship has broad implications for the nature of the state. To the extent that an international right to citizenship status helps decouple citizenship from organic forms of community, the new law of citizenship could undermine the solidarities on which state capacities may depend. In other words, the unintended long-term result of situating citizenship practice in the realm of human rights may be to diminish the value of citizenship. As more individuals come to enjoy an entitlement to that status, citizenship may come to be worth less. This is not to argue against efforts to advance an international law of citizenship. In the short and medium term, a right to citizenship will indirectly advance the protection of a range of other rights on national turf. The right to citizenship may serve a transitional purpose, cementing the protection of other rights through the still-vigorous institutional vehicle of the state. In the longer run, however, the right to citizenship may compound other forces that are eroding state power. This possibility points, in turn, to international law and institutions as the primary location for the protection of rights. Contrary to important recent scholarship,8 I do not believe that the development of stronger international human rights regimes will reinforce state power, in part because states will be less representative of organic community. The emergence of international citizenship law figures centrally in this critique. Part I of this article describes what I call the early and middle eras of international law’s approach to citizenship practice. In the early period international law had little to say about RAINER BAUBÖCK, TRANSNATIONAL CITIZENSHIP: MEMBERSHIP AND RIGHTS IN INTERNATIONAL MIGRATION 24 (1994) (finding “nationality” to be “an unfortunate terminology” in face of plurinational states); BOLL, supra note 4, at 60 (although maintaining utility of distinction, conceding that the terms “have largely converged”). This article will use “nationality” in its historically appropriate context and “citizenship” for purposes of designating contemporary political membership for both domestic and international purposes. 7 See, e.g., BAUBÖCK, supra note 2; SEYLA BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS (2004); BONNIE HONIG, DEMOCRACY AND THE FOREIGNER (2001); WILL KYMLICKA, MULTICULTURAL CITIZENSHIP (1996); DAVID MILLER, CITIZENSHIP AND NATIONAL IDENTITY (2000); MARTHA NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006); Joseph Carens, Immigration, Democracy, Citizenship, in OF STATES, RIGHTS, AND SOCIAL CLOSURE: GOVERNING MIGRATION AND CITIZENSHIP 17 (Saime Ozcurumez & Oliver Schmidtke eds., 2008); see also Will Kymlicka & Wayne Norman, Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 104 ETHICS 352 (1994) (surveying literature). Michael Walzer’s Spheres of Justice set the baseline for liberal approaches to citizenship and naturalization. MICHAEL WALZER, SPHERES OF JUSTICE, ch. 2 (1984). 8 See DAVID JACOBSON, RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP (1997) (arguing that states will be empowered in administering international human rights regimes); SASSEN, supra note 1, at 309 (“in most of the world, human rights are enforced through national law or not at all”); KIM LANE SCHEPPELE, THE INTERNATIONAL STATE OF EMERGENCY: CHALLENGES TO CONSTITUTIONALISM AFTER SEPTEMBER 11 (forthcoming 2011) (arguing that national executives use the cover of international law to undermine domestic constitutions at home); Oona A. Hathaway, International Delegation and State Sovereignty, 71 LAW & CONTEMP. PROBS. 115 (2008) (arguing that delegation to international institutions may enhance state capacity). 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