738 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 contractor employment—the only context in which the status was disadvantaged.312 These debates do not directly reference a right to maintain dual citizenship. But the fact that restrictions on officeholding are being contested at all could help to establish a norm under which those with multiple citizenship are protected not only in their status, but from discrimination.313 In contrast to citizenship acquisition practices, the trends on dual citizenship are, in effect, unidirectional.314 Practices indicating acceptance of dual nationality have not achieved the sort of prevalence that would qualify them as establishing a customary norm of international law, and a refusal to recognize the status remains permissible.315 But given the recent trends, acceptance of multiple nationality could ripen into a customary norm or could support treaty provisions that recognize a right to maintain the status in some cases. In particular, as already reflected in the 1997 European Convention on Nationality, a right to maintain birthright dual nationality may be established, especially when derived from mixed parental nationality. The pathway here follows that of the right to expatriate (that is, to voluntarily renounce one’s nationality),316 which was rooted in changed state practice and subsequently buttressed by such instruments as the Universal Declaration of Human Rights. III. RIGHTS AND IDENTITY The international legalization of nationality has important implications for the definition of community and the strength of state-defined identity. In the short term, mandating access to citizenship on a territorial basis and accepting dual nationality will enhance the rights of those who would otherwise be excluded. In the longer term, however, such mandated inclusion may diminish state-based solidarities, as a legal definition of community replaces an organic one. The rights-reinforcing consequence of mandated inclusion may thus be counterbalanced by the declining importance of the state as a locus for protecting rights and distributing resources. This possibility supplies a liberal basis for maintaining sovereign discretion and resisting the imposition of international norms, to the end of shoring up the liberal state. Even 312 See Office of the Director of National Intelligence, Intelligence Community Policy Guidance No. 704.2: Personnel Security Adjudicative Guidelines for Determining Eligibility for Access to Sensitive Compartmented Information and Other Controlled Access Program Information, at A-5 (Oct. 2, 2008), available at http://www.dni.gov/ electronic_reading_room/ICPG_704_2.pdf (“[T]he fact that a U.S. citizen is or has become a citizen of another country does not establish preference for a foreign country. Being a U.S. citizen and a citizen of another country is not prohibited or disqualifying absent a showing of heightened risks to national security.”). 313 For an argument that dual citizenship and high elective office “cannot be easily reconciled with the idea of democratic representation and accountability,” see Bauböck, supra note 274, at 717. 314 Among the few examples of retrenchment are the reinstatement of a renunciation requirement for naturalization applicants in the Netherlands. See Betty de Hart, The End of Multiculturalism: The End of Dual Citizenship? Political and Public Debates on Dual Citizenship in the Netherlands (1980 –2004), in DUAL CITIZENSHIP IN EUROPE, supra note 4, at 77 (describing 2003 amendment of Dutch nationality law). 315 See, e.g., EXPLANATORY REPORT TO EUROPEAN CONVENTION ON NATIONALITY, supra note 220, paras. 9 –10 (“9. The question of allowing persons, who voluntarily acquire another nationality, to retain their previous nationality will depend upon the individual situation in States. . . . 10. Consequently, States should remain free to take into account their own particular circumstances in determining the extent to which multiple nationality is allowed by them . . . .”); see also Hailbronner, supra note 20, at 84 (“[n]o customary international law can be drawn from the state practice”); Kojanec, supra note 284, at 40 (“It is clear, in this situation, that no general international rule can be said to exist with regard to multiple nationality.”). But see Faist, supra note 274, at 176 (identifying human rights as major driver in “the increase in tolerance of dual citizenship”). 316 See supra note 95 and accompanying text. 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