2011] AN INTERNATIONAL LAW OF CITIZENSHIP 739 assuming that liberal opposition emerges, however, it is unlikely to reverse the trend toward rights of access to citizenship. The emerging regime described in this article may pose a threat to the integrity of the liberal state. If so, the situation presents another strong rationale for cementing rights protection at the supranational level. To the extent that emerging international norms pull states to extend citizenship to some that would otherwise be refused the status, the result will be rights advancing. Although increasingly robust protection of human rights has diminished the differential protections afforded citizens and noncitizens,317 states remain free to deny equal rights to noncitizen residents, especially in the realm of political rights.318 Noncitizens may also lack residency and social welfare rights,319 and those lacking citizenship may face general insecurity, especially in less stable political contexts. The postnational vision of rights based entirely on personhood has not yet been realized.320 These deficits constitute the motivating premise for the “access to citizenship” agenda; the extension of citizenship is a means of securing rights contingent on citizenship status and of insuring, or at least promoting, compliance with other human rights norms. A right to maintain dual citizenship would also be rights enhancing insofar as it insulates identity choices and allows individuals to maintain equal rights in the multiple polities in which they may have interests implicating governance values.321 The new international law of citizenship is thus oriented to rights. The territorial/civic model also represents the dominant instantiation of liberal theory on citizenship. The persistent territorial presence of individuals who are subordinate in status is anathema to liberal theorists. As Joppke observes, “The legitimacy of the modern state hinges on the congruence between the subjects and objects of rule.”322 The self-governance imperative also implicates the meta-norm of equality. As noted above,323 liberals have long argued the normative basis for maintaining low barriers to naturalization.324 These theories assert a moral 317 See supra text accompanying note 167; see also, e.g., Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (Ser. A) No. 18 (Sept. 17, 2003) (finding undocumented immigrants entitled as matter of human rights to full protection of employment laws); A (FC) v. Secretary of State for the Home Department, [2004] UKHL 56 (finding discriminatory treatment of noncitizens for purposes of antiterror laws to violate European human rights standards). 318 See, e.g., International Covenant on Civil and Political Rights, supra note 108, Art. 25 (guaranteeing political rights to citizens only); see also, e.g., Walter Kälin, Human Rights and the Integration of Migrants, in MIGRATION AND INTERNATIONAL LEGAL NORMS 271, 276 –78 (T. Alexander Aleinikoff & Vincent Chetail eds., 2003) (describing permissible discrimination against noncitizens). 319 See, e.g., Rubenstein, supra note 10, at 164. 320 See, e.g., CHRISTIAN JOPPKE, IMMIGRATION AND THE NATION-STATE 187 (1999); ILA REPORT, supra note 124, at 10 –14. Indeed, among social scientists there has been a turn away from postnationalism. See, e.g., BENHABIB, supra note 7, at 6 (noting “exaggerated claims about the ‘end’ of the state system”); Randall Hansen, The Poverty of Postnationalism: Citizenship, Immigration, and the New Europe, 38 THEORY & SOC’Y 1 (2008). The “postnational” model posits the declining salience of citizenship status in the wake of perfected human rights protections based on personhood. See YASEMIN SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL MEMBERSHIP IN EUROPE (1995). 321 See Spiro, supra note 274. 322 JOPPKE, supra note 152, at 36; see also BENHABIB, supra note 7, at 181 (democratic people shows itself “to be not only the subject but also the author of the laws”). 323 BENHABIB, supra note 7, at 141. 324 Michael Walzer most notably among them. See WALZER, supra note 7, at 52– 61. Some theorists would go so far as to make citizenship automatic after a certain period of residence, even for those who would prefer noncitizen status. See RUBIO -MARÍN, supra note 2. This proposal is in tension with basic liberal premises of autonomy insofar as it would impose identity. The proposal may also be symptomatic of emerging postnational conditions in some states. Assuming that naturalization barriers are already low, the need to resort to automatic naturalization evidences 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