2018] NATIONALITY AND DEFINING “THE RIGHT TO HAVE RIGHTS” S895 2. The Legitimacy of the Nationality-as-Citizenship Overstatement In interpreting the substantive content of nationality, UNHCR and scholars must figure out how to strike the appropriate balance between what the law “is” and what it “should be.” This gives rise to two inquiries. First, will UNHCR and scholars tarnish their reputations and burn their social capital trying to advance a new articulation of law? Second, is the chosen articulation of law actually preferable to the previous articulation? Though it is possible that UNHCR has analyzed both of these questions, its publications and the subsequent writings of scholars seem uncritical of the impact of equating nationality with participatory citizenship. States, notwithstanding Russia’s targeted support for ethnic Russians in Baltic States, have not endorsed the idea that non-citizen nationals are stateless. Instead, States have expressed skepticism at UNHCR’s expansive interpretation of nationality. Over the past two decades, key players in the international system 258 and select scholars 259 have grown increasingly hostile to overstatements of international law, if not the very idea of international regulation. International law may be more fragile now than it has been since World War II. 260 Instead of repeating overstatements of nationality that have 258. See, e.g., Boris Johnson, There Is Only One Way to Get the Change We Want – Vote to Leave the EU, TELEGRAPH (Mar. 16, 2016), www.telegraph.co.uk/ opinion/2016/03/16/boris-johnson-exclusive-there-is-only-one-way-to-get-the-change/ [https://perma.cc/RWP9-L98J] (“We are seeing a slow and invisible process of legal colonisation, as the EU infiltrates just about every area of public policy.”) (emphasis added); American Justice for American Citizens Act, H.R. 1658, 109th Cong. § 3 (2005) (“Neither the Supreme Court of the United States nor any lower Federal court shall, in the purported exercise of judicial power to interpret and apply the Constitution of the United States, employ the constitution, laws, administrative rules, executive orders, directives, policies, or judicial decisions of any international organization.”). 259. See, e.g., J. Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INT’L L. 449, 475 (2000) (“The [customary international law] articulated in judicial opinions and treatises remains the domain of experts familiar with and able to selectively manipulate a vast body of legal materials and contradictory legal theory.”) (emphasis added); Jean d’Aspremont, Customary International Law as a Dance Floor: Party 1, EJIL: TALK! (Apr. 14, 2014), https://www.ejiltalk.org/customary-international-law-as-a-dance-floor-parti/#more-10650 [https://perma.cc/4KF2-YXKU]: (“The inconsistency and deceitfulness of customary international law have long been proven. It is even astounding that such a frail gospel has been able to survive for so long. . . . [I]t now seems possible to say anything about customary international law without running any risk of epistemic invalidation. The traditional constraints on the making of arguments based on customary international law have been growing thinner.”). 260. This, it seems, has been the concern of scholars and practitioners since Brexit and the election of President Donald Trump. The unifying theme of the 2018 International Law Electronic copy available at: https://ssrn.com/abstract=2954729