Peter J. Spiro

The New Sovereigntists: American Exceptionalism and Its False Prophets

The streets of Washington, D.C., and Seattle may have been controlled last spring and fall by a new breed of antiglobalization progressives, but the old-fashioned, conservative anti-internationalists continue to hold sway among American policymakers. Although the United States has accepted the North American Free Trade Agreement and participation in the World Trade Organization, it has spurned important multilateral regimes relating to arms control, the environment, war crimes, human rights, and other emerging global issues.

Federalism and immigration: models and trends

Although immigration policy has traditionally been considered a realm of exclusive central government authority, recent trends evidence a greater role for federal units in the area. This article summarises and evaluates those trends as they relate to immigrant rights, immigration enforcement, and immigration benefits under three basic models of federal governance: central government hegemony, cooperative federalism, and devolutionary federalism. The article concludes that affording increased discretion to subnational authorities over immigrant and immigration policy will ultimately work to the net benefit of immigrants, and that even while complete devolution remains impracticable cooperative federalism has emerged a desirable approach in the area.

A New International Law of Citizenship

Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces.

At Home in Two Countries: The Past and Future of Dual Citizenship

How did dual citizenship evolve from traitorous to trendy? Dual nationality was once considered an offense against nature, an abomination on the order of bigamy. It was the stuff of titanic battles between the United States and European sovereigns. As those conflicts dissipated, dual citizenship continued to be the object of loyalty and misplaced security concerns. Only recently has the status largely shed the opprobrium to which it was once attached.The first monograph on the status in several generations, AT HOME IN TWO COUNTRIES charts the transformed understanding of dual citizenship from strong disfavor to general acceptance. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. The introduction opens with the author’s own experience acquiring dual citizenship. It then outlines the book’s consideration of dual citizenship in historical and contemporary perspective.

The Impossibility of Citizenship

This essay reviews T. Alexander Aleinikoffs Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard University Press, 2002). The book considers the constitutional marginalization of Native Americans, aliens, and residents of Puerto Rico and other unincorporated territories. In Aleinikoffs view, citizenship supplies both the explanation for and the answer to the subordination of these communities. Citizenship has been a powerfully equalizing force in the American constitutional tradition for those within the circle. Insofar as rights have been made contingent on citizenship status, however, those outside are left without constitutional armor. Aleinikoff suggests a reconception of citizenship, extending core constitutional status to those for whom citizenship is not a constitutional entitlement (namely, Native Americans and territorial residents) as well as to some who are not citizens at all (permanent resident aliens). With citizenship as a baseline, the argument is a powerful one. But one might at a more fundamental level question the continuing utility of that baseline and of citizenship as an institution. An emerging body of postnational scholarship is challenging citizenship and the nation-state as delimitations of human community, posing instead diasporas, social movements, and other nonstate groupings as competing locations of identity and governance. Aleinikoff brackets the postnational assault; he is seeking to transform citizenship, not transcend it. In this respect, the analysis presents more of an exercise in recentering citizenship than - as claimed - one of decentering it. But the postnational challenge is unavoidably implicated in any attempt to deploy citizenship as an institutional vehicle. Even as an expansive and benign quantity, Aleinikoffs vision of citizenship may suffer the same problems as its exclusionary predecessors: however the circle is drawn, many are left out, including many with deep attachments to the national community. To the extent, on the other hand, that the circle is drawn ever more widely, the tie that citizenship is understood to represent grows ever thinner. This dynamic would seem to present an inescapable dilemma for the institution of liberal citizenship, and perhaps for liberalism itself.

Interrogating Birthright Citizenship

This contribution critiques U.S. practices respecting birth citizenship. It first describes the logic of territorial birthright citizenship. The practice makes sense only insofar as place of birth has supplied a proxy for community membership. But many who are born in the United States leave permanently at an early age. It is not clear why they should be able to take their citizenship with them. The paper also critiques the liberalized basis for acquiring citizenship on the basis of parentage. In both cases, birth citizenship creates an increasing disconnect between the formal and organic boundaries of community. This disconnect could be addressed by the adoption of presence requirements beyond birth. Presence requirements would be consistent with liberal values to the extent they would strengthen the solidarities of the liberal state. However, it is unclear that presence gives rise to such solidarities. It is also improbable that presence requirements will be adopted. This both evidences and reinforces the declining salience of citizenship.

NGOs and Human Rights: Channels of Power

This essay, a revised version of which will appear in the Research Handbook on Human Rights (Edward Elgar, forthcoming 2009), attempts to systematize NGO activity relating to human rights. It first describes why human rights supplies fertile ground for the study of non-governmental organizations. As human rights obligations cannot be explained in terms of reciprocal state interest, non-state actors are a probable causal agent in the entrenchment of human rights regimes. The chapter confronts NGOs as agents of material power. The chapter then describes four primary pathways for the exercise of NGO power: through and against states, international organizations, corporations, and each other. Only by situating NGO power relative to state and non-state entities does the breadth and novelty of NGO participation in todays global decision-making come into full relief. Given the fact of that broad power, the chapter concludes by addressing the question of NGO accountability, suggesting that institutionalization of NGO power holds the most promise for appropriately constraining its exercise.

Cash-for-Passports and the End of Citizenship

Investor citizenship programmes are becoming increasingly commonplace in state practice. What was once the province of outlier Caribbean microstates is gaining traction among more substantial states. Cash-for-passports, as Ayelet Shachar labels the phenomenon, clashes with our received understandings of citizenship as a marker of social solidarity in a Walzerian sense. The emerging market for citizenship literally commodifies the status.But where Shachar sees investor citizenship programmes as a threat to robust citizenship ties, I see them more as a manifestation of citizenship that is already being hollowed out. In the old world, investor citizenship programmes would have been inconceivable.Today, far from inconceivable, they are becoming an accepted element of strategic immigration policy.

Model International Mobility Convention

People are as mobile as they ever were in our globalized world. Yet the movement of people across borders lacks global regulation, leaving many people unprotected in irregular and dire situations and some States concerned that their borders have become irrelevant. And international mobility—the movement of individuals across borders for any length of time as visitors, students, tourists, labor migrants, entrepreneurs, long-term residents, family members, asylum seekers, or refugees—has no common definition or legal framework. There does exist a well-established refugee regime based on the 1951 Refugee Convention and its 1967 Additional Protocol, both implemented by the United Nations High Commissioner for Refugees (UNHCR). As the nature of conflict has changed in recent decades, however, this regime has shown strain and weakness. Today there are more than sixty-five million displaced persons in the world, a level not seen since World War II. Mixed flows of labor migrants and refugees fleeing for safety and economic prospects have created a crisis in the asylum-seeking process. Those forced to

Sovereigntism's Twilight

Sovereigntism is having a good run in the academy and the courts. Scholars skeptical of international law succeeded in prompting a searching reexamination of the Restatement (Third) of Foreign Relations Law and the conventional wisdom it had come to represent. Sovereigntist positions have found a receptive audience in recent decisions of the Roberts Court, with additional victories just over the horizon. But sovereigntism is bound to fail. Massive material changes in the nature of global interaction will overwhelm sovereigntist defenses, which (notwithstanding their constitutional pedigree and apparent gravity) are in the end incapable of stemming the tide. International law is insinuating itself into U.S. law through multiple channels. In the end, globalization is not a quantity to be rejected, accommodated, or accepted as a policy option. The Constitution will not be able to plug the gaps. This essay considers four clusters of cases that appear to evidence sovereigntism’s continued ascendancy, relating to self-execution, the Alien Tort Statute, the detention of terror suspects, and the use of international law in constitutional interpretation. Although these clusters appear to vindicate sovereigntist perspectives, short-term victories are likely to be reversed by material forces of globalization. The Constitution will inevitably and radically adapt to the changed international context.