Péter D. Szigeti
Abstract
Erwin Schrödinger held Austrian, German, and Irish nationalities, at different times in his life. This Article, however, is not about the famed physicist’s nationalities, but a paradox along the lines of “Schrödinger’s cat:” Can a person both be a citizen of one or even several states, and stateless at the same time? Perhaps it is possible: refugees, alleged terrorists, and stateless persons sometimes find themselves in this situation, where two states both claim that the other state is responsible for them. Determining foreign nationality is harder than it seems, because nationality is determined by a slew of contradictory legal norms. Some of these are based on birth, others on desert, others on pure discretion. Some international law stresses the freedom of each state to determine its nationals, while other norms accent the limits based on human rights, public policy, national security, or simply what is considered usual and acceptable in most states. This Article1 argues that the contradictory norms for creating and determining nationality are the results of two fundamentally opposed visions of nationality. The constitutive vision of nationality considers it purely a matter of state will and positive law. The declarative vision connects it to the “natural facts” of inheritance, lifestyle, and lived experience. The opposition between declarative and constitutive visions of nationality create three citizenship gaps from which Schrödinger’s Citizenship emerges: the time gap (whether nationality exists from the time of determination or retroactively to birth); the foreign interpretation gap (whether the establishment of nationality is exclusively up to the state in question, or whether it can be established by foreign legal actors as well); and the administrative gap (whether statutory rights to citizenship are in fact easy to access, or made hard or even impossible through administrative (in)action). Neither the constitutive nor the declarative vision can be eliminated from the law, at least not without grotesque results for some states and persons. However, the application of a foreign state’s nationality laws without that state’s approval and acceptance cannot be legal.
