Blessed Be The Ties That Bind: The Nexus Between Nationality and Territory

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Mississippi Law Journal


People are, and remain, a cardinal base of power of national elites. In former times, they have been kept together by invocation and enforcement of group myths such as common ancestry, birth on common soil, or perpetual allegiance. The modern myth is the concept of nationality. The rise of this concept is closely related to the ascent of the nation-state. Nevertheless, it was but in the aftermath of the French Revolution that it found its way into the statute books and other authoritative pronouncements of decision-makers of territorial communities. Since then, it has been a favorite object of interest for both scholars and wielders of power, not surprisingly, because it goes to the essence of the relationship between the individual and the state. Battles over the meaning of nationality have raged since the birth of the concept. It has often been stated that nationality is a "purely formal concept,"' with no essential legal consequences flowing from it. If that were true, no distinction under customary international law between the treatment of foreigners and that of citizens would exist - be it in the area of international migration or in any other field of legally regulated behavior. The purpose of this article is to test this assumption with respect to the movement of persons across borders on a broad international and comparative legal basis - to find out whether the outcomes of the world's authoritative and controlling decision-making processes establish a definite link between nationality and home territory, and how that legal nexus is to be defined. The problem is delimited in Part I of the inquiry, its methodology explained in Part II. The empirical phenomenon of people's movement across international borders is split into four legally relevant kinds of activities: the voluntary actions of entering or leaving a country, and the forced measures of expulsion and extradition. The following questions will be addressed, with special focus on potentially disparate treatment of foreigners and nationals: Is membership in a given territorial community the determining factor in deciding individual claims to access to territory (Part III)? Is it material in decisions regarding emigration (Part IV)? Is banishment outlawed (Part V)? And is extradition of nationals typically prohibited (Part VI)?

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