Citizenship as Reparations: A Rejoinder
Rainer Bauböck (Austrian Academy of Sciences and European University Institute)
David Owen (University of Southampton and Institute for Advanced Study Princeton)
Introduction
We had expected a more controversial debate in which many would argue in favour of reparative citizenship on grounds of historic justice. As it turns out, most authors are highly sceptical about reparative justice claims by states awarding citizenship. Thus, for example, Reinhard Schweitzer and Tina Magazzini argue that such policies can serve as a selective immigration policy motivated by the desire to attract a particular demographic, while Alfons Aragoneses points to the nation-branding effects of symbolic reparation. But does the fact that such policies may be motivated by ends other than reparations affect their normative justification? If offering reparative citizenship is the right thing to do, and if it is offered to the right people, then perhaps it does not matter so much that it is offered for the wrong reasons.
There are two issues with such a standard defence. The first is that reparations have an expressive role: reparations (unlike restitutions to immediate victims) are about publicly acknowledging historic harms and publicly assuming responsibility for addressing their effects. In such contexts, it matters that the reparations as an expressive act do, in fact, express the intention that they purport to express for the same reason that it matters that an apology expresses the remorse that it claims to express. If we have good reasons to see reparative policies as the hypocritical ‘moral’ disguise assumed by, for example, a particular kind of selective immigration policy (one that is able to avoid the general constraints of anti-discrimination norms precisely because reparations are about redress to particular groups), then this undermines its normative justification to the extent the latter is tied to the expressive function of reparations.
The second issue is that a crucial element of the standard defense is that ‘it is offered to the right people’ and, as we note concerning the Spanish case in particular, a feature of some reparative policies is that they target members of one group that have a legitimate claim to reparations while simultaneously ignoring the equally valid claims of other groups, where the best explanation of the selective character of this policy has no relation to its claimed reparative ends. In this scenario, the reparative policy is discriminatory in a way that undermines its normative justification both directly (the policy commits an injustice to the ignored groups) and indirectly (the policy doesn’t express the reparative ends that it claims to). The moral justification for citizenship reparations does not disappear here, rather the conditions of application of the justification became apparent.
The interaction of motivations and justifications is thus more intricate than the standard defence admits, and this is one reason why the range of concrete examples and empirical analyses offered by the contributors to this forum is so welcome for reflection on the normative justification of citizenship as reparations. We will begin by highlighting some challenges to our original and explicitly provisional definition of ‘citizenship as reparations’ before turning to address wider issues raised by our interlocutors.
Definitional Challenges
In specifying the topic of our kick-off contribution, we offered this provisional specification of ‘citizenship as reparations’:
Citizenship as reparations involves the offer of citizenship status acquired by declaration or entitlement for persons who live permanently outside the state’s territory and are the descendants of persons who have lost their citizenship or similar membership status and could not pass it on to a next generation under conditions for which the current state bears responsibility and for which it accepts remedial duties.
Various elements of this provisional definition have been challenged by our respondents:
- The claim that reparations is necessarily addressed to persons who live outside the state’s territory.
- The claim that reparations is necessarily addressed to descendants of persons who had enjoyed but been unjustly deprived of citizenship, and not also to those persons themselves.
- The focus on reparations as involving the state acknowledging and seeking to remedy the effects of its own past wrongdoing.
The first challenge can take a conceptual or a substantive form. At a conceptual level, it rightly points to an overstatement in the provisional definition since it is contingently possible that descendants of persons who were unjustly deprived of their citizenship of State X are permanent residents (but not citizens) of State X. The point to which we were drawing attention was that residence in the state is not a condition of being an addressee of the offer of citizenship. Moreover, from a comparative perspective, reparative citizenship policies have recently been offered primarily to extraterritorial populations.
The substantive challenge is offered most clearly by Christoph Sperfeldt in his reflections on intergenerational in situ statelessness. In such cases, the responsibility of the state for restoring citizenship is obvious and does not weaken across generations because the genuine connections of the people involved to the state cannot be questioned. We fully agree with Sperfeld that “in situ stateless people have genuine and long-standing links to their home country and no citizenship of other countries, making their normative claim arguably stronger than extraterritorial cases with longer chains of descendants.” But we also agree with Bronwen Manby that such cases should not be framed as reparation if the wrong committed by the state is withholding birthright citizenship from domestic populations that are clearly entitled to it.
Apart from its substantive interest, Sperfeld’s contribution pushes us to make our distinction between restitution and reparation more explicit. In the case of those subject to in situ statelessness, what is required is the restitution of a status to which they are entitled and of which they have been unjustly deprived or subject to wrongful denial (in the case of people who have not been officially deprived of their citizenship but who have been prevented from having it registered). Their claim to the status is direct and not dependent on a prior injustice committed against an ancestor, even if such injustices are also present. By contrast, reparation is what comes into play when restitution is not possible, that is, when the claim is dependent on the injustice done to a parent or other ancestor and that injustice cannot be redressed through restitution (typically because the person to whom the injustice was done is no longer living but possibly also if the person to whom the injustice was done rejected the offer of restitution). This distinction explains why we did not include cases such as in situ statelessness in our definition. It was because we think about them as involving straightforward claims to restitution rather than potentially contestable claims to reparations for a historic harm that cannot be undone through awarding citizenship.
Several contributors have alluded to the problematic character of the third element of our definition, namely, states acknowledging responsibility for their own wrongdoing. Apart from the Theseus’ ship problem, namely, the identity conditions of a state over time, there is the obvious issue that many contemporary states were in the past colonial possessions, albeit with often different relations to the imperial metropole. The contributions on reparations in relation to injustices committed under colonialism or related to colonial pasts have helped us to see the need to distinguish the following contexts of reparations:
- reparations as the discharging of moral responsibility to descendants for the effects of a past unjust act by the state towards members of its population;
- reparations as the taking of responsibility by a successor state for unjust actions by the preceding state/empire where not to take up responsibility by providing citizenship would be to commit an additional injustice;
- reparations as exemplary taking of responsibility for complicity in an historical injustice which is not tied to any particular state but for which (global) reparations are owed.
Whereas citizenship reparations for descendants of Nazi victims in Austria and Germany provide clear examples of (1), the case of Namibia highlighted by Manby may be an example of (2), and the case of Benin provides an example of (3). We think it is important to study and evaluate cases where there is a mismatch between causal and remedial responsibility, because these will raise interesting normative questions.
In this rejoinder, we will engage first with the contributions that focus on the general question of whether normative principles should guide reparative citizenship policies and what these principles might be, before considering some of the specific contexts and grounds for reparation in our initial typology.
Is reparative citizenship required, permissible or to be evaluated contextually?
Lior Erez offers a strong argument for the claim that reparative citizenship should be seen as a permissible option for states to take up rather than being required or forbidden. We agree that in many contexts this will be the case, but resist the principled claim that reparative citizenship cannot be required. There seems to be something odd about Erez’s conclusion. At least some of the harms of citizenship deprivation that we have discussed are unequivocally wrong. States should never have expelled minorities, discriminated against women in citizenship laws, or engaged in slavery and colonial oppression. Citizenship counts as reparation when there is some (moral) symmetry between the original injustice and the remedy of restoring or awarding citizenship. But if the latter is generally merely permissible and never required, this moral symmetry seems very weak and ineffective in creating specific duties for states.
There are at least two ways in which we might resist Erez’s principled permissibility view. The first is to offer a limited expansion of a genuine link conception; the second is to draw attention to other ethical reasons that may be in play. Considering the first route, we may note two points:
- The genuine link principle allows that the children of emigrants (and even their grandchildren) may have a genuine link to the emigrants’ original state of nationality. This is one reason why the normative expression of ius nexi acknowledges a (generationally limited) ius sanguinis rule as well as ius soli and ius domicilii as denoting different routes through which a genuine connection between an individual and a state is presumptively established – through parental citizenship, place of birth and residence.
- The claim for reparative citizenship is based on the fact that the claimant is a descendant of someone with a genuine link who was wrongly deprived of citizenship. In the case of the children (and even grandchildren) of this person, we may say that they have been wrongfully denied the opportunity of developing a genuine link which we have reason to believe they would have forged in the absence of the injustice to which their parent (or grandparent) was subject.
In such cases, this would suggest that reparative citizenship is required and not simply permitted, whereas beyond the 2nd generation born abroad, reparative citizenship would become, at best, permissible and might reasonably be tied to conditions of language, residence, or diaspora engagement.
The second route considers the character of citizenship as a relational good which involves a relation of authorisation and representation between individuals and state institutions. This relation entails collective responsibility for historical crimes committed by the state and in the name of its citizens – responsibility not in the sense of moral guilt for these crimes shared by individuals whose ancestors committed them, but in the sense of public acknowledgement of past crimes and a duty to compensate their victims. This would also support a requirement of reparative citizenship in some contexts, dependent on the extent of the crimes and temporal distance from them.
These moral arguments for a duty of reparative citizenship apply even when demand for reparative citizenship is primarily driven by instrumental motives, as Peter Spiro suggests. In Spiro’s view, trying to assess citizenship policies by normative standards derived from their relational nature seems anachronistic in a world where multiple citizenship is widely accepted. Yet there is an important difference between investor citizenship policies, which shed any presumption of non-instrumental relations between states and those to whom they hand out passports, and reparative citizenship programmes that invoke the state’s history and its impact on a specific group of people as a justification. Reparative citizenship is clearly justified by states through invoking a special relation, even where individuals are differently motivated.
It is important to notice with Jelena Dzankic that the genuine link requirement represents a moral constraint on state discretion rooted in self-determination rights, which functions to limit states’ capacity to weaponise citizenship against minorities and other states. It does not, however, represent a legal constraint on state sovereignty in international law. This matters, but the task of normative critique is to say when states act wrongly in attributing, withdrawing, or withholding their citizenship, even when they are not constrained in these actions by international law.
Erez also points out that there are moral requirements limiting state discretion, but he is too quick to conclude that the state “may not impose further conditions on the acquisition of citizenship such as citizenship tests or burdensome application fees.” In the case of immigrant naturalisation, there is a broad consensus among political theorists that states are normatively obliged to offer citizenship to long-term residents. However, there is reasonable disagreement about whether states can add conditions such as a language or a clean criminal record test. Doing so does not make naturalisation discretionary if immigrants who meet the condition are entitled to citizenship. Similarly, if states may impose genuine link conditions for access to reparative citizenship, this does not imply that they are under no moral obligation to offer reparations.
Erez himself acknowledges the risk that state discretion may provide carte blanche for discriminatory policies that pick out a favourite group, as in the case of Spain denying reparations to Moriscos and Muslims. He thinks such policies can be criticised on the grounds of the expressive harm they cause to those excluded. However, if there is no moral claim to reparation in the first place, the expressive harm caused to an excluded group hardly carries much weight. State discretion in citizenship policies means that states are entitled to pick members just like clubs. The losers do not have reasons to complain.
Szabolcs Pogonyi takes a step in the right direction by emphasising the contextual nature of justifications for reparative citizenship. Instead of arguing for the laissez-faire attitude towards reparative citizenship that a generalised principle of permissibility supports, he pleads for evaluating “the pragmatic desirability of specific cases”. We read this as implying that in some contexts, reparative citizenship could be required, in some it would be permissible, and in others it should be forbidden. Yet, this leaves again a lot of room for competing descriptions of the context.
Pogonyi himself provides a clue by pointing to potential tensions between a (deontologically justified) reparative principle and a citizenship stakeholder principle. We suggest that the best answer is indeed to frame the issue as a possible but not inevitable dilemma between remedial duties for past injustices, on the one hand, and what we have called the “integrity of citizenship” of all the states and individuals involved, on the other hand. In some contexts, there will be no dilemma because citizenship restitution is unequivocally morally required and is due to people who are strongly connected to the state – most obviously those in situ stateless persons discussed by Sperfeldt. In others, the dilemma will be weak or inexistent for the opposite reason because offering citizenship is not a proper reparation or remedy for a historic crime that occurred hundreds of years ago – which is arguably the case for the Spanish and Portuguese Sephardic programmes (as pointed out by Aragoneses, the Spanish law does not even invoke reparation as justification). In between these unequivocal cases where reparative citizenship is either clearly required or not required, there are many where a normative conflict between the goals of historic reparations and securing the integrity of citizenship emerges. So, yes, we need to evaluate such programmes contextually, but in order to do so, we need to spell out also the principles that should guide such evaluations.
Whereas for Spiro reparative citizenship is just another birthright lottery, and for Erez they are generally permissible, Schweitzer and Magazzini conclude that “the reparative element should remain at the centre of the scope and aims of these policies, in order for them to be more than just another” birthright lottery”: “[I]f states are serious about the reparative element of such a policy, then they should do the hard work of tailoring it to the various injustices to make sure that the remedy does not inadvertently amplify existing blind spots and injustices.” We concur with this view.
Cosmopolitan-minded observers like Spiro welcome the deflation of national identities that results from over-inclusive schemes of ancestral and reparative citizenship or believe it is, in any case, irreversible. If such policies enhance individuals’ opportunities for mobility and undermine exclusionary nationalism, what can be bad about them? We think this attitude underestimates two important benefits of citizenship that are eroded when the links between individuals and states become thinner and questionable: first, its value for democracy and second, its value for individual security. These arguments are particularly salient in the context of the issue of reparative citizenship and gender rights addressed by Melissa Blanchard and Ashley Mantha-Hollands.
First, in democracies, citizenship comes with franchise rights (the rights to vote and to run as candidates in elections). Countries around the world provide voting rights from abroad to their non-resident citizens. If potentially very large extraterritorial populations can claim the franchise based on distant ancestry or reparative citizenship claims, this signals to domestic voters that their voice in the democratic process is being diluted by people without any genuine links and stakes in the future of the country. Political theorists have debated whether the answer to this problem could be a separation between citizenship status and voting rights so that the latter would be derived from residence rather than citizenship. Yet, no matter which position we take in this controversy, in national elections, the global trend goes in the opposite direction. Given this fact, it seems prudent to protect the integrity of democracy by balancing reparative claims to citizenship against genuine link requirements. This could speak against using reparative citizenship to address temporally distant historical injustices and for building a range of ‘genuine link’ conditions into the ability to claim reparative citizenship or adopting an intermediate quasi-citizenship status such as the Karta Polaka. This element of balancing is nicely brought out by Blanchard’s discussion of how Italian citizenship law combined with gender equality jurisprudence triggered a massive expansion in the availability of Italian citizenship and the emergence of a market for citizenship acquisition that was only redressed by the Italian government’s recent decision to restrict ‘access to the extraterritorial acquisition and restitution of Italian citizenship for descendants up to two generations.
Second, we are witnessing a historic change in geopolitics, with more aggressive state behaviour against other states and overt flouting of international norms that have emerged in the period after World War Two. Dzankic alerts us that in such a context, citizenship may again become re-dutified by conscripting citizens who had only opted for a valuable passport. This is perhaps a more far-fetched danger for widely dispersed “diasporas” and more specifically a threat where citizenship attribution becomes weaponised in territorial conflicts with neighbouring states. In the broader context of heightened geopolitical tensions, however, having an external citizenship means not only mobility opportunities that provide exit options in case of danger, but also a promise of protection by another state. Yet states will become increasingly reluctant or incapable of providing protection for their diaspora citizens if they need to invest massively into their domestic defence and if they view their external citizens as instrumental opportunity seekers. As Mantha-Hollands points out, this was a major reason why Canada cut off citizenship transmission abroad for some time and has now introduced a three-year residence requirement. Once again, the most prudent response to this danger of citizens being stripped of their extraterritorial protection seems to be to make sure that the individuals included in the citizenry can claim some genuine connection and will thus be accepted by their domestic co-citizens as people who deserve special protection efforts.
Lost territories and colonial contexts
The issue of whether reparative citizenship should or may be available for those who live in territories that were once part of a state but became separated has not been much discussed by our respondents although Spiro points out that if there is no wrongdoing involved in this reordering of borders, then it would be unclear why reparative citizenship would be called for (as opposed to, say, favourable rights of entry and accelerated access to citizenship).
But the question of the justifiability of the reordering of borders may often be an open one. Thus, for example, at least until the 1998 Good Friday Agreement, the division of the island of Ireland was regarded by Irish republicans as the unjust imposition of a border by the British state onto Eire as part of the price for its independence and by Irish unionists as the necessary condition of protecting their relation to the UK. In this case, we might legitimately see the right of those in Northern Ireland to enjoy citizenship of Eire as well as UK citizenship established under the Good Friday Agreement as a form of reparative citizenship and as one of the number of elements that was required to make the imposed border into a just border for all affected parties. This suggests that reparative citizenship may have a role to play in addressing contexts where territorial borders remain an ongoing source of conflict with reasonable arguments on both sides.
There may be some continuities between the Irish case and the settler colonial context addressed by Jocelyn Kane & Patti Lenard, for which they defend indigenous people’s option of refusing Canadian citizenship, but before we turn to that, it is worth considering one of the cases that Timothy Jacob-Owens raises, namely the Hong Kongers. This is a context in which territory is lost only in the sense that a lease comes to an end, but the return of the territory to China was subject to an agreement between the two states, of which China has thoroughly breached the terms. Given that many Hong Kongers had a form of British civil status – British National (Overseas) – and that this status did not support rights of residence in the UK, we might see the decision to allow such Hong Kongers to take up residence and to qualify for the status of British Citizen after 5 years as a form of reparations for the failure to protect them adequately after China’s takeover of Hong Kong. This is, though, an exceptional case in respect of both ‘lost territory’ and ‘reparative citizenship’.
The basic thought elucidated by Kane & Lenard is that the injustice to which indigenous people have been subject includes the forced ascription of Canadian citizenship. Reparations for that injustice place a duty on the Canadian state to enable indigenous peoples to refuse this citizenship without thereby making themselves vulnerable to the harms and wrongs of statelessness. The problem here is that even if forms of indigenous citizenship are made available in ways that can substitute for Canadian citizenship, these will need to be authorised and underwritten by the Canadian state in a way that amounts to de facto Canadian citizenship. It seems that while citizenship refusal may have important symbolic value, what is needed is genuine self-determination and self-government powers on the part of indigenous peoples and their recognition as sovereign peoples in international law. Then, as in the Irish case, the possibility of just relations and the ability to choose between, or hold both, citizenships becomes meaningfully tied together. It is reparations for colonialism in the form of collective powers of self-rule that are independent of the laws of the Canadian state that are primarily called for here.
Kane & Lenard’s reflections indicate another point in terms of the relation between reparative citizenship and (ex-)colonial contexts, namely, that such contexts are complicated, and even when it may be an appropriate remedial response, it is hardly ever going to be a sufficient response to the historical injustice in question. Jacob-Owens considers three cases, ‘each corresponding to one of the underlying ‘reasons for citizenship restoration’ discussed by Owen and Bauböck: the Chagossians (exile), Hong Kongers (lost territory), and the Windrush generation (discrimination)’. We have mentioned the Hong Kongers already. In the case of the Chagossians, reparative citizenship is insufficient because it fails to address the central injustice of the loss of their ancestral home done to them. The case of the Windrush generation is, contra Jacob-Owens, arguably best conceived as one of restitution rather than reparation when we consider the history and conditions of their access to citizenship and their clear meeting of the genuine connection criterion. We do, however, agree with Jacob-Owens that “postimperial citizenship can play no more than a limited role in the broader project of colonial reparations” and share the view expressed by Aithal et al. that reparative citizenship will tend to treat the symptoms rather than the causes of historical-structural injustices.
The contributions by Kane & Lenard and by Aithal at al. also point to a wider issue that colonialism raises for the very terms in which we have taken up this topic and our approach to it, namely, the justifiability of global order of membership structured in terms of citizenship as membership of a (nominally) self-ruling state. The point here is well made by Barry Hindess:
Modern imperialism was clearly a matter of subordinating non-European populations to rule by European states, but it was at the same time a matter of incorporating the government of those populations into the European states’ system. While most discussions of imperialism focus on the first aspect, the second is equally important: imperial domination was the earliest form of globalisation, and it remains still the most consequential. It divided the world into several kinds of populations: citizens of Western states; non-citizen subjects of Western states; and various residual populations, consisting of the subjects of states that were independent but not fully accepted as part of the states’ system. This process of incorporating non-European populations into the European system of states was followed, more or less rapidly, by the second stage in the globalisation of the European states system: the formation of independent states in what had once been imperial domains. The achievement or imposition of independence during the 19th century in much of Central and South America and around the middle of the 20th century elsewhere had the effect of dismantling the first aspect of imperial rule while leaving the second firmly in place. To be an independent state in the modern world is not to be subject to the rule of another state but it is still to be a member of the states’ system and subject to the regulatory regimes which operate within that system.
Reparative citizenship cannot address the injustice of involuntary subjection to this citizenship regime, and this is its limit. There are contexts in which reparative citizens is required as well as contexts in which it is permitted or should be prohibited, but it is a mode of remedy that operates within the rules of the modern citizenship game and is confined to these boundaries.
Conclusions
We started by noticing that there seems to be little explicit disagreement about the ambivalent nature of reparative citizenship. Still, the authors who participated in this forum seem to disagree quite strongly on the implications of this diagnosis. Some authors, most forcefully, Dzankic, see reparative citizenship as selective in a morally arbitrary way, transactional and benefiting the rich, and potentially dangerous for the individuals who receive it. Others, most clearly Erez and Spiro, take a more benign view: Even if reparative citizenship fails to achieve its proclaimed moral goals, it falls within the state’s prerogative to determine its own citizenry, and it contributes to global mobility and the erosion of nationalist identity politics. Reparative citizenship policies should thus be regarded as permissible even if not morally required. A third group of authors does not defend current reparative citizenship programmes but holds them up to normative standards that are, in the authors’ view, both desirable and feasible. Schweitzer & Magazzini suggest that reparative citizenship might be easier to defend when it is more closely aligned with reparative goals. Blanchard regards the post-national transformation inherent in extraterritorial reparative citizenship as not necessarily bad if citizenship is “grounded in a consensual social contract between the individual, the state, and the broader community of citizens, a contract based on shared civic commitment rather than ethnic (or blood) proximity.” Manby thinks that non-reparative citizenship offers by African states to a diaspora that originated from the slave trade can be justified even if they entail (non-exclusionary) racial preferences.
We tend to agree with the latter group of authors that it is worth spelling out normative conditions under which reparative citizenship policies might be defensible or even required. A realistic view of the forces that drive state supply of reparative citizenship and individual demand for it is important, but it cannot conclusively answer the normative question of how to evaluate it. If one finds that the reparative label is mostly used as false advertisement, this is reason for concern. But not all policies discussed in this forum can be dismissed like this. And if the charge sticks to many such policies, the question still remains: should one ban the label or hold instead states up to the standards that it promises?