Reparative Citizenship: Permissible, but Not Required
Lior Erez (Blavatnik School of Government, University of Oxford)
My paternal grandparents, Menashe and Perla Ergas, grew up in the Turkish city of Izmir before immigrating to Israel in the late 1940s. The name ‘Ergas’ is common to the Sephardi Jewish community, and is thought to indicate Portuguese origins. Like many Turkish Jews of Sephardi descent, my grandparents’ mother tongue was Ladino, a Jewish dialect of Spanish. My father, Jacob Erez, was advised that he would be eligible to apply to either Spanish or Portuguese citizenship based on these two facts. My grandparents’ surname and the cultural preservation of Ladino were sufficient proof that we were descendants of the Jews expelled from the Iberian peninsula 500 years prior, and thus entitled to citizenship as reparation.
All this to say that the subject of reparative citizenship is one I find personally salient, and I thank David Owen and Rainer Bauböck for highlighting it in this symposium. But putting aside my personal status as a potential Spaniard or Portuguese, I think that the burgeoning practice of reparative citizenship presents an interesting theoretical challenge for the normative theory of citizenship. As I have argued elsewhere with Ayelet Banai, a common view in the literature maintains that membership rules – those that determine who belongs and who should be excluded – should not be left to the discretion of the state and are determined by distinct normative principles. Citizenship allocation, these authors argue, is attached to the normative principle of a ‘genuine link’, a de facto belonging to the political community manifested as long-term territorial presence. A genuine link is a necessary and sufficient condition for citizenship, ruling out both under-inclusive and over-inclusive policies: those with a link have a right to be included, while those without it must be excluded.
What do we make of reparative citizenship, then, given that it clearly does not follow from this territorial interpretation of the genuine link? In this brief comment, I want to suggest that normative theorists of citizenship ought to choose between one of four options:
- The first would be to stick to the strict interpretation of the genuine link principle, ruling out reparative citizenship in the same way other over-inclusionary policies are ruled out. According to this view, descendants of victims do not have a right to citizenship and states are not permitted to offer it.
- The second option would be to ground reparative citizenship policies in extended versions of the genuine link principle. According to this interpretation, descendants of victims have right to citizenship on the same basis as other citizens.
- The third option would be to concede that the genuine link principle does not ground a right to reparative citizenship, but that there are other potential ethical grounds for this right. According to this interpretation, descendants of victims have a right to citizenship based on a distinct reparative rationale (such as tort law).
I think it is telling that Owen and Bauböck, even as they adhere to a version of the genuine link principle, are reluctant to follow the first option. As they write, ‘The practice of providing citizenship as reparations for past injustice undoubtedly has a place in the repertoire of contemporary states’. In what follows, I will briefly argue that options 2 and 3 are, for the most part, unconvincing. Instead, we should adopt
4. the fourth option, according to which descendants of victims do not have a right to citizenship (either based on an extended genuine link or on a distinct reparative rationale), but states are still permitted to offer it.
Identity Arguments: Reparative Citizenship as an Extended Genuine Link
One way to conceptualise reparative citizenship policies is to extend the genuine link principle to broader cultural and identitarian interpretations. The Preamble to the Spanish Law seems to follow this line, stating that
The children of the Sephardi preserved a store of memories immune to the effects of distance and the passing of the generations. These memories were kept in the Ladino or Haketia languages, forms of Old Spanish enriched by borrowings from the languages of the areas where they settled, in which they repeated prayers, recipes, games and stories in the Spanish of their ancestors.
Following this logic as a basis of reparative citizenship, the guiding thought here is that the victims of expulsion have been wrongfully excluded from the political community, and therefore, the state has no right to exclude them or their descendants for the same reason it does not have a right to exclude current members. More generally, victims of historical injustice are owed inclusion not as compensation for past harm but because they are already, de facto, members of the demos. There are different ways to flesh this out theoretically – Sara Amighetti and Alasia Nuti use the concept of ‘intertwined histories’, while Rogers Smith argues for the ‘coerced constitutive identity’ principle – but the general point stays the same.
The problem with this line of argument is that, if conceptualised as grounding a right to citizenship, it is either vague or over-inclusive. Once the genuine link is freed from the strict confines of ius soli, ius sanguinis, and ius nexi, its boundaries become determined on subjective and arbitrary interpretations of cultural belonging. Why, for example, should my father’s knowledge of Ladino be a basis for a right to citizenship, but the cultural influence of Muslim Iberia on the descendants of the Moriscos be excluded? If, on the other hand, the definition of cultural affiliation is relaxed, the policy is over-inclusive; given Spain’s imperial history, this opens up the right to citizenship for hundreds of millions of potential claimants in the Hispanosphere.
Tort Law arguments, or, Is Citizenship Like a Work of Art?
A different justificatory strategy is to follow a rationale of corrective justice that calls for a restitution to the status-quo ante, or, when that is impossible, a fitting compensation in kind for the harm caused. This is straightforward in cases where victims have been wrongfully expatriated and are now offered a return to citizenship status, as was the case in many European states after the Second World War towards the victims of the Third Reich.
But what about descendants? Owen and Bauböck highlight a counterfactual logic, writing that ‘[g]iven the presumption that those to whom the policy is addressed would be entitled to citizenship except for the injustice that was done to their ancestors, and that restitution is possible now, entitlements to citizenship should be restored’. Using a compelling metaphor, they write that ‘[j]ust as a work of art stolen by the Nazi regime should be returned to those who legitimately possessed it or their descendants, so too should this rule apply to the entitlement to citizenship.’
But is citizenship like a work of art? In some ways, this captures the way participants and commentators view the practice. Amanda Frost argues that ‘[c]itizenship is akin to a property right that comes with economic benefits, political rights, and symbolic value’, and in his field study on dual nationality in Israel, sociologist Yossi Harpaz finds that this line of justification is prevalent among those who sought to restore their ancestors’ European nationality, noting that ‘[m]any respondents argued that their parents’ or grandparents’ citizenship was a piece of family property that was illegally taken away, and that they had a natural right to demand its return’.
Owen and Bauböck are rightfully sceptical. Unlike an art object or a real estate property, which are purely private goods, ‘citizenship is a relational good that inextricably combines individual and public elements’. Citizenship is not a private property, and it is not ‘owned’ by the individual. Given this, there is no counterfactual basis for a right to citizenship for those who would have been entitled to it if discriminatory laws were not in place.
Permissible Reparative Citizenship?
I think, therefore, that strictly speaking there is no right to reparative citizenship to descendants. I am in agreement with Owen and Bauböck, however, that this does not entail that reparative citizenship policies are illegitimate or impermissible. Given the value of self-determination, states retain a presumptive “right to include”, that is, to shape their membership policies in a way which is not fully determined by a principle of allocation. They are free to pursue membership policies according to legitimate interests, including, but not limited to, cultural preferences, economic interests, state ideology, or nation-building projects. As Elisabeth Bolorinos Allard analyses the Spanish case, a plausible interpretation of the motivation behind the policy is one of nation-building, in the service of a reinterpretation of Spanish liberal identity as a liberal, multicultural democracy. Membership policies are of course constrained by other claims of justice or particularly weighty interests, but these constraints do not eliminate state discretion entirely. In other words, states are permitted, but not obligated, to offer reparative citizenship.
Why does this matter? In brief, if the state has an obligation to grant citizenship to an individual because that individual has a claim to citizenship – grounded in the principle of the genuine link or alternative reparative grounds – then, apart from exceptional cases, it may not impose further conditions on the acquisition of citizenship such as citizenship tests or burdensome application fees. On the other hand, if the provision of citizenship is merely permissible, as opposed to obligatory, the state has a wider range of discretion and can consider additional limits and constraints on inclusion. It may, like Spain and Portugal did, impose a time limit on the policy, for example.
The other side of the coin is that in the absence of a duty of reparative citizenship, other concerns come into play that may suggest potential limits on the right to include as expressed in reparative citizenship policies. First, reparative citizenship ought not be imposed but offered voluntarily, and as a result of a deliberative process with victims’ groups. This concern is illustrated in cases such as those of some German Jews reluctant to accept German citizenship post-Holocaust, as well as the mixed reactions of Sephardic Jews to the Spanish and Portuguese citizenship offers extended as reparative gestures. As Jocelyn Kane and Patti Lenard persuasively argue in this symposium, in a settler colonial context citizenship refusal might be a more fitting form of reparation.
Second, these policies must not overshadow or crowd out other forms of reparations – material or expressive – which may be more fitting to the injustice or demanded by the victims. Timothy Jacob-Owens demonstrates this concern vividly in his discussion of the Chagos case. I would add that the risk compounds given two additional features of reparative citizenship: first, unlike other forms of reparations it is relatively costless for the state; and second, as Ashley Mantha-Hollands aptly reminds us, such policies are often driven by motives other than a concern for justice. We should also be aware that victims are mostly heterogenous groups, with different and sometimes conflicting reparative claims.
Finally, these policies might be limited given potential expressive harm. As already mentioned, several commentators have pointed to the inconsistency of the Spanish law which extends citizenship to descendants of Sephardi Jews, but not to the descendants of the Moriscos. Viewing reparative citizenship policies as merely permissible, but not obligatory, might relax this form of critique somewhat; the Spanish government is within its right to address one group of historical victims which it views more central to its national identity. But that argument only goes so far: in a context of prevalent Islamophobia, and specifically prejudice against Moroccan immigrants in Spain, the otherwise legitimate exclusion from these programmes is not permissible given its expressive harm.
So in conclusion, my bottom line is quite close to Owen and Bauböck: I agree that ‘providing citizenship as reparations for past injustice undoubtedly has a place in the repertoire of contemporary states’. But instead of thinking of these policies through the prism of the right to citizenship, I believe we should instead view it as an instance of the right to include: permissible, but not required.