Reparative Citizenship: Another Birthright Lottery
Peter Spiro (Temple University)
David Owen and Rainer Bauböck offer up many analytic nuggets in their catalogue of “reparative citizenship” programmes. Their contribution attempts to integrate disparate citizenship allocations that fall outside traditional paths. Owen and Bauböck define reparative programmes to involve citizenship allocations to those who live permanently outside the state’s territory and are the descendants of persons who lost their citizenship “under conditions for which the current state bears responsibility” or “accepts remedial duties”, which they define to include exile, loss of territory, discrimination.
I wonder, first of all, if the category might be drawn too capaciously. I would distinguish between ordinary and extraordinary allocations of citizenship. Those implicating loss of territory are distinguishable from other examples insofar as no act of wrongdoing is implicated on the part of the granting state. On the contrary, these allocations fit comfortably within a historical ius sanguinis tradition. The Hungarian, Romanian, and even Irish examples are largely coextensive with ethnic identity. Most of these programs require or can assume some level of language facility, and all inherently involve territorial proximity. These programmes seem more an exercise in redrawing borders of human community to reflect sociological identity on the ground, perhaps a matter of nation-building, as Owen and Bauböck put it, but they might less aggressively be framed as reconnecting with those who lost citizenship through ordinary contingencies of twentieth century geopolitics.
Programmes justified by the wrongdoing of the state awarding citizenship seem more exceptional. Although they are also based on descent, states in these cases “may be motivated by the moral desire to acknowledge a serious national wrong for which even later generations of citizens in these states, who are not individually guilty, feel an ongoing collective responsibility.” There is a connection in these cases between the state that did the dispossessing and the state that is undertaking the remediation. In contrast to citizenship deprivation resulting from territorial losses, these cases involved the targeting of individuals on the basis of group identification, policies that would clearly contravene contemporary principles of international law. (In this respect, they implicate the kind of concerns considered in Ashley Mantha-Hollands contribution on the “lost Canadians.”)
New Citizenship Values
What might tie these regimes together? Owen’s and Bauböck’s analysis has a timeless flavour to it. If these programmes had existed fifty years ago, their perspective would largely read the same, considering the range of state and individual motives in the context of states’ making right for past deprivations. Yet citizenship today is an institution transformed in ways that enable and amplify these new mechanisms.
First, there is the dramatically increased acceptance of dual citizenship, referenced only incidentally in the contributions to this roundtable. Acquiring or maintaining one citizenship no longer comes with the sacrifice of another. The programmes centred in this forum would have suffered low subscriptions in the past world that rejected dual citizenship. Very few would have accepted non-resident citizenship if it meant giving up citizenship in the states in which they reside, sometimes for many generations. That cost alone would have been far too high in most cases. In fact, a defining element of putatively reparative schemes may be that they are enabled by dual citizenship.
Second, where citizenship is worth nothing, in most cases, one won’t bother expending energy to get it. Citizenship acquisition always involves costs – locating birth certificates, filling out forms, applying for a passport, and the opportunity cost of not looking after more important tasks. Even if acquiring one citizenship no longer involves giving up another, whenever acquisition is anything short of automatic, it will have to offer up something in return. The reward could be affective; people have sentimental motivations for all kinds of associational attachments. Some citizenships might pervasively offer such non-material benefits sufficient to overcome acquisition costs. One could imagine, for example, persons of Armenian descent – a high valence ethnicity – signing for citizenship in Armenia even in the absence of any obvious advantages (though the statistics do not seem to evidence a high incidence.)
But many nationalities now promise significant material value. For some, it is the value of expanded visa-free travel. States once treated all nationalities more or less the same for entry purposes. Most European states, for example, required Americans to secure visas as they did of everyone else. Obviously, that has changed. Some nationalities come with visa-free entry almost everywhere. Other nationalities not only face visa requirements but high (and highly discretionary) rejection rates on visa applications. The difference between one’s nationality of origin and a prospective additional citizenship on this dimension determines the benefit level, assuming some level of international travel on the individual’s part. In many cases it will be high.
Additional citizenships are now also understood as politico-economic risk insurance. This is citizenship for the proverbial rainy day, the passport that will make you feel better even if it’s lying unused in a desk drawer. For individuals in states long suffering political and economic instabilities, the value of an additional citizenship in a more stable country has been high. Until recently, some countries suffered chronic instability where others were reliably safe. An EU citizenship has long been valuable to Argentines, for example. But the sense of instability is now pervasive so that individuals with almost any nationality will see some insurance value in an extra premium citizenship.
Both kinds of value are obviously contingent on the citizenships involved. They can be high with citizenships acquired through reparative programs as through other routes. To the extent reparations have been almost exclusively a European undertaking, the citizenship on offer is advantaged. If the prospective beneficiary has a disfavoured primary citizenship (lower ranking, now literally), the utility of visa-free travel will be high. For Israeli citizens, for example, EU reparative citizenship is highly desirable for purposes of global travel, while not perhaps so high for US citizens, whose passports already secure visa-free entry into most states.
The value of political risk insurance had largely tracked the mobility calculus. But in recent years – roughly coinciding with Donald Trump’s first election in 2016 – a second citizenship is appreciated even by those whose primary citizenship counts as a premium. Among the investor citizen class, there is a new vocabulary of “citizenship planning” and “citizenship portfolios.” That is for those who have the extra million or so Euros to buy citizenship in Malta. But the concept maps on to a revised psychology of citizenship as understood by the less wealthy the world over. It doesn’t hurt to have an extra passport, in case things get really bad.
I see this playing out on the ground writing as an American in 2025. Even after shaking off the opprobrium that was once attached to the status, dual citizenship was long considered merely a curiosity. Few made the effort to secure extra citizenships to which they were entitled: too much hassle figuring it out for no apparent benefit. When I told friends and acquaintances of my own acquisition of German citizenship, through my Jewish refugee father, they would show polite interest at most. How that has changed. When I tell people now, they will either be comparing notes on their own second citizenship, asking about how they can get one, or expressing frustration and/or envy when they know they can’t. The political turmoil of the first Trump administration saw more Americans looking for second citizenships and political risk insurance. It has since become normalised. Americans will take a good citizenship however they can get it, including through reparative programmes.
Unsentimental citizenship
So much for the clear material value of extra citizenships. What about the identitarian dimensions that we have historically associated with citizenship? Programmes relating to loss of territory will tend to validate those values. The ties to homeland may be attenuated by time but not by space, or at least not by much space. As with other strains of ius sanguinis, those who acquire an ancestral citizenship may have primarily instrumental motivations, or they may have a mix of instrumental and affective ones. That is an obvious possibility wherever EU citizenship is on the table. Romanian citizenship is worth a lot more than Moldovan.
But affective ties will be much less expected with programmes rooted in affirmative state wrongdoing. In those cases, one injects an oppositional element, which is clearly present in the programmes undoing Holocaust-era denationalisations. The descendants of persecuted Jews are unlikely to have much sentimental attachment to the states that did the persecuting. And it is not just the history of persecution; it is the fact that there isn’t much left to feel connected to.
Field research bears out the intuition. As Yossi Harpaz has documented, Israelis are securing reparative citizenship largely for instrumental reasons. Beneficiaries sometimes characterise reparative citizenship as a “luxury item” – an interesting dovetail to other forms of compensation, like artworks restored to their prewar owners. But it is only a luxury, like art, because of its value. Owen and Bauböck are correct that historically conceived citizenship is a relational good. But that won’t stop people from thinking otherwise. “[I]f anyone asked me to justify [it], I wouldn’t,” Harpaz quotes another recipient of German citizenship. “It just happened. Karma. It’s like winning the Green Card lottery.” In my own case, I don’t feel like I was entitled to citizenship, or really even deserved it, since I feel no substantial connection with Germany. (I am slightly embarrassed when I present myself to German border authorities who assume I speak German.) But I’m glad to have it just the same.
Reparative Citizenship Won’t Repair Citizenship
The moral inflexion notwithstanding, reparative citizenship won’t help resuscitate citizenship’s historical normativity. To the contrary, reparative citizenship is consistent with and may reinforce citizenship’s degradation. I understand why Bauböck, Erez, Owen, and others argue for a genuine link baseline for citizenship attribution. It is the only way to sustain citizenship’s normativity. In the era during which citizenship comprised an exclusive relationship, genuine links could be assumed. With multiple citizenship, they can’t. It’s unlikely that genuine link requirements will prevail with respect to reparative citizenship, at least not those programmes based on state wrongdoing, making them also more difficult to apply to other citizenship classifications.
A genuine link requirement can’t be applied as a matter of international law. States are free to allocate citizenship as they please consistent with longstanding precepts of international law, with one major exception: they can’t ascribe citizenship after birth on a non-volitional basis. (That constraint could creatively be deployed with respect to citizenship refusal by indigenous peoples, as argued by Jocelyn Kane and Patti Tamara Leonard.) Otherwise, to put Erez’s framing to work, it is always permissible. There is little evidence that a genuine link requirement is anywhere on the international legal horizon, either. The only hint of such a norm implicates investment citizenship. But the disciplining of states that carelessly extend investment citizenship will either be imposed via regional arrangements (the EU and Malta) or by cancelling discretionary visa exemptions. States will continue to be free to issue passports, they just might not be worth much. To the extent that there was ever an effort beyond the realm of political theory to impose a genuine link requirement, it surely wouldn’t start with reparative citizenship, for all the reasons explicated by Owen, Bauböck, and Erez.
The requirement is more likely to be applied as a matter of domestic law. We have seen some of that with respect to the Spanish and Portuguese programs, where the authenticity of an individual’s connection to her Sephardic past has been subject to various tests. Ditto for the programmes implicating territorial loss. That is much less likely to work with reparative programmes keyed to more recent state transgressions, for reasons that should be obvious. Indeed, there seems to have been a diffusion effect among European states with Holocaust-era denationalisations. Austria would have looked bad if it hadn’t fallen in line, even though it has otherwise held the line against dual citizenship (a line it will now have a tough time holding in other contexts). It is unlikely that these programs will be curtailed or qualified to require evidence of social connection, as this would make states look churlish at best and immoral at worst. The result is that my adult daughter, who has never been to Germany, along with her children and grandchildren, will be German.
Am I arguing against the reparative programmes? Not at all. Reparative citizenship is no more arbitrary than other forms of citizenship based on birth, maybe less so, to the extent that it is deployed to right past wrongs; there is an expressive value to reparative citizenship (at least as related to state persecution) that distinguishes it from other forms of citizenship allocation. It is more about the state extending citizenship than about the individual receiving it. But as a practice that facilitates instrumental acquisition of citizenship, it will contribute to the institution’s further erosion. Citizenship detached from community isn’t citizenship as we have known it.