Weaponized Citizenship: Should international law restrict oppressive nationality attribution?

Weaponized Citizenship: Should international law restrict oppressive nationality attribution?

Neha Jain (European University Institute)

Citizenship has been described by Rogers Brubaker as “an international filing system, a mechanism for allocating persons to states”, but if so, this filing system has few centrally co-ordinated rules at the international level. And even the sparse international legal architecture that exists mostly assumes that the problem to be addressed is not the attribution of citizenship but rather its absence, i.e. statelessness. In other words, citizenship is considered an aspirational status that entitles its holder to a set of rights that are to be secured and perfected, including through the cautious deployment of international law instruments and institutions relating to human rights. (Spiro, 2017) But what when citizenship, and its international counterpart, nationality, begins to be wielded not as a shield that protects the dignity and personhood of its bearer but rather as a sword that states can command to harm or to oppress? Should international law continue to refrain from intervening in a status the attribution of which is regarded as a sovereign prerogative? This essay argues that international law should do more in situations of oppressive nationality. Nationality attribution can be oppressive for both individuals and states. In the former case, it serves to denude an individual of rights they would have enjoyed but for the attribution. In the latter situation, it functions as a weapon to threaten or destabilise vital interests of other states.

Zombie citizenship

Citizenship, as Jo Shaw reminds us, is a bundle of rights and obligations. However, the formal equality signalled by the status of citizenship may conceal deeply unequal substantive rights, duties, and experiences of belonging. In some cases, the content of the citizenship may be hollowed out to such an extent that it resembles less a political, social, or cultural relationship between the individual and the state that entails a series of mutual rights and duties, and more a form of zombie citizenship. One could argue that with the rise of a globally mobile population that often retains only the most tenuous links with the state of their nationality, this expectation of mutuality between the state and its citizenry has in any case been eroded over time. What is more, the international legal architecture concerning nationality attribution does not seek to peer into the quality of the citizenship conferred on the individual but rather limits itself to requiring that the state’s ascription of nationality is exercised in conformity with international law, of which there is precious little. Indeed, this wide margin of discretion granted to the state is integral to the distinction between “citizenship” as a concept of domestic law and “nationality”, which is an international legal concept. (Shaw, 2020)

There have nonetheless been instances where international law has sought to dig deeper. As Peter Spiro recounts, formal as well as informal norms concerning nationality ascription have been developed in different sites of international dispute resolution, emerging mainly in the context of naturalisation rather than citizenship allocation at birth. The first of these emphasise the requirement of individual consent whereby nationality acquisition must be voluntary and cannot be imposed on the individual against their will. The second prohibits states from attributing nationality willy-nilly to individuals with whom they have no connection through the requirement of a “genuine link” between the state and the individual in order for states to be able to exercise diplomatic protection on behalf of the individual. While the genuine link doctrine as introduced by the ICJ in the Nottebohm case does not assess the formal status or validity of citizenship allocation for the purposes of domestic law and is limited to the issue of diplomatic protection, it has gradually been transplanted to other areas of international law, with some scholars arguing that it has morphed into a general principle regulating the recognition of nationality. (Sloane, 2009; Brownlie, 2003)

These skeletal norms on non-recognition, however, have not served as a barrier to states allocating citizenship in order to circumvent yet other, stronger, international legal norms –– those that govern statelessness and refugee protection. One example of this practice can be found in Noora Lori’s incisive account of “offshoring citizenship” in the UAE. Billed as a temporary documentation measure to “regularise” the status of its long-term resident minorities, the scheme involved the launching of a statelessness registration drive by the UAE Ministry of Interior whereby stateless individuals and those with pending naturalisation applications were issued stateless identity cards. These individuals, comprising various domestic minorities who in some cases had resided in the UAE for generations but had never been granted crucial identity documents, were then issued with stateless ID cards and passports bought by the UAE from the Union of Comoros, one of the world’s poorest countries. Individuals with this zombie Comorian citizenship have no pre-existing ties to Comoros; nor does this citizenship entitle them to what are considered key attributes of the status: the right to enter and reside in the country and to call upon it for diplomatic protection (that could in any case be challenged under the Nottebohm ruling). However, the artificial attribution of the citizenship of Comoros enables the UAE to avoid having to explicitly deny these individuals Emirati citizenship and the formal statelessness that would ensue.

Another instance of a zombie citizenship is invoked by Audrey Macklin’s illuminating discussion of “sticky citizenship” that she describes as “situations where a state seeks to stick citizenship on an unwilling recipient or where an individual is stuck with a citizenship she wishes to disavow.” Macklin draws on case studies of refugee claims in Australia and Canada by Jewish asylum seekers from the former Soviet Union and attempts by the UK government to revoke the citizenship of terrorist suspects to argue that, in both cases, the attribution of a putative citizenship functions to enable states to circumvent their international human rights law obligations. In the former case, Israel’s Law of Return has been interpreted so as to turn all Jews into virtual Israeli citizens. This, in turn, would defeat their claim to surrogate protection due to a well-founded fear of persecution from (each) state of nationality on the basis that they would still be eligible for protection from the Israeli state. In the latter case, the Home Office has sought to argue that an individual who would be eligible for and could obtain the citizenship of another state (such as Iraq, of which the individual was formerly a national) would not be rendered stateless on account of denationalisation by the UK.

What is striking about these forms of zombie citizenship is that the state that is engaged in engineering the attribution is not the same as the state whose nationality is being ascribed. While in the case of offshore citizens, it is unclear that there is any consent, real or contrived, that is obtained from the newly minted Comorian citizens, sticky citizenship cases of the kind Macklin highlights do seek to peddle a form of consent: the putative citizen may “voluntarily” apply to be a citizen of the state where they are formally eligible to become nationals. In all cases, the individual stands to lose the protection of the international law of asylum and statelessness while acquiring either little to no substantive citizenship rights, or entirely speculative ones.

Long distance nationality

Commentators have emphasised that the ICJ’s decision in Nottebohm did not pronounce upon his status in the country of naturalisation––Liechtenstein––but as Spiro suggests, “only that his nationality could not be used as a weapon against another state.” But what does the international law of today have to say about the latter situation? What constitutes the use of nationality “as a weapon” against a state and how may international law respond to this weaponization?

Nottebohm, it is worth recalling, adopted a relatively orthodox approach to nationality to limit the reach of its narrow ruling on diplomatic protection, asserting that “nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it.” This conception does not always hold true in cases of extra-territorial citizenship that see citizenship constellations emerging outside territorially circumscribed state boundaries in the form of naturalised citizens who do not, and may never intend to, reside on the territory of the state of naturalisation. (Fitzgerald, 2000) The motivations for states as well as individuals to enter into this relationship can be complex and varied––ranging from affective attachment to projects of state building––but the decoupling of territory and citizenship as status, identity, and practice means that nationality allocation may have impacts that transcend the Nottebohm conception.

A particularly fraught case of extra-territorial citizenship are “passportization” practices consisting of fast-track and large-scale extraterritorial naturalisation of individuals resident on the territory of another state. Though the term came to be widely used in the wake of the 2008 conflict between Russia and Georgia, scholars such as Anne Peters claim that Russian passportization efforts started even earlier with the mass conferral of Russian citizenship in Crimea in 1991, which was then repeated in the contested territories of Abkhazia and South Ossetia beginning in 2002. The legal basis for the passportization was the 2002 Federal Law on Citizenship of the Russian Federation providing a simplified naturalisation procedure for citizens of the former Soviet Union as part of a policy of creating long-distance ethno-nationalists to use a term coined by Benedict Anderson. For Anderson, these are emigrés who live their politics “long distance, without accountability” and “with no serious intention of going back to a home, which, as time passes, more and more serves as a phantom bedrock for an embattled metropolitan ethnic identity.” Russian long-distance nationalism was intended to be just that: the would-be nationals were not expected to migrate to and take up residence in the “homeland”; rather, Vincent Artman argues that “[b]y conferring citizenship en masse to the residents of Abkhazia and South Ossetia, Russia discursively extended its sovereignty into territory legally owned by another state”. Russia has since refined and improved upon its passportization technique in other spaces, amending its citizenship law in 2014 to operationalise the fast-track naturalisation of a new legal category of Russian speakers following the annexation of Crimea and subsequently expanding the list of eligible persons in 2019 to include the residents of the territories of Donetsk and Luhansk in Eastern Ukraine. Following the Russian invasion of Ukraine, the fast-track citizenship process has steadily been extended by Presidential decree to apply to individuals in Russian occupied zones in the southern Zaporizhzhia and Kherson regions and, as of July 2022, to all Ukrainians.

Russia’s justification for these measures has been put forward in legalistic human rights terms, as articulated in the statement of the Russian Federation’s representative to the Security Council in 2019, arguing that “For five years, the inhabitants of Donbas have been deprived of the ability to exercise their human rights and freedoms in Ukraine… We are not interfering in the internal affairs of Ukraine or engaged in a creeping annexation. We are simply giving people the opportunity to finally solve issues of vital importance to them, because the Kyiv authorities have refused to, in violation of the Minsk agreements… Russia is not imposing citizenship on the inhabitants of Donbas but rather giving them an opportunity to apply for it voluntarily and independently under the established procedure to the competent Russian authorities while preserving their Ukrainian citizenship.” While it is easy enough to refute the credibility of these claims, it is nonetheless difficult to dismiss outright the trajectory of the passportizations in Crimea and the Donbas region as a blanket form of “personal annexation”. A strict consent/non-consent dichotomy indeed may underestimate the strategic targeting of the passportization schemes that have historically relied on a mix of co-optation and coercion. While the former exploits the identity and influence of the former Soviet Union as a regional hegemon coupled with the provision of material benefits such as pensions and access to social services to passportised Russians, the latter penalises the rejection of Russian citizenship through administrative exclusion from public life. (Wrighton, 2018)

This exercise in strategic passportization is thus difficult to challenge on the basis of current principles of consent in the international law on nationality. However, similar to the previous case of oppressive nationality, it may be possible to argue that the passportizations have had negative consequences for purported beneficiaries. Prior to the Russian invasion, and according to an intriguing claim by Burkhardt et al., this is a result of the perpetual state of limbo in which “diminished citizens” of Donetsk and Luhansk found themselves, whereby they had less than full membership in any political community, including Russia, due to the inability to exercise social and electoral rights similar to Russian citizen-residents. Instead, they were compelled to make rights claims before the parent state of Ukraine, the de facto state authorities in the Donetsk and Luhansk Republics, as well as the patron state of Russia.

For Burkhardt et al., passportization, however, does not only result in diminished citizenship but also diminished sovereignty of the “parent state” by keeping the latter and its contested territory “in a permanent and fragile state of exception.” Indeed, it is this latter concern that has prompted reactions by international lawyers, who have argued that naturalisation is not a bilateral, but rather a trilateral relationship between the original state of nationality, the naturalised individual, and the naturalising state, and one that moreover has an impact on the global public interest. This is due to the parent state’s continuing interest in maintaining enduring ties to its nationals–– a state that lost all its nationals to naturalisations could cease to be a state––and exercising diplomatic protection on their behalf. Scholars argue that mass naturalisations, in particular of individuals who do not have strong links to the state of naturalisation, may thus infringe upon the sovereignty of the parent state. And as such, they would constitute an abuse of rights by the state of naturalisation and violate international law norms such as the principle of good neighbourly relations between states. The abuse would consist in the exercise of rights (of allocating citizenship) in a manner that is arbitrary or that negatively impacts the enjoying of other states’ rights.

In the case of Russia, these concerns have been augmented by Russia’s subsequent attempts to justify its use of force against Georgia, the annexation of Crimea, and the invasion of Ukraine, on the basis that it is acting to protect the rights of its citizens. But Russia is not the only country whose passportization practices have set international alarm bells ringing. Indeed, though Russian policies have been widely condemned by the international community and Russian passports are not recognised as valid travel documents by the EU and other countries, similar practices of extraterritorial naturalisations by Eastern European states such as Hungary had previously prompted ad hoc efforts to develop international law norms. The 2001 Venice Commission Report on the Preferential Treatment of National Minorities by their Kin-State and the Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations issued by the OSCE High Commissioner on National Minorities in 2008 both attempted to set out conditions under which states may extend preferential treatment to ethnic non-resident minorities. These documents emphasise that the primary responsibility for the protection of minority rights lies with the state of residence. Other states who may have an interest in their welfare can provide benefits to minorities but only with the consent of the state of residence and with full respect for the principles of sovereignty and good neighbourly relations. This would include refraining from mass citizenship conferrals even in situations where the state of residence permits dual nationality. These principles, however, have not been transformed into hard international law prescriptions.

Similar to the previous case of oppressive nationality, the patchwork of international law norms that emerges to constrain nationality attribution in passportization cases seems to emanate not from the relatively vague principles found in the international law governing nationality, but rather when this law bumps up against other stronger international law norms such as state sovereignty. And even these latter norms seem to have failed to sufficiently deter these practices.

 A New New Law of Nationality

Writing a decade ago in the American Journal of International Law on “A New Law of Citizenship”, Peter Spiro asked, “Will international law colonise the last bastion of sovereignty”? Alas, the answer to that question is no more hopeful today than it was at the time it was first posed. If anything, citizenship and its international twin nationality seem to have transformed into sites of “adaptive authoritarianism”, that is, democratic institutions that authoritarianisms mimic and retool to enhance regime survival and its reach. And not only authoritarians, but also liberal democracies seem to be complicit in its securitization, albeit for different ends. The invasion of Ukraine that was presaged by the thousand cuts of passportization has tested the resilience of international law in more ways than one. But it has also presented unexpected opportunities for both reaffirming long-standing international law principles, such as the prohibition on the use of force, and invigorating international institutions, alliances, and standard-setting in diverse areas ranging from multilateral co-operation to the law of asylum. It can and should do the same when it comes to resisting the sophisticated ways in which states can weaponize the attribution of nationality.

International law has two possible ways to react to this securitised, oppressive nationality. It can beef up and more rigorously enforce international law norms on neighbourly relations, statelessness, and asylum that interact with the nationality attribution, thus preserving sovereign prerogative over questions of citizenship and nationality but strengthening the constraint that it can only be conferred in accordance with international law norms. Though this will be a welcome step that can benefit from and in turn contribute to efforts to strengthen international law norms in matters that affect nationality, it poses the risk that paralysis or setbacks in these other fields may end up delaying or even turning back any progressive agenda on nationality reform.

Any such agenda will thus need to be accompanied by a willingness to “storm the last bastion” to transform the international law on nationality. This will require recognising that, quite apart from its consequential impact on the individual who is ascribed a nationality, nationality attribution does not have effects mostly “within the legal system of the State conferring it” but can also have serious consequences for other states and for the stability of the international legal order. International law norms must not only be able to retrospectively evaluate whether the state engaged in the act of nationality attribution has committed an abuse of rights in this process, but rather pro-actively guide and constrain nationality ascription. International law could, for example, develop default rules proscribing mass naturalisations outside the state’s territory barring exceptional situations such as statelessness. It could also establish principles for evaluating what types of conduct would constitute valid individual consent for the purposes of extraterritorial nationality attribution and the circumstances and fora in which host countries could challenge this attribution. These would just be the first steps towards recalibrating an international filing system for nationality that seems to be seriously compromised. Rather than trying to tinker at the margins with a system that was designed for a different era, a serious overhaul would be in order.