Weaponized Citizenship: Should international law restrict oppressive nationality attribution?

Beyond Law: Alternative Mechanisms for Reigning in Weaponized Citizenship

Noora Lori (Pardee School of Global Studies)

In her opening essay, Neha Jain eloquently outlines the problem of weaponized citizenship and poses the question of whether (and how) international law might be used to restrict oppressive nationality attribution. I first briefly reiterate the political and normative stakes of this important debate to explain why states weaponize nationality, emphasizing the strategic advantages this tactic provides to political elites across world regions and regime-types. In response to previous responses that question whether international law is indeed the most fitting mechanism for reigning in oppressive nationality attribution, I consider alternative ways how states can be incentivized or coerced into modifying their behavior in realms that are considered key domains of sovereignty. I take the baton from Bauböck and heed his warning about the destructive potential of weaponized citizenship in the context of new geopolitical arrangements and deepening global interdependencies. I suggest that asymmetrical power arrangements and global interdependence are precisely what can be leveraged to reign in cases of weaponized citizenship.

The Problem of Weaponized Citizenship

The weaponization of citizenship occurs when states strategically use forced nationality attributions to control access to membership and mobility rights. As Jain explains, this oppressive tactic occurs on both the individual and collective levels—states can weaponize citizenship to “denude an individual of rights they would have enjoyed” as well as “threaten or destabilize vital interests of other states.” To illustrate how forced nationality attribution operates as a form of inter-state coercion, Knott carefully explains how Russia’s extraterritorial passporitization techniques were used to justify annexation and conflict by claiming to protect co-ethnic communities “whether or not such external co-ethnic communities view themselves as needing, or consenting to, protection.” While Spiro argues that the consent of the individuals whose citizenship status is being changed is the key factor for determining whether a case of nationality attribution is weaponized, the forum also discusses how apparently voluntary extraterritorial naturalizations (e.g. in Transnistria, Abkhasia, South Ossetia) are instances of weaponization because of their destabilizing impact across borders. Since the previous responses discuss extra-territorial naturalization practices to illustrate how citizenship is weaponized across borders, it is worth discussing how these practices also factor into domestic politics. To do so, I expand the focus of this forum on forced nationality attributions and include a brief discussion of the related phenomenon of denaturalization, drawing a link between this debate and insights from a previous forum to make two points about the domestic implications of weaponized citizenship.

First, access to citizenship is weaponized by political elites to fulfil their own political or economic domestic interests. Second, this tactic has been used by states to disproportionately target minority groups within their territories, typically by associating those groups with security threats. In the example of what Jain calls “zombie citizenship,” the federal government of the United Arab Emirates attained passports from the Union of Comoros for ethnic minorities in the UAE. This outsourcing agreement—which I have previously referred to as “offshore citizenship”—does not provide the passport recipients with any meaningful membership rights in any state. They are allowed to continue residing in the UAE, but as “foreign residents,” and they do not have membership or residency rights in the Comoros Islands. The passport recipients were informed that these documents were issued as a temporary step in their regularization process as they continued to undergo security vetting as naturalization applicants. Likewise, Beaugrand’s work on stateless populations in Kuwait shows a similar dynamic, with indigenous minorities forced to obtain passports from other states (like Iraq) in order to continue residing in Kuwait, or risk being criminalized as “illegal” migrants. In both cases, the forced attribution of foreign citizenship enables political elites to prevent targeted individuals from enjoying the robust welfare services with which these oil-rich states provide their citizenries. On the flip side, all of the Gulf monarchies have used the forced withdrawal of citizenship (through denaturalization, passport revocation, and travel bans) to quell dissent and punish political activists.

It may be tempting to equate coercive citizenship practices with authoritarian states, but Kingston reminds us that liberal democracies are also “guilty of using and benefitting from oppressive nationality.” While Kingston’s contribution focuses on how liberal democracies can “game the system” and circumvent their own commitments to international human rights frameworks, we might also draw upon a larger literature on denaturalization that identifies how advanced liberal democracies have strategically weaponized citizenship to withhold membership rights from specific groups. As Weil’s work on the United States in the early Twentieth century has documented, denaturalization—often couched in terms of national security—has been strategically used by political elites to sway election outcomes, police ethno-national boundaries and entrench racial hierarchies, and criminalize the activities of opposition groups (especially anarchists and socialists). Gibney’s work on more recent denaturalization cases in the United States and United Kingdom shows how liberal states continue to use forced nationality withdrawals to target groups that are considered security threats (especially Islamists). Another example of how elites justify forced withdrawal of nationality on the basis of perceived security threats is Israel’s sweeping 2008 law that sanctions the withdrawal of citizenship from anyone who commits an act that constitutes a “breach of loyalty to the State of Israel.” Critics have pointed out that this law (and more recent expansions of it) have not be used against Jewish Israelis who committed violent crimes and are instead being used to pave the path for denaturalizations of Arab Israelis as a form of collective punishment and demographic engineering. Studies on statelessness in the Dominican Republic and Myanmar are helpful for underscoring the fact that the pattern of who is targeted in cases of weaponized citizenship is not only deeply racialized but also highly gendered. As Hackl points out, such tactics are “modes of controlling and rank-ordering minorities” that render citizenship “conditional” rather than inalienable for specific groups in ways that cannot be reconciled with liberal principles of equality and inclusion. Moreover, almost every one of these examples has ramifications on other states. Extraterritorial withdrawal of nationality burdens other states by either creating stateless people there or by shifting responsibility (also for terrorists and criminals) towards them often based on a merely putative or secondary citizenship.

These works help illustrate how citizenship is used as a weapon, especially in the context of the “war on terror,” in ways that combine the domestic interests and foreign policy goals of states in two key domains of sovereignty — the monopolization over the legitimate use of violence (à la Weber, see Anter) and the discretionary power to determine authorized residency and membership rights (Torpey). It is difficult to reign in weaponized citizenship when both national security and citizenship are key domains of discretionary or plenary power, even in advanced liberal democracies. Herein lies the central tension in the weaponized citizenship debate — it is difficult to determine what even constitutes “lawful” or “unlawful” practices in domains that are protected arenas of state sovereignty.

The Opportunities and Costs of Leveraging International Law in the Domain of Citizenship

The previous responses have explored whether there is a basis for regulating nationality under international law, and if so, how international law can be leveraged to contain oppressive nationality attribution. Knott cautions against creating blanket rules about what constitutes weaponized citizenship, calling for the need to identify the precise sequencing and timing of nationality attributions before determining whether that instance can be classified as oppressive. In response, Ganohariti provides strict criteria for determining whether a case qualifies as weaponized citizenship, focusing on three conditions: 1) whether the nationality attribution was conducted by a state to target people outside its de iure territory; 2) whether citizenship was attributed collectively and forcefully; and 3) whether the weaponization occurred simultaneously with the attribution of citizenship. Other contributors express skepticism about whether the law is indeed the most fitting tool for reigning in weaponized citizenship practices because, as Džankić points out, in many cases the actions are “perfectly lawful” under international law and, as Jacob-Owens cautions, codifying strict restrictions on this practice might curtail the ability of formerly colonized groups to advocate for reparative citizenship.

Leverage and Power Politics: Alternative Mechanisms for Reigning in Weaponized Citizenship

If not through that mantle of law, then what are additional ways for reigning in oppressive nationality practices? Existing studies in the field of International Relations may be instructive for identifying alternative avenues through which states, supranational, and inter-governmental entities have successfully changed the behaviour of other states (either by coercion or enticement), in realms that are considered protected domains of sovereign discretionary power.

One possibility that has not been explored in previous submissions is whether regional mobility agreements and legal frameworks could be harnessed to reign in oppressive nationality practices. The literature on the European Union has documented a range of examples of how convergence criteria for entry into the union influenced the behavior of prospective member-states, not only their economic policies, but also their commitment to fundamental human rights and the protection of minorities from discrimination. While citizenship matters fall under the domain of member-states, the Court of Justice of the European Union (CJEU) took steps to constrain arbitrary denaturalization in its 2010 Rottmann ruling. Aggressive extraterritorial citizenship policies like those of Hungary or Bulgaria have not yet been addressed at the EU-level. However, by asserting its jurisdiction in denaturalization, the CJEU may have created an opening for bringing cases of forced attribution of nationality to regional courts. Moreover, the EU commission has already challenged the discretion that member-states have when it comes to attributing nationality under citizenship by investment programmes, referring Malta to the CJEU and calling upon all member-states to halt their programs in the wake of the Russian invasion of Ukraine.

Outside of the EU, Susan Akram’s clinical human rights work currently maps regional instruments for combating statelessness across the Middle East and North Africa, with the aim of identifying specific clauses within regional legal instruments that can hold states accountable for rendering minority groups stateless. Acosta’s ongoing research on regional mobility frameworks in South America also provides insights on how regional instruments might be leveraged to reign in weaponized citizenship, since the proliferation of regional processes of integration coupled with the expansion of human rights law “are two of the most important phenomena that have limited the state’s capacity to restrict the entry of foreigners and their rights.” In short, while regional mobility agreements have not yet been deployed in cases of weaponized citizenship, they might provide us with a promising avenue for introducing higher standards of protections in the absence of a global legal framework due to the more limited number of actors involved in negotiations.

The robust literature on inter-state negotiations and power politics might also be instructive, as scholars have identified a range of extra-legal ways that states can be coerced or incentivized into modifying their behavior based on the pressures exerted by other states or international entities, especially when different issue areas are interlinked in negotiations. For example, in the realm of economic negotiations and trade agreements, Farrell and Newman develop the concept of “weaponized interdependence” to capture how states weaponize asymmetrical access to global networks of informational and financial exchange for strategic advantage. States that have a structural advantage in the system can leverage that advantage for coercive ends through a “panopticon effect” (granting network access to gather strategically valuable information) or conversely a “chokepoint effect” (denying network access to adversaries). Scholars like Greenhill, Tsourapas, and Adamson have documented a similar dynamic in the realm of negotiations over cross-border flows, developing concepts like “migration interdependence” to explain how labor migrants or asylum-seekers are used as pawns when states strategically instigate or interdict human flows to gain leverage over other states. The desire to contain migration can make more developed states in the Global North vulnerable, because migrant-sending and transit states strategically use migration flows to increase their bargaining power and induce political, military or economic concessions. This can have the effect of giving weaker, less militarily powerful states leverage over states that have superior economic or military capabilities. Even non-state actors like NGOs may have some leverage of this kind. Eilstrup-Sangiovanni and Sharman’s research shows that NGOs do not only lobby for changes to international law but also act as enforcers on issues of human rights, the environment, and corruption by acting as private police, prosecutors, and intelligence agencies in enforcing international laws and norms.

To be clear, inter-state leverage and power politics are in no way a substitute for creating robust protections for minority and stateless populations in international law. I differ from Spiro who argues that “to the extent that citizenship adds anything to the state’s policy armory, it has been mostly defused,” implying that we may not need to turn to international law to curtail weaponized citizenship because states already sanction each other. While I agree that states respond to each other’s behaviours when it comes to issuing passports, they currently do so unevenly and in ways that may reward oppressive nationality attributions. For example, after the UAE outsourced passports from the Union of Comoros, the rankings of the Comoros passport declined because other states considered the Comoros passport security to be compromised, which also instigated internal investigations of former President Ahmed Abdallah Mohamed Sambi. Meanwhile, the UAE passport ranking soared, largely due to the fact that it had successfully signed a Schengen visa-waiver with the EU in 2015. This example may suggest that depending upon inter-state leverage will inevitably lead to greater weaponization because citizenship matters would depend upon the willingness of weaker states to expend political capital on taking up the cause of granting citizenship to minorities in powerful states. However, the EU’s role and its impact on the UAE passport ranking complicates this picture. Had the EU actually addressed the UAE’s oppressive nationality practices when negotiating the visa-waiver, it could have asserted considerable leverage. The system will not self-correct in ways that align with human rights, but lobbying efforts can redirect pressures towards greater protections in a structurally interdependent system. States, regional, and international entities can be lobbied to take oppressive nationality practices into account when negotiating visa-waivers and mobility agreements, or build in clauses in agreements that withhold certain benefits (i.e. market access, development aid, weapon sales) from states that practice weaponized citizenship. Such efforts would not replace but rather supplement attempts to use international law and norms to constrain weaponized citizenship practices.