What (Exactly) is Wrong with Weaponizing Citizenship?
Lior Erez (Department of Politics and International Relations, University of Oxford)
Neha Jain’s opening essay, as well as the subsequent contributions to this forum, highlight the multiple ways in which citizenship can be oppressively and aggressively used by states to advance their interests, often by “gaming the system” (Lindsey Kingston). As these contributions demonstrate, a political and legal response to the threat of citizenship weaponization must be attuned to the nuance of the particular case and broader context (Eleanor Knott), and cautious of unintended side-effects and spill-overs (Bronwen Manby, Timothy Jacobs-Owens). Realistically, it will depend on more than the letter of international law, by expanding the scope of its existing norms (Rainer Bauböck), appealing to extra-legal resources such as power politics (Noora Lori), and supported by the resistance of engaged citizens (Jelena Džankić). Given these requirements, combatting citizenship weaponization is certainly an uphill battle, although one we must attend to given the current political landscape.
As Džankić forcefully puts it in her contribution, the question surrounding the morality and legitimacy of these practices will not be adequately resolved by evaluating their present legality. In this response, therefore, I would like to take a step back from the legal question to comment on the foundational normative assumptions at the heart of this debate. In brief, I will suggest that with regards to citizenship laws, problems of under-inclusion and over-inclusion are not symmetric from a normative perspective: the factors that account for the wrongness of under-inclusion do not clearly explain the wrongness of over-inclusion. As such, our evaluation of the weaponization of citizenship must clearly distinguish between cases of oppressive attribution or “sticky citizenship”, which are aimed at facilitating rights violation and exclusion and therefore straightforwardly objectionable, and cases of ‘long distance nationality’ which are less decidedly so. If this analysis is correct, it provides additional support to the problem identified by Jacobs-Owens about the difficulty to “capture every relevant instance of ‘oppressive’ nationality attribution without simultaneously creating a barrier to legitimate forms of facilitated, extra-territorial naturalization”, and casts some further doubts over the feasibility of Jain’s proposal for a “New New Law of Nationality” as a way to address the risk of weaponization.
Genuine Links and Harms to Individuals
A primary contribution of Jain’s essay lies in her challenge of the implicit assumption in international law that “the problem to be addressed is not the attribution of citizenship but rather its absence”. This implicit assumption is, interestingly, shared by most of normative political theory, which is focused on the limits of the state’s right to exclude, expel, or expatriate. As Manby insightfully suggests, in turning to the question of unjust inclusion, Jain – “in some ways” – returns to an earlier framework of international law, more concerned with wrongful nationality attribution than the deprivation of it. The qualifier is important here; the old normative landscape depended on views and values we now reject (as Peter Spiro argues elsewhere). To defend the idea of ‘unjust inclusion’ in the era of human rights, one must provide an alternative justification for it. In other words, if citizenship is now a “sword to harm and oppress”, who, exactly, is harmed by unjust inclusion, and how?
One possible answer proposed by Jain is that unjust inclusion incurs “negative consequences for purported beneficiaries”. On the face of it this claim seems puzzling – how can inclusion be harmful? Here, normative political theory offers some useful insights as to the harms causes to individuals by unjust citizenship laws. On similar lines to Bauböck’s support of a positive version of the principle of genuine link, most normative theorists argue that the legal status of citizenship must follow some factual connection to the state, conceptualized as social membership or jus nexi. The individual’s “genuine link” to the state imposes a duty on the state to offer a pathway to citizenship. The state’s failure to do so explains the injustice of, among others, permanent alienage or arbitrary expatriation. This may also motivate arguments against making citizenship conditional, for example in by imposing citizenship tests or financial burdens on naturalization. The normative role of the genuine link, on these accounts, is as a sufficient condition for grounding the individual’s right to citizenship (and the correlative state’s duty to offer it).
The upshot of this understanding of the normative role of the genuine link is that it is sufficient for explaining the injustice in the cases noted by Jain and the other contributors, without the need to appeal to the notion of unjust inclusion. For example, in the case of ‘offshore citizenship’ offered to the Bidoons in the UAE (Lori), it is seems reasonable to suggest that the wrong committed was, originally, not providing a pathway to citizenship in the state where the Bidoon had social membership, and the conceit that membership is fungible and can be substituted by another state’s citizenship. Similarly, in case of ‘sticky citizenship’, as described by Macklin, the wrong committed is not the over-inclusion, but the use of foreign citizenship as a way to deprive individuals of citizenship in a state that owes it to them. If we add to that the presumption against the coercive imposition of citizenship, evident in both of these cases as well as, arguably, in the case of Russian “passportization” that is the major focus of this debate, these carry much of the weight of the harm taking place.
The notion of unjust voluntary inclusion arises only if we interpret the genuine link, as Bauböck explicitly does, as a sufficient and necessary condition for the allocation of citizenship. Admittedly, Bauböck extends the concept beyond habitual residence to cover “also first generations of emigrants and their offspring whose lives remain entangled with their country of origin”. This rules out, he argues, “unlimited transmission of citizenship iure sanguinis or selling passports to investors”. Yet I remain unpersuaded that this interpretation is justified. In brief, I share Jacobs-Owens’ intuition that “states may have good reason to offer targeted routes to citizenship acquisition for groups outside their territories”, including reparative and honorific conferment of citizenship. Citizenship laws need not be uniform between states, and – within limits – could allow for extra-territorial naturalizations for a variety of reasons. I also agree with Spiro that acquiring citizenship voluntarily is rarely, in itself, harmful to the individual in question, excluding particular cases were deception was involved. What is needed here, in other words, is some alternative explanation for the wrongness of such policies.
Harmful Intentions and Negative Effects for States
Such a justification is provided by Jain’s second line of argument, in which the harm of unjust inclusion is not to the individuals in question but to the interests of the “parent state”. This is a version of the principles prevailing in the old international system, although importantly state interests now should be balanced against individual right claims. Jain relies on Anne Peters to 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”. Bauböck, similarly, places the use of passportization as a pretext for military intervention at the most severe end of his sliding scale. As a general principle, he proposes that “[c]itizenship attributions that have the intention and effect of undermining the territorial integrity and stability of other states should be considered illegal”.
The Russian passportization policy and the blatant violation of international law in its war of aggression against Ukraine clearly motivate this line of argument, as they should. As several contributors note, the wrongness of the case remains evident even if naturalizations were voluntary and there is a genuine connection between the naturalizing state and the individuals in question. My concern about it, however, stems from the sense that the wrongness of the Russian case is overdetermined. Even if accepting as a matter of fact that mass naturalizations occurred as a pretext for military occupation (but see Knott’s argument against this view), the case is so extreme that it provides a shaky foundation for a general principle. As I will try to briefly demonstrate, applying the line of argument to less blatant cases proves to be much more ambiguous, and arguably over-extends its usefulness.
It seems, first, that identifying an intention of undermining territorial integrity and stability would be a much harder task in most cases. The Russian case aside, states rarely advance weaponized citizenship policies while exclaiming that these are intended to be used as weapons. Indeed, they have the interest of disguising their true intentions by providing more benign justifications for potentially controversial citizenship laws, appealing in diaspora connections, human rights, or historical injustice. As I argued above, if we accept a pluralist justification for inclusive citizenship policies, some of these justifications would be legitimate, and we can fully expect states to game the system to achieve the appearance of legitimacy. If our task here is to find a way in which international law norms allow for providing such retrospective evaluation (Jain), it is hard to see how this kind of intent could be identified. As Ramesh Ganohariti persuasively argues, even in the Russian case its actions in Abkhazia and South Ossetia – and the intentions behind them – could not be definitively determined to be criminal.
Turning instead to the effects of such policies on the affected state seems like a more promising route, especially if intent can be interpreted obliquely, in light of foreseeable consequences of one’s actions. Jain is right to point out that for extra-territorial naturalizations – where the question of unjust inclusion might arise – we should reject the Nottebohm assumption 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”. Of course citizenship laws have affects beyond the boundaries of the state. Again, the Russian case provides a stark example of such egregious effects, with passportization facilitating territorial invasion.
Yet when we extend this line of argument to other kinds of negative effects, it becomes less persuasive. I agree with Bauböck that “when assessing weaponized policies, we should not only consider their direct legal consequences, but also how they aim to force other states to react in a way that will escalate a conflict at the expense of vulnerable groups”. For example, he suggests extending the negative effects to include destabilizing the target country’s internal recognition and accommodation of ethnic minorities (e.g. in the case of Hungary and Slovakia). However, even if as a matter of prudent politics these policies should not be pursued, on the normative level the worry over backlash seems to wrongly locate the culprits. Even prima facie extra-territorial citizenship regimes – tracing the genuine link of emigrants and their direct descendants – can and do trigger perceptions of disloyalty. Such effects could exist without the intention of the naturalizing state. Moreover, often the formal act of naturalization is not even required for the negative effects to take place. As Ilan Zvi Baron argues, the mere existence of the state of Israel provides an excuse to accuse Jewish citizens of dual loyalty.
Further skepticism arises regarding other potential negative effects suggested by the contributors. Džankić presents the interesting case of Bulgaria and North Macedonia, where extending Bulgarian citizenship had the effect of limiting North Macedonia’s ability to enact external sovereignty. Bauböck offers the example of cases where conferring citizenship undermines domestic equality, when only some subset of the population has access to the advantages of a second nationality (as is the case of European Jews in Israel). But pursuing this line of argument to its logical conclusion creates new problems. Again, these kind of effects will likely be generated even by prima facie legitimate citizenship laws. Restricting them on these grounds seems at best unjustified, or worse resulting in unnecessary harm to individual rights (as persuasively argued by Manby and Jacobs-Owens on Western Sahara and the Chagos Islands, respectively). And there is a broader point here: given the complexity and interconnectedness of international politics, any number of the state’s supposedly domestic laws – from its tax policies to its religious establishment – could have negative effects on other states.
Why Clarity is Important
Hopefully the above analysis does not strike readers as the pedantic over-indulgence of the philosopher. As I wrote at the beginning of the response, I share the view of most contributors to this forum that the instrumental and cynical use of citizenship laws at the hand of aggressive states – not least in the Russian war of aggression in Ukraine – is a danger deserving our scholarly and political attention. Real politics requires difficult decisions under conditions of urgency and uncertainty, so the kind of rigor in identifying the precise source of wrongness I advocate here might not always be called for. But even conceding this point, I still wish to argue that our responses to the threat should maintain clarity as to (a) the agents and actions responsible for the wrong and (b) the implications of the response. Failing that, the response will not address the underlying causes of injustice and might even prove to generate new wrongs.