The thousand paper cuts of oppressive nationality – a rejoinder
Neha Jain (European University Institute)
Introduction
One of the many attractive features of a forum debate is that the responses are not merely in dialogue with the lead author, but also with each other. The concept of oppressive nationality, as the range and depth of contributions highlight, is contestable and contested by empiricists, theorists, country experts, and lawyers. It is also, as the contributions by Jelena Džankić and Lindsey Kingston highlight so beautifully, intensely personal, touching upon issues that are central to identity and that continue to be transmitted through generations. If there is a tentative common ground in the contributions, it is the acknowledgement that citizenship can be as much a burden as a boon –– though here too, Peter Spiro’s striking metaphor of the paper sword of citizenship queries whether these costs are sufficiently material to warrant concern by international lawyers.
Rather than attempting the impossible task of doing justice to these rich responses in a brief rejoinder, I take up their invitation to deepen and clarify the original insight on oppressive citizenship and to think through three main issues that would be implicated in any efforts at the international juridification of the problem: 1) What is the exact harm of oppressive nationality; 2) Who can respond to this harm; and 3) Will a response rooted in an international legal norm generate even greater harms?
Is weaponization a problem and for whom?
In his characteristically elegant response, Peter Spiro, who finds a sympathetic listener in Lior Erez, argues that while oppressive nationality may be problematic, it is only so at the margins. For Spiro, barring rare instances where individuals stand to lose their original nationality due to the unwanted acquisition of a second nationality, the material costs of unwanted nationality are either minimal or difficult to enforce. In cases where they do have bite –– for example, the Russian conscription of Crimean residents –– the imposition is already in violation of another international law norm. And Spiro argues that in still other situations, such as the attribution of Comorian citizenship to stateless bidoons, the citizenship may even prove beneficial.
In canvassing a variety of circumstances that result in unasked for citizenship obligations, Spiro himself weakens the force of his claim. While it is true that each of these cases of unwanted nationality is factually distinct rather than part a broader global pattern, together, they point to the different ways in which states inclined to do so can manipulate citizenship to impose direct and indirect costs on individuals and groups. The bidoons, as Noora Lori reminds us, may be Comorian, but only in name, having no right to even reside in their “home” country, much less to ask for its diplomatic protection. Instead, as Lori emphasizes (Lori, 2019), Comorian citizenship has prolonged their limbo status as de facto stateless minority residents in the UAE. Conscription too, does not always categorically violate a non-nationality related international legal rule, as Jelena Džankić shows in her poignant example of refugees from Bosnia and Herzegovina being turned into flesh and blood weapons to fight as “citizens” of the Federal Republic of Yugoslavia. And––turning our attention to involuntary citizenship attached to residents within sovereign territorial boundaries–– Ramesh Ganohariti and Lindsey Kingston force us to reckon with the use of citizenship as an assimilationist weapon deployed by authoritarian states as well as liberal democracies. Indeed, as I highlighted in the original essay, and in contrast to Lior Erez’s interpretation of this practice as relating to citizenship deprivation rather than imputation, it is liberal states such as Canada and Australia that have attached zombie Israeli citizenship to asylum seekers to prevent them from acquiring refugee status in those countries.
The harm of oppressive citizenship, then, as Rainer Bauböck captures in his wide-ranging contribution, both on individuals as well as states, is neither always immediately apparent, nor always an obvious violation of an international legal norm. A pathological use of weaponized citizenship, as Peter Spiro puts it, such as the pretext for an outright invasion is indeed rare and typically generates swift condemnation by the international community. More commonly, however, as Rainer Bauböck argues, the negative effects of oppressive nationality are much more insidious, working to destabilize other nations, raising suspicions about the place of individuals in polities where they are minorities, and turning vulnerable groups into casualties of geopolitical wars waged on other fronts. The paper cuts inflicted by these paper swords may be subtle and seem too minor for international law to take seriously, but that doesn’t make them less painful for the individuals or states that are their recipients. Unlike the clean slice of a metal blade, the shallow cut of a paper sword saws and shreds in chaotic ways, producing a wound that leaves the surface perilously exposed to future harm.
It is true that some of these paper cuts may not be unique to the weaponization of citizenship, strictu sensu. As some of the responses highlight, quasi-citizenship statuses too can be weaponized in similar ways: Eleanor Knott refers to Russia’s weaponization of ethno-nationalist claims whereas Ramesh Ganohariti highlights practices of passportization by contested territories such as Abkhazia and South Ossetia. These examples raise broader questions on the international legal recognition of statehood and whether the law’s assumption of citizenship as an on-off status may need to be revisited to acknowledge the reality of citizenship on a sliding scale.
Who should respond to this weaponization?
Though the responses indicate broad agreement that oppressive nationality can be deeply problematic, they are also largely skeptical that the response to it lies in enhanced international legal regulation. Here, again, the responses range from a bleak assessment of international law’s real-world impact to the claim that international law is already doing the work that it can be expected to do. Jelena Džankić and Lindsey Kingston despair of international law’s capacity to police states on matters such as citizenship that are central to state sovereignty, arguing that the legal framework that permits states to wield citizenship as a weapon is not an oversight but by design. Once again, it is not only smaller authoritarian states like Hungary or global autocrats such as Russia that have gamed the system, but liberal states such as the United States are equally complicit in its perpetuation. Rather than pinning their hopes on international law, both Džankić and Kingston see the best defense against weaponized citizenship to be an educated and engaged public that recognizes what it means to be a member of a political community. Timothy Jacob-Owens sounds a different note of caution, warning of the perils of putting too much faith in international law’s championing of progressive claims given its historical complicity in the legitimation of imperialist policies and practices. And Peter Spiro argues that there is little that a new rule would add to the informal state and non-state reactions that are already in evidence in the pushback against weaponized citizenship.
Not all contributors are equally down on international law, however. Rainer Bauböck and Ramesh Ganohariti both see merit in a robust international legal norm that prohibits citizenship weaponization and put forward specific principles that should guide the development of this norm, whereas Noora Lori urges exploring the potential of inter-state leverage and regional mobility agreements as legal and non-legal avenues that could complement any emerging global norms to rein in weaponization.
The differences in views amongst the contributors reveal fundamental tensions in the concept of citizenship on the one hand, and the legitimacy of international law on the other. Džankić and Kingston’s response touches on one of the core questions, not just in law, but in political theory on why we value citizenship in the first place and whether it is best conceived as a state of being––or a practice that is lived and enacted. Jacob-Owens’ important intervention on the compromised character of international law implicates age-old questions on whether the master’s house can be dismantled using the master’s tools. The debate between Spiro, Ganohariti, Bauböck, and Lori mirrors the ones that international lawyers have had for decades on the efficacy of soft law versus hard law and whether one is necessarily superior to the other. To try and tackle these issues with the seriousness they deserve would be an ambitious undertaking even for a book project, let alone a rejoinder.
While I am sympathetic to Džankić and Kingston’s republican view of citizenship that foregrounds political education and agency, my more immediate concern is how the law should evolve in the here and now which is marked by its relative absence. Likewise, I heed Jacob-Owens’ call to be ever-vigilant towards a seemingly progressive international legal norm being misused for ends that hurt rather than help vulnerable individuals as well as collectives. I nonetheless remain cautiously optimistic about the ability of a precisely crafted international legal rule to play an important role in curtailing weaponized citizenship. Not because any such norm will automatically invite compliance––which legal norm, domestic or international, can claim perfect compliance anyway?––but because it may be the thumb that helps tip the measuring scale that a state uses in calculating the risks versus rewards of implementing measures such as passportization in the direction of non-weaponization. This doesn’t mean that the additional factors that Spiro and Lori emphasize, such as regional legal instruments, horizontal counter-inter-state responses and leverage, or condemnation by international NGOs, will be irrelevant. To the contrary, they will be important additional counter-weights in tilting the scale away from weaponization. But precisely because horizontal non-legal measures are reliant on the good will and self-interest of states and other entities, they will be prone to selective outrage and ad hocism, similar to the differential treatment one witnesses in another equally important domain of sovereignty –– border control –– where we have seen the exceptionally progressive treatment of Ukrainian asylum seekers versus refugees from other parts of the world (Ramji-Nogales, 2022).
Will an international legal rule make the problem worse?
Even some of the contributors who may be positively disposed to international law share some common ground with the international law skeptics in having reasons to be concerned about the collateral effects of an international legal rule regulating oppressive nationality. Some of these relate to the feasibility of devising a rule that will be sufficiently precise to fully account for ground realities, as Eleanor Knott, Lior Erez, and Timothy Jacob-Owens highlight. The worry is that no rule would be able to neutralize the methods through which states wield weaponized citizenship without simultaneously inflicting damage on some of the vulnerable or minority populations that deserve international protection.
As Jelena Džankić argues, in many cases, states would not be able to weaponize citizenship if they were not helped along by individuals who were minded, persuaded or compelled to make the strategic choice to accept the nationality on offer. Would an international law rule targeting state abuse then also end up targeting individual choice? Timothy Jacob-Owens raises a different, but no less serious, concern with respect to the potential impact of an international law of nationality on individual choice: states standing the concept of weaponized citizenship on its head to deny nationality rights to those who would have otherwise have legitimate claims to citizenship acquisition on remedial grounds. For Jacob-Owens, it would be virtually impossible for international law to be able to meaningfully distinguish between weaponized citizenship and reparative citizenship, inadvertently strengthening the hands of imperial states such as the United Kingdom that seek to delegitimize demands for remedial citizenship by formerly colonized groups such as the Chagos Islanders. Finally, Bronwen Manby and Ramesh Ganohariti highlight the risk that an international law of nationality that sanctions oppressive nationality would not only penalize the state responsible for the oppression but also those whom it oppresses. Pointing to measures such as the ban on dual citizenship and the non-recognition of passports and travel documents issued by the state weaponizing citizenship, Ganohariti and Manby draw attention to the plight of the bearers of these documents who as a consequence find themselves with reduced rights to mobility and social welfare.
I am grateful to these responses for foregrounding a vital issue that any international law of nationality must grapple with: how do we hold accountable the agent responsible for citizenship weaponization rather than its recipients who may face constrained choices and compromised agency? One could argue that designing a sufficiently precise legal rule that is neither under-inclusive nor over-inclusive, to borrow Lior Erez’s terminology, is exactly what lawyers try to do all the time. No master drafter will be able to come up with an international rule that never fails to capture any instances that it should, or conversely, that never over-reaches in its zeal to be as comprehensive as possible. Like the rules of grammar, it is in the nature of legal rules to be fuzzy around the core with boundaries that may need to expand or contract through exceptions, and exceptions to exceptions, that are revealed only in the application of the rule to concrete cases.
One can imagine approaching the development of an international law of nationality in one of two ways: as open-ended international law standards revolving around core questions of consent, sovereignty, human rights impacts, reparations, etc. that subsequently undergo rulification –– this would make my proposal for appropriate fora for adjudication all the more salient. Or one could have the bulk of the substantive choices on the balance to be struck between these concepts determined by drafters, such as treaty negotiators, with the adjudicator entrusted with interpretative freedom at the margins and in relation to the individual facts in issue. It is in the latter spirit that I read Ganohoriti’s three conditions for when international law should restrict oppressive nationality attribution and Bauböck’s proposal for a hierarchy of rules prioritizing the territorial integrity and stability of a state over both the state’s prerogative to designate its nationals and individual consent to citizenship acquisition. Another possible option is to take a cue from international and regional human rights instruments that often have a broadly formulated right, e.g., the right to free speech, that is then subject to a series of exceptions, for example, the restrictions in the interests of public order, democratic values and so on. Which model would make sense for the international law of nationality would need to be worked out not just on the basis of abstract principles but also the resources that would be required for its practical implementation.
Conclusion
At the time the opening essay in this forum was published, Russian passportization efforts in Ukraine were steadily being expanded. Recent reports indicate an escalation in terror tactics being applied in Russian occupied territories such as Kherson and Zaporizhzhia, with Ukrainian citizens being confronted with the impossible options of either accepting Russian citizenship or having their property confiscated and facing forcible deportation. These individuals are unlikely to find much comfort in the snippets of official advice on what they should do: “If it is possible not to take a Russian passport, then try not to take one. But if you have to take a Russian passport to avoid oppression and torture, then take one.”
As this forum illuminates, the circumstances in which individuals come to acquire weaponized citizenship rarely present in such binary ways. While for some a hated passport may be the only way to escape torture, for others, it represents the prospect––even if one seldom realized––of liberation from second-class status in the country of original nationality. An international law of nationality that fails to engage with empathy with the many reasons why citizenship comes to be invested with so much meaning, both positive and negative, will be a poor bulwark against weaponized citizenship.