Regulation against weaponization: a double-edged sword?

Jelena Džankić (European University Institute)

Prologue: My nationality was changed four times. I was never asked. It was given to me and taken away from me as if I were a ‘thing’ to be numbered; an object marked by its barcode.

This is not the start of a dystopian novel. Anyone who has lived through territorial secession will have had their nationality changed by default. I am now a national of tiny Montenegro with a population of less than a million. Since my birth in the early 1980s, I was ‘filed into’ different jurisdictions each time the state whose nationality – and thus citizenship – I was given would fall apart.

Therefore, I very much agree with Neha Jain that nationality attribution can be oppressive and weaponized. It can easily be instrumentalized by states to persecute individuals or make territorial claims against other states. Involuntary nationality attribution can also turn individuals into weapons of war, by providing the legal basis for military conscription. This was common practice during the wars of Yugoslav disintegration. The laws of the socialist Yugoslav federation provided for total mobilization in the case of war. When the country fell apart in 1992, the leadership of the Federal Republic of Yugoslavia (FRY), one of the successors to the socialist federation, was heavily influenced by the wartime ambitions of the Serbian president Slobodan Milošević. They deliberately postponed the adoption of the new citizenship act until 1996. This enabled the FRY authorities to draft refugees arriving from Bosnia and Herzegovina, because they were still considered citizens of the same state even if that state no longer existed. The refugees were then forcibly recruited into the army of the Republika Srpska and sent back to Bosnia and Herzegovina to wage Milošević’s war.

While the increasing abolition of military duty has made such scenarios less likely than in the 1990s, Jain convincingly illustrates other ways in which nationality assumes bayonet-like qualities. Where her argument is less convincing – at least for a political scientist – is when she suggests that regulating nationality matters through international law would put an end to states’ abusive practices; at best, it could diminish them in some limited cases.

There are three key reasons for this. First, paradoxically, in many cases citizenship used to deprive individuals of rights or as a weapon against other states is often formally fully in line with international legal norms. Second, in many cases weaponized citizenship has not been attributed by states but acquired voluntarily by individuals. Third, international law has shown substantive weaknesses in regulating matters that touch upon the core of sovereignty: the links between individuals, territories and states.

It’s all by the book, but does this make it right?

The main problem of the weaponization of citizenship is not that it is contrary to any human rights or international norms. Rather, it is most often fully in line with them; and it would likely continue to be so, whichever other rules were agreed upon at the international level. Most of the problematic citizenship acquisitions or attributions that states instrumentalize to harm individuals, groups, or other states are permissible. In The Global Market for Investor Citizenship, I explored a number of problematic aspects associated with citizenship by investment programmes: from the inequalities they perpetuate, to the long-distance citizens they create, or to the corruption they are breeding. Nonetheless, every single one of these programmes, including the one of the Comoros that Jain mentions in her kick-off contribution, is perfectly lawful.

The same is true of any of the other ‘Zombie citizenship’ categories, creating extraterritorial communities with little to no connection to the state of which they have become nationals. Russian expansive passport policies are as lawful as the grant of passports to ethnic kin, practiced, among others, by Bulgaria, Croatia,  Hungary, Romania, or Serbia. By letter of the law, they are also not dissimilar from policies adopted by Spain, Portugal, or Poland to bring remedial justice to populations who have historically been persecuted; or policies seeking to maintain links with emigrants and diasporas that Italy, Spain and Portugal have in place for Latin American countries. This leads us to the key question about the instrumentalization of citizenship policies by states: does the fact that something is permissible under the law make it right?

The plethora of examples that Jain raises give a clear answer. And it is important to discuss the ways in which abusive grants of nationality can take place and propose ways to prevent them. An international regulation of nationality, or an enhanced human rights protection system, are insufficient for that, as such nationality grants are within the parameters of law. For as long as individuals remain insufficiently educated on the value of membership – not as nationality but as belonging to a political community of fellow human beings – the rules for citizenship conferral will remain a weapon in the hands of power-thirsty autocrats on the lookout for new territories or means to stay in power.

Your will, your problem: or is it?

The vast majority of individuals worldwide acquire their citizenship at birth, involuntarily, through what Ayelet Shachar has referred to as the ‘birthright lottery’. The diffusion of dual citizenship tolerance, coupled by the increase in global mobility, and the enhanced opportunities one might have by virtue of being a national in more than one country, made multiple nationality highly desirable for individuals. This is particularly the case with citizens from countries located in the so-called Global South, or those living in the peripheral regions of Europe or North America. Hence, with the exception of nationality changes that occur due to redrawing of territorial boundaries, most nationality acquisitions are, at least to some degree, voluntary. That is, they are based on an individual’s action permissible under the law. Extraterritorial citizens often initiate the acquisition of their second nationalities themselves, even if these are offered for instrumental purposes by states and prone to misuse by them. Individual motives include a multitude of reasons: from mere opportunistic ones (mobility or travel), to compliance with hidden coercion (state officials conducting door-to-door campaigns) or deprivation of some kind (owning property). If such citizenships are weaponized, they can have severe ramifications: in the first case, for the countries concerned; in the second, for the individuals affected.

The Russian passportization is obviously the most extreme manifestation of the first kind of such ramifications. Yet in other cases of extraterritorial citizenship the grant of nationality through ethnic kinship or cultural affiliation ultimately led to claims against the state whose citizens were the main beneficiaries of the external nationality-granting state. For instance, over 120,000 citizens of North Macedonia have obtained the passport of neighbouring Bulgaria, whose ethnic citizenship policy was a means for these individuals to access the rights of European Union (EU) citizenship. In 2022, the Bulgarian government conditioned the opening of EU accession negotiations with the formal recognition of ethnic Bulgarians as a constitutional minority in North Macedonia. The request was supported by records on Bulgarian citizenship acquisitions by North Macedonian citizens. Hence the large number of instrumental citizens became leveraged in claims made by foreign authorities against their state of residence and original citizenship. 

The second kind of repercussions that can arise from malleable citizenship acquisition rules and practices happened in the Comoros mentioned by Neha Jain. In The Cosmopolites, Atossa Abrahamian explains how this worked for the bidoons in the UAE and Kuwait. The legal basis for the grant of citizenship by investment had already existed by means of the 2008 Comorian Economic Citizenship Law. Once the government of the Comoros made arrangements with the governments of the Gulf states, bidoons were enticed to apply for the Comorian passports with a promise that it would be the first step towards acquiring the nationality of the states where they lived. UAE government officials used examples of influential bidoons to promote their ‘externalization of nationality’, while posing increasing hurdles for the bidoon population in their everyday lives (e.g., for registering a car). As a result, many opted to apply for the Comorian passport and become vulnerable and precarious in their homeland.

In all of these cases, strategic choices by individuals have had adverse consequences. Yet weaponization of such choices happened only when states ‘cashed in on’ individual decisions on nationality acquisition in a different state. This is at the heart of the second problem with the idea of an international law that would regulate nationality acquisition: how to strike a balance between respecting individual choices and preventing misuse of such choices by states. If this cannot be achieved, it might prove more harmful for already vulnerable individuals than the absence of regulation.

Would it make a difference?

The final concern related to an international law that would regulate the misuse of citizenship acquisition and attribution is ostensibly a practical one: what form would it take? Nonetheless, even such a simple question raises crucial concerns related to the functioning of the international state system and challenges the substance of norms associated with our understanding of free contemporary societies.

First, it is unlikely that the international law regulating the acquisition of nationality would entail any restriction on multiple status. Since the 1960s, dual nationality diffusion became associated with liberal democracies, where increased mobility patterns have substantively altered the meaning of ‘national’ identity. This is not as much the case in countries and societies contested by or contesting other state and nation building projects: there, dual citizenship is restricted or promoted for a completely different purpose. Openness toward dual nationality is often not a mechanism of inclusion; rather, it is often deployed as a tool for achieving geostrategic objectives. Yet restricting a ‘liberal’ norm because it can be misused questions the system of values that has led to the acceptance of such norm.

Second, it is also questionable to what extent the misuse of nationality acquisition can be regulated through human rights law. Norms for the protection against statelessness, as well as those aimed at ensuring racial and gender equality are already in place. Yet the possibility to derogate from specific provisions in the human rights treaties leaves substantive margin for their potential weaponization through citizenship acquisition (and loss). In other words, for as long as states have the monopoly over the rules for inclusion and exclusion, and for as long as nationality attribution is a core matter of sovereignty, the misuse of those rules will be possible.

A solution?

It is easy to be critical of Jain’s proposal for a new international nationality law because of its ‘broad brush’ approach without offering an alternative solution. And I do not have one – at least not one that could realistically be put in practice in the near future within the limits of the current international state system. If we accept that the creation of boundaries that ‘keep some in’ and ‘shut others out’ are at the heart of human relations that construct societies, the abuse of such boundaries will always remain a possibility: be it through nationality laws, or whichever other principle will be used to govern the linkages between individuals and territorial jurisdictions. To overcome the systemic problem of states ‘manufacturing statelessness’ and weaponizing citizenship for that purpose, educating citizens of their role as participants in collective decision-making is crucial. A person aware of their rights in society, aware and respectful of the rights of others, and conscious of the limits of states’ power is the best ‘shield’ against states or groups taking advantage of laws to harm others. After all, being a citizen is not only about ‘being filed into’ a state. It is also about creating communities of individuals with equal rights.

Epilogue: I have many file numbers, in many places: R48FC8132, DZNJLN16E97B582L, 1391970144972, PK 45 78 99. I have no voting rights anywhere in this world. But I have a voice. Somewhere.