Weaponized Citizenship: Should international law restrict oppressive nationality attribution?

When powerful states play games with citizenship

Lindsey N. Kingston (Webster University)

When my Sicilian grandfather Giuseppe “Joe” Carlisi petitioned to naturalise in 1957, he signed his English name and scrawled the words “I can go to work.” He saw American citizenship as an escape from poverty, war, and discrimination. He was not alone: For generations, migrants across the world have considered nationality the key to enjoying fundamental human rights, or what Hannah Arendt called “the right to have rights.” Citizenship supposedly offers national identity, indicates worthiness, and even proves one’s existence. Those without it are rendered vulnerable to an array of human rights abuses. Without passports or other state documentation, the United Nations High Commissioner for Refugees says stateless people “officially don’t exist” – well, at least on paper.

Citizenship is not only a force for good, however. My work on the weaponization of citizenship highlights how the same documentation that can protect migrants might also open them up to extensive social control and rights violations. This weaponization impacts non-migrants, too; laws granting Indigenous peoples citizenship in settler states were used to privatize and ultimately seize their land, for instance. Important messages about who does (and does not) belong in a country are highlighted with the granting or revocation of citizenship, sometimes fuelling mass atrocity crimes like ethnic cleansing and genocide. These kinds of violations require us to look at citizenship with a critical eye – not only to recognise the potential for weaponizing citizenship, but also to consider how to punish and prevent what Neha Jain calls “oppressive nationality”. She asks: What should the international community do when citizenship is wielded not to protect human rights, but rather “as a sword that states can command to harm or to oppress?” Jain argues that international law should do more in these situations, especially since nationality attribution can oppress both individuals and states.

Given the current political climate – I’m writing eight months after Russia invaded Ukraine – it is understandable that Russia has played an important role in this conversation so far. Jain considers the issue of “passportization” practices in her essay, citing the mass conferral of Russian citizenship in Crimea as a method of fast-tracking large-scale extraterritorial naturalisation. Eleanor Knott raises compelling questions about the timing of passportizing Crimea’s residents, but ultimately argues that Russia has been weaponizing both citizenship and what it means to be ethnically and/or linguistically Russian to create a pretext for intervention. Indeed, Jelena Džankić points out that even when extraterritorial citizens themselves initiate the acquisition of second nationalities, it may cause severe ramifications for the countries concerned and/or individuals affected.

Yet while Russia is important in this conversation about weaponizing citizenship, it is also vital to investigate the ways in which liberal democracies – so ready to declare themselves bastions of human rights – are guilty of using and benefitting from oppressive nationality. Just as the international community has built fundamental flaws into the human rights regime by relying on citizenship to identify human rights claimants, so too has the United Nations created vulnerabilities to weaponized citizenship by prioritizing state sovereignty over individual rights. Liberal democracies such as the United States have “gamed the system”[1] to manipulate the provision of citizenship to suit their ends, all while staying fully in line with international legal norms (as Džankić reminds us is often the case when citizenship is weaponized). In fact, the U.S. has frequently celebrated the provision of U.S. citizenship as a “gift” or a social good, even when such status leads to disastrous social and political consequences for the new Americans in question.

Gaming the system

To conceptualize this “gaming” of the system, consider Jeffrey S. Bachman’s work on the politics of genocide and outlaw states. Bachman’s view of the outlaw state differs from much of the existing literature; from his perspective, the law has no practical meaning for persistent outlaws because they simply bend the law to their will, guaranteeing their actions remain technically legal even if ethically suspect. He argues that some of the world’s most powerful governments engage in “persistent outlawry” that few can achieve, thus acting with perpetual impunity. With the creation of the UN Genocide Convention, for example, powerful states such as Russia, the United Kingdom, and the United States ensured that the prevention of genocide is firmly limited by a system of territorial jurisdiction. (Those powerful states now remain untouched by the Responsibility to Protect doctrine, which they sometimes wield against weaker states). They also insisted that certain groups or crimes were omitted from the final draft, including cultural genocide and the targeting of political groups – crimes that permanent members of the UN Security Council could be guilty of, if constituted as genocidal acts under the Convention. “Persistent outlawry is not defined by perpetual engagement in illegal activities, such as genocide,” Bachman writes. “Rather, persistent outlawry is defined by the perpetual impunity with which persistent outlaws act domestically and/or internationally.”

When it comes to oppressive nationality, the international community’s firm commitment to state sovereignty – as enshrined in the UN Charter, again at the insistence of influential states – leaves it up to state governments to protect the “right to a nationality” and to determine how and when citizenship is granted or revoked. This takes the bite out of existing international law related to citizenship, including the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. This does not mean only powerful states take advantage of these systemic weaknesses – there are plenty of examples of weaker states invoking sovereignty as grounds for non-interference with their internal affairs. But this system was created by powerful actors who gamed the system for their own benefit, not out of concern for the state interests of weaker players. Given the United States’ role as a global hegemon and a self-proclaimed champion for human rights, it is worth acknowledging how it has benefitted from oppressive nationality while engaging in a form of persistent outlawry – and how its game playing continues to impact citizenship and rights today.

Oppressive uses of citizenship by the United States

The United States offers various examples of how citizenship provision can be weaponized by a powerful government as a tool of assimilation and subordination, rather than a guarantee of rights protection. Many cases begin before the creation of the UN, but the normative foundations underpinning such oppressive nationality remain intact. By the time the United States offered Indigenous peoples the “gift” of U.S. citizenship with the 1887 Dawes Act in hopes of creating “good Americans,” for instance, citizenship was increasingly understood in assimilationist terms. For Indigenous peoples, Cristina Stanciu notes that “the forced assimilation and Americanization was an extension of the colonial practices, a replacement of one civic status with another – domestic dependent, ward, or U.S. citizen – and a reflection of the American colonial ambivalence vis-à-vis Native subjects.” The acquisition of American citizenship went hand in hand with the privatization (and loss) of Indigenous lands and the erosion of tribal sovereignty. (If cultural destruction was indeed recognised by the UN Genocide Convention, the forced naturalisaton of Indigenous peoples would surely count as part of that genocidal process.) These issues remain central for Indigenous peoples who demand respect for treaty rights, recognition of inherent rights to self-determination, and the return of political and economic control of native lands via the “Land Back” movement.

The U.S. territory of Puerto Rico is another site where citizenship has been used to justify American empire and to control strategic resources, offering a hollow legal status for Brown/Spanish-speaking people without the rights and protections associated with legal nationality. The people of Puerto Rico have historically existed as what Sam Erman calls “almost citizens” – neither citizens nor aliens, living on an island that is deemed neither foreign nor domestic. The Jones Act of 1917 provided for the collective naturalisation of residents of Puerto Rico at a time when the new Panama Canal increased the island’s strategic value – and while U.S. President Woodrow Wilson promoted democracy abroad as Congress defended colonialism at home. “To mitigate the embarrassment of having permanent noncitizen subjects, Congress legislated,” writes Erman. “[F]or Puerto Rico it proposed a collective naturalisation that foreclosed independence and brought no new rights.” Although Puerto Ricans acquired birthright U.S. citizenship in 1941, they have not enjoyed the same rights as Americans living on the mainland, including equal voting rights and representation in federal government. In calls for equal recognition before the law, Jacqueline N. Font-Guzmán writes that Puerto Rico remains a place where “inequality allows for U.S. citizenship to become simultaneously a source of agency for the colonized and a mechanism of oppression for the colonizer.”

These instances of shallow American citizenship highlight the importance of what I term “functioning citizenship” – that is, citizenship requiring “an active and mutually-beneficial relationship between the state and the individual.” This perspective asks us to look beyond mere legal status and to question how we recognise rights holders; citizenship is not just legality and identity documents, but rather a relationship that may or may not be fully functioning in rights-protective ways. Once we stop equating citizenship with belonging and worthiness, we also must acknowledge that political membership cannot be proven with an identity card or contained by state borders. More attention to functioning citizenship is partly what I believe Džankić is calling for when she writes that citizenship will remain a weapon as long as people are “insufficiently educated on the value of membership – not as nationality but as belonging to a political community of fellow human beings.” Her own story of having her nationality changed four times without her consent, and now living without voting rights anywhere in the world, is a powerful example of what a lack of functioning citizenship looks like in “real” life.

How can we solve the problem of weaponized citizenship in a system where legal nationality holds such power – and where “persistent outlaw” states have ensured their control over the provision of such status? Like Džankić, I am doubtful that international law can adequately address the weaponization of citizenship and yet I struggle to offer any realistic alternative solutions. The international community privileges citizenship – to access vital documentation, to enjoy fundamental rights, to hold legal identity – but at the same time affords powerful states almost unchecked authority over it. Without changing the very foundations of the international system, including how we identify rights holders and prioritize state sovereignty, there will always be outlaw states willing to manipulate and weaponize citizenship.

The difficult question for me is not should international law restrict oppressive nationality attribution, but rather can international law do so in a system that privileges powerful states who play games with citizenship?

[1] “Gaming the system” can be defined as using the rules meant to protect a system to instead manipulate that system for a desired outcome. In other words, it means going against the intent and purpose of a system while technically followings its rules.