Conditions for regulating the weaponization of citizenship
Ramesh Ganohariti (Dublin City University)
In her opening contribution, Neha Jain puts forward the argument that International Law should have a place in regulating situations of oppressive nationality. She rightly identifies that the weaponization of citizenship can be directed against individuals and/or other states. Given the guiding question, this contribution discusses under what conditions international law can and should restrict oppressive nationality attribution as a regulation in its own right. Drawing on my research on passportization and the regulation of citizenship in Abkhazia and South Ossetia, I present three questions that must be answered if international law is to regulate the weaponization of citizenship.
Was the attribution conducted by a recognized state, and did it affect people outside its de iure territory?
The previous contributors pointed out that forceful citizenship attribution can be in the form of extraterritorial nationality attribution (e.g. pre-2022 eastern Ukraine) or citizenship attribution to the population residing on the territory that is de facto but not de iure part of a state (e.g. post-2014 Crimea). Neither Ukraine nor the international community recognizes nationality attribution in either of these cases. Similarly, Georgia does not recognize Russian citizenships and passports conferred to individuals living in the “occupied territories” as this occupation violates international law, including Georgia’s territorial sovereignty. While not illegal under international law, these acts of passportization have been condemned, and there is strong political motivation to regulate extraterritorial nationality attribution as it interferes with other states’ sovereignty and stability. Thus, there is a degree of acceptance that such attributions should be regulated.
On the other hand, there are two instances where reprimanding citizenship weaponization under international law would not be possible, or at the very least, very difficult. The first relates to nationality attribution within a state’s internationally recognized borders. States have the freedom to regulate nationality, including its attribution within their borders. However, some populations may oppose such attribution and consider it as oppressive imposition of nationality. One group, identified by Lindsey Kingston, is indigenous peoples in North America. The other group are citizens of aspirant states like Abkhazia and South Ossetia, who are entitled to the base state’s nationality, in their case, that of Georgia. However, the populations of these two aspirant states refuse to accept and recognize the “sticky” Georgian citizenship. Further, these individuals lack a “genuine link” with Georgia to morally justify the attribution.
Moreover, Georgia’s enticement and co-option of the two populations to accept Georgian passports is critiqued by the aspirant states. The most cited example is the liberalization of the EU visa regime for Georgian nationals, which Georgia used as an incentive to encourage Abkhazians and South Ossetians to acquire Georgian citizenship. Residents of the two aspirant states also have access to the Georgian healthcare system. While my interlocutors were grateful for the provision of healthcare, they cited past cases where some hospitalized individuals were expected to sign documents acknowledging the acceptance of Georgian citizenship. Thus, from their perspective, Georgia is engaging in a subtle form of oppressive citizenship policy.
That said, under the current international system, little can be done to control states using citizenship laws to regulate populations within their sovereign territory. Peter Spiro argues that even though ius solis and ius sanguinis are both forms of ascriptive citizenship, they have been accepted as legitimate criteria for conferring citizenship. The attribution would be within the state’s competence and should not be regarded as a weaponization of citizenship as it is not directed against another state, even if a particular subset of the population does not accept it. Furthermore, international law has been more concerned with forceful denaturalisation and statelessness reduction and views attempts to ensure that individuals have access to a nationality within the reduction of statelessness framework. Nevertheless, I envisage that this dimension may push us to think about states’ coercive use of nationality beyond extraterritorial nationality attribution and citizenship-stripping.
The other instances of weaponization of citizenship that would be difficult to restrict under international law are processes of passportization and documentation carried out by non-state actors, which can range from aspirant states (e.g. Abkhazia), to rebel groups (e.g. in Syria). The extreme case is ISIS, a terrorist group which engaged in state-like functions. The degree of voluntariness in acquiring documentation and citizenship of non-state actors may differ, but in most cases people are compelled to do so. Even in Abkhazia, where the majority identify as Abkhazians and have voluntarily accepted the local citizenship, some ethnic Georgians were compelled (2008-2013) to acquire Abkhazian citizenship in order to enjoy certain rights. Abkhaz authorities consider such acquisitions of Abkhazian citizenship voluntary. While any forceful attribution of citizenship must be condemned, it would not be possible to regulate these actors the same way as states. Doing so would be politically unacceptable since this would mean that the international system would give recognized states and these actors the same status. The non-recognized status, however, does not absolve the aspirant state authorities. International humanitarian law and international criminal law establish accountability for non-state actors for acts that violate human rights. However, in cases of peacetime, responsibility for human rights violations falls upon the patron state that supports the aspirant state. While, to my knowledge, no international case law exists on the weaponization of citizenship by non-state actors, any international legal regulation will likely draw upon the existing legal regimes. Thus, under international law, in the case of Abkhazia, Russia may be recognized as the responsible party for the forceful ascription of Abkhazian citizenship. Furthermore, due to the non-recognition of these actors as states, their citizenship (laws) and documents remain largely unrecognized. Thus, legally, it would not be possible to call these acts “weaponization of nationality”, and an alternative legal term needs to be found.
The answer to our first question is thus: If international law is to regulate oppressive nationality attribution as a category of its own, it can only do so in cases where a recognized state is involved in citizenship attribution towards people living outside its de iure territory.
Was citizenship attributed collectively and forcefully?
As identified by the previous contributors, it is difficult to follow a strict consent/non-consent dichotomy when it comes to acquisition of citizenship, but this is essential to consider when designing any potential legal frameworks. Eleanor Knott argued that post-annexation passportization in Crimea was used as a coercive practice to force (most) individuals to acquire Russian citizenship. On the other hand, in Abkhazia and South Ossetia, the acquisition of Russian citizenship was voluntary and on an individual basis. This is demonstrated by the fact that not all Abkhazians and South Ossetians managed to acquire Russian citizenship in the early 2000s. It is also important to acknowledge that Russia’s passportization in aspirant states is in response to a demand from the people who wish to acquire a more strategic/compensatory citizenship with greater instrumental value than their local citizenship. Thus, individual agency needs to be considered. The fact that Russia highjacked the individual agency of residents of aspirant states for geo-political and strategic reasons does not eliminate the necessity and legitimacy of Russian citizenship in the eyes of these populations.
A strong argument exists against collective attribution, but it would be more challenging to regulate and identify cases where citizenship was acquired voluntarily and on an individual basis. Thus, any international legal regulation should only address cases of collective and forceful attribution of citizenship.
Did the weaponization occur simultaneously with the attribution of citizenship?
The last question is whether or not the weaponization of citizenship occurred after or before passportization. What may have been a benevolent or humanitarian act could easily be weaponized later. This ties to the above-mentioned dimension and to Jelena Džankić’s point that most acquisitions are voluntary “even if these are offered for instrumental purposes by states and prone to misuse by them”. Extraterritorial nationality attribution that could potentially result in the weaponization of citizenship (such as in Abkhazia and South Ossetia) is more difficult to regulate since it would involve pre-emptive regulation. On the other hand, when passportization is used as part of a package of coercive means to achieve geo-political goals and engage in warfare, it should be regulated and condemned.
Thus, it is vital to differentiate Russia’s actions in Abkhazia and South Ossetia from those in Ukraine. In the former cases, there was a significant time gap between the initial passportization in the early 2000s and the 2008 Russo-Georgian war, and the need “to protect the lives and dignity of Russian citizens” was, from the aspirant state’s perspective, rightfully used as an argument to intervene. When Russia engaged in extraterritorial naturalization, it did not do so with the clear objective of using passportization as a geo-political tool. In contrast, Russia weaponized citizenship in Crimea (2014) and Eastern Ukraine (2019-present) within the context of a broader conflict. It used passportization to gain and justify control over the territory and population. While I acknowledge that determining temporal precedence is difficult, I believe that if the extraterritorial naturalization occurred significantly before its weaponization, it should not be regarded as an instance of oppressive nationality attribution. That said, if weaponization occurs post facto, international law could still reprimand the state, but only after it begins weaponizing an already granted nationality.
Punishment and pre-emption of weaponization of citizenship.
This contribution has asked three key questions that must be taken into account when determining the instances where international law can and should regulate oppressive nationality attribution. My view is that international law will be able to restrict oppressing nationality attribution only in cases where all three questions are affirmatively answered. This is because the current state-based system will not allow regulation of nationality attribution within states nor will it recognize citizenships conferred by non-state actors within the same legal framework (Question 1). Secondly, many states already pursue citizenship policies that allow extraterritorial nationality acquisition on a voluntary and an individual basis, and this practice is generally recognized as legal and legitimate. It is only when the nationality attribution is forceful and carried out en masse that the sovereignty of states becomes challenged and thus must be regulated (Question 2). Lastly, a criminal intent and act aimed at the weaponization of citizenship must exist for a state to be reprimanded (Question 3). If the weaponization of citizenship did not happen concurrently with nationality attribution but happened later, then such cases can be addressed by international law only after the weaponization. I also acknowledge that it may be more challenging to answer the latter two questions affirmatively. Thus, I see the possibility of further nuancing these two conditions to identify which cases can be regulated by international law. That said, I believe the three questions must guide the formulation of any international legal regime on the weaponization of citizenship.
If states agree upon the three conditions, the next question is how transgressing states should be reprimanded. While I do not have concrete solutions, I do believe some of the current solutions are inappropriate. Current responses to passportization have ranged from banning dual citizenship with neighboring countries (e.g. Slovakia-Hungary) or refusing to recognize travel documents issued by individuals affected by passportization policies. The EU’s recently announced policy of non-recognition of Russian passports in occupied territories ultimately hurts the people living in these regions, not the Russian state. Human rights, including freedom of movement and access to education and healthcare, are affected by not recognizing the travel documents. By adopting such an approach, the EU and other states further push the passportized individuals into Russia’s grasp.
An alternative approach would be to look at why some instances of weaponized citizenship occurred in the first place. In Abkhazia and South Ossetia, Russia could eventually weaponize citizenship because the people of these territories had no other option. Had the international system and the base state created mechanisms to address the demands of the local populations, we might not be in the current situation. While the idea may be radical, in aspirant states, the solution is to recognize the passports of these territories as valid travel documents. This would remove the incentives for these populations to seek more powerful passports for compensatory reasons.
Thus, my proposition for dealing with the weaponization of citizenship is to create mechanisms where individuals living in contested territories and possessing weak passports can more easily travel and gain access to education and healthcare. Had the international community provided a solution in the 1990s for Abkhazians and South Ossetians to travel more easily there would have been a lesser demand for Russian passports. Moreover, had the Abkhazian and Ossetian passports been recognized as travel documents, the demand for Russian citizenship would have dropped even further. This could have reduced Russia’s grasp over the region and encouraged these regions to adopt a multi-vector approach rather than be forced to get closer to their only partner – Russia. By isolating these populations and restricting their freedoms, Georgia (and the EU/West) also contributed to the inevitable passportization. So, they must also take some responsibility.
Thus, the response to the weaponization of citizenship must be two-fold. While it may be too late for the EU/West to balance against Russia, the immediate recognition of travel documents will be received positively by the population of the aspirant states, as it would decrease their isolation and reliance on Russia. Concurrently, international legal mechanisms must be established that are targeted at reprimanding the state engaging in citizenship weaponization, rather than the individuals affected by it.