Paper-sword citizenship

Peter Spiro (Temple University)

Neha Jain and other contributors to this forum elegantly highlight how the attribution of citizenship can be something other than an unalloyed good. Citizenship can be a burden. That is the key element in defining weaponized citizenship: that it has been imposed without an individual’s consent. Consent remains the touchstone in defining the international law parameters of its attribution. How that consent is established emerges as the critical test of legitimacy in particular cases.

But even where we see violations of the consent principle, how much of a weapon is citizenship in the hands of states that would abuse it? In most cases, it will not be an especially powerful one, against either individuals or against other states. Unwanted citizenship is less consequential than one might suppose, imposing few distinctive obligations and (in most cases) not resulting in the dispossession of other national ties. To the extent it does make a difference, other states appear to be pushing back. In the end, perhaps there isn’t much need for a coordinated international legal response to state attempts to weaponize the institution, which are being adequately addressed through non-formal international legal mechanisms – the horizontal appraisal of and response to state action by other states and other international legal actors that fuels the establishment and maintenance of international norms.

How oppressive can citizenship be?

Citizenship will be oppressive to individuals only where it implicates material costs. In theory, there are a number of ways in which imposed citizenship could harm individuals. In practice, there a few contexts in which such harm results.

Perhaps the greatest historical cost associated with imposed citizenship is now largely a thing of the past. The acquisition of nationality, regardless of its basis, once invariably resulted in the loss of original citizenship. That was a major element in the emergence of the consent norm. Latin American states in the late nineteenth into the twentieth centuries sought to automatically naturalize noncitizens after a certain period of residency. An important motivation for this form of nonvolitional naturalization was to deprive American and European immigrants of the diplomatic protection of their home state’s nationality which would have terminated by operation of law upon acquisition of the additional citizenship. In that context, loss of original citizenship would have posed a major cost for the affected individuals.

It remains true today that loss of original citizenship would in many cases pose a major cost along various dimensions. Citizenship may come with domestic and global mobility privileges. It will often have expressive value, reflecting an affective tie with the state. Any imposed citizenship that implicated loss of original citizenship would qualify as oppressive for these reasons.

But that does not appear to be a part of the cases that Jain highlights. Indeed, states that are attempting to weaponize their own citizenship generally will have no control over other states’ attribution of citizenship. When Russia imposed citizenship on individuals in the breakaways and elsewhere, it could not dictate loss of original citizenship. Although Ukraine vigilantly enforces a prohibition on dual citizenship, it rejected the legality of Russian naturalization in occupied territories, thus allowing affected individuals to retain Ukrainian nationality. I am not aware of any contemporary case in which imposed citizenship has resulted in involuntary loss of original nationality.

This is in large part a function of a changed landscape in which dual citizenship is widely accepted where it was once aggressively suppressed. Nonconsensual citizenship is a different quantity where it merely adds to one’s citizenship of choice. Of course, it can implicate identitarian costs – no one likes to carry the passport of a hated oppressor. In this respect, Lindsey Kingston’s description of the identity-destroying imposition of US citizenship on Indigenous Americans is instructive. But as long as one gets to keep one’s real citizenship, as it were, that oppression seems somewhat ephemeral.

Imposed citizenship could also be oppressive where it results in unwanted obligations. It is first of all difficult effectively to enforce obligations in the absence of territorial control. Citizenship imposed on individuals beyond territorial control is thus unlikely to be much of a weapon insofar as a state is less likely to be able to enforce any attendant obligations. An interesting outlier case involves the unique U.S. tax regime imposing tax liabilities on external citizens, including those who have the status through accident of birth. Leaving aside questions of jurisdiction, moreover, as citizenship obligations dissipate more generally, the status is less likely to implicate material costs in any context. If citizenship doesn’t demand much of its holders there is a lowered risk that it will oppress.

There may be exceptions. Russia’s passportization policies, which are at the center of this forum, present an example. Although passportization prior to occupation poses lower risks to individuals, insofar as acquisition of Russian nationality on an external basis is more likely to be volitional and unlikely to involve the exaction of obligations, the constructive imposition of citizenship after occupation has translated into serious costs for many in the form of military conscription. That surely counts as oppressive citizenship. At the same time, however, the legality of conscripting Crimean residents does not depend on the legality of the citizenship policy. Russian conscription of Crimeans violates the well-established rule of international humanitarian law that occupying forces may not conscript residents of occupied territories. It’s not clear what a norm against weaponized citizenship would add to that regime. In any case, the Russian policy appears the only recent example in which the imposition of citizenship has resulted in a direct cost on individual holders.

Finally, there is the anomalous case of the constructive imposition of Comoros citizenship on otherwise stateless bidoons in the UAE. There may have been a cost of sorts implicated in this transaction to the extent the gambit succeeded in relieving international pressure to extend Emirati citizenship to this population. That gambit appears to have failed; human rights groups have not relented in their criticism of UAE deprivation of bidoon rights, and some states (including the US) have refused to recognize passports issued under the scheme. Kuwait retreated from replicating the UAE policy in the wake of its rejection. In the meantime, the Comoros citizenship itself does not result in any direct burdens on its holders. It may not be oppressive in any real sense, disgraceful though the policy may be (in some cases it might actually benefit the bidoons, in the same way that Bronwen Manby describes of the Moroccan nationality attributed to residents of the Western Sahara).  

Citizenship (weakly) weaponized

Nor is citizenship much of a weapon as used against other states. States have no doubt come to see citizenship policy as a tool. But instrumental uses of citizenship are typically benign. Where they have been pathological, other states have objected. To the extent that citizenship adds anything to the state’s policy armory, it has been mostly defused.

Many states have moved in recent years to expand access to citizenship on the basis of descent or ethnic affinity. In most cases these initiatives have hardly been worthy of note, at least not from a global perspective. They are in any case almost always uncontested, from both a policy and legal perspective. If states want to make citizenship more widely available, that is generally seen as a good thing. Extraterritorial attribution of citizenship based on descent satisfies the Nottebohm judgment’s “genuine links” test (insofar as that test continues to have traction in the first place). Affinity regimes have also been accepted as consistent with international norms; to the extent that they are being questioned, it is not on behalf of those to whom citizenship is extended but rather those who are excluded from the citizenship grant. That Spain, for example, shortens its naturalization residency requirement for nationals of Latin states is a boon for those who secure citizenship under the scheme. It is problematic because it discriminates against those who do not.

The interests of other states are generally unaffected by these policies, all of which are premised on the consensual acquisition of citizenship. A notable exception was Viktor Orban’s move to extend citizenship to Hungarian ethnics as “near kin” in neighboring states. While the policy does not appear to be oppressive to individuals who have secured citizenship under the policy, it  triggered protests from some neighboring states, as Jain and others have noted. As Szabolcs Pogonyi points out, the Orban policy was clearly instrumental, not so much for sovereign but rather political interests (this population votes overwhelmingly for Orban’s Fidesz party).

But it’s not clear how those state interests are diminished in this or other cases so long as other international legal constraints are respected. States that perceive a threat in such actions remain able to prohibit dual citizenship consistent with international law, in which case the acceptance of the external citizenship comes at a high cost. Slovakia, notably, continues to bar resident Slovakians from also holding Hungarian citizenship. Otherwise, the Orban policy has stuck. For most states, as Jelena Džankić suggests, it would be difficult to police against such uses of citizenship without casting doubt on the now-broad recognition of ancestral citizenship and the dual nationality that comes with it. Many people who hold the citizenships of their grandparents may not have much connection to that homeland, but that isn’t doing anyone any harm. Citizenship in this guise isn’t so much “zombie” as it is phantom.

Russia’s passportization again presents a contrast to the extent that it has been put to work as a pretext for other acts inconsistent with international law, under the guise of protecting its new nationals. That justification has fooled no one. No state has accepted the protection of putative nationals as legitimizing the military action. Passportization hasn’t advanced Russia’s efforts to secure international acceptance of expansionist policies. In other words, it hasn’t been much of a weapon.

Back to consent

Russia’s practice also goes to the consent questions. The naturalization of Ukrainians in Crimea has been contested on this score. Crimean residents were extended Russian citizenship by operation of law; although an opt-out procedure was made available, some have argued it was constrained to the point that the automatic naturalization was constructively non-consensual. 

The allocation of Comoros citizenship to stateless bidoons has drawn similar fire. Although nominally volitional, bidoons were reportedly pressured into accepting Comoros citizenship through ruses. For example, authorities created the impression that only by accepting Comoros citizenship would individuals be eligible for citizenship in the UAE. UAE authorities also reportedly made eligibility for basic social services contingent on taking the Comoros passport (see Noora Lori’s book ‘Offshore Citizens’ for a definitive account).

Whether or not these actions violate international law implicates factual questions – empirical, in Eleanor Knott’s formulation. To the extent that naturalization is nonconsensual, it is inconsistent with international law. That norm is clear, one of the few hard constraints under international law on state nationality practice. Whether the Russian and UAE actions violate this norm is a question that is being hashed out through the standard machinations of international law – a kind of act-and-response dynamic in which an array of international legal actors judge the legality of state conduct. Consent remains the touchstone, a standard we’re now looking to refine through practice.

Through this lens, Russia’s passportization in Crimea (at least following the occupation) and the UAE’s Comoros action appear inconsistent with the volitional naturalisation norm and international law. To the extent there is a problem here we already have the answer. That may not stop other countries from putting citizenship to ill use of course. No law enjoys perfect compliance, international law less than others, to be sure, given its horizontal structure. But these and other recent examples of putatively weaponized citizenship will supply no validation for bad behaviour in the future.