Weaponized Citizenship: Should international law restrict oppressive nationality attribution?

Weapons of Massive Deception: Defusing the Destructive Potential of Citizenship in a New Geopolitical Era

Rainer Bauböck (European University Institute and Austrian Academy of Sciences, Vienna)

In an idealised version of the state-based international order, citizenship laws serve two purposes: domestically they determine the composition of the people whom governments represent and to whom they are accountable, and internationally they sort out which individual belongs to which state and thus which state has special responsibilities for protecting that individual’s rights. When citizenship is weaponised, both of these purposes are perverted. The bestowal of American citizenship on indigenous people (discussed by Lindsey Kingston in this forum), or of French citizenship on Algerians between 1946 and 1962 consolidated their subjection in a quasi-colonial relation. And the long-standing Russian policy of passportising territorial conflicts in its neighborhood exemplifies how the attribution of citizenship can be used to destabilise other states and eventually threaten their territorial integrity.

Neha Jain’s opening essay asks what resources are available in international law for opposing and maybe sanctioning such abuses of citizenship by states. Practically all contributors to our debate remain skeptical. Jelena Džankić considers opportunities for state abuse of citizenship to be an inherent feature of the international system and calls for bottom-up resistance by citizens educated about their role. Others plead for more nuance on what should count as illegitimate weaponisation (Ramesh Ganohariti) and when (Eleonor Knott). Timothy Jacob-Owens objects that general norms designed to censure the weaponisation of citizenship could also apply to benign forms of reparative citizenship offered to extraterritorial populations who have been historically wronged. Bronwen Manby argues that international non-recognition of wrongfully attributed citizenships may hurt the individuals concerned by denying them important rights and opportunities, such as those of international travel. Finally, Peter Spiro adopts a more sanguine view about the ineffectiveness of citizenship as a weapon in most cases and suggests that existing international norms may suffice to condemn the worst cases.

I would like to toss the ball that Jain has thrown in the air in the opposite direction. We should think about the destructive potential of weaponised citizenship in the context of a new geopolitical era in which two global powers – the United States and China – are locked in a rivalry that is rapidly expanding from the economic to the security terrain; in which regional powers like Russia, Iran, Israel, India, Pakistan or Turkey – depending on the nature of their internal political regime – are more likely to act aggressively towards other states; and in which deep interdependencies generated by globalisation since the 1990s make countries also more vulnerable to the hostile acts of other states. In such contexts, even “paper swords” (Spiro) may inflict harmful wounds.

The bestowal of citizenship to extraterritorial groups can become an important tool for states claiming influence over other countries’ populations and ultimately also their territories. Domestically it may boost expansionist nationalist ideologies and abroad it can foster disloyalty among ethnic kin minorities towards their countries of residence – or at least create a perception of disloyalty among majority populations there. When assessing weaponised policies, we should not only consider their direct legal consequences, but also how they aim to force other states to react in a way that will escalate a conflict at the expense of vulnerable groups. This applies to the recent weaponisation of migration by regimes in Turkey, Morocco and Belarus as much as to the weaponisation of citizenship. The citizenship policies of Russia but also of the United Arab Emirates and other cases discussed in this forum are weapons that inflict harm through massive deception rather than mass destruction. They promote misleading claims about belonging and state responsibilities and fake solutions to the plight of minorities lacking effective citizenship rights. This does not make them innocuous.

Exploring and strengthening the capacities of international law to censure policies of weaponising citizenship seems therefore an important task within the broader agenda of preserving and strengthening a rules-based international order, at the heart of which are the principles of equal sovereignty of states and universal human rights. Even if the skeptics are correct that current international citizenship law is weak and riddled with contradictions, this is no good reason for abandoning efforts of thinking through how international law should and could be developed further to prevent abusive state policies.

International law has only weak enforcement powers to back it up. International organisations and courts do not have their own weapons to fight against the weaponisation of citizenship. They depend on states’ willingness to do so. But a progressive evolution of international law could at least remove the veneer of legality from aggressive and oppressive citizenship policies and thus provide a mandate for other states to sanction transgressions.

A sliding scale of international norms

As Neha Jain and Peter Spiro point out, there are already a host of principles in international law that could be invoked in attempts to outlaw the weaponisation of citizenship. The problem is that these principles are often in tension with each other and how one evaluates individual cases depends on how much weight is given to each. The two most important principles at stake are both derived from the basic norm of equal sovereignty: States must respect the territorial integrity of other states and they have the right to determine under their own law who are their nationals. The solution to the apparent conflict is that the former aspect of state sovereignty ought to be clearly ranked above the latter.

Such a ranking of principles should put to rest the worries of Džankić and Jacob-Owens that it is not possible to distinguish in this regard between extraterritorial naturalisations carried out in contested territories; the granting of citizenship to ethnic kin minorities in neighboring states; remedial naturalisation of descendants of minorities that have suffered historic injustices; or the effects of unlimited ius sanguinis transmissions that create large numbers of citizens in destination countries of historic emigration waves.

Where passportisation is used as a pretext for infringing on the territorial sovereignty of another country – as in the Russian military intervention in Georgia in 2008 and the invasions of Ukraine in 2014 and 2022 – it seems clear enough that international law condemns such aggression. This verdict should be extended to cases where claiming citizens in another country has – for the time being – primarily a destabilising effect, by creating client territories and de facto states that are dependent on, or controlled by the citizenship granting state, as is arguably the case in Transnistria. In such cases, territorial integrity is infringed not through overt military intervention, but through depriving a state of sovereignty over a part of its territory through sponsoring irredentist forces.

What about naturalising ethnic kin groups in neighboring states without claiming or controlling their territory? The best-known case is Viktor Orbán’s policy of turning ethnic Hungarians in the neighborhood into citizens. The policy had two intended effects: rejecting symbolically the 1920 Trianon Peace Treaty in which Hungary lost territories with ethnic Hungarian majority populations and creating loyal voters for his FIDESZ party in Hungarian elections. In one of the affected countries (Slovakia), the policy also upset the internal recognition of ethnic Hungarians as an ethnic minority through triggering a law depriving them of their Slovak citizenship if they chose the Hungarian one. A similar policy envisaged by the 2017 Austrian government towards German speaking South Tyrolians was fortunately scrapped after strong protests by Italy and the implosion of the Austrian government coalition in 2019. In most cases it would be an exaggeration to say that citizenship was used as a weapon against another state. But there is still a potential for destabilisation – not of a target country’s territory, but of its internal recognition and accommodation of ethnic minorities. This  should be enough to create a concern for international law, which has so far been addressed through soft law norms like the 2001 Venice Commission Report and the Bolzano recommendations of the OSCE High Commissioner on National Minorities mentioned by Jain. Bulgaria’s policy of first offering North Macedonians EU citizenship via a Bulgarian passport and then blocking the start of EU accession negotiations for North Macedonia in November 2020 illustrates how co-ethnic citizenship policies may eventually also affect another country’s external sovereignty.

Finally, consider states that massively inflate the numbers of their citizens abroad through unlimited transmission of nationality iure sanguinis across generations combined with acceptance of dual citizenship. In these cases, the main concern is about the effect of such policies on electoral outcomes and the meaning of citizenship in the country that hands out the passports. There is no weaponisation involved since citizenship policies do not target and destabilise other countries. However, they still interfere with domestic equality of citizenship by selectively bestowing the advantages of a second nationality on another country’s citizens. If this happens on a massive scale, it could justify complaints towards the citizenship-granting state and might become an issue for soft international norms articulated as recommendations.

Instead of throwing up our hands in despair at the conflict of norms at the heart of international law, one could thus build a sliding scale of cases, with hard international law norms kicking in at one end of the spectrum and soft ones at the other. In fleshing out such a scale, the principles of genuine link and voluntary naturalisation should play a subsidiary role. A proof of genuine link or consent in extraterritorial naturalisations is never sufficient to justify violations of the territorial integrity of another state. Where extraterritorial naturalisations have the intent or effect of territorially destabilising another state, it does not matter much whether the populations concerned regard themselves as having a genuine connection to the country that offers its citizenship and whether they genuinely consent to their naturalisation (as Ganohariti says they did in Abkhasia, South Ossetia and Transnistria) or are forced to choose an external citizenship under threats of discrimination if they don’t (as Knott argues was the case in Crimea). If international law did not rule out claims to the territory of other states on grounds of ties and consent of co-ethnic groups living there, it would open the pandora’s box of irredentist secessions sponsored by militarily more powerful neighbors, which would also fatally undermine the domestic accommodation of such minorities through cultural recognition or territorial autonomy.

The genuine link doctrine will still play an important role in countering instances of oppressive attribution and deprivation of nationality. The doctrine has fallen into disrepute among many international lawyers. Some have suggested that its positive conception of nationality as grounded in effective ties between states and individuals should be replaced by a mere negative prohibition of attribution of a nationality for the sake of exercising the right of diplomatic protection (Sloane 2009, Thwaites 2018). Yet abandoning a genuine link principle means giving up on the promise of a universal human right to a nationality made in Art. 15 of the Universal Declaration of Human Rights. How else should one determine which state is responsible for offering citizenship to stateless persons if not based on genuine connections? On what other grounds could the UAE be held responsible for circumventing their duty to turn bidoons into citizens by purchasing them the nationality of the Comoros? As I have argued elsewhere, a positive version of a genuine link principle would primarily serve as a normative guideline for citizenship laws in democratic states. It would go beyond a criterion of habitual residence by covering also first generations of emigrants and their offspring whose lives remain entangled with their country of origin. By contrast, unlimited transmission of citizenship iure sanguinis or selling passports to investors would fall foul of a genuine link requirement. Giving a positive but limited version of genuine links a more prominent role also in international law would strengthen individual rights of access to citizenship as well as mutual recognition of nationality among states, which is hollowed out by state practices of oppressive imposition as well as by offering citizenships-of-convenience to individuals on purely instrumental grounds.

Such hard and soft barriers to extraterritorial naturalisations do not entail that kin states should refrain from protecting their co-ethnic minorities abroad. Where such minorities are oppressed and discriminated against, they may need a kin state either as external support for their claims to minority rights or as a safe haven that keeps its borders open for those who have no other option but to leave. Kin states may thus act as external protectors and guarantors of minority rights and autonomy agreements (as Austria did with regard to the German speaking population of South Tyrol in 1946) or they may grant citizenship to expellees (as Germany did for co-ethnic minorities in communist Central and Eastern Europe until the end of the Cold War). Neither of these cases involved extraterritorial naturalisations, which were deemed ineffective, unnecessary, or counterproductive.   

Limits of territorial integrity

The right of sovereign states to territorial integrity may be the core norm of international law that can be applied against weaponisation of citizenship, but this right is not absolute. When a regime commits genocide or crimes against humanity, it is morally legitimate for other states to intervene on humanitarian grounds of a right to protect, even if doing so is legal only if there is an authorisation from the United Nations. The international community should have intervened to stop the genocide in Rwanda in 1994. NATO invoked a plausible threat of genocide in its intervention in Kosovo in 1999, although the legality of the latter remains disputed. The more difficult cases discussed in this forum concern contested territories or de facto states that are neither under the effective sovereignty of a parent state nor internationally recognised as independent states or as another state’s territory.

These cases highlight a major gap in international law that lacks a clear norm for resolving such territorial disputes. The two principles that are in tension here are those of effective sovereignty over a territory and those of recognition of a territory’s international status by other states. De facto states are those where the parent state does not exercise effective sovereignty but where international recognition is not sufficiently broad to settle the issue in favour of legitimising a territorial break-away. International law currently lacks the normative sources for clearly distinguishing cases of legitimate self-determination claims of such territories from illegitimate violations of the parent state’s claim to territorial integrity.

Yet it is not impossible to develop such criteria, as a vigorous debate about secession among political theorists has shown. In this dispute, I generally side with Allen Buchanan who has argued that secession needs to be justified on remedial grounds, as a last resort in response to persistent denial of a group’s fundamental rights – and, as I would add, specifically of its persistent desire for self-government within the parent state’s territory. Instead of just asking whether a territorial claim to independence is actually recognised by a large enough number of other states, international law should ask whether it is worthy of recognition by both the parent state and the international community on such remedial grounds (Bauböck 2019).

Such a normative distinction would also allow for different international law responses to citizenship in de facto states. Assume that the independence of Kosovo or Taiwan can be justified in this way although it is not sufficiently widely recognised. The implication would still be that recognising states could and should accept passports issued by these countries as fully equivalent to nationality documents. Doing so sends a strong message to (former) parent states and helps to protect individuals abroad. For example, most states seem to recognise the Taiwanese national identity card for the purposes of visa free travel, but this has not been enough to protect Taiwanese citizens from being deported to Beijing instead of Taipei.

Yet how should states deal with individuals from de facto states whose independence should not be internationally recognised? Ganohariti points out that denying recognition of citizenship documents issued by local authorities in territories supported by Russia pushes up demand for Russian citizenship. This alone is not a sufficient reason for accepting the citizenship of a territory that the international community does not wish to recognise as independent for good reasons. Both Ganohariti and Spiro point out that wide-spread acceptance of multiple nationality may help to alleviate the problem if people have access to either the citizenship of the parent state or a third country. The problem is, however, that recognising a citizenship attributed by a state that sponsors illegitimate irredentism should still be avoided, as it would mean giving in to the weaponisation of citizenship.

Resistance risks, however, leaving many individuals of de facto states without those rights that are connected to an internationally recognised citizenship. Manby’s question about the rights of Sahrawis in Western Sahara (whose international status has not been settled because the required referendum has never been held) is important. She suggests that other states could recognise passports issued by authorities governing non-recognised territories as valid travel documents, just as they do with personal identity documents such as birth, marriage or death certificates. The problem is, however, that there is a much stronger link between nationality and passports. Should the EU really recognise Russian passports issued in Donbas and Crimea or Abkhazian and South Ossetian identity documents as valid for international travel without the consent of Ukraine and Georgia? Maybe the better solution for this dilemma is one that was discussed in an earlier GLOBALCIT forum debate: new types of international travel documents similar to those for stateless persons or the Nansen passports for refugees in the interwar period of the 20th century.

Conclusion: Strengthening, not weakening equal sovereignty

In this short intervention I have endorsed the following proposals for a stronger response by international law to weaponised and oppressive uses of citizenship laws: (1) Citizenship attributions that have the intention and effect of undermining the territorial integrity and stability of other states should be considered illegal. (2) They should be distinguished from other practices of extraterritorial mass naturalisations that are worthy of critique if they violate the genuine link principle or the requirement of individual consent but should not trigger international non-recognition of such statuses. (3) International law should develop further to distinguish more clearly between territorial claims that are worthy of recognition and those that ought to be rejected. In the latter case, the rights of individuals from such territories without another recognised nationality should be protected through international travel documents and substitutes for diplomatic protection.

Such responses to weaponised citizenship would not “storm the last bastion” of sovereignty; they would merely curb the power of states to attribute their nationality in aggressive, oppressive and arbitrary ways – for the sake of defending the integrity of the affected states’ territory and citizenship. Ultimately, such a progressive evolution of international law would serve to strengthen the legal fiction that all states are equal as the makers of international law – a fiction that we need to uphold against a looming degeneration of the international order into new forms of anarchy and great power confrontation.