Ending the passport apartheid. The alternative to citizenship is no citizenship—A reply

The color of your passport matters a lot: red or green, burgundy or azure, you are either granted valuable rights worldwide or only painful liabilities. The passport rent is both inequitably distributed and very significant.¹ This situation is usually treated as an unquestionable given. In Citizenship I argue that it is imperative to start discussing how to end the global citizenship apartheid.² Following the I•CON mini-symposium on this book, one question looms large based on my commentators’ generous engagements: “once citizenship is out—what’s next?” Indeed, the book is probably not explicit enough on this count. I thus deeply appreciate the I•CON editors’ encouragement to elaborate on this point.

However “natural,” “necessary,” or “value-laden” it is paraded to be (just as every other apartheid always is), the citizenship apartheid is as shameful as it is unjustifiable.³ The task of achieving the change is not an easy one: like slavery and aristocracy before it, citizenship sits deep in the collective imagination. It is a core building block of our social reality, as it simultaneously promotes complacency and exclusion. This is why it is equally useful in any democracy and any atrocious totalitarian regime. The “good citizenship” ideal, instilling complacency and meekness in populations, is a core tool of good governance, irrespective of the regime, and is thus omnipresent the world over. Whatever the system, divisive nationalism works and the passport apartheid is the price paid for its effectiveness.⁴ Of course, its pervasive nature is no argument to justify citizenship. Should we, as humanity, live up to the basic liberal values said to underpin our law and politics, citizenship in its contemporary form is unquestionably on its way out. Should the values remain, like in the Stalinist constitution, beautiful and irrelevant universals—citizenship will stay.

Like slavery, like sexism, like racism, citizenship knows no justification once you leave the purview of those few whom it unduly privileges. The sexists, the racists, and the super-citizens have convinced themselves, and want to convince all of us, that dignity, equality, and freedom are not to be applied to all. This is wrong. Moreover, the law of any liberal democracy, internally, would dismiss such a position as a non-starter. It happens, however, that this non-starter is the only supremely guarded given in international law and international relations: it is the holy cow and the cornerstone of the contemporary world. The totality of global-population management at all the levels of regulation today aims to achieve one goal: the preservation of the world caste system designed to shrink the horizon of opportunities of the less fortunate majority. As an inequitably distributed totalitarian token to cage the less fortunate in less fortunate spaces, in a context where core global inequalities are territorial,⁵ citizenship is a “binding claim of loyalty and unconditional legal subjugation independent of one’s wishes or preferences, which cannot be rebutted or refused” (at 39). As such, citizenship has emerged as the main tool of installment, preservation, and reinforcement of global inequality.

Pompous moralistic claims of freedom, democracy, and dignity prop up the official mantra of “separate but equal” underpinning the institutions of the contemporary world. Yet, the only function of the citizenship setup today is to bring the global majority down, and to keep it that way. In my book, I foreground the absurdity of democratic and other justifications in a world where the absolute majority of citizens have never, and will never, live in a democracy and where democratic rights have come to be decoupled from territory—and are now de facto based on blood—while laws are still territorial. This is the “natural order of the world” enforced by law and endorsed by numerous scholars without much critical reflection: a citizen is a “full member of society” in a Marshallean vacuum where that society is the only one.⁶ Just as with so many other versions of such “natural orders”—from “natural” racist and sexist hierarchies to “natural” divisions into “civilized nations” and others—any convincing justification of this system is simply impossible even on the premises which underpin its proliferation: “precisely by attempting to localize a universal ideal of equality, citizenship is bound to undermine it” (at 21).

This is why I believe that there can be no “bright side” of citizenship, unlike what Mantha-Hollands and Orgad suggest.⁷ Citizenship’s every success is the denial of the foundations of the enlightenment rationality underpinning our societies. Given citizenship’s repugnant functions in the contemporary world (to add to a much worse, officially sexist and racist story of the past), the next step from citizenship is not “replacing it.”

The next step from citizenship is no citizenship.

Slavery, sexism, and racism cannot aspire to be “replaced” once they have been confined to the junkyard of history. Their functions are outright incompatible with the core values we hold dear. The same is true of citizenship. Worse still: the principles of its distribution are equally problematic.

The question appears to be that of scale: to believe in the good of citizenship amounts to ignoring the whole world beyond our backyard and dismissing dignity and equality claims from those randomly proclaimed “not to belong.”⁸ Consequently, the belief—still entertained by many scholars and the majority of politicians today—that citizenship is necessary for democracy in that it is the only way to articulate the δῆμος is deeply problematic, as it denies any democracy’s most deeply held assumptions: inclusive territorial self-governance of dignified equals, turning a democracy into a justification of totalitarian blood-based aristocracy where rational arguments and values are muted in the face of global randomized liabilities distribution.

To act against this status quo is usually a crime. Harsh punishment awaits those prioritizing the reality of their disenfranchisement and exclusion from opportunity over the textbook neatness of justification of random privilege enjoyed by others, not them. Citizenship-based stigmatization stories today repeat the struggle of the suffragettes and revolts of the slaves against the reality designed to annihilate their claims to dignity and inclusion. Hell breaks loose over those who dare not to die while “illegally” crossing the securitized and militarized borders between prosperous democracies and the rest of the world. Every border guard in a modern Western democracy—whether he helps bouncing rubber boats back towards the Libyan coast, tortures hundreds of children who are not orphans in the detention centers in Arizona, or waves a Swiss yachtsman through at St. Barth—is a guardian of irrational and unjustifiable blood privilege. The majority of those suffering the most are black—the world’s law-and-order polices the understanding that this is the kind of blood which is particularly rubbish.

This is precisely why, pace Soysal, having a broader view of citizenship than one finds in (sociology) textbooks is crucial.⁹ The fact of the matter is simple: no, there are no “standardized” “bundles of rights associated with citizenship . . . across the nation-states” once the lived reality of rights and liabilities is keenly observed and documented with precision.¹⁰ The “separate but equal” mantra was not convincing in the imperial world—why should it be convincing today? As I document in Citizenship, the racism of Empires created separate statuses, duties, and rights de jure or de facto for those with the “wrong” kind of skin pigmentation: those considered “not white” were out. The same racism persists—it has not gone away with the dismantling of Empires. The nation-state world of the recent fifty years¹¹ is just more hypocritical: the now “free” colonials are still legally second-rate, except now a Pakistani is suddenly proclaimed de jure “equal,” in terms of status, to his former British colonial masters.

Who needs open racism if there is citizenship?

Questioning the absurdity of the fundamental separate-but-equal narrative behind the modern global legal order is the core of the Quality of Nationality Index project:¹² once actual rights and liabilities are considered, it is immediately clear why the “fundamental” change from the world of racist empires to the world of “free citizens” today might be less important for the individual trash passport holders out there, United Nations theatre and many an international agreement on “rights” notwithstanding. Worse still: many “equal” citizenships from decolonized places are much worse than their openly racist third-rate imperial predecessors. Any argument against comparing the rights and liabilities of different citizenships around the world is intellectually dishonest, even if not unusual: it is a justification of passport apartheid, the status quo dispossessing the global majority. The best way to do this is to follow T. H. Marshall, whose flawed perspective—demolished by Ferrajoli, Joppke, and other giants—still lurks in some corners of sociology.¹³

Besides scale, perspective is of equal importance. Arguments for slavery are rarely voiced by slaves—just like arguments for racism would not be coming from those not enjoying white privilege. Citizenship is no different: as I explain, it takes a T. H. Marshall to ignore citizenship’s functions entirely (at 122–5). No one among the thousands drowned in the Mediterranean trying to escape the curse of modern citizenship castes would agree that global super-citizenship aristocracy is necessary and just in dismissing the majority of the world’s population as less deserving of dignity, rights, and respect. The dilemma is thus quite a simple one: either we practice our ideals of human dignity and equal human worth—or we practice citizenship.

In The Structure of Scientific Revolutions, Kuhn offers an array of examples of when old universes of concepts got replaced by new ones following a paradigm shift.¹⁴ Such replacements are never easy, but when they do happen—following prolonged battles—they can either dispense with the old worldview entirely, as happened with the phlogiston theory, or come to regard the former paradigm as a micro-example of a much larger new vision, useful only in a strictly delimited array of contexts, as happened with Newtonian physics. The world of ideas, even though not based on the search for “truth,” unquestionably goes through similar transformations. Once individualism took hold in the West, with the aid of Pauline soteriology, there was no turning back.¹⁵ Once slavery, which has dominated human imagination, law, and the day-to-day practice for thousands of years, came to be seen as passé, it was no longer part of the acceptable statuses of human condition—either morally or legally. Countless other examples could be given—from the gradual entrenchment of enlightenment rationality, which could not be seriously derailed by the anti-enlightenment mystics, however intriguing these could be to Sir Isaiah Berlin¹⁶—to the waning appeal of caste structures and aristocracy, still published as scholarship to the deep embarrassment of the occasional reader—is aristocratic blood privilege really a value?¹⁷ As the general idea of equality took hold and the general approach to individuals saw caste membership pre-engineered at birth—just like the guys with a thread across their body and all their inferiors—being replaced with the rationality of freedom and rights protection, the world became the one we know. As long as we see the overwhelming consequences of citizenship, and it remains purely a blood privilege, there is no place for it in this contemporary world.

Crucially, by “equality” I mean equality before the law in terms of access to key citizenship rights: work and settlement. Today, where you work is as crucial as what you do: inequalities are spatialized. It is the clean slate of legally available opportunity, which is the starting assumption within any functioning democracy today. When anyone can settle in France by law – not only a properly documented former colonial subject or a Swiss businessman – legal equality will be preserved and French blood privilege forgotten. The tricouleurs can still fly and French poetry can go on being recited, but citizenship will have lost its poisonous effects, just like the title of a “countess” on a visiting card today. When Soysal asks “would this alleviate inequalities?”¹⁸—the answer, as opposed to her “sociological” skepticism, is a resounding “Yes!” When the justness of blood-based inequality is no longer the starting point of thinking about equality before the law, then basic dignity is preserved. Indeed, a new world is thereby born for all those who are branded as deficient for no defensible reason. Plentiful arguments identical to Soysal’s can be constructed based on the recurrent examples deployed above: Would the abolition of slavery reduce inequalities? Would the abolition of sexism? A sociologist might be unsure how to answer. Not so a lawyer: we tend to simplify the world.

This is what also informs the advice I give outside of the ivory tower: we need to keep in mind the countless people out there who are ready to do whatever it takes to upgrade their third-rate status of liability received by birth. These people live their rightlessness without thinking of a “world government” invoked by Abraham:¹⁹ it is about access across the lines denied to them by their blood proclaimed “deficient” by the law. They are ready to risk their lives in the Mediterranean or in Arizona, to travel the world over to give birth in Canada, to throw away millions to turn into a European, and to pass the most atrocious and distasteful “culture” tests from Denmark to the Netherlands—an ocean of risk, humiliation, and cost just to gain basic dignity. As long as we multiply the options to mitigate outright injustice,²⁰ the world will become a better place.

Footnotes

1

Branko Mianovic, Capitalism, Alone (2019).

2

Dimitry Kochenov, Citizenship (2019).

3

Joseph Carens, Aliens and Citizens, 49 Rev. Pol. 251 (1987).

4

Linda Bosniak, The Citizen and the Alien (2006).

5

Branko Milanovic, Global Inequality (2016).

6

T.H. Marshall, Citizenship and Social Class (1950).

7

Ashley Mantha-Hollands & Liav Orgad, Citizenship at a Crossroads, 18 Int’l J. Const. L. 1503, 1505 (2020).

8

Joseph Carens, The Ethics of Immigration (2013).

9

Yasemin Nuhoglu Soysal, Citizenship’s Double-Edged Sword: Locating Liberalism and Illiberalism in Citizenship, 18 Int’l J. Const. L. 1500 (2020).

10

Id. at 1501.

11

Poul Kjær, Constitutionalism in the Global Realm (2014).

12

Quality of Nationality Index (Dimitry Kochenov & Justin Lindeboom eds., 2020).

13

Marshall, supra n. 6; Luigi Ferrajoli, Dai diritti del cittadimo ai diritti della persona, inLa Cittadinanza 264 (Danilo Zolo ed., 1994); Christian Joppke, Citizenship in Immigration States, inThe Oxford Handbook on Citizenship 384 (A. Shachar et al. eds., 2016).

14

Thomas S. Kuhn, The Structure of Scientific Revolutions (1962).

15

Sir Larry Siedentop, Inventing the Individual (2014).

16

Sir Isaiah Berlin, Three Critics of the Enlightenment (2000).

17

Ana Tanasoca, Citizenship for Sale, 57 Eur. J. Soc. 169 (2016).

18

Soysal, supra note 9, at 1502.

19

David Abraham, Citizenship and Justice: Comments on Dimitry Kochenov’s Citizenship, 18 Int’l J. Const. L. 1496 (2020).

20

Dimitry Kochenov, Citizenship for Real: Its Hypocrisy, Its Randomness, Its Price, in Debating Transformations of National Citizenship 51 (Rainer Bauböck ed., 2018).