Citizenship―the legal link between the individual and the nation-state―has developed its own independent history. Prior to the American and French Revolutions, citizenship was based on allegiance to versus protection of the King, but in the nineteenth century it was transformed into a conditional status based on rights and duties. Recently, courts and governments have secured citizenship, bringing about a new stage in its development: reversing the traditional dependency of the individual on the state, they recognized that sovereignty belongs to citizens. This model was presented by the U.S. Supreme Court in the late 1950s, but originated in a movement of the whole international community which aimed to guarantee the protections of citizenship to all individuals: it reduced statelessness, securing it for 99.8% of human beings; it gave rise to multiple citizenship and, paradoxically, reinforced nation-states as the main providers of the “the right to have rights.” Far from signifying a “post-national” or “disaggregated” form of citizenship, these legal developments, in the context of globalization, consolidate and reinforce national citizenship.
Citizenship has multiple different definitions, but three are most often distinguished. The first is legal―linking an individual to a nation-state. The second definition is political and civic. In a democracy, adult citizens elect their representatives, while foreign residents and minors participate in civil and political society in other ways. Finally there is the psychological dimension: “the feeling that one belongs, is connected through one’s sense of emotional attachment, identification and loyalty.”1 In nation-states, this feeling is created by membership in an “imagined community,” constructed from official cultural frames of social belonging within a nation-state.2 These three dimensions do not always correspond or coincide, but the legal dimension, manifested through passports and national IDs, confers a legal status upon more than 99% of human beings, independently of their sense of belonging or degree of participation. In this article I will deal with this dimension of citizenship, which is synonymous with “nationality” in international law.
In the last twenty-five years, nationality laws have been the subject of polarizing debates. The first set of disputes concerned the content of these laws. Through historical3 and comparative4 studies, scholars have emphasized several “structural” oppositions (ascription vs. consent, jus soli vs. jus sanguinis) that reflect different national identities or meanings of citizenship.
The second and more recent set of debates has arisen from a crisis of legitimacy of “nationality.” Nationality is said to have been undermined both by external competition from other affiliations (sub-, trans-, or supranational, ethnic, religious, gender-related, etc.) and by its own inegalitarian qualities.
I have previously shown how old debates over the differences in the content of various states’ nationality laws have become irrelevant.5 Nationality laws based on jus sanguinis (a French invention) or on jus soli (a tradition maintained by the British) have their own history developed independently of conceptions of national identity. In this paper, I argue that the second set of debates has exaggerated the crisis of citizenship. In fact, far from being dépassé, national-state citizenship has developed a new vitality. Once based, before the American and French Revolutions, on allegiance to vs. protection of the King, and transformed in the nineteenth century into a conditional status based on rights but also on duties, citizenship has recently reached a new stage of its development as an element of an unalienable sovereignty. In the context of globalization and the development of advanced technology, a new strategic collaboration between the individual and the state has emerged as their interests have converged.
When the structure of nationality was at stake
The false jus soli / jus sanguinis opposition
Because jus soli and jus sanguinis are the main tools of attribution of citizenship at birth,6 divergences between nationality laws based on these two regimes have, for a long time, been presented as reflecting varying essential or dominant conceptions of the nation.
In a seminal but misleading work, Rogers Brubaker7 associated the French jus soli with a more open and inclusive conception of the nation and contrasted it with the German jus sanguinis, blood-based descent, which in his view corresponded to a closed, ethnic conception:
Existing definitions of citizenry―expansively combining jus soli and jus sanguinis in France, restrictively reflecting pure jus sanguinis in Germany―embody and express deeply rooted national self-understandings, more state-centered and assimilationnist in France, more ethno-cultural in Germany.
Brubaker concluded that “[t]he politics of citizenship vis à vis immigrants pivots on national self-understanding, not on state or group interests.”8 In a book, published recently in English,9 I have demonstrated that Brubaker was mistaken. The principle of jus sanguinis was not developed in Germany but instead first appears, in a break with the jus soli rule dominant in eighteenth-century Europe, in the French civil code of 1803. Contrary to Napoleon Bonaparte’s wish, jus sanguinis became the sole means of transmission of French nationality at birth. Jus soli was perceived as a legacy of feudalism by the last remaining French Revolutionaries: human beings were linked to the lord who held the land where they were born. In their opposition to jus soli, they were joined by more traditional legal scholars―like François Tronchet―who defended the reintroduction and the adaptation of Roman law into modern nationality law. The grant of French nationality at birth only to a child born to a French father, either in France or abroad, was not ethnically motivated. It was the first step in the creation of a modern independent citizen―no longer a permanent property of the Sovereign on whose soil he was born, but now a subject of rights. Nationality, like the family name, would be transmitted by the pater familias, independently of the place of birth. 10
This French innovation, through constraints or imitation, progressively became the law of continental Europe.11 The following countries adopted jus sanguinis in their laws: Austria (1811), Belgium (1831), Spain (1837), Russia (1864), Italy (1865), the Netherlands (1888), Norway (1892), and Sweden (1894). Prussia (1842) also borrowed from the French civil code for its first legislation on nationality. In parallel fashion, the British tradition of jus soli was transplanted unbroken to its colonies in North America (the U.S. and Canada), Europe (Ireland), Africa (South Africa), and Australia.12 As long as these legal traditions continued to support states’ interests regarding migration, or at least did not oppose them, the core of the national legislation was maintained. In countries of immigrants, such as the United States, Canada, or Australia, jus soli allows immigrants’ children automatically to acquire American, Canadian, or Australian citizenship. For continental European countries that were countries of emigration, jus sanguinis allowed the maintenance of links with citizens abroad until their descendants lost touch. Yet at the end of the nineteenth century, when France felt itself becoming a country of massive European immigration, in both its metropolitan territory and in colonial Algeria, it reintroduced jus soli. This was the first instance of a phenomenon that would appear in the majority of jus sanguinis Western European countries as they, too, became countries of immigration in the second half of the twentieth century. It took only ten years for a reunified Germany―whose national self-understanding has often been depicted as almost paradigmatically ethnic in character―to introduce jus soli in 2000, a move almost impossible to make before 1989, when millions of compatriots were living outside the borders of the Federal Republic of Germany.
Of course differences remain: the majority of Asian countries define nationality through jus sanguinis.13 In some countries, like Japan, this is a result of the original influence of French or German codes; in others, like China, it is due to the state’s interest in keeping control of nationals abroad.14 And countries that don’t perceive themselves as countries of immigration or have unstable borders (Israel, in both cases15) have an interest in conserving jus sanguinis. But what is important is that the Western experience has demonstrated that nationality laws can change under different circumstances. They are not carved in stone. In the Western world, they have not been the reflection of a conception of nation or national identity but mainly the product of legal traditions or transplants, of state interests, of the evolution of the relationship between the nationals and the state, and of the country’s own perception of its place within migration patterns.
Can opposition between consent and ascription permit us to differentiate citizenship laws?
Peter Schuck and Rogers Smith, in a controversial but important book,16 have criticized ascriptive, automatic jus soli. They link the attribution of citizenship at birth without “consent” to its relation to feudalism and its regime of perpetual allegiance. They argued for a new interpretation of the 14th Amendment to the U.S. Constitution, which was adopted in 1868 in the aftermath of the Civil War and which states that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Having studied the debates over its adoption, they considered that “its drafters … intended the clause to institutionalize a requirement of mutual consent by both the individual and the polity.”17 Therefore the clause should not apply to the children of illegal aliens born in the United States.
Gerald Neuman replied that:
The meaning of the phrase “subject to the jurisdiction” has been well established for a century.18 It means actual subjection to the lawmaking power of the United States. It echoes the English common law notion of the King's protection and sovereignty. “The common law exceptions included children of foreign diplomats, who were legally immune from domestic law, and children born to women accompanying invading armies, who were practically immune from domestic law.19
Beyond their historical investigation, Schuck and Smith base their consent argument on the work of philosophers, especially John Locke, but also Harrington, Montesquieu, and Rousseau,20 who emphasize collective will and freedom of consent as norms for reshaping modern polities. However, I believe that this reading confuses one definition of citizenship―the link between an individual and a state―and its means of individual transmission or attribution―with the participatory one, which emerged in the eighteenth century (illustrated by regime changes, revolutions, the creation of new independent nation-states and the democratization of power).21
From whence comes this idea of consent? The word “nation” itself has a long lineage, as does the idea that the human race is naturally divided into nations. In European usage, nations were facts of nature: they signified basic divisions of the human species, not products of human will. From 1140, when a Norman bishop described the Welsh natio to the pope as a group distinct in “language, laws, habits, modes of judgment and customs,” to 1694, when the first dictionary of the Académie Française defined nation as “the inhabitants of a common country, who live under the same laws and use the same language,” the meaning changed relatively little.22 Until the age of revolutions, the idea of actively constructing a nation through political action lay beyond the mental horizons of Western Europeans. The eighteenth century marks a break: philosophers who emphasize the privilege of citizens of each nation to define their rights reflect the same social evolution that would transform the people from subjects to sovereigns. The mechanisms of this transformation included revolutions leading to secession/independence (the American Revolution) or to a change in the organs and the content of State power (the French Revolution) but also explicit and formal expressions of collective consent such as referenda: numerous referenda and plebiscites took place during this period (Savoy and Nice 1860; Saar 1924). Sometimes the referenda produced independence and, other times, they led to the attachment of territory to other, already existing states.
In fact, the new dimension of citizenship (some nationals―i.e., adult males―become part of citizenry, represent the nation, and exercise political power) did not affect the techniques for transmitting nationality. Sometimes, these techniques even opposed the ones used to express the new participatory dimensions of citizenship.
The French intellectual Ernest Renan, for example, defined a “nation’s existence” in 1882 as “a daily plebiscite, just as an individual’s existence is a perpetual affirmation of life.”23 For him, it was, in the aftermath of the defeat of France by Prussia in 1870−1, an invocation of the right of the inhabitants of Alsace-Lorraine, attached without their consent to the new German Empire, to decide their destiny through the expression of their collective will. Yet, at the same historical moment (in 1889), the French Parliament passed a law, sponsored by Renan’s personal friend Antonin Dubost, that imposed French nationality at birth on many foreigners without, or even against, their consent.24 This confusion is understandable in the American context. In the first decades of its existence, the United States was a nation of people, who had successfully expressed their revolutionary will to become independent, and of naturalized immigrants who had to express their will to become American. This milieu fostered the idea that citizenship was based on consent. But this trend has created confusion between the content of the link—the citizens, members of an independent Republic, are not anymore subjects and choose their government—and its mode of transmission, which remained based on the British tradition of jus soli and applied to the following generations of Americans, who did not have to fight for their independence or to be naturalized.
Since the human lifespan is limited, states, in order to ensure their own continuity, have had to find legal tools that not only attribute nationality but also transmit it from generation to generation.25 The tools of transmission at birth are mainly ascriptive jus soli or jus sanguinis.
But consent has become in our contemporary world the main technique of attribution of citizenship after birth. It allows persons at the intersection of different citizenships―long-term foreign residents, mixed couples, and children born to foreign parents to acquire or to abandon a citizenship by their will and not by a discretionary law or the sole decision of the state.
The legitimacy of nationality
The decline of nation-state affiliation?
This expansion of the rights of the individual at the intersection of multiple citizenships has led Yasemine Soysal, in a much remarked-upon essay,26 to envision the emergence of rights beside or beyond citizenship, “based on universal personhood rather than national belonging,” for foreign residents of Western Europe. These new individual or collective rights and recognition would be postnational, exercised either at the local level, where immigrants could more easily become citizens, or at the European level, and would guarantee some universal rights against or beyond the state would lead to the weakening of the nation-state. This system would also require a new international legal framework based on human rights and personhood.27 The European Union was the experimental ground for these new institutional affiliations. The right of non-EU citizens to vote in local elections was expanded,28 European courts condemned the practices of nation-states in cases related to immigration and the deportation of foreigners. Thus Seyla Benhabib could write in 2006:
we are facing today the ‘disaggregation of citizenship.’ … Within the European Union, in which this disaggregation effect has proceeded most intensively, the privileges of political membership now accrue to all citizens of member countries of the Union who may be residing in territories other than those of their nationalities. It is no longer nationality of origin but EU citizenship that entitles one to these rights.29
It is true that in the European Union immigration rules have been more and more Europeanized, sometimes by courts and in the name of treaties that are difficult for nation-states to abrogate (for example, the European Convention on Human Rights), and more recently―and often not in favour of immigrants―by restrictive coordination between nation-states. But Europeanization has been recently trumped by the re-nationalization of citizenship. Far from declining, that nationalization has been reinforced in the recent treaties of Amsterdam and Lisbon. As article 20 stated:
Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.30
Adopted with much difficulty and having overcome numerous obstacles, the European Constitutional Treaty will likely not be modified for some time and access to European citizenship will remain within the sovereign realm of the member states.31
Peter Spiro, in a stimulating book,32 accurately describes the rise of other affiliations (gender, sexual orientation, religion) among Americans, who are also increasingly likely to enjoy multiple citizenships. He emphasizes the disconnection between the legal link to the state and the feeling of belonging that identification with these new communities―which are often transnational—tend to provide. But Spiro himself does not envision the substitution of non-national modes of affiliation for classic conceptions of citizenship due to their rigidity and illiberalism, and he concludes by acknowledging the “continuing relevance of states in the world order.”33
Thus, for the time being, national citizenship remains strong, and not only in the European Union. Indeed, citizenship remains the sole basis of certain rights―international protection, right of repatriation, political participation, protection against expulsion―without which the individual would be denied fundamental entitlements,34 as well as of other basic rights from which foreign residents can be excluded even after having been able to benefit from them (as happened in the US in 1996 when the Personal Responsibility and Work Opportunity Act barred legal permanent residents from being eligible for Medicaid and other government welfare programs for the first five years of their status).
It is a sign of the continuing importance of national citizenship that recent debates involve demands for greater social justice not through the dépassement of citizenship, or even within citizenship, but between national citizenships.
An unfair status?
In 1987, Joseph Carens wrote that citizenship is “the modern equivalent of feudal privilege―an inherited status that greatly enhances one’s life chance.”35 Following his lead twenty years later, Ayelet Shachar cleverly contested the inegalitarian dimension of the generational transmission of ascriptive citizenship.36 Comparing birthright citizenship to automatically inherited property, she points out the unfairness of being born in Bangladesh to Bangladeshi parents rather than in Switzerland to Swiss parents.
There are conceptual difficulties with casting citizenship as a form of property: property can be sold, while citizenship can only be transmitted or attributed. But Shachar compares the institution of automatic citizenship to a fee tail―an inheritance regime that dates back to medieval England and that involved a land estate automatically transmitted from A to B and the heirs of his body in order to keep the property together.37 To compensate for this injustice, Shachar suggests a sort of “global birthright levy” to “redistribute resources from those nations who have disproportionately benefited from the intergenerational transfer of property of citizenship to those who have not.38 She proposes also to move from an ascriptive jus soli or jus sanguinis to a system she names jus nexi that would recognize the link of real socialization in order to progressively include in citizenry the long-term foreign residents or exclude the descendants of expatriate citizens.39
Citizenship and property have old and evolving links. In medieval England the capacity to possess land was reserved for the King’s subjects.40 In Ancien Régime France, foreigners were forbidden from transmitting property. Citizenship was defined negatively as the right to inherit private property, and the boundary between French people and aliens (aubains) was in fact defined in the course of legal contests over inheritance and succession.41 In practice, citizenship was a concern only of those wealthy enough to travel and to possess property.
Since then, however, rights of inheritance and of property have become de-linked. Since citizenship has been created as an independent and explicit status based on public and private rights, it has—formally—expanded to all citizens independently of their wealth. It is difficult to compare the fee tail system, created to make certain that land remained in the family, to citizenship law, especially when citizenship is attributed through jus soli, which permits children or grandchildren of immigrants, born on the territory of a state, to obtain the nationality of that state and not that of their parents. The fee tail is partly analogous to jus sanguinis, the transmission of nationality by descent. But, in contrast to jus sanguinis, the fee tail system often discriminated between male and female heirs and was impossible to escape.
It might have been more appropriate for Shachar to compare the latter to the practice, common in civil law countries, of imposing automatic and egalitarian transmission of property to all heirs (males and females), whatever the will of the parents—not to preserve the property, but to insure a principle of justice. This principle justifies that the status of “heir” is externally imposed, not by families, but through an automatic mechanism. Alexis de Tocqueville was
surprised that ancient and modern writers on public matters have not ascribed greater influence over human affairs to the laws governing inheritance. Such laws belong, of course, to the civil order, but they should be placed first among political institutions, because of their incredible influence on a people’s social state, of which the political laws are merely the expression. Furthermore, inheritance laws act on society in a sure and uniform way; in a sense, they lay hold on each generation before it is born.
And Tocqueville praised the instrument of inheritance42 when guided by the principles of equality:
it divides, partitions, and disseminates wealth and power… . The machinery of the law crushes or shatters anything in its way, it rises up from the earth only to hammer down again and again until nothing remains but a shifting, impalpable dust, on which democracy rests.43
Citizenship has grown to become a status attributed to millions of individuals automatically at birth, independently of the will or the wealth of their parents, in a very egalitarian way, not just according to parenthood but also by birth in the territory, or later on in life, through residence or marriage.
Citizenship―when it is inherited―also remains distinct from property insofar as its transmission or attribution does not occur through transfer of goods from one owner to another or any division of property: new citizenships created by jus soli, jus sanguinis, or naturalization do not obviously diminish the value of existing citizenships. In that sense citizenship is a public good “which all enjoy in common in the sense that each individual's consumption of such a good leads to no subtractions from any other individual's consumption of that good.”44 But if citizenship is a non-rivalrous good, it is partially exclusive. Additional membership, i.e., access to the consumption of the good, is limited by conditions, although these conditions don’t always reflect the traditional distinction between legality and illegality because they sometimes allow the acquisition of citizenry as a result of unauthorized access to the territory of the state (the 14th Amendment to the U.S. Constitution or the French double jus soli). Once these conditions are fulfilled, there is no limit to the expansion of the number of citizens by transmission. Therefore citizenship possesses a dual nature: it is both a club that limits entrance from outsiders and a public good which places no inherent limits on increases through transmission.45 And it is a good which has reached recently a new stage of its development in the concept of secured citizenship.
To recapitulate: originally nationality meant being a subject. Mainly ascriptive, its rules of admission and exclusion were imposed on individuals at birth or after birth. The national status was significant only to a small minority of citizens, mainly property owners. At the end of the eighteenth century, when nationality was first explicitly defined, the content of the link between the state and the individual was transformed. From a reciprocal system of personal allegiance to a King, given in exchange for his protection, it evolved to become mainly the basis of civil and political rights granted in exchange for the citizen’s respect for the laws.
Yet for the next 150 years, the techniques of creation, attribution, and deprivation of citizenship laws didn’t recognize the freedom not to have national allegiance imposed against one’s will, nor the right not to be deprived of membership in the nation-state: citizenship remained an unconditional or a conditional status, determined by the state, most often independently of the will of the individual. Yet, this imposition of the power of the state upon the will of the individual shifted from some categories of citizens to others: the nineteenth century saw the right not to be automatically naturalized affirmed (foreign residents in German states or Revolutionary France); it was followed by the recognition of the right of expatriation in the United States (signaling the end of the feudal dimension of British jus soli―the perpetual allegiance to the King and therefore to the state), and in other countries.46
But the status of women became increasingly precarious: those who married a man of another nationality were increasingly losing their citizenship. Denationalization of women who married foreign citizens was implemented in 1803 in France, and later on adopted by the UK (in 1870) and the U.S. (in 1907). And, at the beginning of the 20th century, forced denaturalization or denationalization47 were further institutionalized and developed.
Following the lead of the United States in 1906, the United Kingdom instituted denaturalization mechanisms in 1914 and reinforced them in 1918. France instituted denaturalization procedures in 1915, originally only for the duration of the First World War, and in 1927 made them permanent through legislation. In 1912 the U.S. Supreme Court upheld the constitutionality of denaturalization for fraud48 and in 1915 of denationalization of American women marrying foreigners (Mackenzie v. Hare, 239 U.S. 299). In 1913, in Luria v. US, the Court defined citizenship as “membership in a political society,” and said that it “implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other.”
In the middle of the twentieth-century citizenship had become conditional for an increasing number of categories of citizens: women marrying foreigners, naturalized citizens, native citizens recruited into foreign armies or civil services, or those who voted in foreign elections, were naturalized in foreign countries or deserted in time of war.
However, at the time of the World Wars―in France and the UK during the First World War, and in the U.S. during the Second―courts began to restrict the power of the state to denaturalize or expatriate.49 Interestingly, a noticeable evolution of the definition of citizenship occurred through the evolution of the U.S. Supreme Court on cases related to denationalization.
Echoing the Schneiderman50 and Baumgartner51 opinions, which annulled in 1943 and 1944 the denaturalization of a Naturalized Communist and of Naturalized nazi, in Trop v. Dulles52 the Supreme Court invalidated the provision for expatriation upon conviction for desertion during the time of war. The Court declared unconstitutional this provision of the statute on the ground that it violated the 8th Amendment, which forbids “cruel and unusual punishment,” by rendering Native American citizens stateless.53 Six years later, on 1 May 1964, in Schneider v. Rusk,54 the Court held that a statute providing for loss of citizenship by a naturalized citizen for residing in his country of origin more than three years was contrary to the 5th Amendment that does forbid discrimination that is “so unjustifiable as to be violative of due process.”55 Justice Douglas, who delivered the opinion of the Court, declared that this invalid discrimination “proceed[ed] on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born.”56
The same day as Trop v. Dulles, in Perez v. Brownell57 Chief Justice Warren developed a new definition of citizenship:
Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be. In this country, the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, and, like the alien, he might even be subject to deportation, and thereby deprived of the right to assert any rights. This government was not established with power to decree this fate. The people who created this government endowed it with broad powers. They created a sovereign state with power to function as sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government.
What was a dissenting opinion became, in 1967, in a key decision Afroyim v. Rusk,58 the opinion of the majority of the U.S. Supreme Court which restored the citizenship of a naturalized American who had voted in an Israeli election. Justice Black’s majority opinion described citizenship this way:
Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.59
To the challenge of expatriation faced by American citizens, the Supreme Court of the United States had answered with an innovative concept: the sovereignty of the citizen. The right to have rights, of which Emma Goldman and Hannah Arendt spoke from their situation of statelessness, would not protect the dual citizen. The sovereignty of the citizen protected all “insider” citizens from unwilling expatriation. Once attributed, citizenship would no longer be conditional but unconditionally secured and guaranteed. And Sovereignty, instead of being “the supreme power of the State on individuals within its Jurisdiction”60 was becoming shared among and belonging to its citizens, each of them benefitting from its character of inalienability and permanency. The function of ascription had therefore been reversed. Instead of the nation state being able to impose citizenship at birth to individuals without their consent, it has become the obligation of the nation state to insure the statute of citizenship at birth for those under its jurisdiction or under no other national jurisdiction.
The time when this new approach was endorsed by the United States Supreme Court was also the time when many other nation states guaranteed citizenship to their female, expatriate or naturalized citizens or protection to stateless individuals61 through domestic legislations or international treaties.62
It was as though the community of nation states has been summoned to attribute citizenship to all human beings as a fundamental obligation, without which he or she cannot have dignity and enjoy rights.
To reach this new stage of its development, changes at the margins of the techniques for the attribution of nationality after birth have been sufficient. Jus sanguinis, jus soli, naturalization rights based on residence which all existed before the eighteenth century remain the best methods for granting every individual in the world a secure and permanent status (while ensuring the legal reproduction of a state).
So the move Ayelet Shachar proposes―from an ascriptive jus soli or jus sanguinis to a jus nexi that would link citizenship to actual socialization, is at best unhelpful, at worst risky—if not simply out of date.63 It is unhelpful, because attribution of nationality at birth, whether by jus sanguinis and/or jus soli, remains the best guarantor that, through family and/or social education, the child will acquire “a social fact of attachment, a genuine connection of existence, interest and sentiments together with reciprocal rights and duties”―the definition of nationality adopted by the International Court of Justice in 1955.64 In addition, it provides clarity, accessibility and security, all qualities that jus nexi would not by any means possess. As a tool, jus nexi has an ambiguous dimension. It could encourage the adoption of mechanisms of inclusion of foreign residents in the countries where such mechanisms do not currently exist. But it could unsecure the status of numerous nationals: those who nowadays can easily prove their citizenship through a certificate of birth could have to face immigration bureaucrats in charge of certifying their long term residence/jus nexi. In addition, the exclusion of the descendants of expatriates from citizenship contradicts a new trend: an alliance between the emigrant, his or her descendants and their state of origin, reflective of new links between the individual and the nation-state in a globalized world. New technologies make greater, for the individual, movement within and across borders and, for the state, the expansion of its network.
The new alliance between the individual and the nation-state
The security of citizenship for women and naturalized citizens has had a significant consequence: the ineluctable rise of dual and multiple citizenships. Originally opposed to or reluctant to condone this status, increasing numbers of states accept the phenomenon and even tend to use it as a strategic asset.
At the beginning of the twentieth century, France and the UK were the only destination countries which were indifferent to the citizenship status of their naturalized citizens. For them it was a matter of sovereignty. As a French Minister of Justice put it in 1915, “our law cannot bow before foreign legislation and give up viewing as French those individuals upon whom it has deemed it appropriate and in our interest to confer this title every time it pleases foreign law to keep them in bonds of allegiance.”65 On the other side of the migration spectrum, when Germany, a country of emigration, formally granted its citizens the right to naturalize abroad while retaining their citizenship, in 1913 it did so in the context of more serious controversies.66 But these were the exceptions. The majority of states, backed by legal scholars, condemned dual citizenship and tried to prevent it.67 In 1930 the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws stated that “it is in the interest of the international community to secure that all members should have a nationality and should have one nationality only” (League of Nations, 1930). In 1963, a Council of Europe Convention provided for the reduction of dual citizenships among citizens of the signatory states.
The situation changed during the second half of the twentieth century. After the Second World War, the UK (1948), France (1973), and the United States extended to their citizens living abroad the right to naturalize while retaining their citizenship―the first two through laws that reflected the changing interests of the state and the latter in a set of Supreme Court decisions.68
Since then, multiple citizenship has spread widely beyond these states, at first as a consequence of the equality women acquired with men in matters of nationality.69 A woman marrying a man of another nationality no longer loses her nationality, and she transmits it to her children, just as her husband does. The second factor in its growth was the ban on involuntary expatriation. This new trend has destabilized the most conservative legislative regimes. Progressively these unwished-for changes have become strategic components of state policy towards foreign residents and citizens abroad. Traditional countries of immigration began accepting dual citizenship (Canada in 1977, Australia in 2002). In Europe, countries which are still highly reluctant to liberalize access of immigrants and their children born in their territory to citizenship, nevertheless, allowed dual citizenship (Switzerland in 1992 and Luxemburg in 2008). The members of the Council of Europe, finding themselves in the paradoxical situation of forbidding dual citizenship for citizens of different European States while accepting it when their country of dual citizenry was non-European, abandoned their opposition in the 1997 Convention on Nationality.70
More recently, emigration states too have changed their laws so as to permit their citizens to naturalize abroad while retaining their previous citizenship.71 Between 1991 and 1998, six Latin American countries―including Brazil and Mexico, the two most populous―recognized dual citizenship.72 Turkey recognized it in 1995.73
In addition, in a move towards “re-ethnicization”,74 some European countries that were once source countries for emigration (Italy and Ireland, for example) and which had lost legal connection with the second- or third-generation descendants of their emigrant citizens, have established avenues for them to reacquire the nationality of their ancestors. In 1992, the Italian Parliament passed a law permitting the descendants of Italians who had emigrated before 1970 to acquire Italian citizenship.75 Between 1998 and 2007, 786,000 foreigners of Italian descent (66% of them in Brazil and Argentina) obtained an Italian passport.76 In 1998, following the Good Friday Agreement of 10 April 1998, the Irish Constitution was amended to include in its second article the declaration that “the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.”77
Demonstrating the collapse of historical distinctions between countries of emigration, of immigration and of transit, Australia, traditionally a country of immigrants, passed in 2007 the Australian Citizenship Act, which permitted people who were previously Australian citizens, but who had lost their citizenship for various reasons, to recover their citizenship. In addition, people born outside Australia after 25 January 1949 who had an Australian citizen parent at the time of their birth were able to obtain Australian citizenship through descent, even if their parent had forfeited Australian citizenship (as a result of the acquisition of another citizenship as an adult) prior to their birth.
This diasporic policy goes beyond the strictly legal dimension of citizenship. Italy and France, following the lead of Spain and Portugal, have created parliamentary seats for their citizens abroad, with the possessors of single and multiple citizenships treated equally.
China, after a long period of rejection of foreign citizens of Chinese descent, now welcomes a “returned Diaspora.” Once vilified, they are now described as exemplifying “traditional Chinese values and traditions of familialism, business acumen and talent for wealth making.”78 According to Chinese law, Chinese living abroad who become naturalized citizens of their country of residence should be stripped of their Chinese citizenship, but this rarely occurs. In 2005 India created two new statuses for members of the diaspora: persons of Indian Origin―“PIO”―and Overseas Citizens of India, or OCI. The OCI status, the most advantageous, permits third-generation emigrants with foreign citizenships79 to obtain the benefits of a lifetime visa, of permanent residence status in India, and of the ability to participate in Indian business, only being excluded from buying agricultural properties.
In fact, many states have gone from distrusting dual citizens, suspecting them of playing a kind of double game, to forging an alliance with those possessing multiple nationalities. Dual citizens are part of the strategy of nation-states in a globalized world. What began with Lafayette and his honorary American citizenship and the great foreigners who were given the same status in the French Convention,80 has now expanded to a mass of real or potential multiple citizens, perceived by states as possible transmitters of national values and interests abroad. In a globalized world, they can become agents of state influence overseas, diffusers of the national culture or interest, and part of a global network.
Second—or even third or fourth—nationalities can be active or activated and they are increasingly so but they are still typically not practiced or “dormant.”81 Sometimes, they act as a “fail-safe” just in case, as with Jews of the diaspora and their potential Israeli citizenship or the descendants of French, Irish, Italian, or Spanish emigrants living abroad.82 Those with multiple citizenships are still a minority, even if a growing one. Citizens enjoying only one citizenship continue to constitute a large majority, even if they sometimes feel that they are subject to unjust discriminations compared to the bearers of multiple ones.83 But they retain the power to design laws and to select rulers. And in addition, new technologies have reinforced their concrete links with the nation-state at a level never yet reached.
Although by law they concern all citizens, in many countries, especially in the developing world, the attributes of concrete citizenship (passports, ID cards, birth certificates) have until now been often reserved for a small minority of citizens. In the poorest countries, material conditions imposed an unchanged and permanent residence that allowed for the recognition of the citizen by reputation alone.
In some of these countries, new technologies are changing everything. States as disparate as India and the countries of West Africa have begun the registration of their population and, upon the filing of an application involving fingerprinting and photographs, the assignment of ID numbers and identity certificates to each citizen.
In Benin, a registration campaign began in 2006. Within a few months, more than 2 million citizens who did not have any means of identification (birth certificate, ID card, or passport) received a free birth certificate.84 In Mali, the collection of data commenced on 2 May 2009 and ended on 5 April 2010. Surprisingly popular among citizens, the campaign, launched and implemented by the Malian government, resulted in the registration of 13,894,410 Malians in the territory of Mali alone (the total Malian population had previously been estimated at 13 million).85 In a country in which only a little over 3 million inhabitants had previously possessed a birth certificate,86 the unique national identification number (NINA), composed of 14 numbers and of a key letter attributed at birth, will have multiple uses: passport, national ID, driver’s license, voter card, and a benefit card for health care and food. Despite some implementation problems, all of Mali’s political parties have praised the new system as “an essential tool of hope fulfilling the ambitious goal of Mali since its foundation: the construction of a Nation strong because of its institutions and proud of its citizens.”87
The most important registration campaign of this kind is taking place in India. The Unique Identification Authority of India (UIDAI), created in 2006, is developing a Unique Identification (UID) for all Indians so as to provide them with better and more effective delivery of services. Renamed “AADHAAR” (foundation), the government's unique identity project, which aims to give a sixteen-digit identity number to every citizen of the country, began to be implemented in August 2010.88 The plan is to produce 600 million ID numbers before 2015. Despite the critiques of advocates for civil liberties or of those who fear a State retreat,89 the UID is a popular move. By providing UID numbers to the marginalized sections of society the project will give an official ID to many who have never previously possessed one, providing a form of identity to those who do not have any identity and creating unity and a direct connection, across caste, ethnic, and religious lines, as well as between the national state and the individual, especially the poor.90 It will represent not just a number but a “mobile identity.”91
Conclusion: Towards an international regulation?
The history of citizenship has reached a new stage—the age of the security of citizenship status. The nation-state has adapted to this new paradigm: through the strategic use of multiple citizenship and the direct connection with the individual due to new technologies, many nation-states seem to succeed in renewing a legitimacy of affiliation that is and will be in the future difficult to contest. These new developments are making the future citizenship of the nation-state more multidimensional, mainly territorially based but no longer exclusively so, with permanent and transmissible ramifications abroad. Invested in globalization, nation-states are developing network strategies. Nation-states have always insured their legitimacy by a mixture of the two kinds of powers David Grewal smartly distinguishes: the dominant and the network powers.92 In our time of globalization, where classical domination of the state diminishes, many nation-states develop through nationality a strategy of network powers. It seems to resume a Roman tradition that permitted transmission of citizenship generation after generation, independently of the descendants’ presence in the territory of the Roman city.93
What we have described is a trend but not yet the norm. In many countries around the world, this new alliance between the state and the individual, based on the citizen’s security in his status as a citizen and his freedom of movement within and across borders, does not yet exist. Many states still resist dual citizenship and the inclusion of immigrants and their children as citizens. In some instances, security of citizenship is not yet achieved: in many countries, proof of citizenship is difficult to make and passports difficult to obtain. Some failed states cannot provide the minimum identity documents to their citizens.94 And statelessness, although on the decline, remains; creating challenges most pressingly not for those who are officially recognized as stateless, but for those who are not.95
And if these trends continue to develop for the benefits of millions of citizens, conflicts of affiliation, which already exist and have historically been pragmatically resolved through treaties or court decisions, will increase. Treaties have long dealt with conflicting military obligations.96 International sports federations are dealing with champions with multiple citizenships: they have created rules imposing deadlines for the choice of one nationality of affiliation. Courts, which must deal with choice of law questions, often by applying the rule of the forum or the rule of effective link, are experimenting with other options. In a recent European Court of Justice case, Garcia Avello v. Belgium (2003), the parents of children with dual Spanish-Belgian nationality, born and residing in Belgium, tried to change their children’s surnames to conform to Spanish rather than Belgian naming practices. The Belgian authorities refused to approve the change.97 The Court found that this was a discriminatory application of Belgium’s choice-of-law statute because it applied the same rule to people in different situations (i.e., those with and without dual citizenship).98
At some point, conflicts between the interpretations of different national courts, as well as conflicts of interest between individual and their multiple states of affiliation might need to be regulated. Certain extreme practices might accelerate the need for such regulation. Normally, multiple citizenship is an advantage for the individual, but this is not always so. Sometimes, the dual citizen receives even less protection than a stateless person, and may suffer as a result of a state decision which puts his life and his fundamental human rights in jeopardy. Maher Arar, a dual Canadian-Syrian citizen, was detained during a layover at John F. Kennedy International Airportin September 2002 on his way home to Canada from a family vacation. The U.S. government suspected him of being a member of Al Qaeda and deported him, not to Canada, the place of his effective domicile and residence, but to his native Syria, where he was subjected to torture. After being released and sent back to Canada, he sued the U.S. government. His case was dismissed on national security grounds by a Second Circuit Court decision on 30 June 2008; and on 14 June 2010, the U.S. Supreme Court declined to grant certiorari. The Canadian Government gave him 11 million Canadian dollars in compensation. Arar was effectively more Canadian than Syrian, but he became de facto less protected against cruel treatment than if he had been only Canadian or even stateless. In the absence of an international arbiter for such situations the U.S. could exercise its power against an individual who was less protected than a stateless person or an asylum seeker.
One way to resolve this issue might be to create a new international body, under the auspices of the UN, which merges the competence of the UNHCR with jurisdiction over conflicts of citizenship laws.
The new body in charge of resolving conflicts between nation-states and citizens in the matter of nationality could be created on the model of the International Centre for Settlement of Investment Disputes (ICSID), an autonomous international institution established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID or the Washington Convention). The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the World Bank entered into force on 14 October 1966 and has been signed by 157 countries. ICSID is the leading international arbitration institution for the settlement of investor-State disputes.99