Jean Monnet Center at NYU School of Law

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2. Dynamics of inclusion in liberal citizenship

Although liberal democracy does not abolish the distinction between citizens and aliens, it challenges all four traditional features of state sovereignty. Rights-based liberalism disconnects citizenship to some extent from territory and formal legal status and thereby sets into motion a dynamic of inclusion of non-citizens which implies a yet largely unrecognized reshaping of the boundaries of democratic polities. My claim in this section is partly normative and partly factual. I want to argue that such broader inclusion is mandated by underlying principles of liberal democracy and that developments in Western democracies after 1945 have in some respects conformed to it. However, I do not think that the wish to comply with human rights norms was the main driving force behind the extension of rights to aliens[8] nor do I believe that this dynamic involves some irreversible progress. Often these norms are honoured in practice more than in principle, which means that they have rarely become constitutionally embedded. When economic circumstances change and electoral moods swing most Western democracies find it relatively easy to deprive foreigners of rights previously granted to them or to constrain their access to citizenship.

(1) External citizenship for emigrants

The strict territorial limitation of citizenship has been largely overcome. People who move into the territory of another state or take up a residence remain protected by, and enjoy benefits of, their citizenship of origin. The most fundamental rights of this external citizenship are those of diplomatic protection and of return to one's country of citizenship. Many states have added social welfare rights and political rights to this list. Public retirement pensions can, for example, normally be transferred to another country and often years of contribution from employment in different states can be added.[9] A number of states, among them Austria, also permit their citizens abroad to participate in general elections or referenda. Benefits of external citizenship are not only enjoyed by emigrants properly speaking but also by their offspring born abroad who acquire their parents' citizenship iure sangunis.

The driving force for this de-territoralization of citizenship was ethnic nationalism rather than liberal democracy. Emigration stretches a community of descent beyond the state territory. However, liberals should be quite happy about this development as long as it guarantees citizenship for those who retain strong social ties to their countries of origin. When external citizenship is automatically transferred to a third or fourth generation born abroad and when absentee voting rights are granted to individuals who have not been involved in the political debates for decades, then liberals should probably resist such extension which grounds citizenship in mere descent rather than in societal membership or in political involvement. From a liberal point of view, external citizenship is not primarily an intrusion of claims of sovereignty over citizens into another state's territorial sovereignty. It is rather a highly relevant bundle of rights for migrants who retain social ties to their countries of origin and whose alien status in the host country makes them especially vulnerable. In this perspective it should be less difficult to reconcile legal duties towards a host state with rights and protection granted by a country of origin.

As I have already mentioned, external citizenship extends in most cases beyond the first generation of emigrants. It is interesting to note that even states with a strict rule of ius soli for the internal acquisition of citizenship at birth, such as the USA, retain transmission by ius sanguinis for the first generation born abroad (and thereby contribute to the external proliferation of dual citizenship which they condemn internally). We are now in a position to explain the irregularity of multiple citizenship discussed above. From a global perspective which assumes that international order requires that both territories and political communities should not overlap, this appears as sheer inconsistency. From the perspective of sovereignty, states are free to adopt their own rules and need not care about how this affects other states. Yet, states who want to avoid multiple membership among their own citizens would act wisely to adopt rules that do not produce the same unwelcome result for other states. From the perspective of a national political community, however, the interest in retaining emigrants as citizens is an overriding one and it explains why the 1963 Strasbourg convention of the Council of Europe on the reduction of cases of multiple nationality has overall been a failure. There is no effective way how receiving states of immigrants can prevent a sending country from promoting the maintenance of its citizenship among its emigrants.[10]

(2) Enhanced denizenship for settled immigrants

A second extension, which develops at a later historical stage, is in the opposite direction. It disconnects rights from formal citizenship while at the same time grounding them more firmly in territorial residence. This movement is diametrically opposed to the imperatives of ethnic nationalism and of civic republicanism, yet fully in line with liberalism. Immigrants ought to enjoy rights derived from their residence and employment independently of their foreign citizenship. The basic principle underlying this inclusion is famously stated by the 14th amendment of the U.S. constitution: "No State ... shall deny to any person within its jurisdiction the equal protection of the laws." Persons rather than citizens enjoy this protection; the protection has to be equal, i.e. the same for citizens and foreigners; and it derives from being within the (territorial) jurisdiction of a state. Stated in this way, we may regard this as a universal human right whose corresponding obligations happen to fall upon a particular state (in this particular case a federal state of the United States).

Yet, further and more specific rights may be added to this basic equality of protection by the law. Immigrants who have been legally resident for a certain period may obtain a permanent residence permit or a `landed immigrant' status, they may become exempted from work permits and enjoy full equality with regard to tax financed welfare benefits denied to newcomers. In some European countries (among them all Scandinavian states) they have also been granted the local franchise. The Swedish scholar Tomas Hammar has suggested to call this enhanced legal status of settled immigrants `denizenship' (Hammar, 1990). We may indeed see it as a reinterpretation of the rights and obligations of denizens, mentioned by Locke in the above quote, in the framework of liberal welfare democracies. We could also describe them as "residential citizenship" because most of these rights were in the past privileges of citizens from which aliens remained excluded. This is not only true for poverty relief and social welfare or for the local franchise, but also for civil liberties such as those of free speech, association and political activity.

The most basic right of denizenship is that to further residence. The 14th amendment seems to imply that even irregular immigrants who have been in the country for a while, temporary migrants whose permit has expired, or asylum seekers whose applications have been turned down should normally be allowed to file an appeal and stay in the country until it has been decided. New legislation in the USA and in several European states undermines this interpretation of equal protection for everybody within a jurisdiction. For those who have been legally admitted and resident for a long time a stronger norm applies: "They must be set on the road to citizenship" (Walzer, 1983:60). Following Tomas Hammar (1990) and Joseph Carens (1989), I think this implies both opportunities to naturalize as well as equal rights in most areas - apart from the national franchise - if they choose to remain foreigners.

(3) Rights to citizenship

This third extension contrasts with the second one in acknowledging the special importance of citizenship, but it diminishes state sovereignty in determining the rules for acquisition and loss of this status.

In international law there are some relatively weak norms whose main aim is to protect individuals against arbitrary denaturalization and statelessness.[11] Some liberal democratic states have gone much farther in recognizing a right to the acquisition of citizenship at birth or to naturalization for those residents who are citizens of another state. Whether naturalization may be regarded as a right depends on requirements and procedures in acquisition. We may speak of optional naturalization as an individual right of resident aliens if a reasonably short period of legal residence is a sufficient condition for applying, if the new citizenship can be acquired by individual declaration or if the authorities have little discretion in rejecting applications. Canada and Australia are the foremost examples of Western democracies who have established such a right. In the US naturalization is fairly easy but some stronger requirements are added. In Western Europe, with some notable exceptions and recent reversals, the overall trend since the 1960s has been towards facilitating access to citizenship for immigrants. Similarly, the old dichotomy between ius soli and ius sanguinis traditions has been partially overcome by various combinations which recognize a claim to automatic or optional citizenship for children born and raised in the country by immigrant parents. It seems to me that a liberal perspective ought to support constraints on the state's power to deny citizenship to settled first and second generations of immigrant origin, while at the same time maintaining their liberty to decline this offer.

I have argued above that the proliferation of multiple citizenship is an effect of the very principles of sovereignty in determining nationality. Toleration of dual citizenship is further supported by specific state interests. Major sending countries like Mexico or Turkey have recently abandoned their hostility to dual citizenship and see it now as a possibility of maintaining economic and political links with their most successful emigrant groups. Since 1992, Switzerland, a major European receiving country, has abandoned its naturalization requirement of renouncing a previous citizenship, mainly because this had made Swiss citizenship unattractive for wealthier immigrants from the European Union. In spite of such concurring state interests, a general toleration for dual citizenship in naturalizations would also be a strong sign for a paradigmatic change in rules of citizenship acquisition from a focus on state sovereignty towards an emphasis on individual rights. By dropping their opposition to multiple citizenship democratic states implicitly abandon core aspects of republican as well as ethnic nationalism. In this perspective, the four objections mentioned in ß1(3) become quite unconvincing. Multiple loyalty towards several states is not only conceptually possible but can become a natural expression of the multiple social and political involvements which shape many migrants' biographies. The same principle which supports dual citizenship will also justify limiting an individual accumulation of citizenships, or rather passports, for mere reasons of convenience without any relevant ties to the societies involved. Objections referring to conflicting legal norms, lack of protection and free-riding by cumulating benefits or evading duties of citizenship will be seen as reasons for coordinating or harmonizing legal regimes between states. Rather than creating obstacles for a peaceful international order, multiple citizenship can become an incentive for closer cooperation between states who already maintain friendly relations with each other.

(4) Human rights beyond citizenship

The American and French Revolutions established human rights as the core of citizenship; in the new world order after 1945 they became enshrined in international law. Making human rights a cornerstone of international law meant that its subjects were no longer only states, nations or peoples, but also individual human beings. What does this development add to the previous liberal commitment to human rights as the foundation of a democratic constitution? First, it means that severe violations of human rights in other states are not an internal affair but become a legitimate concern for the international community of states which may react by different means reaching from verbal condemnation in the fora of international public opinion via economic sanctions to military intervention in the most severe cases, such as genocide. Secondly, it implies that individuals have rights independently of their citizenship and also of the protection they are granted as resident aliens. Stateless people and refugees therefore do enjoy fundamental human rights. The difficult question is to determine which agency is responsible for assuming the corresponding obligations. In many cases this will be identifiable states, whose special obligations result from their involvement in a refugee crises, from their geographical proximity, from historical and cultural links or from their superior capacities to provide assistance. In other cases the main responsibility lies with international organizations acting on behalf of the community of states and all states have a moral obligation to contribute to international relief efforts. Human rights beyond citizenship and residence also strengthen the positions of close relatives of resident aliens who live abroad and have a right to reunification with their family in the host country.

Arendt's paradox of human rights is certainly not fully overcome as long as human rights remain largely declarative and as long as there is a glaring dearth of international agencies of judicial enforcement. However, at least at the level of normative commitment, the post-war period still marks a significant decoupling of human rights from citizenship.

This account of the strengthening of external citizenship, of `denizenship', of access to citizenship and of human rights for non-citizens and non-residents parallels T.H. Marshall's more familiar evolutionary theory of citizenship (Marshall, 1965). Marshall described a cumulative development of the content of modern citizenship which started from civil liberties, added political participation rights and culminated in the concept of social citizenship based on universal entitlements to education and welfare. What I have analysed here is a similarly cumulative development of inclusion that defines populations as beneficiaries of such rights who had been excluded under the four traditional premises of sovereignty outlined in section 1. I have also claimed that this development helps to resolve some of the contradictions which result from the combination or simultaneous application of these premises. I do not want to deny that this dual expansion of citizenship creates its own new challenges and problems. Among them are, first, an increasing tension between rights and obligations of citizenship, second, a differentiation of equal citizenship into group-related rights and special legal statuses (for multiple citizens, refugees, resident aliens, transient foreigners, etc.) and, third, a growing ambiguity about the collective identity of the demoi of liberal democracies and the significance of citizenship as membership in a political community. Rather than restoring the simple geometry of citizenship these developments reflect the increasing complexity of socially and geographically mobile societies. In my opinion this is not to be deplored. Reviving the traditional premises of sovereignty would not provide any adequate responses to these challenges.

[8]. My account differs in this respects from that of Yasemin Soysal (1994). In my view, most new rights of aliens are an extended form of citizenship, derived from their societal membership in host countries as well as from their citizenship of origin, rather than rights of persons disconnected from their ties to states.

[9]. Although such welfare benefits are derived from contributions and seem in this sense based on social insurance contracts rather than citizenship, they are in many countries also publicly financed and their transfer into another country is regulated by bilateral agreements, which means that citizenship becomes an important requirement.

[10]. All they can do is to make naturalization itself more difficult. However, if renunciation is required for naturalization, then immigrants may often regain their original citizenship after obtaining the new one. If the sending state offers this option for its emigrants, as for example Turkey does, then the receiving state would have to continuously check all newly naturalized immigrants and would have to denaturalize them in case that they have opted for readmission to Turkish citizenship. Yet, German citizens cannot be denaturalized while they reside in Germany. Austria is much stricter in its prohibition of holding a second citizenship after naturalization, but probably not much more effective.

[11]. See Universal Declaration of Human Rights (1948), Art. 14; United Nations Covenant on Civil and Political Rights (1966), Art. 24(3), International Convention on the Reduction of Statelessness (1961).

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