The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?

Abstract

From antiquity to the late 20th century, denationalisation was a tool used by states to rid themselves of political dissidents, convicted criminals and ethnic, religious or racial minorities. The latest target of denationalisation is the convicted terrorist, or the suspected terrorist, or the potential terrorist, or maybe the associate of a terrorist. He is virtually always Muslim and male. Citizenship-stripping is sometimes defended in the name of strengthening citizenship, but it does precisely the opposite. The defining feature of contemporary legal citizenship is that it is secure. Making legal citizenship contingent on performance demotes citizenship to another category of permanent residence. Citizenship revocation thus weakens citizenship itself. It is an illegitimate form of punishment and it serves no practical purpose.

Full text

IMISCOE Research Series
RainerBauböck Editor
Debating
Transformations of
National Citizenship

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Rainer Bauböck
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Debating Transformations
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Editor
Rainer Bauböck
European University Institute
San Domenico di Fiesole, Italy

v
Acknowledgements
The four debates collected in this volume were originally hosted by the
EUDO Citizenship Observatory and its successor, the GLOBALCIT
Observatory and then published as Robert Schuman Centre Working Papers.
Each of the debates was co-edited by myself with the authors of the lead
essays introducing them. The Forum ‘Citizenship for Sale’ was kicked off
and co-edited by Ayelet Shachar, the Forum ‘The Return of Banishment: Do
the New Denationalisation Policies Weaken Citizenship?’ by Audrey
Macklin, the Forum ‘Bloodlines and Belonging: Time to Abandon Ius
Sanguinis?’ by Costica Dumbrava, and the Forum ‘Cloud Communities:
The Dawn of Global Citizenship’ by Liav Orgad. I am very grateful to them
for agreeing to this book publication as well as to the altogether 45 authors
in this book who engaged with the controversial questions we asked them to
answer in a spirit of a respectful and frank debate. My most profound thanks
go to Jelena Dzankic, Jean-Thomas Arrighi and Vesco Paskalev who were
involved in these debates at different times as coordinators of the EUDO
Citizenship project, as well as to Anna Kyriazi who has provided extremely
competent and reliable assistance in editing this book.
Rainer Bauböck

vii
Preface
If we can measure the success of a political concept by the frequency with
which it is used in speeches and texts, then ‘citizenship’ has been hugely
successful. A quick search on Google Scholar shows 1.87 million academic
texts where the English version of the concept comes up. The use of the
concept in all English language texts registered by Google peaked first
around 1920, declined then continuously until the early 1980s, and has since
risen steeply to a new record frequency around the turn of the millennium.
Since so many authors talk about citizenship the content associated with
the concept is likely to become less precise. Citizenship is indeed used today
in many contexts where it would have seemed oddly out of place in the past.
Big companies advertise their ‘corporate citizenship’, users of internet-
based social networks are addressed as cyber citizens and political philoso-
phers and activists campaign for animal citizenship. The present volume
sticks to the core meaning of citizenship since the times of the Athenian and
Roman republics as a status of equal membership in a political community.
Since the French and American Revolutions, citizenship has become most
closely associated with nationality: a legal status that attributes responsibil-
ity for individuals to states and a bundle of rights and obligations assigned
to individuals by states. The broad new literatures on citizenship of minori-
ties or on citizenship as a practice of contestation in social movements gen-
erally assume national citizenship as a stable background. They discuss
inequalities and exclusions among those who share the same legal status and
rights of national citizenship. This is an important agenda, but it needs to be
broadened by examining how the presumptively stable background of
national citizenship itself is gradually shifting.
This question drives the four debates collected in the present volume.
The rst of these raises a question that is not entirely new in historical
perspective, but that has gained new salience in contexts of globalisation,
mobility and rising global inequalities of income and wealth: Should citi-
zenship be for sale? And does the sale of passports to investors change the
very nature of citizenship by turning it from a stable legal bond into a mar-
ketable commodity?
The second debate examines another phenomenon that had been com-
mon in ancient and medieval republics: banishing citizens from the polity as
punishment for law-breaking or as a precautionary removal of those who

viii
have become a threat. These practices have witnessed a recent comeback in
liberal democracies that deprive terrorist suspects of their nationality in
order to make them deportable or to prevent them from returning. How con-
cerned should we be about this trend given the small numbers of affected
individuals and the severity of the threat they pose? Does it signal an erosion
of the idea that liberal states may control admission to citizenship but should
not have the power to deprive citizens of their nationality – abdicating
thereby also their responsibility to protect or to punish them?
The third and fourth debates look more explicitly towards the future and
consider how changing social norms and new technologies may affect the
substance and salience of national citizenship. National citizenship is always
acquired by birth and all states use a principle of ius sanguinis. In the large
majority of countries, citizenship is bestowed upon those born to citizen
parents independently of their country of birth. Ius soli, i.e. citizenship
acquired by birth in the territory is the dominant principle only in the
Americas, but even there second generations born abroad are citizens by
descent. The debate on the future of ius sanguinis asks how this most basic
and widespread rule for citizenship attribution is going to be affected by new
patterns of family relations and new reproductive technologies. Will bio-
logical descent continue to count for more than social relations of children
to their caregivers? And will these changes provide opportunities for aban-
doning ius sanguinis altogether and replacing it with territorial citizenship
based on birth and residence in a country?
The fourth and last debate challenges this possible conclusion by point-
ing to another major transformation of contemporary societies: the digital
revolution that offers also new opportunities for global citizenship. Can
blockchain technology provide every human being with a single global legal
persona and will it permit the creation of political communities without ter-
ritory? Would such developments complement or replace the existing func-
tions of citizenship in territorial states? Or will the latter instead capture new
digital technologies in order to enhance their control over society?
The debates collected in this volume follow certain rules. The texts are
not freestanding submissions to a blog or edited volume. Each author was
invited to respond not only to the introductory kick-off essay but also to the
comments previously published online. Authors were invited based on their
expertise and stances on the topic, with the aim of representing a broad spec-
trum of reasonable views. This unusual format avoids repetition and simu-
lates a conversation among people who disagree with each other but are
ready to listen and address each other’s arguments.
Preface

ix
The outcome provides those who lack the time to plough through thick
piles of journal articles and books with a concise overview of debates that
are not purely academic, since they are conducted in a non-technical lan-
guage and reect concerns that are widely discussed among policy makers
and engaged citizens. Together with its companion volume ‘Debating
European Citizenship’ this book will hopefully also be used widely for
teaching students what citizenship is about and what challenges it currently
faces.
San Domenico di Fiesole, Italy Rainer Bauböck
Preface

xi
Contents
Part I: Should Citizenship Be for Sale?
Summary: Global, European andNational Questions
About thePrice ofCitizenship ............................................................... 3
Rainer Bauböck
Dangerous Liaisons: Money andCitizenship ........................................ 7
Ayelet Shachar
Cash-for-Passports andtheEnd ofCitizenship ..................................... 17
Peter J. Spiro
Citizenship forThose who Invest into theFuture
oftheState is Not Wrong, thePrice Is theProblem ............................... 21
Magni-Berton Raul
The Price ofSelling Citizenship ............................................................. 25
Chris Armstrong
Global Mobility Corridors fortheUltra-Rich.
TheNeoliberal Transformation ofCitizenship ....................................... 29
Roxana Barbulescu
The Maltese Falcon, or: my Porsche foraPassport! ............................. 33
Jelena Džankić
What Is Wrong withSelling Citizenship?
It Corrupts Democracy! ......................................................................... 37
Rainer Bauböck
What Money Can’t Buy: Face-to-Face Cooperation
andLocal Democratic Life ..................................................................... 43
Paulina Ochoa Espejo
If YouDo not Like Selling Passports, Give Them forFree
toThose Who Deserve Them .................................................................. 47
Vesco Paskalev
Citizenship forReal: Its Hypocrisy, Its Randomness, Its Price ............. 51
Dimitry Kochenov

xii
Trading Citizenship, Human Capital andtheEuropean Union ............. 57
David Owen
Citizenship forSale: Could andShould theEU Intervene?................... 61
Jo Shaw
Linking Citizenship toIncome Undermines European Values.
WeNeed Shared Criteria andGuidelines
forAccess toEU Citizenship .................................................................. 65
Hannes Swoboda
Coda ....................................................................................................... 69
Ayelet Shachar
Part II: Bloodlines and Belonging
Bloodlines andBelonging: Time toAbandon Ius Sanguinis? ................ 73
Costica Dumbrava
Ius Filiationis: Adefence ofCitizenship by Descent .............................. 83
Rainer Bauböck
Tainted Law? Why History Cannot provide
theJustification forAbandoning Ius Sanguinis ..................................... 91
Jannis Panagiotidis
Family Matters: Modernise, Don’t Abandon, Ius Sanguinis .................. 97
Scott Titshaw
Abolishing Ius Sanguinis Citizenship: AProposal
Too Restrained andToo Radical ............................................................ 103
Kristin Collins
Citizenship Without Magic ..................................................................... 109
Lois Harder
The Janus-Face ofIus Sanguinis: Protecting Migrant
Children andExpanding Ethnic Nations ............................................... 113
Francesca Decimo
The Prior Question: What Do WeNeed State Citizenship for? .............. 117
David Owen
No More Blood ....................................................................................... 121
Kerry Abrams
Law by Blood or Blood by Law?............................................................ 127
David Armand Jacques Gérard de Groot
Contents

xiii
Limiting theTransmission ofFamily Advantage:
Ius Sanguinis withanExpiration Date .................................................. 131
Iseult Honohan
Retain Ius Sanguinis, but Don’t Take it Literally! .................................. 137
Eva Ersbøll
Distributing Some, but Not All, Rights ofCitizenship
According toIus Sanguinis .................................................................... 143
Ana Tanasoca
Learning fromNaturalisation Debates: TheRight
toanAppropriate Citizenship at Birth ................................................... 149
Katja Swider and Caia Vlieks
Don’t Put theBaby intheDirty Bathwater! ARejoinder ....................... 153
Costica Dumbrava
Part III: The Return of Banishment
The Return ofBanishment: Do theNew Denationalisation
Policies Weaken Citizenship? ................................................................. 163
Audrey Macklin
Terrorist Expatriation: All Show, No Bite, No Future ............................ 173
Peter J. Spiro
Should Those Who Attack theNation Have anAbsolute
Right toRemain Its Citizens? ................................................................. 177
Peter H. Schuck
Terrorists Repudiate Their Own Citizenship .......................................... 181
Christian Joppke
It’s Not About Their Citizenship, it’s About Ours ................................... 185
Vesco Paskalev
You Can’t Lose What YouHaven’t Got: Citizenship Acquisition
andLoss inAfrica .................................................................................. 189
Bronwen Manby
Revocation ofCitizenship ofTerrorists: AMatter
ofPolitical Expediency........................................................................... 197
Kay Hailbronner
Whose Bad Guys Are Terrorists? ............................................................ 201
Rainer Bauböck
Contents

xiv
Human Rights forAll Is Better than Citizenship
Rights forSome ...................................................................................... 207
Daniel Kanstroom
Denationalisation, Assassination, Territory:
Some (U.S.-Prompted) Reflections ......................................................... 215
Linda Bosniak
Beware States Piercing Holes into Citizenship ...................................... 219
Matthew J. Gibney
Disowning Citizens ................................................................................ 225
Reuven (Ruvi) Ziegler
Our Epoch’s Little Banishments ............................................................. 229
Saskia Sassen
Deprivation ofCitizenship: Is There anIssue ofEU Law? ................... 233
Jo Shaw
On Producing theAlien Within: AReply ................................................ 239
Audrey Macklin
Part IV: Cloud Communities
Cloud Communities: TheDawn ofGlobal Citizenship? ........................ 251
Liav Orgad
Citizenship inCloud Cuckoo Land? ...................................................... 261
Rainer Bauböck
Citizenship intheEra ofBlockchain-Based Virtual Nations ................. 267
Primavera De Filippi
Global Citizenship fortheStay-at-Homes ............................................. 279
Francesca Strumia
A World Without Law; AWorld Without Politics ..................................... 285
Robert Post
Virtual Politics, Real Guns: OnCloud Community,
Violence, andHuman Rights .................................................................. 289
Michael Blake
A World Wide Web ofCitizenship ............................................................ 295
Peter J. Spiro
Contents

xv
Citizenship Forecast: Partly Cloudy withChances
ofAlgorithms .......................................................................................... 299
Costica Dumbrava
The Separation ofTerritory andState: aDigital
French Revolution? ................................................................................ 305
Yussef Al Tamimi
A Brave New Dawn? Digital Cakes, Cloudy Governance
andCitizenship á la Carte ..................................................................... 311
Jelena Džankić
Old Divides, New Devices: Global Citizenship
forOnly Half oftheWorld ...................................................................... 317
Lea Ypi
Escapist Technology intheService ofNeo-Feudalism ........................... 321
Dimitry Kochenov
Cloud Communities andtheMateriality oftheDigital ......................... 327
Stefania Milan
Cloud Agoras: When Blockchain Technology Meets
Arendt’s Virtual Public Spaces ............................................................... 337
Dora Kostakopoulou
Global Cryptodemocracy Is Possible andDesirable.............................. 343
Ehud Shapiro
The Future ofCitizenship: Global andDigital– ARejoinder ............... 353
Liav Orgad
Correction to: You Can’t Lose What YouHaven’t Got: Citizenship
Acquisition andLoss inAfrica ............................................................... E1
Contents

xvii
About the Editor
Rainer Bauböck is currently a part time professor at the Robert Schuman
entre of the European University Institute. He held the chair in social and
political theory at the Department of Political and Social Sciences of the
EUI from 2007 to 2018 and was Dean of Graduate Studies from 2012 to
2016. Rainer Bauböck is also a corresponding member of the Austrian
Academy of Sciences and chair of its Commission on Migration and
Integration Research.
His research interests are in normative political theory and comparative
research on democratic citizenship, migration, European integration, nation-
alism and minority rights. Together with Jo Shaw (University of Edinburgh)
and Maarten Vink (University of Maastricht), he coordinates GLOBALCIT,
an online observatory on citizenship and voting rights.
His most recent book publications are: Democratic Inclusion. Rainer
Bauböck in Dialogue, Manchester University Press: Manchester, 2017; The
Oxford Handbook of Citizenship (Ayelet Shachar, Rainer Bauböck, Irene
Bloemraad, Maarten Vink, eds.). Oxford: Oxford University Press, 2017;
Transnational Citizenship and Migration (Rainer Bauböck, ed., London:
Routledge, 2017).

xix
Contributors
Kerry Abrams Professor of Law, University of Virginia
Yussef Al Tamimi PhD Researcher, European University Institute
Chris Armstrong Professor of Political Theory, Department of Politics and
International Relations, University of Southampton
Roxana Barbulescu University Academic Fellow in New Migrations in
UK and Europe, School of Sociology and Social Policy, University of Leeds
Michael Blake Professor of Philosophy, Public Policy, and Governance,
University of Washington
Linda Bosniak Distinguished Professor of Law, Rutgers, The State
University of New Jersey
Kristin Collins Professor of Law, Boston University School of Law
Primavera De Filippi Permanent Researcher, National Center of Scientic
Research (CNRS) in Paris, Faculty Associate, Berkman-Klein Center for
Internet & Society at Harvard University and Visiting Fellow at the Robert
Schuman Centre for Advanced Studies at the European University Institute
David Armand Jacques Gérard de Groot PhD Researcher, National
Center of Competence in Research – The Migration-Mobility Nexus,
University of Bern
Francesca Decimo Associate Professor in Sociology, Department of
Sociology and Social Research, University of Trento
Costica Dumbrava Postdoctoral Researcher in the Department of Political
Science of Maastricht University and Executive Coordinator of the
Maastricht Centre for Citizenship, Migration, and Development
Jelena Dzankic Research Fellow, Robert Schuman Centre for Advanced
Studies, European University Institute
Eva Ersbøll Senior Researcher, Danish Institute for Human Rights
Matthew J. Gibney Professor of Politics and Forced Migration at the
University of Oxford, Ofcial Fellow of Linacre College, Oxford, and
Director of the University of Oxford Refugee Studies Centre
Kay Hailbronner Emeritus Professor, University of Konstanz, Germany
Lois Harder Professor and Chair of the Department of Political Science,
University of Alberta
Iseult Honohan Associate Professor, UCD School of Politics and
International Relations, University College Dublin
Christian Joppke Professor of General Sociology, Institute of Sociology,
University of Bern

xx
Daniel Kanstroom Professor of Law and Thomas F. Carney Distinguished
Scholar, Boston College Law School
Dimitry Kochenov Chair in EU Constitutional Law, Faculty of Law,
University of Groningen
Dora Kostakopoulou Professor of European Union Law, European
Integration and Public Policy, School of Law, University of Warwick
Audrey Macklin Director, Centre for Criminology and Sociolegal Studies
and Professor of Law, University of Toronto
Magni-Berton Raul Professor of Political Science, Sciences Po Grenoble
Bronwen Manby Visiting Senior Fellow, Centre for the Study of Human
Rights, London School of Economics and Political Science
Stefania Milan Associate Professor of New Media, University of
Amsterdam, Associate Professor (II) of Media Innovation, University of
Oslo
Paulina Ochoa Espejo Associate Professor of Political Science, Haverford
College
Liav Orgad Head of the Project Group ‘International Citizenship Law’,
WZB Berlin Social Science Center, Director of the Research Group ‘Global
Citizenship Governance’ at the European University Institute and Associate
Professor at the Interdisciplinary Center Herzliya
David Owen Professor of Social and Political Philosophy, Division of
Politics and International Relations, University of Southampton
Jannis Panagiotidis Junior Professor for the Migration and Integration of
Russian Germans, Institute for Migration Research and Intercultural Studies,
University of Osnabrück
Vesco Paskalev Lecturer, School of Law and Politics, University of Hull
Robert Post Sterling Professor of Law, Yale Law School
Saskia Sassen Robert S. Lynd Professor of Sociology and Co-Chair of the
Committee on Global Thought, Columbia University
Peter H. Schuck Simeon E. Baldwin Professor Emeritus of Law, Yale Law
School
Ayelet Shachar Director, Max Planck Institute for the Study of Religious
and Ethnic Diversity, Professor of Law and Political Science, University of
Toronto
Ehud Shapiro Professor of Computer Science and Biology, Weizmann
Institute of Science
Jo Shaw Salvesen Chair of European Institutions, School of Law, University
of Edinburgh
Peter J. Spiro Charles Weiner Professor of Law, Temple University
Francesca Strumia Senior Lecturer, University of Shefeld School of Law
Katja Swider PhD Researcher, Amsterdam Centre for European Law and
Governance, University of Amsterdam
Contributors

xxi
Hannes Swoboda Former Member of the European Parliament,
International Institute for Peace
Ana Tanasoca Postdoctoral Research Fellow, Centre for Deliberative
Democracy and Global Governance, University of Canberra
Scott Titshaw Associate Professor of Law, Mercer University School of
Law
Caia Vlieks PhD Researcher and Lecturer, Department for Public Law,
Jurisprudence and Legal History, Tilburg University
Lea Ypi Professor in Political Theory, London School of Economics and
Political Science and Adjunct Professor in Philosophy, Australian National
University
Reuven (Ruvi) Ziegler Associate Professor in International Refugee Law,
School of Law, University of Reading
Contributors

Part I: Should Citizenship Be for Sale?
Abstract
On 12 November 2013 the Maltese Parliament decided to offer Maltese and
European citizenship at the price of € 650,000, but implementation of the
law was postponed due to strong domestic and international critiques. On 23
December, the Maltese government announced signicant amendments,
including a higher total amount of € 1,150,000, part of which has to be
invested in real estate and government bonds. Several other European states
have adopted ‘golden passport’ programmes. Should citizenship be for sale?
In November 2013 EUDO CITIZENSHIP invited Ayelet Shachar of the
University of Toronto Law School to open a debate on these controversial
policies. Twelve authors have contributed short commentaries, most of
which refer to the initial law adopted by the Maltese Parliament. An execu-
tive summary by Rainer Bauböck provides an overview over the main ques-
tions raised in our Forum.
The contributions to this Forum on ‘citizenship for sale’ were published
and disseminated to Members of the European Parliament shortly before a
plenary debate on 15 January 2014 in the European Parliament. After hear-
ing a statement by EU Commissioner Viviane Reding, the EP passed a reso-
lution condemning the Maltese policy.
Keywords
Citizenship acquisition · Investor citizenship programmes · European
citizenship · Commodication · Malta

3© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_1
Summary: Global, European and National
Questions About the Price of Citizenship
Rainer Bauböck
The Forum Debate ‘Should citizenship be for Sale?’ collected comments
representing a wide range of views and some highly original arguments.
They can be summarised by distinguishing global, European and national
perspectives.
(1) Global questions
From a global perspective, several authors argue that citizenship has become
primarily a resource for mobility. Globalisation has already deeply under-
mined national citizenship as a bond between individuals and states and the
sale of passports is just a symptom of an irreversible commodication of
citizenship (Spiro). The primary value of citizenship lies in the mobility
rights attached to passports. The high price put by the Maltese Parliament on
Maltese passports reects the instrumental value of free movement rights
attached to EU citizenship for the wealthy and mobile global elites.
Some authors defend the sale of citizenship by pointing out that it is less
arbitrary and more transparent than other ways of acquiring citizenship (e.g.
Kochenov), while others suggest that giving the ultra-rich privileged access
to ‘global mobility corridors’ (Barbulescu) raises concerns about fairness
and justice (e.g. Owen). Instead of offering their citizenship for money,
democratic states could bestow it on persons who are threatened by persecu-
tion or who ght for democratic values as a means of protection or exit
option (Paskalev).
(2) European questions
Several comments emphasize that selling EU passports amounts to free-
riding on the shared EU assets of free internal movement and external visa-
waiver agreements created jointly by all Member States (e.g. Magni-Berton).
Investor-citizenship programmes are, however, not the only instance. Many
EU countries offer privileged access to EU citizenship to large populations

4
outside the EU territory on grounds of distant ancestry or co-ethnic identity,
obliging thereby all other Member States to admit immigrants from third
countries to their territories and labour markets as EU citizens (Shaw).
Since EU citizenship is derived from Member State nationality and
determining the latter remains an exclusive competence of Member States,
EU law does not provide much leverage against either the sale of EU pass-
ports or other policies of creating new EU citizens without genuine links to
any EU country. Several authors raise, however, the question whether the
principle of proportionality established by the Court of Justice of the EU if
withdrawal of Member State nationality leads to a loss of EU citizenship
could also be applied to national rules regulating the acquisition of citizen-
ship (Shaw, Shachar, Swoboda).
Independently of the issue of legality these authors suggest that the
European Parliament is the institution that is best suited for addressing the
issue. Instead of asking for intervention against particular Member States,
they call for a broader debate on shared principles that ought to guide
Member State policies in matters of citizenship.
(3) National questions
Most authors in our Forum defend a conception of citizenship as member-
ship in a democratic community. From this perspective, selling membership
seems odious in the same way that selling the franchise in elections is
(Shachar, Bauböck). Citizenship is considered as the kind of good that
money should not be able to buy (Ochoa).
Magni-Berton argues, however, that monetary investment can be a way
of contributing to the common good of a political community and should
therefore not be summarily dismissed as a legitimate reason for acquiring
citizenship. In his view, the high price indicates the real problem, which is
articial scarcity created through exclusionary rules for access to national
citizenship.
Authors disagree on whether citizenship acquisition based on purchase
or investment is more arbitrary than the common rules of ius sanguinis, ius
soli or residence-based naturalisation. Some consider all of these member-
ship mechanisms as essentially arbitrary or discriminatory (e.g. Armstrong,
Kochenov), whereas Bauböck defends them as supporting equal member-
ship in intergenerational communities.
From a global justice perspective, ‘golden residence programmes’ that
provide investors with privileged access to permanent residence status seem
R. Bauböck

5
to be just as unfair towards the poor as ‘golden passport programmes’. From
a democratic citizenship perspective, however, the former are less problem-
atic since they maintain a condition of residence and thus a ‘genuine link
test’ for access to citizenship (e.g. Dzankic, Shachar, Owen).
Other authors acknowledge that states have legitimate interests in ‘invit-
ing the rich, the beautiful and the smart’ (Kochenov) and that investor citi-
zenship is not essentially different from the widespread practice of offering
citizenship to prominent sportsmen and –women (Owen). Chris Armstrong
observes that some states offer citizenship to foreigners who have served in
their army or have otherwise provided exceptional service to the country. If
investors really help to save a country from nancial breakdown, offering
them citizenship may be justied on grounds of emergency relief. Other
authors are, however, sceptical that those who are only interested in addi-
tional mobility rights can be made to invest their wealth permanently and
productively (Dzankic).
Apart from the lack of a ‘genuine link’ criterion, a global market for citi-
zenship status is also seen as corrupting democracy by breaking down the
wall that separates the spheres of money and power. Several contributions
argue that there is a broader trend towards relinking citizenship acquisition
to social class, which manifests itself, on the one hand, in offering citizen-
ship to the rich and, on the other hand, in income and knowledge tests for
ordinary naturalisations of foreign residents (Shachar, Barbulescu, Dzankic,
Bauböck, Owen, Swoboda).
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Summary: Global, European and National Questions About the Price…

7© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_2
Dangerous Liaisons: Money and Citizenship
Ayelet Shachar
Vogue predictions that citizenship is diminishing in relevance or perhaps
even vanishing outright, popular among jetsetters who already possess full
membership status in afuent democracies, have failed to reach many appli-
cants still knocking on the doors of well-off polities. One can excuse the
world’s destitute, those who are willing to risk their lives in search of the
promised lands of migration in Europe or America, for not yet having heard
the prophecies about citizenship’s decline. But the same is not true for the
well-heeled who are increasingly active in the market for citizenship: the
ultra-rich from the rest of the world. They are willing to dish out hundreds
of thousands of dollars to gain a freshly-minted passport in their new ‘home
country.’ That this demand exists is not fully surprising given that this is a
world of regulated mobility and unequal opportunity, and a world where not
all passports are treated equally at border crossings. Rapid processes of mar-
ket expansionism have now reached what for many is the most sacrosanct
non-market good: membership in a political community. More puzzling is
the willingness of governments – our public trustees and legal guardians of
citizenship – to engage in processes that come very close to, and in some
cases cannot be described as anything but, the sale and barter of membership
goods in exchange for a hefty bank wire transfer or large stack of cash.
Everybody knows that immigration is among the most contentious pol-
icy issues of our times, and recent years have witnessed a ‘restrictive turn’1
with respect to ordinary immigration and naturalisation applicants, such as
those who enter on the basis of a family reunication claim or for humani-
tarian reasons. The situation is different, however, for the world’s moneyed
elite, who can sidestep many of the standard requirements for settlement by
‘buying’ their way into the political community. The public act of
naturalisation – of turning a non-member into a citizen – has always borne
an air of legal magic, with the result that it is the ‘most densely regulated and
1 Joppke, C. (2007), ‘Beyond National Models: Civic Integration Policies for
Immigrants in Western Europe’, West European Politics 30 (1): 1-22; Orgad,
L. (2010), ‘Illiberal Liberalism: Cultural Reections on Migration and Access
to Citizenship in Europe’, American Journal of Comparative Law 58: 53-106.

8
most politicized aspect of citizenship laws’2. At stake is the regulation of the
most important and sensitive decision that any political community faces:
how to dene who belongs, or ought to belong, within its circle of members.
Not everyone knows, however, that governments are now proactively facili-
tating faster and smoother access to citizenship for those who can pay.
Revealing insights about the current state of citizenship can be gained, I will
argue in this short essay, by examining who is given this red-carpet treat-
ment, and on what basis.
Consider the following examples. Afuent foreign investors were offered
citizenship in Cyprus as ‘compensation’ for their Cypriot bank account
deposit losses. In 2012, Portugal introduced a ‘golden residence permit’ to
attract real estate and other investments by well-to-do individuals seeking a
foothold in the EU. Spain recently adopted a similar plan. On 12 November
2013, Malta approved amendments to its Citizenship Act that put in place a
new individual investor legal category that will allow high-net-worth appli-
cants to gain a ‘golden passport’ in return for € 650,000; this sum was later
increased to 1.15 million, opening a gilded backdoor to European citizen-
ship. Under these cash-for-passport programmes, many of the requirements
that ordinarily apply to those seeking naturalisation, such as language com-
petency, extended residency periods or renunciation of another citizenship,
are waived as part of an active competition, if not an outright bidding war,
to attract the ultra-rich. Portugal, for example, offers a fast track for quali-
ed applicants that entitles them to a 5 year permanent residence permit,
visa-free travel in Schengen countries, the right to bring in their immediate
family members, and ultimately the right to acquire Portuguese citizenship
and with it the benets of EU citizenship. This package comes with a hefty
price tag: a capital transfer investment of € 1 million, a real estate property
purchase at a value of € 500,000, or the creation of local jobs. The invest-
ment needs to remain active in Portugal for the programme’s duration. Alas,
the individual who gains the golden permit bears no similar obligation.
Simply spending 7 days in Portugal during the rst year and fourteen days
in the subsequent years is enough to full the programme’s requirements. So
much for the conclusion of the International Court of Justice in the 1955
Nottebohm decision that ‘real and effective ties’ between the individual and
the state are expected to undergird the grant of citizenship.
2 Bauböck, R. & S. Wallace Goodman (2010), ‘Naturalisation’, EUDO
Citizenship Policy Brief No. 2, available at http://cadmus.eui.eu/han-
dle/1814/51625, p. 1.
A. Shachar

9
In Malta, recipients of the golden passport will be vetted in accordance
with a discretionary ministerial act that puts in place little transparency and
accountability. Government ofcials have made clear that applicants can
expect an expedited treatment, meaning that they will not have to ‘stand in
the queue’ like everyone else. In addition, the names of golden passport
recipients would remain condential, making it close to impossible ever to
know to whom the polity has sold a precious part of its soul. This last provi-
sion has raised the ire of the opposition. Their concern is that concealing the
identity of those who gain membership by literally purchasing citizenship
makes it so that ‘Maltese [a]re now being denied the right to know who is
Maltese’3. The secrecy provision was eventually withdrawn in the eleventh
hour, but the basic structure of the programme remains intact: privileged and
fast-track naturalisation, allowing ‘any Tom, Dick and Harry … [to] buy a
Maltese passport without ever setting foot on Maltese soil.’ A recent survey4
shows that the vast majority of the population opposes the sale of citizenship
in principle, and rejects this scheme in particular, detached as it is from any
residence or other requirements that would establish ties with the passport-
granting country and society.
Beyond Europe, those seeking a new passport can look to St. Kitts and
Nevis, where economic citizenship can be purchased for as low as $ 250,000
(for a lump sum) or $ 400,000 (if monies are directed to a real estate proj-
ect), and issued within months. They might also consider Antigua and
Barbuda, which is the latest in a growing list of countries to roll out a
citizenship- by-investment programme or the Commonwealth of Dominica.
Whereas ordinarily the law requires signicant residence periods for those
seeking naturalisation in these island nations (fourteen years in St Kitts and
Nevis, seven years in the Commonwealth of Dominica and in Antigua and
Barbuda, respectively), the residency requirement is reduced to merely
seven days – a short vacation under the tropical sun – or even waived alto-
gether for those who purchase their fast-tracked passport.
The citizenship-by-investment programmes that I have just described
fall into the category of what we might call unfettered cash-for-passport
exchanges. No ‘nexi’ between the country and the passport recipient are
3 ‘Updated. Mario de Marco: “Opposition will not support prostitution of
Malta’s identity, citizenship”’, Malta Today, 9 November 2013, available at
https://www.maltatoday.com.mt/news/national/31325/opposition-proposes-
change-of-name-to-individual-donor-programme-20131109#.Ws3jxHK-nZs
4 ‘Contentious citizenship scheme approved’, Malta Today, 12 November 2013,
available at https://www.maltatoday.com.mt/news/national/31402/contentious-
citizenship-scheme-approved-20131112#.Ws3i9XK-nZs
Dangerous Liaisons: Money and Citizenship

10
required; only the investment monies must ‘reside’ in the country for a xed
term. This is to be distinguished from more traditional programmes, them-
selves the subject of perennial critique, under which migrant millionaires (to
borrow David Ley’s apt term) can receive an admission visa through a des-
ignated business-investment stream, but would then have to more or less
comply with standard residency and naturalisation requirements5. Such pro-
grammes are found in, among other places, Australia, New Zealand, Hong
Kong, the United Kingdom and the United States. Both kinds of programme
raise serious ethical quandaries, but the unfettered cash-for-passport pro-
grammes are more extreme and blatant than the traditional investment pro-
grammes. They contribute to some of the most disturbing developments in
21st-century citizenship, including the emergence of new forms of inequality
and stratication. Instead of retreating to the background as some theorists
had forecasted, states are proactively creating and exacerbating inequalities
through their selective and managed migration policies, setting up easy-pass
citizenship for some while making membership more restrictive and dif-
cult to achieve for others. This new world order reveals tectonic pressures
and introduces urgent dilemmas about the proper scale, scope and relations
of justice and mobility, citizenship and (selective) openness. These develop-
ments also bear a profound impact on immigration law and policy on the
ground, since they entail processes through which the boundary between
state and market is constantly being tested, eroded, and blurred.
It is these intricate and underexplored interactions between state and
market that are at the heart of my inquiry into emerging selective migration
regimes and transactional visions of citizenship6. Legally, the sovereign pre-
rogative to issue a valid and internationally recognised passport is reserved
in our international system to states alone. Governments and only govern-
ments – not markets – can secure and allocate the precious legal good of
membership in the political community. But what happens when the logic of
capital and markets inltrates this classic statist expression of sovereignty?
The proliferation of what I have called unfettered cash-for-passport pro-
grammes is a dramatic example of this pattern at work and it invites our
5 Dzankic, J. (2012), ‘The Pros and Cons of Ius Pecuniae: Investor Citizenship
in Comparative Perspective’, Robert Schuman Centre for Advanced Studies,
EUDO Citizenship Observatory Working Paper 2012/14, Florence: European
University Institute, available at http://cadmus.eui.eu/handle/1814/21476
6 Shachar, A. (2006), ‘The Global Race for Talent: Highly Skilled Migrants and
Competitive Immigration Regimes’, NYU Law Review 81 (2006): 148-206;
Shachar, A. (forthcoming), Olympic Citizenship: Migration and the Global
Race for Talent. Oxford: Oxford University Press.
A. Shachar

11
critical scrutiny, especially since governments that use these programmes
often do so in the name of advancing their country’s national interest while
paradoxically setting up dangerous connections between money and access
to citizenship, possibly to the detriment of the basic egalitarian and partici-
patory thrust of political membership as we currently know it. These devel-
opments raise core ethical and legal questions. Why are states putting
citizenship up for sale? And what precisely is wrong with easy-pass naturali-
sation along the lines of the cash-for-passport programmes? Is it the queue
jumping? The attaching of a price tag to citizenship? The erosion of some-
thing foundational about political membership itself? Or, perhaps, all of the
above?
Surely, zealous free-marketeers will enthusiastically defend such pro-
grammes as freeing us from the shackles of culture, nation and tradition and
moving citizenship forward to a new and more competitive global age of
transactional contracting in which, as Nobel Prize laureate Gary Becker
once put it, a price mechanism substitutes for the complicated criteria that
now determine legal entry7. As much as Becker would like to deny it, though,
these programmes have something of a ‘whiff of scandal’ not only due to
frequent accusations of money laundering and fraud8, but also because of
something deeper and more profound. Citizenship as we know it (at least
since Aristotle) is comprised of political relations; as such, it is expected to
both reect and generate a notion of participation, co-governance, and a
degree of solidarity among those included within the body politic. It is dif-
cult to imagine how these values could be preserved under circumstances
in which insiders and outsiders are distinguished merely by the ability to pay
a certain price. The objection here is to the notion that everything, including
political membership, is ‘commensurable’ and reducible to a dollar value.
This is what makes cash-for-passport exchanges, even if they account for
only a limited stream or quota of entrants per year, deeply problematic and
objectionable. The sale and barter of citizenship, even if initially reserved
only for a small stream of recipients, nevertheless sends a loud and unmis-
takable message in both law and social ethics about whom the contemporary
market-friendly state gives priority to in the immigration and naturalisation
line and whom it covets most as a future citizen. This expressive conduct
and the new grammar of market-infused valuation it entails tell us something
7 Becker, G. (1992), ‘An Open Door for Immigrants – the Auction’, Wall Street
Journal, October 14 1992, A1.
8 ‘Selling Citizenship: Papers Please’, The Economist, September 28 2013,
available at https://www.economist.com/news/
international/21586843-hard-up-countries-og-passports-papers-please.
Dangerous Liaisons: Money and Citizenship

12
important about the volatile state of citizenship today and the direction in
which we may be heading.
Although economists will be quick to note that cash-for-passport pro-
grammes can create a hefty stream of revenue for governments, this is a
hardly a strong enough justication to endorse them. The desire to enlarge
their coffers may, as a matter of real-life experience, explain why some
countries offer these programmes. From a normative perspective, however,
such an exchange threatens to corrupt the good that is put on sale: what
changes when we ‘sell’ citizenship is not just the price tag of membership,
but its substantive content as well. As it plays a more and more important
role in countries’ immigration and naturalisation policies and priorities,
citizenship- for-sale may also gradually reshape the greater class of those
who are likely to enjoy political membership. Reliance on a price mecha-
nism alone, to the exclusion of other important considerations, would not
only prevent the vast majority of the world’s population from ever gaining a
chance to access citizenship in well-off polities. Taken to its logical conclu-
sion (as reductio) it might also lead, corrosively and over time, to a world
where anyone included in the pool of members must pay up, or risk ‘falling
helplessly to the wayside’9.
Several scholars have taken up the task of imagining how our world
might look were the market –rather than the state – to govern access to, and
the acquisition of, political membership. As one study explains, ‘[i]f we take
the basic incidents of citizenship to be protection of members and participa-
tion in modes of governance, the market for citizenship could form around
offer of and demand for these services. Indeed, the offer of broader packages
of citizenship services would be the basis for product differentiation’10.
‘Product differentiation,’ it should be noted, is a euphemism for providing
lesser rights and services in exchange for lower fees11. Farewell, then, to the
hard-earned ideal of inclusive citizenship as equal membership. In its
absence, auction mechanisms and supply-and-demand rules may well
replace our (however imperfect) procedures of exerting some degree of
democratic governance and collective decision-making on what it means to
belong to a political community, how to obtain a secure legal status of citi-
zenship, and on what conditions.
9 Spiro, P. J. (2008), Beyond Citizenship: American Identity After Globalization.
Oxford: Oxford University Press, 134.
10 Downes, D. M. & R. Janda (1998), ‘Virtual Citizenship’, Canadian Journal of
Law and Society 13 (2): 27-61, at 55.
11 Jordan, B. & F. Düvell (2003), Migration: The Boundaries of Equality and
Justice. Cambridge: Polity Press.
A. Shachar

13
Even staunch defenders of the market approach to citizenship understand
that they are facing a hard sell. Becker, for one, admits that ‘people object to
the sale of permits because, as they say, “citizenship is not to be for sale’”12,
and this is a moral intuition that runs deep. As evidenced by recent debates
over the instalment of cash-for-passport programmes, most people have
strong reservations against attaching a price tag to citizenship13. The reasons
are many. As already mentioned, such a move may cause irreparable harm
to the vision of citizenship as grounded in long-term relations of trust and
shared responsibility and may pregure the conation of the political and
ethical with the economic and calculative. It may also undermine member-
ship bonds grounded in co-authorship, cross-subsidisation of risk, and even
sacrice that might be expected in times of need. What is more, citizenship
currently involves making collective decisions, and translating those deci-
sions into binding commitments, in the context of a political project that is
far larger than oneself, and that extends well beyond the lifespan of each
generation of members – a time horizon that will be extremely hard to sus-
tain under a regime of strategic transactions, according to which ‘wealth
buys membership.’ Turning citizenship into a money-based prize also con-
tradicts any notion of complex equality through blocked exchange accord-
ing to which advantage in one sphere (here, wealth) cannot be legitimately
transferred to another (in this case, membership)14. This makes the idea of
selling membership unnerving for anyone who objects to the ultimate tri-
umph of economics over politics, the reduction of our public life and ethics
into mere pecuniary transactions, or the imperialistic idea that ‘trades’
occupy the full terrain of human value and meaning15.
Another set of concerns arises in the context of supranational citizenship,
as in the derivative structure of European citizenship. The actions of those
member states that take the liberty to put their national citizenship ‘on sale’
indirectly affects the supranational political membership good that is shared
by other countries, which may resist such commodication. There are also
complex questions about to whom (beyond its own citizenry) the transacting
12 Above n. 7.
13 Borna, S. & J. M. Stearns (2002), ‘The Ethics and Efcacy of Selling National
Citizenship’, Journal of Business Ethics 37 (2): 193-207, at 197.
14 Walzer, M. (1983), Spheres of Justice: A Defense of Pluralism and Equality.
New York: Basic Books.
15 Radin, M. J. (1987), ‘Market-Inalienability’, Harvard Law Review 100:
1849-1937; Sunstein, C. R. (1997), ‘Incommensurability and Kinds of
Valuation: Some Applications in Law’, in R. Chang (ed.), Incommensurability,
Incomparability, and Practical Reason, 234-254. Cambridge, MA: Harvard
University Press; Sandel, M. J. (2013), What Money Can’t Buy: The Moral
Limits of Markets. New York: Farrar, Straus and Giroux.
Dangerous Liaisons: Money and Citizenship

14
government is obliged to provide justicatory reasons concerning its selective
admission and naturalisation policies. Need it justify itself to other member
states? To the Commission of the European Union? To would-be entrants who
might have had a shot at admission through standard migration streams (fam-
ily, employment, and humanitarian) but who are priced out of the advantage
given to those who can afford a ‘golden passport’? From a global perspective,
cash-for-passport programmes clearly exacerbate pre- existing inequalities
rather than alleviate them. Should the sedentary populations of the migrant
millionaires’ countries of origin, which are typically less stable or poorer than
the destination countries, get to weigh in as well? Or, if an expansive all-
affected-interests principle is applied, perhaps anyone at all who may be
unfairly and arbitrarily affected should have a voice in these decisions16. And
what about migrants who are already settled in the country but ineligible to
benet from naturalisation schemes that require no knowledge or familiarity
with the political structures, main civic institutions, history or language of the
country, and who are subject instead to ever more demanding civic integration
requirements? If civic integration is a required precondition to the bestow-
ment of full membership by the state (as restrictive citizenship tests increas-
ingly indicate), how can this demand only apply to some and not to others?
After all, there is no rational connection between delivering a stack of
cash or sending in a bank wire transfer and establishing the kind of partici-
pation and equal standing among fellow citizens that the political bonds of
membership are meant to represent and foster. From this vantage point, the
transaction in citizenship, even if carefully regulated and implemented by
monopolistic governments or their authorised delegates, should be prohib-
ited. Taken to its dystopian extreme, this approach may lead to a situation
whereby the size of their wallets, and nothing else, distinguishes suitable
from unsuitable candidates for initial entry and eventual citizenship. This
kind of transaction, as lawyers and philosophers like to put it, is value-
degrading: the trading in citizenship ‘taints,’ ‘degrades’ or outrightly ‘cor-
rupts’ (in the moral sense) its value as a good. We might in the same vein say
that these cash-for-citizenship programmes detrimentally affect the ‘charac-
ter of the goods themselves and the norms that should govern them’17. As
critics of commodication have been at pains to clarify in other contexts18,
16 Goodin, R. (2007), ‘Enfranchising All Affected Interests, and Its Alternatives’,
Philosophy and Public Affairs 35 (1): 40-68.
17 Sandel, M. J. (2013), What Money Can’t Buy: The Moral Limits of Markets.
New York: Farrar, Straus and Giroux, 113.
18 Cohen, I. G. (2003), ‘The Price of Everything, the Value of Nothing:
Reframing the Commodication Debate’, Harvard Law Review 117 (689):
689-710.
A. Shachar

15
it is not that € 1 million is too high or too low a price, but that placing a ‘for
sale’ tag on citizenship, no matter what amount is written on it, has a corro-
sive effect on non-market relations, eroding the ties that bind and altering
our view of what it means to belong to a political community. Just as we
should be critical of granting citizenship according to nothing but the fortu-
itous and arbitrary circumstances of station of birth19, I believe we must
resist, with even greater force, the notion that money can buy ‘love of coun-
try’ – or secure membership in it.
If governments and activists are listening, they should heed the warning
signs. The ideal of equal citizenship has been inicted with many wounds
over the past decades, and has always been more of an aspiration than a real-
ity. However, the dangerous and increasingly frequent links between money
and access to political membership reected in the more calculated,
mercantilist- like perceptions of citizenship that have given rise to unfettered
cash-for-passport programmes threaten not only the implementation of the
ideal, but the ideal itself. Courting the world’s moneyed elite by relaxing
standard admission and naturalisation requirements may enrich the coffers
of a country in the short run, but in the long haul it risks cheapening some-
thing far more important: citizenship itself.
19 Shachar, A. (2009), The Birthright Lottery: Citizenship and Global Inequality.
Cambridge, MA: Harvard University Press; Shachar, A. (2011), ‘Earned
Citizenship: Property Lessons for Immigration Reform’, Yale Journal of Law
& the Humanities 23: 110-158.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Dangerous Liaisons: Money and Citizenship

17© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_3
Cash-for-Passports and the End of Citizenship
Peter J. Spiro
Investor citizenship programmes are becoming increasingly commonplace
in state practice. What was once the province of outlier Caribbean micro-
states is gaining traction among more substantial states. As an instrumental
tool, states see citizenship-for-sale as a way to help get out of an economic
hole on the cheap. There is no marginal material cost to minting new citi-
zens, especially those with deep enough pockets to afford the price of admis-
sion. Hence the adoption of investor citizenship programmes by such
countries as Cyprus, Malta, and Portugal.
I sympathise with Ayelet Shachar’s powerful framing of these programmes.
There is something unseemly, at least, about putting membership in the polity
up for sale. Cash-for-passports, as Shachar derisively labels the phenomenon,
clashes with our received understandings of citizenship as a marker of social
solidarity in a Walzerian sense. The emerging market for citizenship literally
commodies the status, the tip of an iceberg that Shachar is describing in
other work as states come to see immigration as a talent-pool competition.
But where Shachar sees investor citizenship programmes as a threat to
robust citizenship ties, I see them more as a manifestation of citizenship that
is already being hollowed out. If citizenship still meant what it used to mean,
if it still represented special ties as a sociological matter, then investor citi-
zenship schemes would not exist. In that context, citizenship-for-sale would
have implicated serious symbolic societal costs by breaking the social con-
tract, understood not as an arm’s-length market transaction but rather as the
locus of morally-inected rights and responsibilities. In the old world, such
programmes would have been inconceivable.
Today, far from inconceivable, they are becoming an accepted element of
strategic immigration policy. Investor citizenship programmes remain con-
troversial (perhaps especially in a small, distinctive society such as Malta,
which may more represent the old norm rather the new). But they are obvi-
ously gaining traction. States have something to sell. There must be some
sentiment in adopting states that the revenues will exceed costs, social or
otherwise.

18
Investor programmes give the lie to notion that citizenship is sacred, in a
civic sense. The programmes evidence the descent of citizenship from its
former pedestal. Shachar extols a ‘vision of citizenship as grounded in long-
term relations of trust and shared responsibility, … membership bonds
grounded in co-authorship, cross-subsidisation of risk, and even sacrice
that might be expected in times of need.’ That’s the citizenship of the past,
and passport-for-sale schemes supply another data point to prove it.
This is so notwithstanding externalities imposed on other states. In some
contexts, these externalities will be miniscule (a citizen of Malta can travel
to the United States visa free where the citizen of Russia cannot, but the
numbers will be low, and the number who abuse visa-free entry will be even
lower). In the European context they are potentially greater, as the EU mem-
ber states become subject to lowest-common-denominator citizenship poli-
cies. Those who buy Maltese citizenship are less likely to settle in Valletta
(one wonders how many could even name the capital city before – or per-
haps even after – they have made the purchase) than in Berlin or Paris or
Milan. When one buys Maltese citizenship one gets EU citizenship included
in the price; it opens a backdoor to the rest of Europe. But the EU seems
unlikely to complain. There is no legal basis for opposition, citizenship pol-
icy remaining exclusively within Member State discretion. Nor is there
likely to be much pushback as a policy matter, so long as the price is high
enough to depress numbers and maintain economic quality (as it were).
In material terms, the programmes are not much of a threat to provider
states, either. The numbers will be low. (Portugal had only 330 takers in the
rst year of its program.) Because many buyers will remain non-resident,
they will be invisible to the existing citizenry. They will not be politically
engaged, to the extent they will feel no interest beyond protection of their
bought-and-paid status. One possible cost would be with respect to diplo-
matic protection. It will be interesting to see whether that is a part of a bar-
gain – whether in fact states will intercede with other states on behalf of
their paying members (and whether international tribunals would recognise
protection of cash-only nationals).
Shachar is correct that the investor programmes show that citizenship is
still worth something. As the market thickens, we will see how much. With
the reference point of states that sell permanent residency, we will be able
approximately to isolate the value of citizenship itself – the premium states
will be able to extract with the passport. Will investor programmes like
Malta’s, which offer citizenship, be priced much higher than Hungary’s,
which extends residency status only? (I will leave to the economists to deal
with asymmetries among the various packages.) I suspect that premium will
P. J. Spiro

19
not be great, especially insofar as permanent residency includes the possibil-
ity of future eligibility for naturalisation. Finally, there is the possibility of
price competition as more states enter the market and some seek to maxi-
mise revenues by attracting more buyers at a lower price point.
Investor citizenship programmes are a symptom, not a cause. Shachar
sees citizenship as something that can be rescued through citizenship policy.
As material forces of globalisation fragment citizens’ solidarities, citizen-
ship law cannot revive them.
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Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
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Cash-for-Passports and the End of Citizenship

21© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_4
Citizenship for Those who Invest into
the Future of the State is Not Wrong, the Price
Is the Problem
Magni-Berton Raul
Roughly two thousand years ago, Roman citizenship began to be sold to rich
foreigners. As a consequence, rather than a way to share equal duties and
rights, citizenship by the third century C.E. had become an aristocratic title.
It divided people instead of rallying them. It increased inequalities instead
of reducing them.
The current situation is somewhat similar. Rich people have access to
rich countries’ membership, and poor people remain on the wrong side.
Thus, I sympathise with Shachar’s concerns and I think we should avoid to
reproduce what we have already experimented in our ancient history.
However, I do not agree with the way in which both Shachar and Spiro
have identied the problem. Consider, for example, a situation in which a
foreigner asks for access to citizenship in those terms: ‘I want to share the
responsibility of my failures and achievements with you, and I’d like to
invest in you and to be partly responsible of your achievements and your
failures.’ This is a touching statement of solidarity and identication with a
group. I have called it the stockholder principle: individual citizens are like
a joint-stock company in which fellow-citizens invest. The consequence of
these collective investments is a shared responsibility for individuals’
achievements. Moreover, the right to benet from public support is associ-
ated with the duty to invest in other fellow-citizens’ life projects. These
duties are embodied in specic taxes for public investment. Thus, each citi-
zen is also a stockholder with respect to other citizens.
Thus I would not say that the Maltese Parliament voted to ‘sell’ the
Maltese passport when it granted citizenship for € 650,000. From a foreign
investor’s point of view, given that she makes the above statement and is
ready to invest in the future of Maltese citizens, she acquires a moral claim
to become citizen. She does not only give a sum of money in exchange for
rights; she also becomes more largely committed to the duties of a Maltese

22
citizen. In other words, she gains access to the Maltese nationality with an
investment, which is a way to link her destiny to that of other Maltese.
So what is wrong with this beautiful story? Why are the Maltese people
sceptical and why is international opinion critical? Of course, we could
agree that the argument of externalities, mentioned by Shachar, is relevant:
European citizens should also benet from those new investments. Thus, the
problem is identifying who decides the allocation of those investments: the
government of Malta or the EU. Although these externalities are expected to
be low, as Spiro points out, it can be argued that Maltese citizens free-ride
because they alone benet from the foreigners’ will to become European,
and this could be morally disputable.
Beyond that, the main argument I would like to develop here is that €
650,000 seems, at rst sight, a lot. Not in absolute terms, of course. Suppose,
for example, a society in which people spend € 200 on watching a lm.
Several others things are likely to be true in such a society. Firstly, there are
some people that can afford to pay this price. Secondly, there are no other
less expensive goods which are substitutable, such as for example theatre,
sport or other entertainment. Perhaps this is because technological progress
has improved cinema so that it delivers a specic pleasure one cannot nd
elsewhere. Alternatively, this may happen because theatres or circuses have
simply gone bankrupt.
Analogically, in the case of naturalisation, several other things are likely
to be true in virtue of the fact that people prefer to pay a considerable amount
of money, rather than to proceed with alternatives. For example, in a society
where people are ready to pay € 650,000 for a passport, many of these alter-
natives are likely to be extremely burdensome, impractical, or unfair.
Let me assume that, until now, the Maltese way to naturalise foreigners
has been fair according to the stockholder principle. In other words, a ‘poor
foreigner’ can be naturalised, if she is ready to share the responsibility for
her failures and achievements with Maltese citizens, as well as to invest in
them and become partly responsible for their achievements and failures.
Under this assumption, investing money in Malta, whatever the amount, is
one fair way, among others, to gain access to citizenship. There is no reason,
after all, to distinguish between nancial and human investments.
But, if the Maltese law was fair, people would not be likely to invest €
650,000 to be naturalised. Of course, they could love Malta. They also could
be so wealthy that they prefer to pay this amount rather than spend time in
human investments. More probably, however, the fact that people are ready
M.-B. Raul

23
to pay this amount reveals that the law is in fact too restrictive and does not
provide other reasonable ways to become citizen.
Naturalisation in Malta is possible after ve years of residence, but it
includes discretionary conditions, the severity of which can vary across
time. In other European countries specic conditions and varying periods
of residence are required. The greater the severity, the greater the price for
passports. Investor citizenship programmes should be used to create a fruit-
ful community, not to maximise price.
To conclude, I do not believe that investor citizenship programmes in
themselves are unfair. On the contrary, they can reveal, via a nancial argu-
ment, how hard the naturalisation process is. All European countries are
concerned with this issue: too restrictive laws prevent motivated people to
give their contribution to the host country and they divide humanity into rich
and poor, rather than into different united groups. Exactly as the Roman
Empire did.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Citizenship for Those who Invest into the Future of the State is Not Wrong…

25© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_5
The Price of Selling Citizenship
Chris Armstrong
Malta’s decision to sell citizenship triggers strong reactions in many of us. It
appears to wrongfully connect the awarding of citizenship to ability to pay.
And as Ayelet Shachar’s contribution points out, it disregards the other
things that theorists often emphasise as key to citizenship acquisition: root-
edness in a community, interaction with its institutions, long-standing resi-
dence, or participation in its political life.
On the other hand, we might ask, can these other things always be neces-
sary criteria for awarding citizenship? Imagine that our country is waging a
desperate war of self-defence. Just when defeat – and the collapse of our
community – appears inevitable, a force of foreign volunteers enters the fray
and swings the result in our favour. These volunteers have performed a tre-
mendous service to our community – perhaps the greatest service we can
imagine.
Imagine, next, that we decide to thank the volunteers by offering them
citizenship in our country. Would this be morally repugnant? Far from it: the
decision would, I think, be perfectly appropriate. What, then, of rootedness,
interaction, residence, or participation? If giving citizenship to our imagi-
nary volunteers is appropriate, then those things cannot be as important as
we thought. Perhaps a massive, one-off contribution to the polity can be
enough.
We might think the Maltese example is very different, of course. Perhaps
what we object to here is the selling of citizenship, because this rides rough-
shod over the morally signicant connection between citizen and commu-
nity. Perhaps such ‘deals’ should never be made.
I’m not so sure. We can tweak the war example so that volunteers are not
forthcoming, and our country still faces annihilation. We then ask for volun-
teers, promising to grant citizenship as a reward for their services. Obviously,
this looks less palatable than the original example, because instead of a self-
less sacrice we now have a rather self-interested deal. Still, would it be
wrong for our country to offer this deal? It seems to me that, though it might
make some of us uncomfortable, the answer is no. Perhaps a country can be

26
in such dire straits that such deals are, all-things-considered, an acceptable
way of proceeding. But if that is true, what if the straits are nancial ones,
and the deal in question is, simply, the selling of citizenship?
I suspect that selling citizenship is perhaps not always wrong, even if it
often will be. In the rest of this response I set out ve reasons, though, for
restricting the sale of citizenship. Some of these concerns can be avoided.
Others remain genuine worries. But the way they ought to concern us is
interesting, because they suggest that what is wrong with selling citizenship
also applies to other instances of citizenship acquisition. Perhaps, then, sell-
ing citizenship is just the most visible case of a wider phenomenon. Perhaps,
for all its blatancy, it is not even the most important case.
1. What if selling citizenship has not been democratically authorised (or,
as Shachar suggests, it is veiled in secrecy), whereas if ‘the people’ had been
properly consulted, they would not have endorsed such a policy? (A survey
shortly before the Maltese decision showed 53 per cent disapproval.1) We
know that citizens often feel their views are very poorly represented in poli-
cies on immigration. Then again, putting great weight on popular views
about immigration may be unwise: those views are often hostile to immigra-
tion in general, and also, at the same time, often very badly informed. But
regardless, this objection is a contingent one, and leaves open the deeper
question: if the public did authorise selling citizenship, would there be any-
thing wrong with doing so?
2. Perhaps admitting the kind of people who can afford to spend hun-
dreds of thousands of Euros buying citizenship is unwise. Those (rich) peo-
ple will probably turn out to wield disproportionate inuence on domestic
politics. I believe that we have every reason to fear their inuence. But if
this is so, it is not an objection to selling citizenship. It is an objection,
surely, to granting citizenship to very rich individuals whether they pay for
it or not. It would apply just as strongly to a policy which made it easier for
rich individuals to access citizenship (free of charge). Less obviously, liberal
democracies standardly grant automatic citizenship to the children of native
citizens, some of whom also happen to inherit great wealth. Isn’t their wealth
a problem too? Isn’t it just as large a danger to democracy? If so, what
should we do?
1 ‘MaltaToday survey – Malta says yes to Budget, no to sale of citizenship’,
Malta Today, 11 November 2013, available at https://www.maltatoday.com.mt/
news/data_and_surveys/31360/maltatoday-survey-budget-citizen-
ship-20131111#.WtMg7HK-nZs
C. Armstrong

27
3. Perhaps it is unfair to allow people to buy citizenship, because other
less fortunate outsiders are thereby disadvantaged. The playing-eld is sim-
ply not even. If so, the same response follows: this is an objection not to
selling citizenship, but to making it easier for anyone to obtain citizenship
merely because they are wealthier or, indeed, because they possess ‘desir-
able’ skills. Selling citizenship is only a very visible instance of wider dis-
tributive unfairness in allocating citizenship. It may not be the most important
example.
4. Perhaps selling citizenship cheapens that ‘good’, and, as Shachar
rightly points out, sends a terrible signal to existing citizens about what
makes a good citizen. This is, I agree, a profound concern, but we can
respond in the same way as to the last objection. Any policy which makes it
more likely that some, rather than others, will be admitted to citizenship
sends such a signal. A policy which makes it easier for wealthier or more
highly-skilled people to obtain citizenship sends just the same signal. If the
objection is a good one, its implications ripple beyond the mere selling of
citizenship.
5. Finally, we might object that what Malta is doing is unfair to other EU
member states, since all of those states potentially bear the costs of granting
citizenship to outsiders, but only Malta reaps the benets. This, I suspect, is
at the heart of much of the resistance to what Malta is doing. But several
responses can be made. First, this objection obviously applies only to
EU-member states, and not to states more generally. Second, for an EU
member state to link citizenship to buying property or investing in their
country should be equally objectionable. Third, and more importantly, we
can point to ripple effects again. If it is wrong for one state to pursue a citi-
zenship policy which delivers benets to itself but imposes costs on others,
what else might fall foul of that principle? What about countries that attract
wealthy citizens of other states by offering them lower taxes and which
thereby make it more difcult for progressively-minded states to pursue
egalitarian policies? What if state competition for those wealthy individuals
always imposes externalities, making progress towards a more equal world
more difcult? Selling citizenship might then be, as Peter Spiro observes,
merely the tip of a very large iceberg. And not necessarily the worst part.
I am not sure, in the end, that I agree with Shachar that selling citizenship
is always wrong. Perhaps it is safer to say that it usually is, though we can
imagine situations where the reverse is true. But either way, selling citizen-
ship, even if it (often) appears repugnant, pales in comparison to many of the
other inequities attendant on the ordinary transmission of citizenship, as
Shachar’s own work has forcefully hammered home. I am tempted to
The Price of Selling Citizenship

28
conclude precisely this: for all that selling citizenship troubles us, it might
do us the considerable service of forcing us to think (more) about the way in
which many people already obtain citizenship, and the way in which citizen-
ship practices more broadly both feed off, and make it harder to tackle,
underlying global inequalities. As Spiro observes, writing better citizenship
laws can only be part of the solution to that problem. There are many other
important ways of tackling global inequalities that deserve at least equal
attention.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
C. Armstrong

29© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_6
Global Mobility Corridors for the Ultra-Rich.
The Neoliberal Transformation of Citizenship
Roxana Barbulescu
The problem with investment citizenship ain’t that it is for sale, the problem
is global inequality. Citizenship-by-investment schemes do not themselves
produce injustice but they are unjust because they build on pre-existing
large disparities in the world: If all countries were equal in living conditions
would the scheme be objectionable? If the answer is no, as I think it is, then
the source of injustice is global inequality rather than policies that do not
themselves produce injustice.
In the real world, however, citizenship-by-investment together with sim-
ilar schemes for residence opens global mobility corridors for the ultra-rich.
In what follows I discuss how investor citizenship impacts on international
migration and how it alters the institution of citizenship. I end by calling for
more systematic analysis of the political conditions under which this trans-
formation of citizenship has come about.
From an international migration perspective citizenship-by-investment is
a means for opening borders, even if only for very few afuent individuals
(and their families). In abstract terms, the logic is the same as with the dif-
ferent competitive schemes for high-skilled migrants. The latter use talent,
reputation, skill, work experience, previous salary and even age as proxies
for admitting only those who can make an important contribution1. So do
investors through their investments. The two schemes are also similar in
their consequences: they both immobilise the less well-off individuals. The
twin phenomena of global competition for the worlds’ best and brightest and
for the richest correspond to the nationalisation of poverty and the conne-
ment of less well-off citizens within their national borders. For me, this
indicates that the questions the scheme raises are indeed about global social
justice and it is this problem on which states need to focus their efforts.
1 Shachar, A. (2006), ‘The Race for Talent: Highly Skilled Migrants and
Competitive Immigration Regimes’, New York University Law Review 81 (1):
148–206.

30
Here is one qualier: many citizens of the rich countries benet from
similar privileged access to citizenship or residence in less developed coun-
tries around the world. They call themselves expats instead of migrants and
often need not go through the normal immigration route. A basic state pen-
sion from the UK, for instance, can make one a particularly well-off person
in the Global South. The citizenship-by-investment scheme just mirrors a
worldwide state of affairs, but it is more visible because of the high thresh-
old of capital needed for access. The fact that this matter has only now
entered the citizenship debate indicates how heavily theoretical and ethical
debates build on Western cases.
My second remark has to do with the profound transformation of the
institution of citizenship. My point here is that citizenship-by-investment
largely contradicts the very recent efforts of states to re-substantiate citizen-
ship through tests and integration requirements (see the earlier debate hosted
by this Forum2). Waiving these requirements for the ultra-rich raises serious
doubts over the credentials of the previous citizenship reforms and states
will need to justify why civic knowledge and other integration requirements
are needed or useful and provide proof that they are something more than a
lter to make immigration more selective.
The third point has to do with the fact that using capital as the sole
condition for citizenship for investors (waiving requirements such as resi-
dence, language skills or ancestry) departs from traditional foundations of
(national) citizenship which tended to privilege cultural and social ties. It
also marks a break with the historically younger project of social citizen-
ship which went in the opposite direction and sought to incorporate the
economically disenfranchised into the citizenry3. As Peter Spiro argues in
2 Bauböck, R. & C. Joppke (eds.) (2010), ‘How Liberal are Citizenship Tests?’,
Robert Schuman Centre for Advanced Studies, EUDO Citizenship Observatory
Working Paper 2010/41, Florence: European University Institute, available at
http://cadmus.eui.eu/bitstream/handle/1814/13956/RSCAS_2010_41corr.
pdf?sequence=3.
3 See Marshall, T. H. (1973 [1950]), ‘Citizenship and Social Class’, in Class,
Citizenship, and Social Development, Westport, CT: Greenwood Press; Soysal,
Y. (2012), ‘Citizenship, Immigration and the European Social Project: Rights
and Obligations of the Individuality’, British Journal of Sociology 36 (1): 1-21.
R. Barbulescu

31
his contribution, with this revision citizenship aligns itself with other neo-
liberal and free market- inspired developments. However, such withdrawal
of the state and the advancement of the free market in the traditional sphere
of state sovereignty still need to be better explained rather than just
diagnosed.
In the case of citizenship-by-investment, we need to understand better
whether this was a supply or demand driven policy change, what stake-
holder alliances lobbied for this policy, what channels they used, who set the
price tag (for an overview of varieties of citizenship- and residence-by-
investment programmes across the world see Barbulescu 2016), and what
arguments persuaded political elites to implement it. Neoliberalism does not
spread like the avour of a bag of tea in a cup of water: it needs promoters
and legitimisation that will align support against other competing para-
digms, especially in citizenship policies where there are strong path-
dependency dynamics. These are important questions because
citizenship-by-investment departs from citizenship traditions everywhere,
because such policy revisions are largely unpopular and may have a high
political cost and, not least, because they de-legitimise the very existence of
state bureaucracies administrating citizenship for the ultra-rich. With natu-
ralisation becoming a transaction over-the-counter, the organisation that
implemented it partly loses its purpose.
So why is it important to understand how citizenship-by-investment has
come about? Because of its large impact on an essential political institution
and its success in carving out global mobility corridors through entangled
states.
One nal note: As several states have already implemented citizenship-
by- investment schemes, states should quickly lose their naivety about inves-
tors as do-gooders. Those schemes that – unlike Malta’s – rely on investment
rather than direct payment should check that the capital is indeed invested.
The UK, one of the rst states to introduce Investor Visa (with a price tag of
£ 1 million or a bank loan from an UK nancial institution and personal
Global Mobility Corridors for the Ultra-Rich. The Neoliberal Transformation…

32
assets worth 2 million) recently revised this policy as it came to its attention
that investors used the capital for investment as security to back up loans
and that investments were placed in offshore custody4,5.
4 UK Border Agency (2013), Guidelines Tier 1 (Investor). Available at http://
www.ukba.homeofce.gov.uk/sitecontent/applicationforms/pbs/tier1investor-
guidance1.pdf, p. 1; revision HC 760 came into force in December 2012; see
also Nathan, M., H. Rolfe & C. Vargas-Silva (2013), ‘The Economic and
Labour Market Impacts of Tier 1 Entrepreneur and Investor Migrants’, Report
to the Migration Advisory Committee, available at www.ukba.homeofce.gov.
uk/sitecontent/documents/aboutus/workingwithus/mac/economic-research.pdf
5 Barbulescu, R. (2016) Investment Migration in the World. IMC Geneva https://
investmentmigration.org/investment-migration-in-the-world/
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
R. Barbulescu

33© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_7
The Maltese Falcon, or: my Porsche
for a Passport!
JelenaDžankić
‘We didn’t exactly believe your story, Miss O’Shaughnessy. We believed
your 200 dollars. I mean, you paid us more than if you had been telling us
the truth, and enough more to make it all right.’ These were the words of
Sam Spade played by Humphrey Bogart in the 1941 lm ‘The Maltese
Falcon’. Malta’s recent amendments to the Citizenship Act suggest that for
the country’s policymakers the amount of € 650,000 is just enough ‘to make
it all right’ for investors to purchase the Maltese and by extension the
European Union (EU) citizenship. But is cash-for-passport really ‘all right’,
and does it affect the value of citizenship?
Magni Berton suggests in his contribution to this Forum that what is
wrongwiththeMalteselawisthatordinarynaturalisationistoodifcultand
discretionary. Indeed, for most applicants, meeting the criteria for ordinary
naturalisation takes a long time and a lot of effort. During the years of resi-
dence that the applicants spend in their country of destination they make that
country the focal point of their lives: they learn its language, its customs and
establish social links with other citizens living there. Their claim to citizen-
ship of that country is based – following Shachar – on ius nexi. Hence the
integration of such individuals is of high value for citizenship as a public
good, as a network of communal contributions and responsibilities, as
shared love for the country.
Yet, Magni Berton claims that the rich may as well love the destination
country and that money may merely be an instrument for facilitating their
access to citizenship. Instead of a ‘human investment’, which would entail
time, establishment of social links, and acquisition of language skills, the
wealthy can make a monetary contribution. However, as highlighted in other
contributions to this debate, the rich usually do not spend much time in their
destination countries. Rather, as Spiro noted, they mostly use the opportuni-
ties provided to them by virtue of possessing its passport. Now, what is love
in this context? The one who truly loves is willing to wait and invest time
and effort. Otherwise, we would not speak about love. Offering money in

34
exchangeforpracticalbenetstogetherwithaclaimoflovesoundsrather
like something else. And that ‘something else’ is simply wrong.
In justifying investor citizenship programmes, Magni Berton further
compares citizenship with stockholding: ‘individual citizens are like a joint-
stock company in which fellow-citizens invest’. This reduces the scope of
citizenship, because the interests of stockholders are determined by the
share of stocks that they have in the company. In addition to this, stocks are
tradable – not only from the government to an individual, but also among
individuals themselves.
It makes more sense if, instead of regarding citizenship as stockholding,
we compare it to stakeholding, as Bauböck has suggested1. A citizen-
stakeholder is a person who has a fundamental interest in membership in a
particularpolity(ratherthanineconomicorotherbenetsforwhichmem-
bership may be instrumental). We can identify such stakeholder citizens by
looking at how a person’s interest in autonomy and well-being are structur-
ally linked to the collective autonomy (self-government) and well-being
(ourishing)ofacountry.Thismeansthatthosewhohaveobtainedcitizen-
ship merely on grounds of investment cannot be stakeholders, because they
only have an accidental and instrumental interest in citizenship in a state that
offers them a favourable investment environment.
It is worth mentioning that there are different ways in which countries
offer citizenship to the rich, which is often overlooked both in the media and
in academic circles.2 The way in which an investor programme is regulated
could potentially turn this instrumental interest of the rich in possessing a
passport of a country into stakeholder citizenship. In her initial contribution
to this debate, Shachar highlighted the difference between ‘golden resi-
dence’ and ‘investor citizenship’ programmes. While the former require the
investors to reside in their country of destination for a number of years and
to undergo a standard naturalisation procedure (including the knowledge of
language, customs, etc.) before becoming citizens, the latter is an exchange
ofaxedamountofmoneyandcitizenship(mostgovernmentsdoruncrim-
inal record and due diligence checks of applicants). There is also a third
mechanism for turning investors into citizens, which is discretionary
1 Bauböck, R. (2009), ‘The Rights and Duties of External Citizenship’,
Citizenship Studies 13 (5): 475-499.
2 Dzankic, J. (2012), ‘The Pros and Cons of Ius Pecuniae: Investor Citizenship
in Comparative Perspective’, Robert Schuman Centre for Advanced Studies,
EUDO Citizenship Observatory Working Paper 2012/14, Florence: European
University Institute, available at http://cadmus.eui.eu/handle/1814/21476
J. Džankić

35
naturalisation on grounds of national interest. These provisions exist in 22
out of the 28 EU Member States. Such discretionary naturalisation is the
prerogative of the state and it is used only in a few cases annually. In several
countries, including Austria, discretionary naturalisation has resulted in cor-
ruption and secret deals, which tells us that too much discretion can have
adverse effects on citizenship.
Evenwiththisinmind,wecanndsomesupportforArmstrong’sargu-
ment that investor citizenship programmes are not always wrong. That is,
well-conceptualised ‘golden residence’ schemes may bring economic ben-
ets to the state while also turning investors into genuine stakeholders.
However, such ‘golden residence’ programmes should not be based merely
on real estate purchase, as recently approved by Spain, and they should
require more than a compulsory residence of only a few weeks per year as a
mechanism of eventually qualifying for citizenship, as they do in Portugal.
The argument here is that neither the possession of real estate nor the lack of
residence can help the wealthy to establish a true connection with the desti-
nation country. Only ‘golden residence’ programmes that are based on
multi-annual investment, jobs for citizens of the destination country, and
compulsory residence for the investor before qualifying for citizenship, as is
the case in Canada, help the investor to become integrated and interested in
the well-being of the citizens of her or his adopted country.
By contrast, the program recently passed by the Maltese government is a
‘pure investor citizenship’ scheme, which differs from programmes in other
EU countries that have recently adopted various ‘golden residence’ schemes
(Bulgaria, Hungary, Portugal, Spain). Besides the crisis-struck Cyprus,
which in May 2013 opened several routes to naturalisation on grounds of
economic contribution to the state, Malta is the only other European state
with such a scheme. The programmes in Malta and Cyprus are thus more
similar to the ones in the Caribbean islands – Saint Kitts and Nevis, the
Commonwealth of Dominica, and Antigua and Barbuda, all of which oper-
ate ‘investor citizenship’ schemes.
Two things make the Cypriot and Maltese programmes more attractive
for investors than those of the Caribbean islands. First, in the former cases
the naturalised investor will be granted visa-free travel to 151 (Cyprus) or
163 (Malta) states. This is considerably more than they would have by virtue
of possessing the best-ranked Caribbean passport, that of Saint Kitts and
Nevis which allows visa-free entry to 131 countries. Second, and more
importantly, since in the EU the regulation of citizenship is decided by each
Member State for herself, an individual may now obtain EU citizenship for
roughly the price of a Porsche 918 Spyder. Hence the investor gains access
The Maltese Falcon, or: my Porsche for a Passport!

36
to all the rights stemming from EU citizenship, including free movement
and residence within the EU, the right to vote for and stand as a candidate in
European Parliament and municipal elections, diplomatic protection, etc.
This raises the question of whether it is proportionate and just that access to
this array of rights is exchanged for the price of a sports car. Doesn’t this
dilute the value of citizenship to a tradable commodity, voiding it of the
sense of rights and duties and undermining citizens’ solidarity? If states sell
citizenship, what the buyer gets will no longer look like citizenship at all.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the chap-
ter’s Creative Commons license, unless indicated otherwise in a credit line to the
material. If material is not included in the chapter’s Creative Commons license and
your intended use is not permitted by statutory regulation or exceeds the permitted
use, you will need to obtain permission directly from the copyright holder.
J. Džankić

37© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_8
What Is Wrong with Selling Citizenship?
It Corrupts Democracy!
Rainer Bauböck
Like the Roman god Janus, whose head was displayed above city gates, citi-
zenship has two faces: one looks outwards, the other one inwards. The exter-
nal face turns to other states and demands that they recognise the country’s
passport as well as to citizens living abroad whom it promises the right to
return and diplomatic protection. The internal face speaks to citizens as mem-
bers of a democratic community. It tells them that, in spite of their different
interests and identities, they are equal as individuals and collectively govern
themselves through their right to vote. The two faces belong to the same head,
but sometimes the stories that they tell become dangerously disconnected.
The European Union has strongly increased the external value of its
member states’ citizenships. It has expanded the right to return into freedom
of movement throughout the Union. The EU passport is, moreover, a key
that opens the doors of a large number of third countries for visa-free entry.
Finally, EU citizenship offers now also diplomatic protection by other mem-
ber states to EU nationals residing in third countries. When selling its pass-
port for € 650,000 to non-resident foreigners, Malta intends to cash in on
this European added value of its external citizenship. It is not hard to under-
stand why this irritates EU institutions and other member states. Malta
behaves like a member of a cooperative that sells membership to outsiders
at a price that in no way reects her own contributions.
Beyond the obvious unfairness in the division of monetary gains from the
value of EU citizenship, member states also have reasons to be concerned
about any one of them naturalising persons born and residing abroad without
genuine links to the country. As Shachar and Dzankic point out, these people
are likely to use their passports for other purposes than a ‘return’ to the state
whose citizenship they have obtained. In this respect, Italy, Hungary and
Romania, whose ethnic citizenship policies have created hundreds of thou-
sands of new EU citizens abroad, are worse sinners than Malta. What the
Maltese and similar programmes do is to transform an inherited privilege of
co-ethnic populations residing abroad into a global commodity.

38
This makes it quite natural to consider the external value of citizenship
from a global perspective, as Spiro, Armstrong and Barbulescu do in differ-
ent ways. Spiro regards the sale of citizenship as yet another symptom of its
inevitable decline due to globalisation, alongside the increasing toleration of
dual citizenship, as he has argued previously. While the instrumental value
of citizenship of an EU member state for transnationally mobile populations
has increased, citizenship as a ‘sacred bond’ between an individual and a
state has unravelled. Armstrong and Barbulescu look instead at citizenship
through a lens of global (in)justice and conclude that the sale of EU pass-
ports is merely one instance – and not the most signicant one – of how citi-
zenship policies ‘both feed off, and make it harder to tackle, underlying
global inequalities.’ This echoes Shachar’s initial comment that we should
be equally critical of the comparatively rare practice of putting up citizen-
ship for sale and of ‘granting citizenship according to nothing but the fortu-
itous and arbitrary circumstances of station of birth’.
I suggest that it is useful to consider the external and internal perspec-
tives separately. From a global perspective, birthright citizenship may
indeed look suspiciously arbitrary, although I would not regard it as a cause
of global injustice. To see why, consider the EU as a regional model for a
potentially more just global regime. In the EU, free movement and access to
opportunities elsewhere is linked to citizenship in a member state, which is
again based on birthright in each of these states. So it seems misconceived
to point to birthright citizenship as the culprit that causes global social
inequalities instead of blaming unequal resources, global economic gover-
nance and immigration control.
Once we walk through the city gates and listen to the voice of Janus from
the other side, our critique of citizenship for sale will change quite radically.
Barbulescu asks rhetorically: ‘If all countries were equal in living condi-
tions would the scheme be objectionable?’ From inside a democratic com-
munity, the answer to this question must be an emphatic yes! To understand
why, let us focus for a moment on the core political right of citizenship, the
franchise in democratic elections. Isn’t it objectionable to sell the right to
vote to outsiders? Suppose that, in reaction to critiques by the other EU
states, Malta decides to sell the franchise in its national elections rather than
its passports. The price it could achieve would be of course much lower, but
would it be all right to do so? Let me hasten to say that Malta and Cyprus are
among the very few European states that currently do not allow their citi-
zens residing abroad to cast their vote in national elections. So while
investors can get citizenship without taking up residence, they will need to
R. Bauböck

39
move to these island states in order to vote. Yet this seems a fortuitous coin-
cidence rather than a policy design.
The corruptive political inuence of linking citizenship to investment
can be nicely illustrated by the story of Frank Stronach, a billionaire of
Austrian origins who made his fortune in Canada. Under Austrian law,
Stronach lost his Austrian citizenship upon becoming a Canadian citizen.
When he established European headquarters of his company in Austria, he
was granted citizenship under a special provision that requires neither resi-
dence nor renunciation of another nationality and that has also been used to
naturalise Russian oligarchs alongside famous artists and sportsmen on
grounds of “extra-ordinary achievements in the interest of the republic”.
Once he had retrieved his Austrian citizenship, Stronach started buying
political inuence by recruiting former politicians for his company. In 2012,
Stronach bought himself also a political party that he called ‘Team Stronach’
and ran an expensive election campaign. He made a bit of a fool of himself
in TV debates and got fewer votes than expected, but there is now a party in
the Austrian Parliament established by and named after an investor-citizen.
Maybe Stronach should not have lost Austrian citizenship in the rst place.
But the way in which he was able to reacquire it through his investment
opened the doors widely to his subsequent corruptive inuence on Austrian
politics.
Of course, citizenship-from-the-inside is not only about voting and being
elected. I am not so sure that it requires loving your country, as Dzankic sug-
gests. But it certainly means being treated as an equal member and treating
others as equal members of a political community. Magni Berton also looks
at citizenship from the inside but does not emphasize sufciently equality
among citizens. He is right that the state invests into citizens and citizens
invest into each other. But citizenship status and rights must not be propor-
tional to the investments citizens make, or even conditional on such
investments.
Voting rights provide again the test. Throughout much of the 19th cen-
tury, the franchise was still a class privilege. ‘No taxation without represen-
tation’ also meant ‘no representation without taxation.’ Only those who
contributed to the state coffers had a right to be represented in the making of
laws. This is no longer our vision of democracy. True, democratic societies
have hardly become more egalitarian since then and, as Stronach’s example
demonstrates, wealth can rather shamelessly buy inuence in politics.
Turning the status of citizenship itself into a marketable commodity would
mean more than this. It would tear down a wall of protection that keeps
What Is Wrong with Selling Citizenship? It Corrupts Democracy!

40
social class from becoming, once again, a formal marker of inequality of
citizenship rights and status. One could object that, once they are citizens,
the votes of foreign investors will not formally count for more than every-
one else’s. But it seems quite naïve to think that a club that starts to sell its
membership at a price that only the ultra-rich can afford will keep treating
its poorer members as equals.
Barbulescu makes an interesting point that ‘citizenship-by-investment
largely contradicts the very recent efforts of states to re-substantiate citizen-
ship through tests and integration requirements.’ It seems indeed inconsis-
tent to waive integration conditions for investors while at the same time
insisting that citizenship can only be granted to foreign immigrants as a
reward for their individual integration efforts. Yet from a democratic per-
spective both of these policies represent the same worrying trend: they link
access to citizenship once again to social class. While income tests for natu-
ralisation have an explicit class bias, knowledge tests have an implicit one,
since education and the capacity to learn for tests is strongly related to social
class.
But isn’t the way citizenship is obtained anyhow morally arbitrary? Why
should those who have citizen parents or who have been born in the state’s
territory have a stronger moral claim to citizenship than foreigners who are
ready to pay or invest? Why should even long-term residence count, if those
who can naturalise on that basis have been pre-selected by immigration con-
trols that do not offer the same chances to the rest of the world’s population?
These may be relevant questions from a global justice perspective. From an
internal democratic perspective, they are wrongly asked. Long-term resi-
dence is what makes immigrants’ relation to the political community equal
to that of native citizens in the relevant sense and is therefore not at all an
arbitrary criterion for access to citizenship as membership in a particular
polity. The same can be said for ius soli and ius sanguinis. Instead of giving
citizens specic privileges based on a claim to land or to parental inheri-
tance, these birthright rules make them equal amongst each other by refer-
ring to the circumstances of birth that they share in common, be it birth in a
territory or to citizen parents. Moreover, by providing individuals with citi-
zenship at birth and for life, states protect them in a much stronger way than
clubs who select their members based on present members’ interests in their
contributions or in choosing new ones who are like themselves. Selecting
future citizens on grounds of either investment or income and knowledge
tests departs fundamentally from the egalitarian thrust that underlies rules of
birthright citizenship as well as residence-based naturalisation.
R. Bauböck

41
So how should the EU and its member states react to citizenship-for-
investors laws? They should protest that these policies undermine solidarity
between member states, but they should also protest against the internal
hollowing out of democratic standards. As a union of democracies, the EU
must be concerned when democracy is corrupted by the rule of money in
any of its member states. Bribing ofcials is not the only way in which this
happens. Selling citizenship is, too.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
What Is Wrong with Selling Citizenship? It Corrupts Democracy!

43© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_9
What Money Can’t Buy: Face-to-Face
Cooperation and Local Democratic Life
Paulina Ochoa Espejo
Brief visit to Valletta: € 2,500. Maltese Passport (and visa-free travel to the
United States and 163 other countries): € 650,000. Partaking in a democratic
community built on principles of equality and solidarity: Priceless.
In her article, Ayelet Shachar argues a point similar to the tagline of
Master Card’s famous advertisement: ‘there are certain things money can’t
buy, for everything else...’ Yet, as Peter Spiro remarks, pointing it out in our
current circumstances may appear as banal as a TV ad. The hoax in the
Master Card ad is that the numbers appearing on screen are not presented as
the price tag of the ‘priceless’ item. Yet the ad also tacitly reminds us that we
live in a society where the most ‘meaningful’ experiences are, in fact, bought
and sold all the time; a society where what really matters to the beautiful
woman may well be the expensive ring’s promise of future riches, not the
engagement with her ancé. The campaign exploits our fear that priceless
moments would simply not happen if they were not preceded by hefty pur-
chases. Indeed, we daily discover things that, in a democratic society, are
not supposed to be for sale, and yet go to the highest bidder. For example,
the work of such public servants as soldiers, prison wardens, and govern-
ment social workers is today frequently given by governments to private
contractors. And today, more and more countries are selling citizenship.
But does ‘everyone’s doing it’ make it right? I agree with Shachar that it
ought not to happen: citizenship should not be for sale. However, I think that
she has not chosen the best grounds to argue why it shouldn’t. In her view,
selling passports is wrong for many reasons, but what I take to be the most
important are: rst, because it undermines community; second, because it
lets the economic sphere control the political sphere, and in doing so cor-
rupts the value of citizenship. As to the rst, Shachar argues, a person who
has enough ready cash to buy citizenship in Malta has no incentives to estab-
lish relations of mutual trust and responsibility with other Maltese, so giving
them a golden passport weakens a community built on solidarity and collec-
tive decision-making. As to the second, says Shachar, selling the privileges
of citizenship brings economic inequality into the political sphere, thus

44
undoing democracy’s historic commitment to shield each citizen’s political
power from the effects of economic inequality. At rst sight, these argu-
ments seem overwhelming. Yet further reection shows that they in fact
prove too much. For if they were right, then we ought to forbid what I deem
an unobjectionable practice: economic immigration by the poor.
Let’s see how this could be so. On Shachar’s argument, we object to sell-
ing passports, even when it is protable, because the buyer’s character and
attitude undermines democratic institutions. A buyer of a golden passport is
motivated to be a member for the wrong reasons: she is not seeking citizen-
ship so as to establish relations of mutual trust and responsibility with
Maltese. Notice, however, that this is also true of the economic immigrant
who jumped the fence and worked illegally in the receiving country in order
to pull herself out of poverty. In both cases the immigrant acts primarily
according to her own interests, rather than any desire to build relationships
of trust and mutual responsibility with her fellows. Both types of immi-
grants move money according to their transnational personal connections
and concerns, both invest according to their personal needs. Both immi-
grants often bought their way in: either legally or illegally. Both value their
new dual-citizenship status highly, and are not willing to forgo the advan-
tages of either one, and both may spend huge amounts of money on immi-
gration attorneys and fees to regularise their immigration status and get
citizenship. So Shachar’s own criterion, at least as presented, seems to rule
out most economic immigration by the poor.
Something seems amiss. A better argument against a golden passport, I
think, would use a criterion that would unambiguously imply both that it is
wrong to admit rich immigrants simply because they will pay big money,
and that it is wrong to deny admission to the poor simply because of their
economic hopes. Let’s examine some candidates for such a criterion.
Could it be time? In Shachar’s essay, there is a muted factor that does
seem to explain why we should not make ability to pay sufcient for citizen-
ship: Time. Both the rich and the poor immigrants pay for their new mem-
bership in one way or another, but the rich can get citizenship fast. The
world’s rich have a degree of mobility that mirrors the speed of capital. They
can follow the money, and they prot from their well-heeled hyper-mobility.
This, of course, gives them few incentives to build ‘long-term relations’ and
commitments ‘expanding beyond their life-span’. So time might seem a
good candidate for explaining why purchase shouldn’t itself get you citizen-
ship. Yet, as Chris Armstrong argues in his response, one can in a ash make
deep commitments that do indeed seem to expand beyond one’s life-span.
P. Ochoa Espejo

45
He reminds us of foreign volunteer soldiers like the Lincoln Brigade, who
enter a foreign war to defend a country that is not theirs. It takes them no
time to make a deep and seemingly long-lasting commitment. So if we think
our criterion needs ultimately to track long-term commitments, then this
criterion seems not to work for all cases.
Could it be the depth of the roots, then? Here is another way to explain
why it is wrong to admit the rich passport-buyer simply because of ability to
pay. Let’s say that the criterion should be how much and how deeply the
would-be immigrant’s life and concerns are and will be rooted in the new
country. For poor immigrants invest their work and efforts in becoming a
part of the new society they join, while it might seem that a rich jetsetter
buying a passport need make no such effort. Yet economic investment can
be a very deep tie, as Raul Magni Berton argues in his reply. Committing a
big sum to a new country can be done in a ash, and indeed, it can be done
without even visiting the country in question; but if the investment is seri-
ous, it shows commitment and concern for others, and it lays down deep
roots. So depth-of-roots cannot adequately distinguish the golden-passport
holder from the poor immigrant.
Could it then be physical presence? This is the candidate criterion I
favour. One of Shachar’s concerns is that the rich passport-buyers need
hardly ever be present in the new country. Territorial presence is particu-
larly important because it forces individuals to partake in a particular way
of doing things. Standing in queues, letting others go through, gather in
certain occasions, stay indoors at other times. This type of action is face-to-
face, and requires commitment to local institutions and local life. By being
there, a person must become part of a civic organisation requiring solidar-
ity and trust. And by being present in a democratic action, one can show a
commitment to a civic community without having to share ethnic or cul-
tural ties. This way of coming into a civic organisation can be immediate
(as in the case of the person who volunteers to defend a country), but it does
distinguish between an immigrant who is truly invested in the new coun-
try’s institutions, from one who has just engaged in a one-time uncommit-
ted monetary transaction. And most importantly, physical presence and
face-to-face interactions can explain why citizenship is valuable in itself: it
allows us to have relations as political equals, regardless of economic sta-
tus. If we award passports to those without any likelihood of ever being
there, we undermine the relevant connections built on regular interactions
and participation in the institutions that organise local life, which is, after
all, where equality takes place.
What Money Can’t Buy: Face-to-Face Cooperation and Local Democratic Life

46
At bottom, what makes the golden passport wrong is that it undermines
political equality, not that it puts closed communities in question, or shatters
the separations between the spheres of justice. What remains priceless is the
active face-to-face partaking and building of democratic institutions on the
basis of principles of equality and solidarity: that is what money can’t buy.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
P. Ochoa Espejo

47© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_10
If You Do not Like Selling Passports,
Give Them for Free to Those Who
Deserve Them
Vesco Paskalev
The Maltese idea to ‘sell’ citizenships was met with almost universal criti-
cism, not only within our Forum discussion but throughout Europe. While it
is difcult to disagree with most of the arguments against monetization of
citizenship, in my view they all aim at the wrong target. It is not the sale of
citizenship per se which violates principles of justice and democracy; it is
the existing international system of inclusion and exclusion of third country
nationals which is deeply skewed and denigrates the value of citizenship. For
all that I know, even the ultra-rich do not easily throw € 650,000 to the wind,
so a condition under which anyone would give huge amounts of money for a
travel document is deeply troubling. It is not membership but mobility which
is at issue. Moreover, as Paulina Ochoa aptly notes, not only the rich but also
the poor seek naturalisation for economic rather than civic reasons.
Bauböck distinguishes two sides of citizenship – an internal and an exter-
nal one. Focusing on the former, he persuasively argues that selling citizen-
ship undermines democracy. In a similar vein, Dzankic notes that in some
cases the very fact of putting a price to a good corrupts the good. As a decent
republican I fully agree with both of them. But as Spiro notes, the corruption
of this good may have started long ago for reasons which have nothing to do
with the recent fashion of investor citizenship schemes. While the policy
makers and academics were predominantly concerned with the internal
aspect of citizenship, various forces – from the Schengen Agreement via
Ryanair to Moneygram – have brought the external aspect to the fore.
Is citizenship all about travel indeed, or about identity and democracy? A
natural experiment occurred between Bulgaria and Macedonia. Most
Bulgarians believe that Macedonians are actually ethnic Bulgarians, who
happen to live in an articial country because of some historic contingen-
cies. Naturally, most Macedonians are annoyed (to put it mildly) by that
suggestion and vehemently assert their Macedonian identity against
Bulgarian imperialism. Yet, when Bulgaria joined the EU, Macedonians

48
ocked to the Bulgarian consulates to apply for a passport. Suddenly, thou-
sands were claiming that they are ‘of Bulgarian origin’. Very few of these
people had any actual bonds with Bulgaria and it is difcult to believe that
anyone had suddenly woken up to her or his true Bulgarian identity.
Apparently their Macedonian self-consciousness was in harmony with a
Bulgarian passport and the opportunities it gives to ‘Bulgarians abroad’.
I hasten to add that Macedonia tolerates dual citizenship; if people had
to renounce their Macedonian citizenship in order to obtain a Bulgarian
passport, the numbers could be very different. Yet, the story is telling. It
shows how easy it is for people to claim certain origins when this is conve-
nient despite of rmly holding on to a different identity, which in the
Macedonian case has been explicitly constructed as excluding the Bulgarian
one. For all the value we attach to citizenship, the relative weight of its
internal aspect is by far superseded by that of its external dimension. When
asserting that a passport is more about travel than about anything else I am
not being cynical – most citizens do care about membership, too. But when
your passport matters so much outside of your country, you are under pres-
sure to adjust your priorities. Thus, in the extreme case, your passport may
be completely unrelated to your emotional belonging. Virtually all coun-
tries in the world discriminate among those wishing to enter on the basis of
the completely arbitrary facts of their birthplace and descent. It is this arbi-
trariness which corrupts the value of citizenship (and by implication of
domestic democracy), not the availability of a bypass or two for a tiny
minority, be it rich or poor.
So what should an EU Member State do in the face of the Maltese scheme
if it is concerned with rescuing the value of citizenship as Shachar pleads?
For sure, trying to prevent the Maltese from making some cash from a sys-
tem which is already so unjust and distortive would not help much. Yes,
selling citizenship does not do anything to help either, but if a wealthy
European democracy is truly appalled by the idea of selling passports to the
rich, why not start giving its passports for free to a more deserving crowd?
The only decent response to the opening of a mobility corridor for the rich
would be to open mobility corridors for the righteous – those who have
shown exemplary civic virtue, have made sacrices for democracy or human
rights or are subject to outrageous persecution. A tentative list of candidates
would include convicted Russian punks, jailed Egyptian protesters and
Chinese dissidents, American whistle-blowers, Iranian adulterers facing
stoning, etc. Certainly, one can immediately think about a number of prob-
lems that such a policy could create, yet if Raoul Wallenberg took the risk of
V. P a s k al e v

49
handing out Swedish passports to save hundreds of Hungarian Jews from
the Nazis, why shouldn’t a proud member of the EU do something similar?
In practical terms granting citizenship to prominent civil rights activists
can spare them from persecution at home and provide them with a mobility
corridor to the Western world. Symbolically, it can become a way of recog-
nition of their civic virtues and exploits (certainly, despotic regimes may
frame it as evidence for treason). Critics are right to claim that the very fact
that an immaterial value has a price tag undermines it, but the opposite can
also be true – giving passports to highly esteemed gures can make these
passports highly esteemed, too. If you are rich, go get a passport from Malta!
If you are righteous, maybe you should be able to get a passport from say,
Sweden. Comparing the existing investor citizenship schemes, the Financial
Times feared that selling citizenship may start a race to the bottom.1 Why
not try launching a race to the top instead?
1 ‘“Passport for sale” plan raises concern among EU members’, Financial Times,
9 December 2013, available at https://www.ft.com/content/b8a2adfa-6106-11e3-
b7f1-00144feabdc0
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
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source, provide a link to the Creative Commons license and indicate if changes
were made.
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chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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permitted use, you will need to obtain permission directly from the copyright holder.
If You Do not Like Selling Passports, Give Them for Free to Those Who…

51© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_11
Citizenship for Real: Its Hypocrisy, Its
Randomness, Its Price
Dimitry Kochenov
Peter Spiro’s tactful diagnosis of the aws in Ayelet Shachar’s kickoff text
to this Forum is correct: Shachar fails to convince when arguing for saving
citizenship against itself. (1) She understates the hypocrisy and randomness
underlying any determination of citizenship. (2) She ignores the problem of
de facto statelessness, which reveals a questionable understanding of dis-
crimination. (3) She exaggerates the importance of the political dimension
of citizenship and presents the link between citizenship and political partici-
pation as unproblematic. (4) Shachar claims that the sale of EU citizenship
affects other member states, but this is perfectly legitimate since there is no
breach of EU law involved. (5) There are multiple ways how to acquire EU
citizenship which shows why Shachar’s acceptance of naturalisation as a
state-mandated purication ritual fails to capture reality. Overall, Shachar’s
argument against the Maltese policy does not stand. If we take democracy
seriously, then it should be for the Maltese alone to set the price. I thus dis-
agree also with Magni Berton when he claims that the high price at which
Malta sells EU passports is problematic.
I.
There are many stories about how selling things is bad: land is not for sale;
love is not for sale; salvation is not for sale. Such proclamations make one
wonder whether the purpose of ethical high points is to totally contradict
reality. Hypocrisy itself is difcult to sell as an argument: land can be bought,
prostitution is often legal and some of the greatest art was sponsored by
those who wanted to buy salvation for themselves. To insist that citizenship
is not for sale is to ensure the perpetuation of the outright randomness of its
conferral as well as hypocritical and self-righteous excuses lurking behind
fundamental mechanisms of exclusions. Those boasting Italian great grand-
parents in Paraguay, members of Polish diasporas in Australia and else-
where, large benefactors and talented sportsmen – all these people can
become Europeans, however random the rules. But the critique focuses on
those countries that offer citizenship for sale in a perfectly transparent way.

52
It is wrong to pretend that any other principle than outright randomness is at
the core of the assignment of citizenship statuses in today’s world. Once the
inevitable randomness of exclusion is admitted – as Shachar did in her book
on the birthright lottery1 – we need to ask what citizenship is actually about.
II.
Shachar is worried about any discrimination at the point of acquisition of
citizenship. However, a strict non-discrimination approach would deprive
citizenship of its main function, i.e. random exclusion of large parts of soci-
ety. Crucially, both de facto and de jure aspects of exclusion must be taken
into account, a point that Shachar ignores in her statement. The fact that
many de jure citizens are de facto stateless, in the sense of not receiving
protection by their state of origin or enjoying substantive rights to return
there, is of crucial importance. Idealistic images of a citizenship of the past
are based on misrepresentation of social facts, perpetuating an often repug-
nant status quo where plenty of people are failed by their states day after
day. Thus real citizenship starts with the actual extension of rights and giv-
ing the voice to those who are already formally included: women, minori-
ties, the poor and the weak: plentiful problems remain in this regard.
Naturalisation is but a second step which serves three functions: provid-
ing citizenship status to long-term resident immigrants, respecting and rec-
ognising citizens’ family ties through special naturalisation rules for family
members, and reinforcing the society with talent, money, inspiration and
diversity – which translates into inviting the rich, the beautiful and the smart
(sometimes these three categories overlap of course).
No confusion between different groups of applicants should arise: to ask
that all follow the same path is rarely helpful. Arguing for making the rules as
strict as possible for all misses the different purposes of conferring nationality
in the rst place. Be it sports, science, money or family, it is up to the national
democratic process to determine the criteria. Crucially, there is no ethical
point to be made in arguing against money when loving a citizen, expensive
education, or muscular power can also do the trick. Money is no less random
a criterion and this is exactly what citizenship is about. Real discrimination
would be to sell a partial rather than fully edged citizenship, as Tonga does
when selling its ‘Tongan Protected Person Passport’, which is not recognised
by many other states and does not entail a right to enter and settle in Tonga.
The attractiveness of such a second class citizenship is clearly limited.
1 Shachar, A. (2009), The Birthright Lottery. Citizenship and Global Inequality.
Cambridge, MA, Harvard University Press.
D. Kochenov

53
III.
Shachar overstates the actual importance of the political dimension of citi-
zenship. In the age of post-heroic geopolitics plenty of people naturalise or
cherish the nationality they already have for entirely different reasons.
Indeed, the political aspect, rather than being at the core of citizenship,
regrettably becomes the scapegoat for justifying refusals to extend the status
to those who already belong to the society. The idea that only the right peo-
ple participate in political life is so important that you will be discriminated,
threatened with deportation, exploited and humiliated in order to protect the
sacred body politic. The troubling truth is that more and more people do not
care about politics, as opinion polls amply testify. And those who do can be
politically engaged despite not having the formal status of membership – as
the German citizen Daniel Cohn-Bendit was in Paris 1968. The basic pre-
sumption of the necessary connection between citizenship and political par-
ticipation should be approached critically and is hardly defensible, especially
in the EU (see the earlier EUDO CITIZENSHIP Forum on national voting
right for EU citizens in other member states2). Insisting on the political
dimension misrepresents thus what citizenship is about and ruins many lives
by blowing a luxury right to politics totally out of proportion for the sake of
justifying random exclusion.
I V.
It is clear that, just as the passports of other micro-states, Maltese citizenship
as such is of very little practical value apart from visa-free travel. All the
rights it brings – to work and live in the EU, non-discrimination in the EU
and diplomatic protection outside the EU (when was the last time you saw a
Maltese embassy?) – are related to the EU and the EU only. Clearly, what
the Maltese are selling is EU citizenship and they are quite right to do so,
since Member States are fully competent in this eld, as international and
also European law teaches us. Rich newly-minted Maltese will satisfy all
the formal requirements of the EU Citizenship Directive 2004/38, thus
becoming ideal EU citizens in London and Paris.
Following the Micheletti and Rottmann decisions of the Court of Justice
of the European Union, the principles of EU law should be respected – and
2 Bauböck, R., P. Cayla & C. Seth (eds.) (2012), ‘Should EU citizens living in
other Member States vote there in national elections?’, Robert Schuman Centre
for Advanced Studies EUDO Citizenship Obervatory Working Paper 2012/32,
Florence: European University Institute, available at http://cadmus.eui.eu/
handle/1814/22754.
Citizenship for Real: Its Hypocrisy, Its Randomness, Its Price

54
they are, since it is unlikely that the number of Maltese investor-citizens will
represent a problem in the EU context: the scale of sales will remain small –
even compared with the extension of EU citizenship by other states where a
connection with the state itself is unnecessary, such as turning Argentinians
into Italians based on the romantic ideas of inter-generational continuity or
distributing Hungarian passports in the Serbian province Voivodina.
Importantly, there is nothing wrong at all with these practices which are
democratic and legal and supply thus a strong argument in support of the
Maltese law. Indeed, investing into your nationality is at least as random
(read ‘sound’) as investing in a lawyer to discover your Italian heritage for
the sake of claiming an Italian passport.
V.
EU citizenship provides the most vivid reminder of the radical shift in the
meaning of citizenship that made it a more ethically acceptable institution.
Non-discrimination on the basis of nationality – the very core of EU law –
provides the litmus test for what national citizenship is really about in the
EU today. France is prohibited from ‘loving’ its own nationals more than,
say, resident Estonians or Maltese. The stigmatising function of citizenship
is thus deactivated: humiliation of a randomly proclaimed other is not any
more an option, at least legally speaking, among EU Member States. Full
belonging to a society is thus not subjected any more to an arbitrary approval,
putting all the bizarre language, culture and other tests that states subject
newcomers to in a very interesting perspective: the very existence of the EU
disproves their validity and relevance. They consist in nothing else but puri-
cation through humiliation: the ‘others” language and culture is presumed
as not good enough and social learning is dismissed, forcing people to waste
their time by subjecting them to profoundly disturbing rituals3. The very
success of EU citizenship is the strongest argument against these practices,
which Shachar wants to see applied to all without questioning their effec-
tiveness and common sense. Indeed, if a Romanian is good enough to be
embraced by British society as equal, subjecting a Moldovan to any kind of
tests is utterly illogical: the arguments of the protection of culture, language,
etc. are simply devoid of relevance when more than half a billion EU citi-
zens a exempted from them.
3 Kochenov, D. (2011), ‘Mevrouw de Jong Gaat Eten: EU Citizenship and the
Culture of Prejudice’, Robert Schuman Centre for Advanced Studies EUDO
Citizenship Observatory Working Paper 2011/06, Florence: European
University Institute, available at http://cadmus.eui.eu/bitstream/han-
dle/1814/15774/RSCAS_2011_06.corr.pdf?sequence=3.
D. Kochenov

55
For the reasons above, I do not nd Shachar’s arguments convincing.
Maltese democracy should be respected. Distorted dreams of the past, just
as contemporary hypocrisy, are not worth defending. From a purely legal
perspective, Malta’s case is solid: EU law is unquestionably on its side.
From a human perspective, if I could have done it, I would denitely have
bought EU citizenship instead of naturalising, which I experienced as a
deeply humiliating process.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the chap-
ter’s Creative Commons license, unless indicated otherwise in a credit line to the
material. If material is not included in the chapter’s Creative Commons license and
your intended use is not permitted by statutory regulation or exceeds the permitted
use, you will need to obtain permission directly from the copyright holder.
Citizenship for Real: Its Hypocrisy, Its Randomness, Its Price

57© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_12
Trading Citizenship, Human Capital
and the European Union
David Owen
In 2003 the brilliant Kenyan steeplechaser Stephen Cherono switched his
allegiance to Qatar and took the name Saif Saaeed Shaheen. Under this
name he has set a world record and won a number of global medals for Qatar
which, alongside Bahrain, pioneered the explicit policy of recruiting ath-
letes who have no prior connection to the state but whose human capital
would contribute to its self-determined goals. Such practices are not entirely
new – for example, the Australian and New Zealand national rugby teams
(union and league) have maintained their standing in world rugby in part by
actively recruiting young talent from the Pacic nations - Fiji, Papua New
Guinea, Cook Islands, Tonga and especially Samoa – to the detriment of the
national teams of those states. But, as with the case of Malta selling its citi-
zenship for € 650,000, the policies adopted by Qatar and Bahrain are blatant
in making explicit what was merely implicit in the rather widespread poli-
cies of other states, namely, the trading of access to citizenship for forms of
capital (economic, cultural, political, etc.) held by individuals which the
state deems valuable to acquire. Whether it is inducements to foreign mil-
lionaires (where other EU countries are playing catch up with long-standing
UK policies) or to skilled workers in medical, nance or IT sectors, the
immigration policies of states are perennially engaged in the practice of
identifying valued forms of capital and facilitating the inward ow of such
capital. The emigration policies of states exhibit similar patterns whether in
terms of the deliberate creation of human capital for export markets (e.g.,
Indian medics and Filipino nurses) and/or the maintenance of thick links to
diasporic communities to support trade, knowledge transfers, remittance
ows and the recruitment of sporting talent. The state as a self-determining
agent has a clear and well-established interest in structuring ‘access to citi-
zenship’ in ways that support its goals, whether these goals concern eco-
nomic development, health and social welfare, cultural standing or sporting
glory. The legitimacy of the ways in which it pursues these goals is however
another question.

58
For the states that compose the EU, we can distinguish three dimensions
of democratic legitimacy that address, respectively, the composition of the
demos of the state, associative obligations between member states and dem-
ocratic obligations to non-members. Let’s take them in turn.
If we focus on the composition of the demos, then it is important to
acknowledge the difference of selling citizenship in a global market with
schemes that, as Ayelet Shachar rightly notes, simply facilitate residence for
selected types of highly valued persons and hence the acquisition of citizen-
ship via residence-based naturalisation procedures. As Bauböck, Dzankic
and Ochoa all stress, the ‘golden residence permit’ schemes (whatever other
faults they may have) require a multi-year period of residence within, and
hence subjection to, the authority of the state in question prior to, and as a
condition of, the acquisition of citizenship. Such required residence grounds
the claim to political equality that is given expression in access to member-
ship of the demos.
Turning to the second dimension of democratic legitimacy of EU states,
the associative obligations of member states, we can note that the explicit
Treaty-based commitment to solidarity among these states has a specic
implication for their democratic composition in that, normatively, it con-
strains states to treat their own citizenship (over which the EU has no – or
via the Court of Justice of the European Union, very limited – competence)
as integral to the democratic character of the EU. In this respect, Bauböck is
surely right to highlight the point that selling national citizenship (and hence
also EU citizenship) is incompatible with the associative obligations of
member states as it admits persons to EU citizenship in all member states
who do not have any genuine connection to any of these states. However,
the scope of such obligations is not merely tied to such blatant examples of
the commodication of citizenship but extends to the wider range of prac-
tices that are brought into focus by such extreme examples insofar as these
undermine political equality with the EU by, for example, importing class
and status differentials into access to citizenship.
The third dimension of democratic legitimacy for EU member states
concerns those non-members whose morally signicant interests are affected
by the citizenship policies of these states. The requirement here is that these
interests are impartially considered within the policy-making process. In
contrast to Bauböck’s distinction between democracy and global justice, I
want to stress that this third dimension links the two and ties the concerns
acutely raised by Barbulescu and, in more fatalistic mode, by Spiro directly
to democratic legitimacy. As Barbulescu notes, the neo-liberalisation of citi-
zenship that is expressed in practices of trading citizenship entails that the
D. Ow en

59
policy-making process does not give impartial consideration to all those
whose morally signicant interests are affected by these citizenship policies.
Rather, the duty of justication owed to those affected is abrogated through
a deliberate practice of partiality in which the rich and those who possess
talents that are highly valued by the states in question are provided with
unequal access to residence and hence to citizenship. Practices that support
the emergence of transnational class and status stratication in which mobil-
ity rights become radically unequally distributed are not compatible with the
democratic legitimacy of states or of the EU.
Oddly then we have reason to be grateful to states such as Qatar and
Malta whose policies, in pushing to the neoliberal extreme, help bring into
focus a wider range of policies that are hollowing out democratic citizenship
from within.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Trading Citizenship, Human Capital and the European Union

61© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_13
Citizenship for Sale: Could and Should the
EU Intervene?
Jo Shaw
On 15 January 2014, the European Parliament will debate1 the issue of ‘EU
citizenship for sale’ as a ‘topical subject’ in its plenary. The Council and the
Commission will both make statements on the issue, and the debate will be
the culmination of a process whereby numerous parliamentarians from vari-
ous political groups (ALDE, Verts/ALE, PPE – although not the S&D group
of which the Maltese Labour Party currently in government is a member)
have addressed questions to the Commission and the Council and expressed
their concerns about the trend towards selling citizenship.
Can such critiques rely on European law or should the case be argued
politically? And if the latter, is the Commission or the European Parliament
the right institution to take the lead?
Dimitry Kochenov has made the point that there does not appear to be a
case to argue that the decision by Malta to ‘sell’ its citizenship – whatever the
price – raises an issue of EU law. It is well established that the conditions
under which the Member States provide for the acquisition or loss of their
citizenship are a matter to be decided by these states, provided that the rules
put in place observe the requirements of EU law. The 1992 Micheletti judg-
ment of the Court of Justice of the EU established that Member States must
recognise the ‘EU part’ of a person’s dual citizenship, as to do otherwise
would deprive that person of the benet of the free movement rights. In its
2010 Rottmann decision, the Court acknowledged that decisions on the loss
of citizenship, where these would entail the loss of EU citizenship and thus
deprive the person concerned of their rights and duties under that status,
should be subject to a test of proportionality. In Rottmann, Advocate General
Maduro did suggest a broader basis in the norms of EU law for constraining
the actions of the Member States. He referred specically to the case of mass
naturalisations of third country nationals by a Member State undertaken
1 European Parliament Resolution on the sale of EU citizenship,
2013/2995(RSP), available at http://www.europarl.europa.eu/oeil/popups/
cheprocedure.do?lang=en&reference=2013/2995%28RSP%29

62
without consulting the other Member States. Maduro argued that such prac-
tices might entail a breach of the duty of loyal or sincere cooperation con-
tained in Article 4(3) of the Treaty on European Union.2 According to that
provision ‘The Member States shall facilitate the achievement of the Union’s
tasks and refrain from any measure which could jeopardise the attainment of
the Union’s objectives.’ But, as Kochenov notes, compared to the large num-
bers of Italian citizenships given out in Latin America to those demonstrating
Italian ancestry, or indeed the effects of the external citizenship provisions of
some of the newer Member States (e.g. Hungary in Serbia or Croatia in
Bosnia and in many non-European countries where there are large Croatian
diasporas such as in Australia), the effects of the Maltese provisions will be
marginal in terms of numbers and thus have little impact on other Member
States. The case for a legal obligation under the Treaties to moderate this type
of national citizenship policy seems rather weak. It may be a mercantilist
practice, but it is not arbitrary according to the norms of EU law.
So is that the end of it? Will the debate on 15 January be limited to the
Commission rehearsing these legal points and pointing out its lack of compe-
tence in the matter, and MEPs wringing their hands about the ‘abuse of rights’
and the ‘lack of respect’3 for other Member States which is said to be involved
in the creation of new citizens by such means? And will objections to the
actions of Malta (and potentially other Member States which have introduced
variants of these schemes) have no more traction than objections to a Member
State exploiting its own natural resources, or exporting things for prot that it
is particularly good at making, even if these might have environmental costs
(such as cheaply produced French nuclear power or large German cars)?
As the contributions to this Forum have shown, the proposal by Malta to
sell citizenship is just one example of why and how (national) citizenships
can be most effectively monetized precisely because those citizenships are
more attractive to those who ‘invest’ (it does not matter whether by means
of work, long residence and civic integration or by direct nancial contribu-
tion to the national exchequer), because they confer the benets of EU citi-
zenship. EU citizenship thus connects the external and internal dimensions
of citizenship and offers incentives to states to exploit citizenship (and
associated rights such as residence or the right to work) as a tradable good
in a market system.
2 Consolidated version of the Treaty on European Union, available at https://
eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012M%2FTXT
3 Parliamentary questions, 4 December 2013, Subject: EU citizenship for sale,
available at http://www.europarl.europa.eu/sides/getDoc.
do?type=OQ&reference=O-2013-000138&format=XML&language=EN
J. Shaw

63
If Malta’s policy exploits EU citizenship in a way that does not conict
with EU law, should the European Parliament – as an institution rooted in
the principle of representative democracy – not use the opportunity to reect
instead more deeply upon the meaning of (national and EU) citizenship in a
compact between states such as the European Union?
In that context, a comparison of the position of the Commission and the
Parliament can be instructive. The Commission – unlike the Parliament – can
speak with one voice, and has been assigned executive and enforcement powers
under the Treaties. So a standard argument based on the duty of Member States
to comply with EU law involves trying to get the Commission to say something
about a situation in a given Member State, perhaps as a precursor to doing
something such as bringing an enforcement action. But time and again, the
argument fails, precisely because the issue falls outside the scope of EU law.
The powers of the Commission to take such actions are often overesti-
mated because observers have watched how it has dealt with accession
states. However, the context of enlargement deceives us, because it is during
that phase of pre-accession negotiations – and whilst states live in fear of
being told they do not comply with the Copenhagen criteria in relation to
democracy and fundamental rights – that the Commission can make pointed
interventions in areas of national sovereignty, including citizenship. Changes
to the citizenship regimes of many of the Western Balkan states can be
attributed directly or indirectly to pressure from ‘Europe’. Perhaps the most
obvious example is that of Macedonia4, which changed its rules on acquisi-
tion of citizenship as one step towards a more consociational settlement
involving the majority of ethnic Macedonians and the minority Albanian
group. Similar effects via the implementation of national visa liberalisation
roadmaps can be seen in Montenegro and Serbia. On the other hand, as the
case of the controversial constitutional amendments in Hungary has shown,
there is little the Commission can do to intervene in Member States, given
the limitations of its current enforcement instruments5, however egregious
would appear to be the effects of the amendments introduced upon the ‘enti-
tlement’ of that particular state to be a full member of Europe’s democratic
community of states.
4 Spaskovska, L. (2011), Macedonian Citizen: ‘Former Yugoslav’, Future
European?, CITSEE Study, available online at http://www.citsee.eu/citsee-
study/
macedonian-citizen-%E2%80%98former-yugoslav%E2%80%99-future-euro-
pean
5 Ungarn – was tun? Folge 2: ein besonderes Vertragsverletzungsverfahren,
Verfassungsblog, available at https://verfassungsblog.de/category/debates/
ungarn-was-tun-folge-2-ein-besonderes-vertragsverletzungsverfahren/
Citizenship for Sale: Could and Should the EU Intervene?

64
It is therefore not for the Commission to make the point that the creation
of EU citizenship has indeed contributed to the hollowing out of national
citizenship, not by taking away the prerogatives of national citizens (voting
in national elections remains overwhelmingly reserved to national citizens
only), but by incentivising its instrumentalisation for reasons of domestic
gain (in Malta’s case, a wish to improve the nancial situation of a micro
state buffeted by the effects of the Eurozone crisis).
But what about the European Parliament? As the democratically elected
representative of the people(s) of the European Union and its Member States,
and as a body elected on a franchise that deliberately goes beyond borders, the
European Parliament can and indeed should take a careful look at the issues
that the Maltese case raises. Yet it should do so not through a narrow focus on
Malta, but rather through taking a sober look at the wider injustices and nega-
tive effects on democratic principles that may be highlighted by this newly
identied dimension of the Fortress Europe construction (and how ironic it is,
that Malta is also at the frontline of the physical Fortress Europe, as an island
state located close to the southern shoreline of the Mediterranean sea).
‘Intervention’ is much too strong a word for whatever it is that the
European Parliament could and should do on 15 January, when it debates the
issue of EU citizenship for sale. But a rst and wide-ranging reection on
some of the emerging consequences of EU citizenship for national democra-
cies would at least be a start. 2013 was the year of the EU citizen. It did not
do much to raise public awareness about EU citizenship and it ended with
moves towards its commodication. Wouldn’t it be appropriate for the
European Parliament to start the new year with a real debate on the relation
between national and EU citizenship?
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
J. Shaw

65© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_14
Linking Citizenship to Income Undermines
European Values. We Need Shared Criteria
and Guidelines for Access to EU Citizenship
Hannes Swoboda
The decision by the Maltese Parliament to offer Maltese citizenship – and
consequently – EU citizenship to third country nationals who can afford to
pay € 650.000 comes as a closure of the EU year of citizens and reects a
worrying trend in the conception of all those rights related to EU citizenship,
including above all freedom of movement.
Malta is not an isolated case, though. As highlighted by other contribu-
tions to this Forum, other EU Member States have in time come to link
access to residence and hence – albeit indirectly – to citizenship to income
or to economic investment, although the Maltese proposal goes a step fur-
ther by introducing a direct and free gateway to citizenship purely based on
a monetary payment.
Some may say that access to nationality is an exclusive competence of
Member States and that the European Union has no right to interfere in these
choices. From a purely legal perspective I would agree, but I believe we
would miss the point if we did not see that, behind monetization of citizen-
ship and residence, there is a vital political issue for the European Union to
face, if we believe that Europe is more than just a wide single market.
The political debate about the so-called ‘poverty migration’ in the EU
and on limitations to free movement for Romanian and Bulgarian citizens is
just another side of the same coin. The supporters of the idea that ‘free
movement has to be less free’ base their belief on the assumption that free
movement should be free for those citizens who have a suitable income and
less free for those who have not.
This questions the idea of citizenship as the core of a society, as the set
of rights and duties dening active participation in the political, social and
economic life of a community on an equal basis. And it questions the very
idea of a European citizenship as a set of special rights connected to being a
member of the European Union as a political Union, where individuals,
notwithstanding their income and social position, can on an equal footing

66
organise, participate in decisions in a wider European public space and feel
part of a common project because that project is a collective benet for all.
I would say that the very idea of the European Union as a community of
values is put in question by these trends, particularly the idea that it is the
duty of the EU to reinforce social cohesion, to eliminate discriminations and
to provide a level playing eld for the material exercise of the fundamental
rights dened in the EU Charter.
I have often expressed the idea, including in the framework of EUDO
debates, that access to EU citizenship needs to be expanded and not limited
further, if we believe in making progress in the conception of a political and
social Union.
I have often mentioned, for example, that many ‘new Europeans’ already
live, study, work in our societies and contribute to them – some have been
born and raised in Europe – but still are limited in their access to citizenship.
These fellow Europeans have to go through detailed and lengthy citizenship
tests before they can hope to achieve naturalisation in a Member State and
therefore be fully EU citizens. I am convinced that – should Member States
go in the direction of a privileged gateway to national citizenship solely
based on income – this would create an unacceptable discriminatory situa-
tion that is probably also incompatible with EU law as it currently stands.
This is why I believe that a serious reection at EU level is necessary
ahead of European elections this year – also taking stock of the debates that
characterised 2013 as the Year of EU citizens – on which common and
shared criteria and guidelines should guide access to national citizenship
and hence to EU citizenship at national level.
I think this is a necessary and urgent discussion we need to face. The
background for the trend in citizenship policies that we are currently wit-
nessing is of course more complex and it has to do with the on-going erosion
of trust in institutions and with the fact that more and more among those
who possess citizenship of the Union feel that they are not yet (or not fully)
citizens, both at national and European level.
The real challenge is how European citizenship can be relaunched in a
bottom-up process where EU citizens can enter the stage of the EU political
arena, campaign for policy options, actively debate in a truly European pub-
lic space and select legislators representing their views and working for their
objectives.
H. Swoboda

67
If we don’t want to leave a golden opportunity to Eurosceptics, national-
ists and populists, we must seize the chance for a leap forward in the
European process involving a much wider concept of citizenship than that
dened in the letter of the EU Treaties.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Linking Citizenship to Income Under mines European Values. We Need…

69© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_15
Coda
Ayelet Shachar
That the European Parliament will debate the sale of ‘golden visas’ and
‘golden passports’ on 15 January 2014 is a victory for democracy and a tes-
tament to the vital importance of the issues raised by this Forum Debate,
with its rich and illuminating contributions.
The ‘selling of citizenship,’ as many of my commentators have rightly
noted, is indicative of larger and deeper transformations of our conception
of political membership in a more globalized and competitive world. It is
hoped that these tectonic changes will, on the whole, ultimately prove eman-
cipatory and inclusionary. Placing a price tag on citizenship is not, however,
a step in that direction. Globally, it secures privileged access to membership
for multimillionaires who can afford it, while excluding all others.
Domestically, it strains the ties that bind us together, which may in turn lead
to erosion of the civic bonds and practices that allow a democratic society
not only to survive, but to thrive.
The grant of citizenship is, as a pure legal matter, a last bastion of sover-
eignty. This is precisely what makes cash-for-passport programmes so con-
troversial. They may be formally permissible, but they are nevertheless open
to ethical and political contestation. Laws do not only guide action. They
also carry meaning and have an expressive function. The grant of citizenship
in exchange for nothing but a large pile of cash sends a loud message in both
law and social ethics about whom the contemporary market-friendly state
gives priority to in the immigration and naturalisation line and whom it cov-
ets most as future citizens.
These pressures are felt everywhere, but Europe is unique. It has devel-
oped the world’s most advanced system of supranational-citizenship-in-
action. In this system, when one member state ‘sells’ national citizenship as a
gateway to gaining Union citizenship, tension inevitably arises, since the
state’s action in doing so also affects other EU member states as well as the
very membership good at issue: European citizenship. For policymakers,
there is an unfavourable track record to consider. Citizenship-by-investment
schemes have in the past been closed down after concerns about their integrity

70
led to the revocation of visa waiver policies in third countries. The programme
set up by Grenada, for instance, was suspended after Canada imposed visa
requirements on the island’s passport holders. It is unclear whether similar
responses by third countries are to be expected here, but this is a risk factor
that must be acknowledged if European member states proceed with their
plans to grant immediate citizenship based on payment alone and without
requiring grantees to ever live in, or even visit, the passport- issuing country.
The discomfort we may feel toward the mercenary-like quality of cash-
for- passport programmes brings additional, hard questions to the forefront:
is citizenship merely about rights, or also responsibilities? Could (and
should) proportionality apply not only to the loss of citizenship but also to
its acquisition? And what justication, if any, is owed (and to whom) if a
member state’s action ‘cheapens’ the fundamental status of Union citizen-
ship, in this case by commodifying it?
We are dealing here with some of the most foundational aspects of our
collective and public life. The decision to place ‘citizenship for sale’ on the
agenda for debate in the European Parliament and possibly the Commission
as well is meaningful, both expressively and practically. It will offer a unique
opportunity for all involved stakeholders to think critically about the law as
we know it, while imagining the law as it could be.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
A. Shachar

Abstract
Can the widespread legal rule of ius sanguinis, through which citizenship is
transmitted at birth from parent to child, still be justied in the contempo-
rary world? Together with addressing more traditional objections to ius san-
guinis, such as its alleged ethno-nationalist character or its negative effects
on the global distribution of wealth and opportunities, the debate also looks
into more recent challenges to ius sanguinis, such as those posed by dra-
matic changes in family norms and practices and the rapid development and
spread of reproductive technologies. One major worry is that current forms
of ius sanguinis are unable to deal adequately with uncertainties related to
the establishment of legal parentage, especially in cross-border surrogacy
arrangements. Whereas most contributors agree that ius sanguinis should be
reformed in order to adapt to contemporary circumstances, plenty of dis-
agreement remains as to how this reform should be done. The debate also
tackles the questions of whether and in what way ius sanguinis could be
justied as a normative principle for admission to citizenship. Authors dis-
cuss important normative considerations, such as the need to prevent state-
lessness of children, to ensure the preservation of family life and to provide
opportunities for intergenerational membership.
Keywords
Ius sanguinis · Citizenship · Ethno-nationalism · Reproductive technologies
· Statelessness · Family law
Part II: Bloodlines and Belonging

73© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_16
Bloodlines and Belonging: Time to Abandon
Ius Sanguinis?
Costica Dumbrava
The transmission of citizenship status from parents to children is a wide-
spread modern practice that offers certain practical and normative advan-
tages. It is relatively easy to distribute legal status to children according to
parents’ citizenship, especially in the context of high mobility where the
links between persons and their birthplace are becoming increasingly
strained. Granting citizenship status to children of citizens may also be
desirable as a way of avoiding statelessness, acknowledging special family
links and fostering political links between children and the political com-
munity of their parents. These apparent advantages of ius sanguinis citizen-
ship are, however, outweighed by a series of problems. In what follows I
argue that ius sanguinis citizenship is (1) historically tainted, (2) increas-
ingly inadequate and (3) normatively unnecessary. Ius sanguinis citizenship
is historically tainted because it is rooted in practices and conceptions that
rely on ethno-nationalist ideas about political membership. It is inadequate
because it becomes increasingly unt to deal with contemporary issues such
as advances in assisted reproduction technologies and changes in family
practices and norms. Lastly, ius sanguinis citizenship is normatively unnec-
essary because its alleged advantages are illusory and can be delivered by
other means.
Tainted
As a key instrument of the modern state, the institution of citizenship has
been closely linked to nationalism. Ius sanguinis citizenship was reintro-
duced in Europe by post-revolutionary France, which sought to modernise
French citizenship by discarding feudal practices such as ius soli.1 Whereas
in modern France the adoption of ius sanguinis was premised on the idea of
a homogenous French nation, in countries with contested borders, such as
Germany, ius sanguinis played a key role in maintaining ties with co-ethnics
1 Weil, P. (2002), Qu’ est-ce qu’un Français? Paris: Grasset.

74
living outside borders and thus in nurturing claims to territorial changes.
Although ius sanguinis citizenship is not conceptually ‘ethnic’ (in the same
sense in which ius soli citizenship is not necessarily ‘civic’), there are a
number of ways in which the application of the ius sanguinis principle has
been used in order to promote ethno-nationalist conceptions of
membership.
Firstly, the application of unconditional ius sanguinis in the context of a
long history of emigration means that emigrants can pass citizenship auto-
matically to their descendants regardless of the strength of their links with
the political community. No less than twenty countries in Europe maintain
such provisions.2 Whereas one can nd several non-nationalist arguments
for justifying emigrants’ citizenship, these weaken considerably when
applied to successive generations of non-residents.
Secondly, there are cases in which countries rely on the principle of
descent in order to conrm or restore citizenship to certain categories of
people whom they consider to be linked with through ethno-cultural ties.
Apart from cases where ethnic descent is an explicit criterion of admission
(e.g. in Bulgaria, Greece), there are countries where ethnicity is camou-
aged in the language of legal restitution or special duties of justice (e.g. in
Latvia, Romania). In this way, persons can have their citizenship status
‘restored’ on the basis of descent from ancestors who had been citizens or
residents in a territory that once belonged, even if briey, to a predecessor
state with different borders.
Thirdly, the combination of unconditional ius sanguinis citizenship with
the reluctance to accept alternative ways of incorporating children of resi-
dents (such as ius soli) is also a strong indicator of an ethnic conception of
citizenship, especially in the context of a long history of immigration.
Convoluted attempts to adopt and expand ius soli provisions in Germany
and Greece illustrate this point. In 2000 Germany adopted ius soli provi-
sions3 but maintained that, unlike persons who acquire German citizenship
through ius sanguinis, those who acquire citizenship via ius soli could retain
2 Dumbrava, C. (2015), ‘Super-Foreigners and Sub-Citizens. Mapping Ethno-
National Hierarchies of Foreignness and Citizenship in Europe’, Ethnopolitics
14 (3): 296–310, https://doi.org/10.1080/17449057.2014.994883.
3 Hailbronner, K. & A. Farahat (2015), Country Report On Citizenship Law:
Germany. Florence: EUDO Citizenship Observatory, Robert Schuman Centre
of Advanced Studies, European University Institute, available at http://cadmus.
eui.eu/bitstream/handle/1814/34478/EUDO_CIT_2015_02-Germany.
pdf?sequence=1
C. Dumbrava

75
it only if they relinquish any other citizenship before their 23rd birthday. In
2011 the Greek Council of State halted an attempt to introduce ius soli citi-
zenship in Greece4 by claiming that ius sanguinis is a superior constitutional
principle whose transgression would lead to the ‘decay of the nation’.5
Inadequate
Consider the following two real cases.
Samuel was born in November 2008 in Kiev by a Ukrainian surrogate
mother hired by Laurent and Peter, a married gay couple of Belgian and
French citizenship respectively.6 Samuel was conceived through in vitro fer-
tilisation of an egg from an anonymous donor with Laurent’s sperm. Upon
his birth and according to practice, the surrogate mother refused to assume
parental responsibility and thus transferred full parentage rights to Samuel’s
biological father. When Laurent requested a Belgian passport for Samuel,
the Belgian consular authorities refused on grounds that Samuel was born
through a commercial surrogacy arrangement, which was unlawful accord-
ing to Belgian law. After more than two years of battles in court, during
which Laurent and Peter also attempted and failed to smuggle Samuel out of
Ukraine through the help of a friend pretending to be Samuel’s mother, a
Brussels court recognised Laurent’s parentage rights and ordered authorities
to deliver Samuel a Belgian passport. With it, Samuel was able to leave
Ukraine and settle with Laurent and Peter in France.
4 Christopoulos, D. (2011), ‘Greek State Council strikes down ius soli and local
voting rights for third country nationals. An Alarming Postscript to the Greek
Citizenship Reform’, Citizenship News, EUDO Citizenship Observatory,
available at http://globalcit.eu/
greek-state-council-strikes-down-ius-soli-and-local-voting-rights-for-third-
country-nationals-an-alarming-postscript-to-the-greek-citizenship-reform/
5 The Greek parliament has recently pushed forward another proposal regarding
ius soli in an attempt to overcome the deadlock. See Christopoulos, D. (2015),
The 2015 reform of the Greek Nationality Code in brief, Florence: EUDO
Citizenship Observatory, Robert Schuman Centre of Advanced Studies,
European University Institute, available at http://globalcit.eu/wp-content/
plugins/rscas-database-eudo-gcit/?p=le&appl=countryProles&f=The%20
2015%20reform%20of%20the%20Greek%20Nationality%20Code%20in%20
brief.pdf
6 European Parliament (2013), A comparative study on the regime of surrogacy
in EU Member States. Directorate-General of Internal Affairs, Policy
Department: Citizen’s Rights and Constitutional Affairs, available at http://
www.europarl.europa.eu/thinktank/en/document.
html?reference=IPOL-JURI_ET(2013)474403.
Bloodlines and Belonging: Time to Abandon Ius Sanguinis?

76
In 2007 Ikufumi and Yuki, a married Japanese couple, travelled to India
and hired Mehta as surrogate mother for their planned child.7 Using Ikufumi’s
sperm and an egg from an anonymous donor, the Indian doctors obtained an
embryo, which they then implanted in Mehta’s womb. Only one month
before the birth of Manji, the resulting child, Ikufumi and Yuki divorced.
When Ikufumi attempted to procure a Japanese passport for Manji, the
Japanese authorities refused on grounds that Manji was not Japanese.
According to the Japanese Civil Code, the mother is always the woman who
gives birth to the child. Despite having three ‘mothers’ – a genetic mother,
who contributed with the egg, an intended mother who later declined
involvement, and a surrogate mother, who did not plan to take up parental
responsibilities – Manji had no obvious legal mother. Indeed, Manji’s Indian
birth certicate mentioned Ikufumi as the father but left the rubric concern-
ing ‘the mother’ blank. After much legal wrangling Manji was issued a cer-
ticate of identity stating that she was stateless, with which Ikufumi managed
to take her to Japan.
These are just two of a growing number of cases that test the legal and
normative linkage between human reproduction, legal parentage and citi-
zenship. Not only do they question conventional assumptions about the bio-
logical and cultural basis of citizenship, but they also show the limits of the
principle of ius sanguinis in ensuring the adequate determination of citizen-
ship status.
The incongruity between reproduction, legal parentage and citizenship is
not an issue triggered solely by advances in reproductive technologies.
Traditionally, children born out of wedlock could not acquire the father’s
citizenship through descent. Many countries still maintain special proce-
dures for the acquisition of citizenship by children born out of wedlock to a
foreign mother and a citizen father. In most cases this implies submitting a
request for citizenship after parentage is legally established, although in
Denmark these children can acquire citizenship only if the parents marry. In
the Czech Republic and the Netherlands (for children older than 7), the
determination of parentage for the purpose of citizenship attribution requires
showing evidence of a genetic relationship between the father and the child.
As argued by the European Court of Human Rights in its 2010 judgment on
7 Points, K. (undated), Commercial surrogacy and fertility tourism in India: The
case of Baby Manji. Durham: The Kenan Institute for Ethics at Duke
University, available at https://web.duke.edu/kenanethics/CaseStudies/
BabyManji.pdf
C. Dumbrava

77
Genovese v Malta,8 the differential treatment of children born within and out
of wedlock with respect to access to citizenship amounts to discrimination
on arbitrary grounds. This practice is also at odds with contemporary trends
that indicate an impressive surge in births out of wedlock; the share of such
births in the EU27 rose from 17 per cent of total births in 1990 to 40 per cent
in 2013.9
One of the biggest challenges to ius sanguinis citizenship comes from the
spread of assisted reproduction technologies (ART). About 7 million babies
worldwide have been born through ART since the birth of Louise Brown,
the rst ‘test-tube baby’, in 1978.10 ART have developed rapidly generating
a multi-billion dollar market in assisted reproduction. A signicant share of
this market involves the international movement of doctors, donors, parents,
children and gametes. In order to avoid legal restrictions or to cut costs, a
growing number of infertile men and women, usually from high-income
countries, travel to destinations such as India, Thailand or Ukraine in order
to have ‘their’ babies conceived through in vitro fertilisation procedures
using sperm or eggs (or both) donated by people from places such as Spain
or Romania.
Many problems arise because the international market for assisted repro-
duction is not properly regulated, which means that national regulations
often conict with one another. Countries that oppose surrogacy consider
the surrogate mother as the legal mother even if they are not genetically
related to the child. According to this reasoning, the husband of the surro-
gate mother is the presumed father of the child. However, countries that
encourage surrogacy usually recognise the intended mother and father as the
legal parents, regardless of whether they are genetically related to the child.
As the stories on Samuel and Manji show, when these two approaches col-
lide the children risk becoming, as Justice Hedley put it, ‘marooned, state-
less and parentless’.11
8 Genovese v. Malta, Application no. 53124/09, European Court of Human
Rights, 11 October 2011, available at http://hudoc.echr.coe.int/sites/eng/pages/
search.aspx?i=001-106785#
9 ‘Two in ve EU babies born out of wedlock’, BBC News, 26 March 2013,
available at http://www.bbc.com/news/world-europe-21940895
10 This number has been updated to the most recent gure. See: The European
Society of Human Reproduction and Embryology (2017), ESHRE fact sheets
1, available at https://www.eshre.eu/~/media/sitecore-les/Press-room/
Resources/1-CBRC.pdf?la=en
11 Re: X & Y (Foreign Surrogacy), [2008] EWHC (Fam) 3030 (U.K.), available
at http://www.familylawweek.co.uk/site.aspx?i=ed28706
Bloodlines and Belonging: Time to Abandon Ius Sanguinis?

78
In some cases intended parents have the possibility to establish parentage
and citizenship for their children born through surrogacy. However, such
special arrangements often discriminate between (intended) mothers and
fathers. For example, in the US children born to surrogate mothers outside
the country are treated as children born out of wedlock, so fathers can be
recognised as legal parents and therefore extend citizenship to children if
they provide proof of a genetic relationship with the child (through a DNA
test). Intended mothers, however, cannot be recognised as mothers even if
the child was conceived using their eggs and even if they are married to the
intended father.12 It follows that, in cases where another woman’s womb is
involved, paternity and citizenship can still follow the sperm but not the
eggs.
The practice of gamete donation has become increasingly accepted and
regulated, so donors are in principle discharged of parental responsibilities
with regard to children they help to conceive. However, it is not always clear
what counts as donation. In a recent US case, a man successfully claimed
parentage with regard to a child who was born after an informal agreement
in which he agreed to ‘donate’ sperm to a friend. The Court decided in the
man’s favour arguing that his act did not count as donation because the pro-
cedure used in the insemination did not involve ‘medical technology’ (they
used a turkey baster). The ultimate test of paternity in this case relied on a
mere technicality, which can hardly be seen as a morally relevant fact for
establishing fundamental ties of liation and citizenship.13
The development of ART is likely to further complicate questions about
parentage and citizenship. The new techniques of embryo manipulation, for
example, make now possible the transfer of a cell nucleus from one wom-
an’s egg to the egg of another, which means that the resulting child will have
three genetic parents. Advances in technologies for freezing gametes and
embryos raise questions about the rights and responsibilities over future
births and about the status of future children. There have already been a
number of cases of posthumous conception in which the sperm or eggs of a
deceased person were used by the spouse or another relative in order to con-
ceive children. For example, it was recently reported that a 59 years old
12 Deomampo, D. (2014), ‘Dening Parents, Making Citizens: Nationality and
Citizenship in Transnational Surrogacy’, Review of Medical anthropology 34
(3): 210–225, https://doi.org/10.1080/01459740.2014.890195.
13 Brandt, R. (2015), ‘Medical intervention should not dene legal parenthood’,
Bionews, 11 May 2015, available at http://www.bionews.org.uk/page.asp?obj_
id=523229&PPID=523190&sid=282.
C. Dumbrava

79
woman from the UK gave birth to ‘her’ daughter’s child.14 These practices
raise obvious questions as to whom these children belong to and they may
as well trigger issues of citizenship. Lastly, progress has been made on the
creation or ‘articial’ gametes through the modication of other types of
human cells. Apart from opening possibilities for bypassing the heterosex-
ual model of procreation,15 these techniques raise concerns about abuse or
reproductive ‘crime’. Imagine a world in which it would be possible to cre-
ate a child from a tissue sample collected from somebody’s cup of coffee.
Those famous actors and footballers would probably think twice before
shaking their fans’ hands.
Unnecessary
One could argue that the main problems do not lie with ius sanguinis citizen-
ship but with the determination of legal parentage. Once we solve issues
related to legal parentage, then the ius sanguinis principle will effectively
address citizenship matters. However, this view ignores that dilemmas
regarding the attribution of parentage are often triggered or complicated by
citizenship (and migration) issues. It can also be argued that relying solely
on legal parentage to settle citizenship issues disregards fundamental nor-
mative questions about who should be a citizen in a political community.
Despite much liberal-democratic talk about social contract, democratic
inclusion and active citizenship, the overwhelming majority of people in the
world acquire citizenship by virtue of contingent facts about birth (descent
or place of birth). While ius soli citizenship has received considerable politi-
cal and academic attention recently due to pressing concerns about the
inclusion of children of immigrants, ius sanguinis continues to be taken for
granted. In the remainder of this essay, I briey challenge two main theoreti-
cal defences of ius sanguinis: (a) that ius sanguinis citizenship recognises
and cements the special relationship between the parent and child; (b) that
ius sanguinis citizenship ensures the intergenerational stability of the politi-
cal community.
The main problem of ius sanguinis citizenship is that it is parasitic on
external factors concerning the legal determination of parentage. As one of
the examples presented above shows, it may only take a choice between a
14 Smajdor, A. (2015), ‘Can I be my grandchild’s mother?’, BioNews, 9 March
2015, available at http://www.bionews.org.uk/page_504476.asp.
15 Shanks, P. (2015), ‘Babies from Two Bio-Dads.’ Biopolitical Times, 3 April
2015, Center for Genetics and Society, available at http://www.biopolitical-
times.org/article.php?id=8418.
Bloodlines and Belonging: Time to Abandon Ius Sanguinis?

80
petri dish and a turkey baster to make somebody a parent and hence a sup-
plier of citizenship status. The relevance of horizontal family ties between
spouses in citizenship matters has largely diminished, as a ipside of the
spread of gender equality norms, since in liberal states wives no longer auto-
matically acquire their husbands’ citizenship. By contrast, parental ties con-
tinue to remain paramount for the regulation of citizenship. Even if there are
good reasons for seeking to ensure the swift transfer of citizenship from
parents to children (e.g. to prevent statelessness), this approach is question-
able because it renders children vulnerable. Ius sanguinis citizenship makes
access to citizenship for children dependent on parents’ legal status, actions
or reproductive choices.
As in the case of spouses, joint citizenship adds little to the legal and
normative character of the parent-child relationship. There is little doubt
that the law should treat children and the parent-child relationship with spe-
cial attention. However, this could and should be achieved regardless of the
citizenship status of children and parents. One could, for example, extend
the legal rights associated with parentage and liation (e.g. conferring full
migration rights to children of citizens) or seek to establish a universal status
of (legal) childhood that confers fundamental right and protection to chil-
dren regardless of their or their parents’ citizenship or migration status.
The second argument for ius sanguinis citizenship is that the automatic
transition of membership status from parents to children ensures the smooth
reproduction of the political community. As children of citizens grow, they
become socialised in the political community of their parents and develop
political skills necessary for furthering their parents’ project of democratic
self-government, skills that they will eventually pass on to their own chil-
dren. An easy objection to this view is that it is empirically naïve, especially
in the context of increased migration and diversication of family practices.
Citizenship is thus based on a contested expectation. Instead of granting citi-
zenship ex-ante to persons who are likely to develop desirable citizenship
attitudes and skills, we could delay the attribution of citizenship until such
attitudes and skills are conrmed. Alternatively, there may be other norma-
tive considerations for turning children into citizens. For example, being
born in the country and/or living there at a young age makes children not
only subject to the law of the country but also highly dependent on the state,
which, for example, is required to provide regular and reliable access to
medical care such as vaccinations. These considerations could justify grant-
ing children at least provisional citizenship.
C. Dumbrava

81
The intergenerational dimension of democratic membership can hardly
be achieved by relying on legal ctions or on biological contingencies. Our
efforts should rather be channelled towards consolidating democratic insti-
tutions and promoting citizenship attitudes and skills among all those who
nd themselves, by whatever ways and for whatever reasons, in our political
community. As for the children who happen to be born here, we should treat
them as political foundlings and give them all the care and support they need
to become full political members.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Bloodlines and Belonging: Time to Abandon Ius Sanguinis?

83© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_17
Ius Filiationis: A defence of Citizenship
by Descent
Rainer Bauböck
Aristoteles famously dened a citizen as someone ‘giving judgment and
holding ofce’ in the polity.1 Yet, this does not settle the issue since we rst
need to know who qualies for holding ofce. And so he continues: ‘For
practical purposes a citizen is dened as one of citizen birth on both his
father’s and his mother’s side’.2 Times have changed. From the French
Revolution, which revived ius sanguinis, until the second half of the 20th
century, citizenship was mostly transmitted only from the father to the child.
Today, largely as a result of international conventions against the discrimi-
nation of women, all democratic states dene a citizen as one of citizen birth
on either the father’s or the mother’s side. Yet ius sanguinis remains the
dominant rule for acquisition of citizenship worldwide. True, in the Americas
the stronger principle is ius soli, the acquisition of citizenship through birth
in the territory. But even there those born abroad to citizen parents who were
themselves born in the country are recognised as nationals by birth.
Given this overwhelming presence of ius sanguinis in nationality law,
Costica Dumbrava’s call for abandoning it is bold. Some might even say, it
is quixotic, but I disagree. It is indeed time to reect on the future of ius
sanguinis and to abandon it as a doctrine linking citizenship to biological
descent. Yet there are good practical and normative reasons why the princi-
ple of citizenship transmission from parents to children will remain alive
and ought to be retained.
Dumbrava runs three main attacks against ius sanguinis: It is tainted by
its association with ethno-nationalism; it is inadequate because, in an age of
articial reproduction technologies, same sex marriage and patchwork fami-
lies, biological descent no longer traces social parenthood; and it is unneces-
sary since its protective effects can be achieved by other means. I will accept
the rst and second argument with some modications but reject the third.
1 Aristotle (1962), The Politics. Transl: T.A. Sinclair, revised and commentary:
T. J. Saunders (ed.). London: Penguin, III. i: 169.
2 Ibid, III.ii: 171-2, original emphasis.

84
Not the only one tainted
As Dumbrava points out, modern ius sanguinis was seen as a democratic
and revolutionary principle in contrast with ius soli that had its origins in the
feudal idea that any person (or animal) born on the territory was subject to
the ruler of the land. Deriving citizenship from citizen descent rather than
territorial birth made it possible to imagine a self-governing people repro-
ducing itself. Dumbrava is of course right that seeing the nation as a com-
munity of shared descent across generations made it also easier to justify the
exclusion of foreigners as well as the inclusion of co-nationals across the
border. Yet this is not a sufcient reason for abandoning ius sanguinis.
First, an ethnonationalist disposition can be overcome while maintaining
ius sanguinis if this principle is supplemented with ius soli and residence-
based naturalisation. The latter has created an ethnically highly diverse citi-
zenry in continental European immigration countries even in the absence of
the additional inclusionary effects of ius soli. The reason for this ethnically
inclusive effect of ius sanguinis is simple: If rst generation immigrants
have access to citizenship and take it up, then ius soli and ius sanguinis does
not make much difference: the children of immigrants will be citizens under
either rule.
Secondly, a pure ius soli regime is also tainted and not only because of
the feudal origins of the principle. Territorial nationalism can be just as nasty
as ethnonationalism and may be fanned by thinking of ius soli as the right of
the ‘sons of the soil’. Even the case of Romania that Dumbrava lists among
the problematic ones is ambiguous in this regard. If Romania awards citi-
zenship to the descendants of those born in its lost territories, is this an
instance of ius soli or ius sanguinis and an illustration of ethnic or of territo-
rial nationalism? The answer is probably: both. Ius soli and ius sanguinis are
therefore not alternatives, but can be combined in benign ways that neutral-
ise the potentially illiberal effects of either principle, as well as malign ways
that enhance their nationalist potential for ethnic exclusion and territorial
expansion.
Thirdly, pure ius soli also has vicious exclusionary effects for migrants. In
most American states, the immigrant generation 1.5 – those who have entered
the country as minor children – cannot acquire citizenship before the age of
majority. President Obama’s Dream Act is an attempt to mitigate some of the
worst consequences for the children of irregular immigrants. Even more prob-
lematic is the common distinction between nationals and citizens in many Latin
R. Bauböck

85
American states.3 Only those born in the territory are considered nationals (they
are sometimes also called ‘naturals’). They turn into citizens with full voting
rights at the age of majority. Immigrants who naturalise become citizens, but
not nationals. They remain excluded from many public ofces (also the US
president still has to be a ‘natural born citizen’) and they can be deprived of
their citizenship status, whereas nationality can often never be lost. In Uruguay
even the concept of ‘naturalisation’ does not exist because those who are not
born in the territory can never become ‘naturals’. Similar exclusionary effects
of ius soli traditions apply to those born abroad to citizen parents. They often
do not acquire citizenship unless they are registered in time by their parents and
they may lose it unless they ‘return’ before the age of majority.
If both ius sanguinis and ius soli are tainted in these ways, should we
consider an even more radical alternative of abandoning citizenship by birth
altogether? Why not replace it with ius domicilii so that citizenship is acquired
automatically with taking up residence and lost with outmigration? Or should
we maybe replace it with ius pecuniae,4 i.e. a global market for citizenships
in which individuals can bid for membership status anywhere and states can
set the admission price? Neither of these alternatives is morally attractive
and something important is lost when we give up birthright citizenship.
Why not ius liationis?
Dumbrava’s second argument is that developments in reproduction tech-
nologies and in the social and legal recognition of new family patterns make
ius sanguinis increasingly unworkable and obsolete.
This problem is not entirely new and a solution is already available.
International law has long abandoned the idea that children should acquire
only one citizenship at birth. Since they can inherit two different citizenships
from the mother’s and the father’s side (maybe in addition to a third one
acquired iure soli), why should they not receive the citizenship of both an
3 Acosta D, (2016), ‘Regional Report on Citizenship: The South American and
Mexican Cases’, EUDO Citizenship Observatory Comparative Reports
2016/01, Florence: European University Institute, available at http://cadmus.
eui.eu//handle/1814/43325
4 Stern, J. (2011), ‘Ius Pecuniae – Staatsbürgerschaft zwischen ausreichendem
Lebensunterhalt, Mindestsicherung und Menschenwürde’, Migration und
Integration – wissenschaftliche Perspektiven aus Österreich, Jahrbuch 1/2011,
Dahlvik/Fassmann/Sievers (eds.). See also Part I of this volume; Dzankic, J.
(2015), ‘Investment-based citizenship and residence programmes in the EU’,
Robert Schuman Centre for Advanced Studies Working Papers 2015/08,
Florence: European University Insitute.
Ius Filiationis: A defence of Citizenship by Descent

86
intended and a surrogate mother or an intended father and a sperm donor?
Asking the question makes it already clear that the problem is not the multi-
plicity of citizenships per se, but the mismatch between biologically deter-
mined citizenship and parental care arrangements that would also open the
door to abusive claims. The traditional solution that is already available in
most nationality laws for cases where the biological parent is not the social
parent is transmission of citizenship through adoption.5 Why should it not be
possible to generalise this model from the marginal case of adoption so that
a modied ius sanguinis refers to social rather than biological parenthood
(as it already does in several jurisdictions)?
The main issue with such a new ius liationis might be that determination
of citizenship is less automatic than it used to be for children born in wedlock
to their biological mother and father. Yet states that are committed to the
welfare of children have to gure out anyhow how to determine legal parent-
hood in the more complex family arrangements of contemporary societies. In
order to avoid statelessness it is important that every child obtains at least one
citizenship immediately at birth. And in order to make sure that children are
not caught between conicting legal norms and can develop stable relations
to their countries of citizenship it is important that their citizenship status
does not change automatically when they become part of a new family. If
these concerns are taken into account through a combination of ius soli with
legally determined initial parenthood, what objections can be raised against
recognizing primary caregivers as well as persons with additional custodial
rights as legal parents who can transmit their citizenship to the child?
Don’t abandon the children!
Dumbrava’s third argument is that ius sanguinis is not necessary because
children’s rights can be protected through other means. He claims that ius
sanguinis renders children vulnerable by making their ‘access to citizenship
… dependent on parents’ legal status, actions or reproductive choices This
is indeed a reason why the children of immigrants need ius soli as an inde-
pendent right to citizenship in their country of birth. Unfortunately, in the
US, their birthright citizenship does not prevent them from being deported
together with their undocumented parents, whereas immigrant minors who
are EU citizens have a right to stay that protects also their primary caregiv-
ers from deportation.6
5 See the EUDO CITIZENSHIP Database on Modes of Acquisition of
Citizenship in Europe, available at http://eudo-citizenship.eu/admin/?p=dataE
UCIT&application=modesAcquisition.
6 Case C-200/02 Zhu and Chen v Secretary of State for the Home Department,
2004; Case C-34/09 Ruiz Zambrano v Ofce National de L’emploi, 2011.
R. Bauböck

87
Yet small children are in any case dependent on their parents’ migration
decisions. This is a an equally strong reason why they also have a claim to
share their parents’ citizenship, since they risk otherwise to remain stranded
in their country of birth or be treated as foreigners in their parents’ country
of nationality. Dumbrava suggests preventing this by ‘conferring full migra-
tion rights to children of citizens’. But would migration rights become more
secure if they are disconnected from the legal status of citizenship that is the
only one obliging states to unconditionally admit them? Alternatively, he
suggests to ‘establish a universal status of (legal) childhood that confers
fundamental rights regardless of their or their parents’ citizenship or migra-
tion status’. This is what the Children’s Rights Convention, which is one of
the mostly widely signed and ratied human rights documents, aims to do.
The question is not only whether states are willing to respect these rights,
but whether they can be held responsible for protecting them. For this, chil-
dren need not only human rights, they also need their parents’ citizenship.
Delayed citizenship for all?
Dumbrava has, however, a much more fundamental objection that targets
both ius sanguinis and ius soli: Citizenship as membership in a political
community should not depend on ‘contingent facts of birth (descent or place
of birth)’. This is a common critique that always leaves me puzzled.7 My
very existence depends on these contingent facts. Humans cannot will them-
selves into being but are thrown into the world without choosing where to be
born and to which parents. What is morally arbitrary is not that states use
these fundamental features of personal identity to determine membership in
political communities, but that in our world citizenship provides individuals
with hugely unequal sets of opportunities. This is not an inherent feature of
birthright citizenship but of the global economic and political (dis)order. If
we want to overcome it, we have to address the causes of global inequality
directly instead of attributing them to those rules that make individuals equal
in status and rights as citizens of a particular state.
Dumbrava’s critique focuses, however, on another birthright puzzle that
has bothered republican theorists. Shouldn’t membership in a self- governing
political community be based on consent? And does it not presuppose cer-
7 For nuanced critiques of birthright citizenship based on this idea see Carens,
J. H. (2013), The Ethics of Immigration. Oxford: Oxford University Press;
Shachar, A. (2009), The Birthright Lottery. Citizenship and Global Inequality.
Cambridge, MA: Harvard University Press.
Ius Filiationis: A defence of Citizenship by Descent

88
tain attitudes and skills that rst need to be developed?8 We may expect that
children who are born and grow up in the state territory or who are raised by
citizen parents will eventually want to join the political community and will
also acquire the skills required for political participation. Yet these are
expectations rather than certainties. Dumbrava suggests therefore that ‘we
could delay the attribution of citizenship until such attitudes and skills are
conrmed’. However, since children also depend on the state for their health
and education, he adds that they could at least be granted provisional citi-
zenship. The Latin American distinction between nationality acquired at
birth and citizenship acquired at majority seems to approximate this idea.
One reading of Dumbrava’s proposal is that this is just a terminological
distinction harking back to Aristotle’s two denitions of citizenship. If we
consider as citizens those who ‘give judgments and can hold ofce’, i.e. the
members of the demos, then children are indeed only provisional citizens
but will automatically become full citizens at the age of majority. The other
interpretation draws, however, a line between the two statuses that can only
be crossed by demonstrating the right attitude and skills. Instead of natural-
ising immigrants into a birthright community, this community itself would
be denaturalised and reconstituted through a citizenship test imposed on all
provisional native citizens. It may seem a form of poetic justice to treat
natives like immigrants. Yet there is a big difference between expecting and
promoting citizenship attitudes and skills and making them a requirement
for access to citizenship rights. The only reason why immigrants can be
expected to spend a few years as residents before becoming citizens, which
gives them time to develop citizenship skills, and to apply for naturalisation,
which demonstrates a civic attitude, is that they are birthright citizens of
another state who have grown up there.
Citizenship across generations
Dumbrava concludes by suggesting that the intergenerational continuity of
democratic membership should be achieved through consolidating institu-
tions and educating citizens rather than the legal ctions and biological con-
tingencies of birthright citizenship. One might ask why democracies need
intergenerational continuity. The answer leads us back to the original justi-
cation for ius sanguinis after the French Revolution. It should not be the rul-
ers who determine who the citizens are, nor the citizens themselves through
8 See Dumbrava, C. (2014), Nationality, Citizenship and Ethno-Cultural
Belonging, Preferential Membership Policies in Europe. Houndmills
Basingstoke: Palgrave Macmillan, chapter 8, 9.
R. Bauböck

89
some democratic procedure in which they decide whom to admit or reject,
nor the mere fact of subjection to the laws due to temporary presence in the
territory. All of these rules lead to too much contingency and discontinuity
with regard to the composition of the citizenry. Promoting civic attitudes and
skills among those who are citizens is important, but it cannot resolve the
puzzle who has a claim to be a citizen in the rst place. Automatic acquisition
of membership at birth and for life sets this question aside. It makes citizen-
ship a part of citizens’ personal identities that they are likely to accept. And
it allows democracies to tap into resources of solidarity and to promote a
sense of responsibility towards the common good and future generations.
In a nutshell, these are my two arguments why a modied version of ius
sanguinis should be accepted as necessary for democratic states:
In a world of territorial states that control immigration, ius sanguinis (or
ius liationis) is as indispensible as ius soli for protecting the children of
migrants. It provides them with the right to stay and to be admitted in their
country of birth as well as their parents’ country of origin. No other legal
status can secure these rights as well as a birthright to dual nationality.
Deriving citizenship from unchosen and permanent features of personal
identity – where and to whom one is born – sets aside the politically divisive
membership question for the vast majority of citizens, creates a quasi- natural
equality of status among them and signals that membership is linked to
responsibilities for the common good and for future generations. No citizen-
ship education programme can fully substitute for these signalling effects of
birthright citizenship.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the chap-
ter’s Creative Commons license, unless indicated otherwise in a credit line to the
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Ius Filiationis: A defence of Citizenship by Descent

91© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_18
Tainted Law? Why History Cannot provide
theJusticationforAbandoningIusSanguinis
Jannis Panagiotidis
In his thought provoking piece, Costica Dumbrava rejects ius sanguinis as
1) historically tainted, 2) increasingly inadequate and 3) normatively unnec-
essary. In my response, I will mainly focus on the rst, historical dimension.
Drawing on examples from the case of Germany, often used as the prime
example to show what is wrong with ius sanguinis, I will contest the idea
that ius sanguinis as such has been discredited by history.
Regarding the second and third points, I will restrict myself to the fol-
lowing brief observations, which are broadly in line with Rainer Bauböck’s
comments: while the issue of ART and citizenship raised by Dumbrava is
indeed intriguing, I would go along with his own observation that this is
more about the determination of legal parentage than about ius sanguinis,
and with Bauböck’s emphasis on social rather than biological parenthood.
Discarding the ius sanguinis principle due to certain specic cases it
might not adequately cover would mean throwing the baby out with the
bathwater.
I am also simultaneously intrigued and sceptical regarding the suggestion
to introduce a sort of ‘a-national’, universal status for children. Against the
backdrop of recent historical research into children as the object of national-
ist contestation and agitation during the rst half of the twentieth century, a
scenario in which ‘children belonged more rightfully to national communi-
ties than to their own parents’, this idea appears intuitively attractive.1 Having
said that, one can turn the argument around and see the suggested disconnec-
tion of parent and child citizenship as another attempt to claim children from
their parents, this time on behalf on an imaginary inter- or supranational com-
munity. Yet in a world still (and for the foreseeable future) structured by
nation states, where most so-called human rights are in fact citizens’ rights,
1 Zahra, T. (2008), Kidnapped Souls: National Indifference and the Battle for
Children in the Bohemian Lands, 1900–1948. Ithaca: Cornell UP, 3; See also:
Zahra, T. (2011), The Lost Children: Reconstructing Europe’s Families after
World War II. Cambridge, MA: Harvard UP, 20.

92
one may indeed wonder about the benets of such a status ‘above’ or perhaps
‘beyond’ the nation if the parents cannot enjoy similar rights.
Taintedbyhistory?
As to the argument of ius sanguinis being historically tainted, Dumbrava
rst of all needs to be commended for recognising that ‘ius sanguinis citi-
zenship is not conceptually “ethnic”’. Nevertheless, he argues that ‘there are
a number of ways in which the application of the ius sanguinis principle has
been used in order to promote ethno-nationalist conceptions of member-
ship’. These include 1) the maintaining of emigrant citizenship beyond the
rst generation of emigrants; 2) the use of ‘the principle of descent in order
to conrm or restore citizenship to certain categories of people whom
[states] consider to be linked with through ethnocultural ties’; and 3) the
exclusion of immigrant children from citizenship by an exclusive use of ius
sanguinis with no ius soli elements.
Regarding the third point, I fully agree with Bauböck that it can be rem-
edied quite easily by combining these two principles of citizenship alloca-
tion and simultaneously allow for residence-based naturalisation. The rst
issue is similarly unproblematic: extra-territorial transmission can simply be
interrupted at a certain generational stopping point, much like the rule
Germany introduced in section 4, paragraph 4 of its reformed 1999 citizen-
ship law regarding the non-acquisition of German citizenship by the off-
spring of German citizens who themselves were born abroad after 31
December 1999.2 There is no rule that says that the transmission of citizen-
ship to descendants has to be possible ad innitum.
Notalltypesof‘descent’arethesame
I would like to discuss the second point in more detail, which touches upon
the topics of preferential membership policies and co-ethnic citizenship and
migration.3 Here we are dealing with a terminological confusion quite typi-
cal for much of the literature in this eld. The ‘ethnic descent’ that Dumbrava
2 Joppke, C. (2003), ‘Citizenship Between De- and Re-Ethnicization’, Russell
Sage Foundation Working Paper No. 204, 12–13. The full text of the law can
be found at: http://www.gesetze-im-internet.de/rustag/BJNR005830913.html
3 Dumbrava, C. (2014), Nationality, Citizenship and Ethno-National Belonging:
Preferential Membership Policies in Europe. Basingstoke: Palgrave
MacMillan; Panagiotidis, J. (2012), Laws of Return? Co-Ethnic Immigration to
West Germany and Israel (1948–1992). PhD Diss., European University
Institute.
J. Panagiotidis

93
mentions as a criterion of admission to citizenship in some cases and the
descent implied in the ius sanguinis principle are not the same and should
not be conated. In fact, they are mutually exclusive: ‘descent’ in ius sangui-
nis is about descent from a citizen, whatever his or her ‘ethnicity’. The ‘eth-
nic descent’ used as a criterion in some cases of co-ethnic inclusion is
precisely about people who are not citizens.
The supposed historical taintedness of the ius sanguinis principle results
from the conation of these different types of ‘descent’, and of the related
unhappy connotations of the term ‘blood’, which invokes associations of
‘race’. A lot of this confusion was created in the Brubaker-inspired debates
of the 1990s about German citizenship. In a telling example, political scien-
tist Patricia Hogwood claimed that ‘the concept and law of citizenship in
Germany were originally formulated in the context of nation-state develop-
ment based on cultural or ‘völkisch’ nationalism. … The fact that the German
legal framework for citizenship and naturalisation remains rmly rooted in
the jus sanguinis principle has meant that citizenship policy in Germany is
inextricably entangled in concepts of ethnicity and race. … The principle of
legal privilege [for ethnic Germans] on the basis of racial origins smacks of
the racial policies of the Nazi period …’ (my emphasis, J.P.).4
Yet ius sanguinis per se has nothing to do with ‘ethnicity’ and ‘race’. As
Dieter Gosewinkel pointed out in his important book on German citizen-
ship, the ‘blood’ here is a ‘formal and instrumental’ notion, not to be con-
fused with ‘substantial’ blood conceptions of racial biology.5 Those only
entered German citizenship law through the Nazi Nuremberg laws. Before,
a German Jew, whom the Nazis would later construe to be of a different
‘race’ for having the wrong ‘blood’, would transmit his German citizenship
to his children iure sanguinis, just like other Germans whom the Nazis
would construe as ‘Aryans’. Ius sanguinis is ethnicity-blind. In fact, when
young Israelis nowadays claim German citizenship with reference to an
ancestor who ed from Germany, they also do so iure sanguinis. I would
nd it hard to interpret this as an objectionable völkisch practice. This exam-
ple shows that the problem is not with ius sanguinis itself, but with the
respective contexts in which it is embedded.
4 Hogwood, P. (2000), ‘Citizenship Controversies in Germany: the twin legacy
of Völkisch nationalism and the Alleinvertretungsanspruch’, German Politics 9
(3): 125–144, here 127, 132–133.
5 Gosewinkel, D. (2001), Einbürgern und Ausschließen: Die Nationalisierung
der Staatsangehörigkeit vom Deutschen Bund bis zur Bundesrepublik
Deutschland [Naturalising and Excluding: Nationalisation of Citizenship from
the German Confederation to the Federal Republic of Germany]. Göttingen:
Vandenhoeck & Rupprecht, 327.
Tainted Law? Why History Cannot provide the Justication for Abandoning…

94
Co-ethniccitizenshipisadifferentstory
Nor is ius sanguinis particularly useful (or even necessary) for the convey-
ing of citizenship upon ‘co-ethnics’ in other countries. This is a whole dif-
ferent discussion in my opinion which cannot be used to make a case against
the ius sanguinis principle. Taking again the example of Germany, the main
European supplier of co-ethnic citizenship in past decades, it needs to be
stressed that ‘ethnic Germans’ from Eastern Europe did not receive German
citizenship by means of the ius sanguinis of the 1913 citizenship law. This
was not possible, as in most cases they had no ancestor with German citizen-
ship to refer to. Their claim to citizenship rested on special provisions in the
constitution and expellee law, which equalised the status of German
Volkszugehörige with that of German citizens.
At this point we leave the solid ground of formal citizenship and enter
into the murky territory of ‘ethnicity’. But even here, it is not all about
‘descent’. While the peculiar notion of Volkszugehörigkeit is often identied
with ‘ethnic descent’, it was much more complex than that: it was actually
very much a political-plebiscitary notion predicated on self-avowal
(Bekenntnis) as German to be conrmed by an ‘objective’ criterion, which
could be language, descent, upbringing, or culture (section 6 of the 1953
Federal Expellee Law).6 ‘Descent’ (Abstammung) – notoriously hard to
dene in administrative practice – was thus neither a necessary nor a sufcient
condition for recognition as a German.7
Conclusion
In sum, I would argue that the supposed ‘taintedness’ of ius sanguinis has
to do with issues not intrinsic to this principle of transmitting citizenship,
namely restrictive admission practices and racially based exclusion. The
issue of co-ethnic citizenship should be kept apart from this discussion
altogether. History cannot provide the justication for abandoning ius san-
guinis, as its use in certain problematic ways and contexts in the past does
6 See: http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_
BGBl&jumpTo=bgbl153022.pdf
7 I elaborate on the plebiscitary, quasi-‘Renanian’ nature of the German concep-
tion of Volkszugehörigkeit in: Panagiotidis, J. (2012), ‘The Oberkreisdirektor
Decides Who Is a German’: Jewish Immigration, German Bureaucracy, and the
Negotiation of National Belonging, 1953–1990. Geschichte und Gesellschaft
38, 503–533, esp. 511.
J. Panagiotidis

95
not mean it necessarily has to be used like that in the future. If comple-
mented by other, inclusionary mechanisms of allocating citizenship in con-
junction with increased tolerance for multiple citizenship it certainly
remains a useful – and necessary – method of transmitting citizenship in the
day and age of multiple transnational migrations.
OpenAccess This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the chap-
ter’s Creative Commons license, unless indicated otherwise in a credit line to the
material. If material is not included in the chapter’s Creative Commons license and
your intended use is not permitted by statutory regulation or exceeds the permitted
use, you will need to obtain permission directly from the copyright holder.
Tainted Law? Why History Cannot provide the Justication for Abandoning…

97© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_19
Family Matters: Modernise, Don’t Abandon,
Ius Sanguinis
Scott Titshaw
I appreciate the ideas that Costica Dumbrava and others have introduced
into this debate. States’ concerns about the quality and political conse-
quences of their citizenship are important. But citizenship is a two-way
street. Our discussion of ius sanguinis laws should extend beyond the con-
cerns of states to also consider the serious practical consequences of citizen-
ship laws on citizens, including the long-term unity and security of their
families. Families facing instability or separation because children are
denied their parents’ citizenship are unlikely to be satised with the explana-
tion that ius sanguinis is inadequate or historically tainted; the resulting indi-
vidual sense of injustice might even discourage the loyalty and identication
states seek in citizens.
This debate about citizenship transmission is necessary because of two
modern changes in the facts of life: (1) increased international mobility
based on cheap and easy transportation and communication; and (2) the
advent and diffusion of assisted reproductive technology (ART) and new
legal family forms (e.g., same-sex marriage and different-sex registered
partnership). I will address each in turn. First, I’ll explain why Dumbrava’s
proposal to abandon the ius sanguinis principle is an undesirable response to
increased international mobility. Second, I’ll build on Dumbrava’s and
Bauböck’s recognition of the inadequacy of unlimited and exclusive ius san-
guinis rules for today’s families by suggesting that ius sanguinis be mod-
ernised rather than abandoned altogether. I’ll also illustrate how citizenship
in federal states can add an additional layer of complexity to any universal
proposal regarding citizenship.
In a mobile world children need their parents’ citizenship
Dumbrava’s proposal to eliminate the ius sanguinis principle would
increase, rather than decrease, problems based on greater international
mobility. It would eliminate one tool parents currently use for transmitting

98
citizenship to children conceived through ART. While current versions of
ius sanguinis are inadequate to deal with other ART issues, that problem
can be corrected. And, as Jannis Panagiotidis points out, abandoning ius
sanguinis because of this inadequacy would be like ‘throwing the baby out
with the bathwater’. Most children are still conceived through sexual repro-
duction rather than ART, and many of their families would be worse off
without ius sanguinis.
An example is easy to imagine. Let’s say an Indian couple moves every
seven years for employment reasons. They obtain residence permits, but not
citizenship, in South Africa, the United Kingdom, and the United States, in
turn. They also have a child in each country. Under ius soli regimes with no
ius sanguinis rules, the children of these Indian parents would each have
different passports (from South Africa, the UK, and the US). This might
pose no problem in the short term. But what happens if a parent dies or loses
his job?
Under a ius sanguinis regime, the surviving family members would be
able to enter India and remain there together permanently as citizens.1
Dumbrava argues that such common citizenship is unnecessary to recog-
nise and cement parent-child relationships if children of citizens have ‘full
migration rights. But ‘migration rights’ or benets are substantially less
stable than citizenship rights. What if a non-citizen family member becomes
deportable because he or she commits a crime?2 What if both Indian parents
die while the children are minors? Without ius sanguinis, the children with
their different nationalities might not be allowed to remain together any-
where, let alone in India where their extended family members (grandpar-
ents, aunts and uncles) most likely live.
Dumbrava’s proposal of a universal legal status for all children would ame-
liorate some of these problems, but only until each child reaches the age of
majority. At that time they might be separated from their parents and siblings.
1 India would have automatically recognised these children as Indian citizens
through 2004; it still recognises a greatly eased path to apply for citizenship in
this context. http://www.loc.gov/law/help/citizenship-pathways/india.php
2 While hardship of citizen relatives is sometimes considered, US immigration
law generally requires removal of non-citizens who commit any of a long list
of criminal infractions. 8 USC §1227(a)(2). https://www.law.cornell.edu/
uscode/text/8/1227
S. Titshaw

99
ARTrequiresxingfamilyandcitizenshiplaw
I agree with Dumbrava’s and Bauböck’s rejection of exclusive, uncondi-
tional ius sanguinis rules as inadequate in dealing with the consequences of
ART and modern family law.
I disagree, however, with the conclusion Dumbrava draws from his argu-
ment that ‘joint citizenship adds little to the legal and normative character of
the parent-child relationship’. In fact, the permanence and stability stem-
ming from common citizenship among close family members can have pro-
found consequences for the unity required to develop and maintain family
relationships.
I also disagree with Dumbrava’s argument that ‘the main problem’ is
that ius sanguinis ‘is parasitic on external factors concerning the legal
determination of parentage’. In fact, some federal States already delink fed-
eral citizenship determination and state or provincial family law,3 creating
greater problems than do citizenship laws that reect legal parentage. In the
United States, for example, legal parentage is generally a matter of state
law. Yet, the US Constitution denes citizenship as an exclusively federal
matter,4 and Congress has established and revised a complex, autonomous
algorithm for determining when a citizen parent transmits US citizenship to
a child born abroad.5 The problematic example Dumbrava points out
regarding parents’ inability to transmit US citizenship to children conceived
through ART was created by a misguided autonomous federal policy,
not parentage determinations under family law.6 It could, and should, be
3 HCCH (2014), A Study of Legal Parentage and the Issues Arising from
International Surrogacy Arrangements, Prel. Doc. No 3C. Hague Conference
on Private International Law,66–68 (listing Australia, Canada and the United
States as examples). Available at http://www.hcch.net/upload/wop/
gap2015pd03c_en.pdf
4 The Fourteenth Amendment guarantees that ‘[a]ll persons born or naturalized
in the United States and subject to the jurisdiction thereof are citizens of the
United States and the state in which they reside’. Not only does this
Amendment adopt a nearly absolute ius soli rule, but it claries that citizenship
is a purely federal matter, with no meaningful state role beyond establishment
of its own standards for recognising state residence.
5 8 USC §§1401–1409. Available at http://www.uscis.gov/sites/default/les/
ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9696.html
6 Under current US law, a genetic and legal father and/or one or more legal and
‘biological’ mothers (i.e., genetic and gestational mother(s)) transmit birthright
citizenship to children conceived through ART, but non-biological parents do
not. Titshaw, S. (2014), ‘A Transatlantic Rainbow Comparison: “Federalism”
and Family-Based Immigration for Rainbow Families in the U.S. and the
Family Matters: Modernise, Don’t Abandon, Ius Sanguinis

100
corrected by federal reinterpretation of its rules to rely on family law par-
entage determinations.7
Rather than misplaced reliance on family law, the problems Dumbrava
and Bauböck describe regarding the application of ius sanguinis following
ART are consequences of outdated family law or of international conict-
of- law issues where relevant jurisdictions dene parentage differently.
To the extent that the problems stem from conict-of-law issues, it is
worth noting that the Hague Conference on Private International Law is cur-
rently exploring whether to draft a multilateral instrument on international
parentage and surrogacy, which might resolve some issues.8
To the extent that the problems stem from outdated family law, the best
solution is to x the family law. Family law generally reects a more indi-
vidualized, in-depth understanding of parent-child relationships than do citi-
zenship or migration laws. Based on long experience and empirical data,
family law tends to favour the stability of permanent family relationships
with commensurate duties and benets in the best interests of children. By
tending to ensure the same citizenship for children and their parent(s), ius
sanguinis rules also generally promote stable solutions in the best interests
of children in a way that less permanent migration rules do not.
I agree with Bauböck that multiplicity of citizenships for children is gen-
erally not a problem, and I support his call for a more generous understand-
ing of parenthood for purposes of citizenship transmission. But I would not
opt for a ius liationis proposal if it requires an entirely independent deter-
mination of social parenthood for citizenship transmission purposes.
Ofcials dealing with citizenship issues are not as well suited to determine
these issues as those administering family law. Also, too much generosity in
this area might instigate cross-border mischief in familial disputes by ‘social
parents’.
E.U.’, in C. Casonato & A. Schuster (eds.), Rights on the Move: Rainbow
Families in Europe: Proceedings of the conference: Trento, 16–17 October
2014, Trento: 189–200 (194-9). Trento: Università degli Studi di Trento,
Facoltà di Giurisprudenza, available at http://eprints.biblio.unitn.it/4448/
7 Titshaw, S. (2013), ‘Revisiting the Meaning of Marriage: Immigration for
Same-Sex Spouses in a Post-Windsor World’, Vand. L. Rev. (66): 167–177
(174–75), available at http://www.vanderbiltlawreview.org/2013/10/
revisiting-the-meaning-of-marriage-immigration-for-same-sex-spouses-in-a-
post-windsor-world.
8 At: http://www.hcch.net/upload/wop/gap2015pd03a_en.pdf
S. Titshaw

101
Instead, I would suggest replacing all outmoded rules that fail to consider
parental intent and the best interests of the child in the context of children
conceived through ART, whether these are family laws determining parent-
age or autonomous federal citizenship laws reading ius sanguinis as a literal
‘right of blood’.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Family Matters: Modernise, Don’t Abandon, Ius Sanguinis

103© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_20
Abolishing Ius Sanguinis Citizenship:
A Proposal Too Restrained and Too Radical
Kristin Collins
Costica Dumbrava maintains that ius sanguinis citizenship is a historically
tainted, outmoded, and unnecessary means of designating political member-
ship. He argues that it is time to abandon it. His proposal is bold, and it has
signicant implications for an array of policies and practices. The parent-
child relationship not only serves as a basis for citizenship transmission; it
also entitles individuals to immigration preferences, and – in some coun-
tries – it facilitates automatic or ‘derivative’ naturalisation of the children of
naturalised parents. In many countries that recognise ius soli citizenship, the
parent-child relationship serves as an added requirement: one must be born
in the sovereign territory and be the child of a citizen or a long-term legal
resident. Dumbrava limits his challenge to ius sanguinis citizenship per se,
and even suggests that family-based migration rights could be used to mini-
mise the disruptive effect of abolishing citizenship-by-descent. But his core
complaints about ius sanguinis citizenship – the mismatch of biological par-
entage and political afnity, the difculties of determining legal parentage –
can be, and have been, levied against these various family-based preferences
and statuses, which are likely found in every nation’s nationality laws. It is
therefore important to consider his proposal in light of the role that the
parent- child relationship plays in the regulation of migration, naturalisation,
and citizenship more generally. With this broader context in mind, I concur
with Rainer Bauböck and Jannis Panagiotidis that Dumbrava’s proposal
rests on an under-informed assessment of the historical record. I also argue
that that, as a remedy for the problems that he has identied, Dumbrava’s
proposal is at once too restrained and too radical.
The complex history of ius sanguinis citizenship
Dumbrava rst argues that ius sanguinis citizenship should be abolished
because, historically, it has been associated with ethno-nationalist concep-
tions of citizenship. I appreciate Panagiotidis’ insistence that ‘the problem is
not with ius sanguinis itself, but with the respective contexts in which it is
embedded’. Panagiotidis also reminds us that ius sanguinis citizenship has

104
sometimes functioned to create political communities that draw from differ-
ent ethnic and religious groups, as in the case of German Jews whose mem-
bership in the German polity was secured by the country’s ius sanguinis
laws prior to the Nazi era. I want to elaborate and underscore the importance
of this point with an additional example from United States history: During
seventy years of Chinese exclusionary laws, ius sanguinis citizenship pro-
vided one of the very few routes to entry, and to American citizenship, for
ethnic Chinese individuals born outside the U.S. For precisely that reason,
exclusionists sought to limit or repeal the ius sanguinis statute, which recog-
nised the foreign-born children of American fathers as citizens.1 If one
expands the historical frame to include parent-child immigration prefer-
ences and derivative naturalisation, the story becomes even more complex.
By 1965, the race-based exclusions and national-origins quotas had been
abolished, and previously excluded Asian families began immigrating to the
U.S. in unprecedented numbers.2 They were able to do so by relying on the
generous family-based preferences in American immigration and national-
ity laws, which facilitated entry, settlement, and – especially signicant to
this discussion – derivative naturalisation for children.3
Even a cursory review of the historical record thus counsels a cautionary
assessment of the contention that ius sanguinis citizenship’s tainted past jus-
ties its abolition. First, calls to end ius sanguinis citizenship have their own
ugly history. Second, although one cannot gainsay that, in certain circum-
stances, ius sanguinis citizenship has been used to maintain ethnic homoge-
neity, the notion that parents and children do and should share the same
political afliation has also facilitated racial, ethnic, and religious diversi-
cation of some political communities. Rather than abolish ius sanguinis citi-
zenship wholesale, we should be alert to the ways that it can operate as a tool
1 For a discussion of these laws and efforts to restrict the recognition of ethnic
Chinese individuals under the ius sanguinis citizenship statute, see Collins,
K.A. (2014), ‘Illegitimate Borders: Jus Sanguinis Citizenship and the Legal
Construction of Family, Race, and Nation’, Yale Law Journal 123 (7) 2134–
2235 (at 2170–2182). Starting in 1934, the ius sanguinis statute also allowed
American mothers to transmit citizenship to their foreign-born children. See id.
at 2157.
2 See Reimers, D. (1983), ‘An Unintended Reform: The 1965 Immigration Act
and Third World Immigration to the United States’, Journal of American
Ethnic History 9 (3): 23–24; Ong Hing, B. (1999), Making and Remaking
Asian America Through Immigration Policy, 1850–1900. Stanford: SUP,
81–120.
3 See, for example, Immigration and Nationality Act of 1952, 66 Stat. 163, 245,
§ 323.
K. Collins

105
of ethnic exclusion and degradation in particular socio-legal contexts, and
work to minimise those effects.4
A proposal too restrained and too radical
To be fair, Dumbrava does not extend his proposal to migration and naturali-
sation policies that enlist the parent-child relationship; indeed, he would
preserve such migration policies. He speaks only of traditional ius sanguinis
citizenship, and argues that it often fails to map on to the reality of modern
family formation, making it inadequate to ‘deal with contemporary issues
such as advances in assisted reproduction technologies’ (ART), same-sex
coupling and marriage, and the steady rise of nonmarital procreation. The
problems Dumbrava identies in this regard are important and difcult. But
as a remedy for these problems, abolishing parent-child citizenship trans-
mission is simultaneously too restrained and too radical. It is too restrained
because, after abandoning ius sanguinis citizenship we would still be con-
fronted with the difculty of determining which parent-child relationships
should count for purposes of regulating migration, derivative naturalisation,
and (in many countries) ius soli birthright citizenship. Moreover, in all of
these contexts, the ‘fundamental normative questions about who should be
a citizen in a political community’ – and about the role that the parent-child
relationship should play in that determination – would persist.
At the same time, Dumbrava’s proposal is too radical. He argues that ius
sanguinis citizenship is not necessary to protect children from statelessness
and ‘adds little to the legal and normative character of the parent-child rela-
tionship’. On this point I agree entirely with Bauböck and Scott Titshaw that
Dumbrava underestimates the disruptive potential of his proposal. If all
countries recognised unrestricted ius soli citizenship, Dumbrava’s assertion
that ius sanguinis citizenship is unnecessary to prevent statelessness would
be basically correct. But, in fact, very few ius soli countries go that far.
Instead, as noted, they use ius sanguinis concepts to restrict the operation of
ius soli birthright citizenship, thus leaving some children at a risk of state-
lessness if traditional ius sanguinis citizenship were abolished. And it is not
just formal statelessness that would increase in a world without ius sangui-
nis citizenship. Children whose citizenship does not align with that of their
4 A particularly notable example of how ius sanguinis principles can operate as
tools of ethno-racial exclusion is the 2013 ruling of the Constitutional Tribunal
of the Dominican Republic, TC/0168/13, which effectively expatriated
ethnic-Haitian individuals born and residing in the D.R., leaving hundreds of
thousands of people stateless.
Abolishing Ius Sanguinis Citizenship: A Proposal Too Restrained and Too…

106
parents can nd themselves divided by nationality from the individuals who
are charged, ethically and legally, with their care. As Bauböck and Titshaw
observe, in an era of voluntary and compelled migration, ius sanguinis is the
most effective method of protecting against such destabilising and precari-
ous circumstances.
How to modernise?
I agree with Titshaw and Bauböck that the modernisation of ius sanguinis
citizenship, rather than its complete repudiation, offers a better way to
address the problems Dumbrava identies. The difcult question is how? I
am hesitant to embrace Titshaw’s proposed method of modernisation, and I
offer a friendly but important amendment to Bauböck’s proposal.
Titshaw argues that the ofcials who administer citizenship law should
adhere to the parentage determinations made by ofcials who generally
administer family law. In the U.S., these are state-level family law judges
applying state law. But domestic family law, in the U.S. and elsewhere, does
not necessarily generate ideal or even tolerable outcomes on questions of
citizenship. Titshaw holds up a particularly poorly drawn U.S. federal policy
that regulates ius sanguinis citizenship as it applies to foreign-born children
conceived using ART, but there are many examples of how the use of state
family law to regulate citizenship transmission has generated equally objec-
tionable outcomes. 5
Alternatively, Bauböck would have us adopt a ‘ius liationis’ standard
that recognises the ‘social parent’ or the ‘primary caregiver’ as the parent for
purposes of ius sanguinis citizenship. He urges that this would help remedy
the ‘mismatch between biologically determined citizenship and parental
care arrangements that would also open the door to abusive claims’. He is
correct. My concern, however, is that his emphasis on ‘social parenting’ and
‘primary caregiving’ is insufcient and has its own perils. First, it could
5 For example, in 1940 the federal ius sanguinis citizenship statute was amended
to include the nonmarital children of U.S. citizen fathers under certain circum-
stances, such as when the father had ‘legitimated’ the child. Federal ofcials
turned to the law of the father’s domiciliary state to determine whether
legitimation had, in fact, occurred. In the 1940s and 50s, marriage to the
child’s mother was a very common mode of legitimation, but federal ofcials
making citizenship determinations would not recognise an interracial marriage
as the basis of a child’s citizenship claim if the father’s home state banned such
marriages – and many did. See Collins, ‘Illegitimate Borders’, above n. 2, at
2210.
K. Collins

107
increase the likelihood of abusive denials of citizenship by ofcials who, at
least in the U.S., are often all too eager to nd reasons to reject claims to citi-
zenship.6 In the case of nonmarital children – who make up a far greater
portion of the global population than children conceived through ART – the
restriction of parent-child citizenship transmission to ‘primary caregivers’
could lead to circumspect treatment, or outright rejection, of the father-child
relationship as a basis for citizenship transmission. Indeed, the primary
caregiver standard could stymie the caregiving efforts of unmarried fathers
who are divided by nationality from their children, and hence may never be
able to establish themselves as the ‘primary caregiver’. The emphasis on
caregiving as a prerequisite could also aid unmarried fathers who prefer to
avoid parental responsibility by distancing themselves geographically from
their children. The result: a ius sanguinis citizenship regime that would but-
tress gender inequality by undermining men’s parental rights and helping
them to avoid their parental responsibilities.7 Moreover, and regardless of
one’s view of the equities as between parents, it is ultimately the nonmarital
child’s citizenship and migration rights that could be destabilised, depend-
ing on how ofcials understood the concept of ‘social parent’. Dumbrava
recognises the inequities associated with ‘the differential treatment of chil-
dren born within and out of wedlock with respect to access to citizenship’,
but his solution – to abolish parent-child citizenship transmission alto-
gether – would give cold comfort to nonmarital children and marital chil-
dren alike.
This is not an endorsement for a purely genetic model of citizenship
transmission. Despite the references to ‘blood’, ius sanguinis citizenship has
never rested on purely biological conceptions of citizenship. Traditionally,
marriage was fundamental to the ability of fathers to secure citizenship for
their children, and – at least in the development of U.S. law – the presump-
tion that the mother is the sole caregiver of the nonmarital child led to the
recognition of the mother-child relationship as a source of citizenship for
foreign-born nonmarital children.8 Rather, I suggest that – unless and until
we move beyond citizenship as the enforcement mechanism for basic human
rights, and beyond the family as a foundational source of material and psy-
chological support for children, we cannot overstate the importance of
6 See, for example, Saldana Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013).
7 I develop this argument in: Collins, K.A. (2000), ‘When Fathers’ Rights Were
Mothers’ Duties: The Failure of Equal Protection in Miller v. Albright’, Yale
Law Journal (109) 1669–1708 (1699–1705), and in ‘Illegitimate Borders’,
above n. 2, at 2230–34.
8 See Collins, ‘Illegitimate Borders’, above n. 2, at 2199–2205.
Abolishing Ius Sanguinis Citizenship: A Proposal Too Restrained and Too…

108
the generous recognition of the parent-child relationship for citizenship
transmission. The modernisation of ius sanguinis citizenship should thus
include the recognition of ‘social parents’ and parents with ‘custodial
rights’– as Bauböck rightly asserts – and also recognition of all who can be
held legally responsible for a child’s care or support. Dumbrava may be
unhappy that the whims of parents, people’s reproductive choices, and fac-
tors beyond the control of the individual would continue to determine mem-
bership in a political community. But it is precisely because citizenship
designations rest on factors such as these that I wholly agree with his admo-
nition that we channel our efforts ‘towards consolidating democratic institu-
tion and promoting citizenship attitudes and skills among all those who nd
themselves, by whatever ways and for whatever reason, in our political
community’.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
K. Collins

109© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_21
Citizenship Without Magic
Lois Harder
I share Costica Dumbrava’s critique of ius sanguinis citizenship, and ulti-
mately what is, I think, his rejection of birth as the basis for political mem-
bership generally. Of course, there are issues of practicality – of the world as
we nd it – that might limit whether and how one would advance the abol-
ishment of birthright citizenship in light of specic political dynamics. But
it is precisely those practicalities, and the near unthinkability of alternatives
to birth-based citizenship that demand our interrogation of birthright in the
rst instance. As Joseph Carens has argued with respect to his advocacy of
open borders, ‘even if we must take deeply rooted social arrangements as
givens for purposes of immediate action in a particular context, we should
never forget about our assessment of their fundamental character. Otherwise
we wind up legitimating what should only be endured’.1
In his contribution to this Forum, Rainer Bauböck defends birthright
citizenship and argues that in both of its iterations (ius sanguinis and ius
soli) it avoids political division and ‘creates a quasi-natural equality of
status’ among citizens who are entitled to claim it. But what about the
inequality that divides the entitled from the unentitled? Political communi-
ties may be unavoidably bounded, but if a normative commitment to human
rights is our guiding frame, it seems incumbent upon us to advance meth-
ods or prospects for membership that reduce the barriers to belonging as
much as possible. Moreover, as Jacqueline Stevens trenchantly observes,
in dening the bounds of equal citizenship, borders also form the boundar-
ies of our non- emergency expressions of compassion.2 To the extent that
birthright entitlement advances a seemingly unassailable claim to exclu-
sionary membership, its advocacy runs counter to a broader commitment to
humanitarianism.
1 Carens, J. (2013), The Ethics of Immigration. New York: Oxford University
Press, 229.
2 Stevens, J. (2010), States without Nations: Citizenship for Mortals. New York:
Columbia University Press, 9.

110
Bauböck’s description of birthright citizenship evades the fact that
establishing citizenship through birth, as with any other basis for member-
ship, is an inherently political decision. One of the central appeals of birth-
right is that it involves innocent, vulnerable babies, infants who are not
(yet) marked by misdeeds, criminality, inadequate knowledge or commit-
ment, or the wrong ideological proclivities. It is this innocence that helps to
obscure the profoundly political basis of birthright; that makes it possible to
describe birthright citizenship as avoiding political division and establish-
ing a quasi- natural equality. However, the use of criteria of birth to deter-
mine political membership – whether it is birth to a citizen parent (variously
dened) or birth in the territory (variously dened) – is not innocent.
Prevailing views about
• wedlock and patriarchal forms of social organisation (e.g. unwed mothers
having responsibility for their children and conferring citizenship, but
unwed fathers having no such responsibility or capacity);
• the relative signicance of biological and social parenting as well as gen-
der and sexuality (can a lesbian co-mother confer citizenship on her
genetic progeny to whom she did not give birth – just as fathers do?);
• national attachment (is this child born abroad as second or subsequent
generation?); and
• how generous territorial denitions should be (is a child born to a Ugandan
mother on an American airline ying in Canadian airspace from
Amsterdam to Boston a Canadian? Answer = yes) 3
all play out in the rules that determine birthright entitlement. The magi-
cal power of birthright citizenship is that it makes it possible for us to
know and rehearse these rules while simultaneously making birthright
seem straightforward, static and apolitical. In contrast to citizenship
debates that engage migration, legal and illegal status and naturalisation,
birthright citizenship makes these political choices disappear with a wave
of a wand.
I am currently researching a book on the lost Canadians. These are
people who thought they had a birthright claim to Canadian citizenship,
but subsequently learned that they were mistaken. Their difculties arose
3 ‘Birth and joy midight’ Boston Globe, 1 January 2009, available at http://
www.boston.com/news/local/massachusetts/articles/2009/01/01/birth_and_
joy_midight/?page=full
L. Harder

111
for various reasons, and have now largely been resolved through statutory
amendment (a rule change). In making their case to Parliament, the courts
and the media, their primary, and highly successful, strategy, was to deni-
grate the rule-boundedness of ‘mean-minded bureaucrats’ and advance
the merits of their claims through appeals to lineage and blood-based
belonging.4 Despite being born in the UK, residing in Canada for ve
years as a small child, and having subsequently lived in the UK for six
decades, one such lost Canadian insisted, ‘I, sir, am a Canadian. To the
roots of me, to the spirit of me, to the soul of me, I’m Canadian’. 5 This
impassioned claim to Canada – not exactly your ‘go to’ example of an
ethnic nation – nonetheless succeeds as a rhetorical strategy because it
re-enchants the nation,6 underscoring the country’s desirability to the
Canadian public, and insisting that this connection is an essential feature
of her identity. This is a logic that only works in a world of birthright citi-
zenship. And it is a strategy that eventually succeeded in securing legisla-
tive amendments, because the birth-based claims of the lost Canadians
(and not necessarily residency or connection) carried an overwhelming
political potency.
To the extent that birthright citizenship enables progressive people to
cordon off a substantial portion of membership determination from a poten-
tially nasty political debate, one can certainly understand its attractions. But
the occlusion of politics with an unsupportable appeal to nature is ethically
dubious. If we are committed to democratic equality, we need principles to
manage how we live together that refuse the privilege of birth over naturali-
sation, and that require us to come to terms with our mortality.7 Political
membership should be a lively, on-going process of negotiation in which
everyone has a stake. Some critics might argue that abandoning birthright
citizenship and its intergenerational character will create the conditions for
decision making in which we are no longer future-oriented, or indeed, that
we will neglect the lessons and obligations of our past. If our children do not
4 Canada, 26 February 2007, House of Commons Standing Committee on
Citizenship and Immigration 39th Parliament 1st Session no. 38. (at 11:50).
5 Canada, 26 February 2007, House of Commons Standing Committee on
Citizenship and Immigration 39th Parliament 1st Session no. 38. (at 11:45).
6 Honig, B. (2001), Democracy and the Foreigner. Princeton: Princeton
University Press, 74.
7 For a full elaboration on the dangers of intergenerational citizenship, see
Stevens (2010), at n.2 above.
Citizenship Without Magic

112
have a stake in the polity to come, why should we commit ourselves to mak-
ing it better? This kind of argument is morally bereft. We can continue to
care about the future and attend to the damages we, and our ancestors, have
wrought, even if, or precisely because, our political membership is limited
by our mortality. It was, of course, ever thus.
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which permits use, sharing, adaptation, distribution and reproduction in any medium
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were made.
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chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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L. Harder

113© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
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https://doi.org/10.1007/978-3-319-92719-0_22
The Janus-Face of Ius Sanguinis: Protecting
Migrant Children and Expanding Ethnic
Nations
Francesca Decimo
Costica Dumbrava’s proposal for abandoning ius sanguinis is timely and
bold. My intuition is to reject his suggestion that children’s citizenship might
be disconnected from that of their parents, but to join his advocacy for a
radical rethinking of the ius sanguinis principle with a view towards elimi-
nating it once and for all. These are rather contrasting stances in relation to
the same principle. Let us see if the apparent contradiction can be resolved.
To begin, let us consider the element of Costica Dumbrava’s proposal
that has elicited most attention and controversy among the respondents, but
was picked up and expanded by Lois Harder, namely the assertion that
granting citizenship at birth is unnecessary and, above all, that making chil-
dren dependent on the legal status of their parents exposes them to a form of
vulnerability. The idea of postponing the acquisition of citizenship until
adulthood, taking into account birthplace and residence or possession of the
appropriate attitudes and skills, derives from the classic opposition between
ius sanguinis and ius soli according to which the former is considered ethnic
and exclusive while the latter is considered civic and inclusive. Yet Rainer
Bauböck’s comments on this point explain how, in the absence of parental
transmission of citizenship to children, ius soli and ius domicilii can gener-
ate individual and familial conditions that are both legally paradoxical and
morally unfair.
I share the doubts and critiques raised by Rainer Bauböck, Scott Titshaw
and Kristin Collins regarding the alleged emancipatory value of a citizen-
ship system that disconnects children from their parents. Particularly, I con-
sider any legal system that fails to specically protect the relationship
between parents and children to be highly risky. Indeed, who should chil-
dren depend on if not their parents? Dumbrava’s proposal that children
might instead be subject to, and protected by, a kind of international law
faces the problem of subordinating the individual and familial reproductive
spheres to institutional logics.

114
As Luc Boltanski has noted,1 the event of birth is inextricably linked to
the denition of belonging and social descent – and therefore legal, political,
cultural, national, etc. descent as well. Historically, devices for legitimating
the procreative event were provided by religion, ancestry, the nation-state
and, in more recent times, a long-term relationship among a couple. In a
scenario in which parentage and citizenship are not tightly connected from
the beginning, the risk is not only that of generating stateless children but
also an excess of state power. Even after World War Two, the Catholic
Church in Ireland took children considered illegitimate away from their
unmarried mothers. It was nationalist demographic policies, both in Europe
and overseas, that shaped the reproductive choices of individuals and fami-
lies during the 20th century with a view to producing children for the father-
land. We might recall these policies when interpreting some recent
nationally-oriented arguments encouraging the children of immigrants to rid
themselves of the burden of their cultures of origin in which their inade-
quately assimilated mothers and fathers remain stuck.2 With this in mind, do
we really want to dene children’s citizenship irrespective of their parents’?
Do we really want to shift the task of determining the legitimate member-
ship of our offspring from relationships to institutions?
The considerations made thus far therefore lead me to agree with those
who have argued that, as long as the system of nation-states regulates our
rule of law, children’s citizenship must be linked from birth to that of their
parents.
At the same time, it seems to me that ius sanguinis is a legal instrument
which, especially in a global context of increased geographical mobility,
opens the way to policies of attributing nationality that go far beyond pro-
tecting the parent-child relationship. This point relates to Dumbrava’s obser-
vation that ius sanguinis is historically tainted that was critically addressed
by Jannis Panagiotidis but has not yet been decisively refuted.
As scholars have noted, ius sanguinis makes it possible to recognise a
community of descendants as legitimate members of the nation regardless
of its territorial limits, but that is not all. This principle has been used to
grant the status of co-national to individuals dispersed not only across space
but also across time, leading to the construction of virtually inexhaustible
intergenerational chains.3 This principle is based on blood, identied as the
1 See Boltanski, L. (2004), La condition foetale. Paris: Gallimard.
2 See Hungtinton, S. (2004), Who are we? New York: Simon and Schuster.
3 See: Brubaker, R. (1992), Citizenship and Nationhood in France and
Germany. Cambridge: Harvard University Press.
F. De c i m o

115
essential and primordial element of descent, belonging and identication. It
is true that this potential for unlimited intergenerational transmissibility is
effectively defused by the fact that many countries interpret ius sanguinis
narrowly, applying it generally only up to the second generation born abroad.
And yet, is this limit enough to bind and delimit the potential of ius sangui-
nis? In national rhetoric the image of a community of descendants continues
to exert a powerful appeal that goes beyond the attribution of birthright citi-
zenship. In historical emigration countries – but also others –,4 ius sanguinis
as a legal practice is used to grant preferential conditions and benets to
descendants as part of the direct transmission or ‘recovery’ of ancestral citi-
zenship well beyond the second generation.5 Generational limits in the
granting of citizenship to descendants can thus be bypassed because, in prin-
ciple, ius sanguinis itself poses no particular restrictions in this regard.
The most controversial aspects of ius sanguinis emerge when this prin-
ciple ends up competing with ius soli or ius domicilii, that is, when individu-
als born and raised elsewhere enjoy a right to citizenship in the name of
lineage and an assertion of national afliation while immigrants who par-
ticipate fully in the economic, social and cultural development of the coun-
try are denied this same right or face serious obstacles in accessing it. In
such context – Germany in the past and Italy today – the right to citizenship
effectively becomes a resource which, like economic, human and social
capital, is distributed in a highly unequal way, benetting certain categories
of people – ‘descendants’ – at the expense of others – ‘foreigners’.
In view of its unlimited intergenerational potential, I conclude that, if its
purpose is merely to bind children’s citizenship to that of their parents, ius
sanguinis as a legal instrument suffers from ambiguity and disproportional-
ity. All of these critical points seem to be implicitly overcome in Bauböck’s
proposal of a ius liationis principle, which would focus entirely on linking
children’s citizenship to that of their parents, especially for migrants and
non-biological offspring. Under a different name and with distinct content,
4 Joppke’s comparison of three highly divergent countries, France, Italy and
Hungary, is quite effective in shedding light on this issue in Joppke, C. (2005),
Selecting by Origin. Cambridge: Harvard University Press, 240–250.
5 For an in-depth analysis of the Italian case, see Decimo, F. (2015). Nation and
reproduction: Immigrants and their children in the population discourse in
Italy. Nations and Nationalism, 21(1), 139–161; Tintori, G. (2013),
Naturalisation Procedures for Immigrants. Florence: European University
Institute Robert Schuman Centre for Advanced Studies, EUDO Citizenship
Observatory, available at http://cadmus.eui.eu/bitstream/handle/1814/29787/
NPR_2013_13-Italy.pdf?sequence=1
The Janus-Face of Ius Sanguinis: Protecting Migrant Children and Expanding…

116
does this move not suggest that, rather than modifying or modernising ius
sanguinis as advocated by Rainer Bauböck and Scott Titshaw, it is time to
abandon it once and for all, adopting in its place a principle that explicitly
protects parentage and citizenship in contexts of geographical mobility
instead of linking it to genealogical lineage and nationhood?
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which permits use, sharing, adaptation, distribution and reproduction in any medium
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were made.
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and your intended use is not permitted by statutory regulation or exceeds the per-
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F. De c i m o

117© The Author(s) 2018
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IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_23
The Prior Question: What Do We Need State
Citizenship for?
David Owen
In his kick-off contribution, Costica Dumbrava offers a threefold critique of
ius sanguinis as a norm of citizenship acquisition. In reecting on this cri-
tique, I share the scepticism expressed by Rainer Bauböck, Jannis
Panagioditis, Scott Titshaw and Kristin Collins. In particular I would note,
along the lines of Titshaw’s Indian family example, that the abolition of ius
sanguinis would have led in my own family context to four siblings, of
whom I am one, being split among three different nationalities: Nigerian,
British and Malaysian). However rather than address Dumbrava’s critique
head on, I want to suggest that the kind of critique of ius sanguinis that he
offers – and the same point would apply to the critique or defence of any of
the classic membership rules taken singly as free-standing norms – gets
things moving askew from the start. To see this, one needs to take a step
back and situate this debate within a slightly different context. When asking
what citizenship rules we ought to endorse or reject, we ought to begin with
a prior question: ‘what do we need state citizenship rules for?’
In a world of plural autonomous states, there are two basic functions that
such rules are to play:
1. to ensure that each and every human being is a citizen of a state and hence
that everyone has, at least formally, equal standing in a global society
organised as a system of states;
2. to allocate persons to states in ways that best serve the common interest,
that is, where this allocation supports protection of the fundamental inter-
ests of individuals, the realization of the common good within states and
the conditions of cooperation between states.
A plausible response to these requirements is a general principle that Ayelet
Shachar calls ‘ius nexi’ which highlights the importance of a genuine con-
nection between persons and the state of which they are citizens.1 The notion
1 Shachar, A. (2009), The Birthright Lottery: Citizenship and Global Inequality.
Cambridge: Harvard University Press.

118
of ‘genuine connection’ can be glossed in terms of Bauböck’s ‘stakeholder’
view which proposes that those and only those individuals have a claim to
membership of a polity whose individual autonomy and wellbeing is linked
to the collective self-government and ourishing of that polity.2 It seems to
me that we should see ius soli, ius sanguinis and ius domicilii under the
general principle of ius nexi as denoting different routes through which a
genuine connection is presumptively established: through parental citizen-
ship, through place of birth and through residence.
Seeing each of these rules under this more general principle, rather than
seeing each as a single free-standing norm, makes clear two points that are
salient to this discussion. First, that in adopting any of these rules we are not
reifying ‘blood’ or ‘territory’ or ‘residence’. We regard them instead simply
as acknowledgments of the diverse ways in which ius nexi may be given
expression – and we need each of them if we are to do justice to the relations
of persons to states. Second, that each of the ius soli, ius sanguinis and ius
domicilii rules should be qualied by the general principle of ius nexi that
they serve. So, for example, an unlimited ius sanguinis rule or a ius soli rule
that included a child born to visiting tourists or a ius domicilii rule that
granted citizenship after three months residence would be incompatible with
the overarching ius nexi principle.
Still it would be in line with Dumbrava’s argument for him to object that
the ‘birthright’ rules of ius soli and ius sanguinis can only operate on the
basis of the general presumption that parental citizenship and place of birth
establish a genuine connection, so why not wait until the children reach their
majority? Here I concur with the view advanced by Bauböck that the ade-
quate protection of children’s rights implies that ‘children need not only
human rights, they also need their parent’s citizenship’. Titshaw’s example
of the serially mobile Indian family and my own peripatetic family history
sufce to make this point. Contra Harder, I don’t think that ‘birthright’ rules
disguise the political character of membership norms, rather they acknowl-
edge important interests of children, parents and states. Harder’s stress on
the relationship of those entitled to citizenship of a given state and those not
so entitled doesn’t provide reasons to drop either ius soli or ius sanguinis,
what it does is provide reasons for relatively generous ius domicilii rules, of
2 Bauböck, R. (2015), ‘Morphing the Demos into the Right Shape. Normative
Principles for Enfranchising Resident Aliens and Expatriate Citizens’,
Democratization 22 (5): 820–839, https://doi.org/10.1080/13510347.2014.
988146.
D. Ow en

119
rights to dual/plural nationality and of a more equitable distribution of trans-
national mobility rights.
And perhaps there may be a clue here to an unstated background com-
mitment of Dumbrava’s critique. If we ask under what, if any, circum-
stances in a world of plural states, it could make sense to abolish ius
sanguinis rules, then I think that the only answer that has any plausibility is
a world of open borders characterised by rapid access to citizenship through
ius domicilii rules. It may even be plausible that the abolition of ius sangui-
nis rules would generate political support for more open borders given the
problems liable to be posed for sustaining the human right to a family life
after the removal of such rules. Whether this is a prudent way of seeking to
realise such a world and whether such a world is desirable are, of course,
further questions.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
The Prior Question: What Do We Need State Citizenship for?

121© The Author(s) 2018
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IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_24
No More Blood
Kerry Abrams
Problems have plagued the ius sanguinis principle – the transmission of citi-
zenship from parent to child – for as long as it has existed. Costica Dumbrava
is surely correct that the time has come to ask whether ius sanguinis is still
necessary. But the core problem with ius sanguinis, I would argue, is not that
it uses the parent-child relationship to determine membership but that it
overemphasizes the importance of the genetic tie to this relationship.
The very term ius sanguinis – ‘right of blood’ – makes the genetic tie the
sine qua non of belonging. It is this obsession with genetic purity that has
linked ius sanguinis to tribalism, xenophobia, and even genocide. This prob-
lem, I believe, is distinct from the very real need to ensure children’s access
to the same geographic territory and legal system as that of their parents.
Rainer Bauböck’s proposal for a ‘ius liationis’ based on family association
rather than genetic ties would excise many of the problems caused by a
focus on blood while protecting the parent-child relationship and the stabil-
ity for children that ows from it.
Let me explain in more detail why I think that retaining recognition of
parent-child relationships while abandoning the other features of ius sangui-
nis is sensible. At rst glance, protecting the tying of children’s citizenship
to that of their parents may appear problematic because of that relationship’s
historical ties to property ownership. But a closer look shows that children
really do deserve different legal treatment than adults, and ius liationis is
one critical way the law can recognise that difference.
Ius sanguinis feels retrograde today because it developed during a time
in which relationships between parents and children, as well as relationships
between husbands and wives and masters and servants, were much more
akin to property-chattel relationships than we understand them to be today.
Today’s family law was yesterday’s law of the household, which set forth
entitlements and obligations based on reciprocal legal statuses – parent and
child, husband and wife, master and servant, master and apprentice (and
sometimes master and slave). Each of these relationships was hierarchical,
involving responsibilities on the part of the superior party in the hierarchy

122
(father, husband, or master) and obligations of service on the part of the
inferior party (child, wife, servant, apprentice, or slave).1 The inferior party
derived identity from the superior: a wife or a child’s nominal citizenship
often followed that of the husband or father, but this identity did not confer
the same rights enjoyed by the superior party. In early America, for example,
male citizens were often entitled to the right to vote, right to contract, and
right to own property (in fact, ownership of property was often a prerequi-
site for voting) but their wives – also technically citizens – were not entitled
to any of these rights. Their political participation took the form of provid-
ing moral guidance to their husbands and raising virtuous sons who could
themselves exercise political power. 2
Today, we no longer think of citizenship in this way. The rights con-
ferred by citizenship are understood in Western democracies as universal.
If, for example, I become a naturalised U.S. citizen, the same neutral voting
laws apply to me that apply to any other citizen, regardless of my gender,
marital status, race, or national origin. Likewise, laws that imposed deriva-
tive citizenship on wives, and even laws that expatriated women upon mar-
riage – both of which used to be widespread – are no longer the norm. In
many parts of the world, women are no longer understood as intellectually
and nancially dependent on their husbands but instead as autonomous
adults, capable of making their own economic, moral, and legal decisions,
including the decision to consent to citizenship or renounce it. And even
more dramatically, we no longer think of servants as deriving legal identity
from their masters; instead, workers are free to participate in free, if regu-
lated, labour markets and their citizenship status is independent of their
employee status. 3
The one legal distinction, however, that all countries still maintain in
determining the capacity to exercise the rights associated with citizenship is
age. Children are generally considered to be incapable of giving legal
1 Halley, J. (2011), ‘What is Family Law?: A Genealogy, Part I’, Yale Journal of
Law & Humanities 23 (1): 1–109, at 2.
2 Kerber, L. (1980), Women of the Republic: Intellect & Ideology in
Revolutionary America. Chapel Hill: UNC Press.
3 In contrast to the independent citizenship status of workers, employer-spon-
sored immigration provisions may represent the vestiges of the ancient
master-servant status relationship. See Raghunath, R. (2014), ‘A Founding
Failure of Enforcement: Freedmen, Day Laborers, and the Perils of an
Ineffectual State,’ C.U.N.Y. L. Rev. 18 (1): 47–91.
K. Abram s

123
consent and in need of legal protection. The particular age at which they
become capable of reasoning is contested, but it is incontestable that a new-
born cannot care for himself nor meaningfully choose a nationality. In many
circumstances, the law provides the protection children need by requiring
children’s parents to provide for them, care of them, and make decisions for
them; in some instances, the state takes on this responsibility (foster care
and universal public education are both examples). Children occupy a very
different legal space than women or workers, one that makes them vulnera-
ble when their ties to their parents are weakened. Providing children with a
citizenship that they can exercise simultaneously with that of at least one of
their parents is a critical protection for their wellbeing. We can believe this
to be so while simultaneously rejecting the traditional hierarchies of parent-
child, husband-wife, and master-slave. The United Kingdom’s move away
from conceptualizing parent-child relationships as ‘custodial’, property-like
relationships and instead describing them as involving ‘parental responsibil-
ity’ is a good example of this shift. The emphasis has changed from owner-
ship and control to care and protection.
If, then, we still need a form of parent-to-child citizenship transmission,
is ius sanguinis as traditionally understood what we need? Scholars, courts,
and government agencies often take ius sanguinis literally, as the ‘rule of
blood’. But I think that rigidity is misplaced. Even centuries ago the notion
of ius sanguinis meant something distinct from a pure genetic tie. For men,
who could never be certain of their child’s paternity, transmission ‘through
blood’ often really meant transmission through choice. A man chose to
acknowledge his children by marrying, or already being married to, their
mother. Children born to unmarried mothers generally took on the citizen-
ship of their mothers, not their fathers, regardless of whether the father was
known. The notion of ‘blood’, then, was complicated by the requirement of
marriage for citizenship transmission through the father and the man’s
unique ability to embrace or repudiate his offspring based on his marital
relationship to their mother. Presumably, many children, prior to blood and
DNA testing, acquired citizenship iure sanguinis when there was actually no
blood tie, sometimes in circumstances where the father was ignorant of this
fact and sometimes where he knew full well no blood relationship existed.4
Ius sanguinis has always been about more and less than simply blood.
4 Abrams, K. & K. Piacenti (2014), ‘Immigration’s Family Values’, Va. L. Rev.
100 (4): 629–709, at 660, 663, 692.
No More Blood

124
Thus, Bauböck’s notion of ius liationis seems to me both the most
appropriate form today for citizenship transmission from parent to child to
take, and a more accurate description of what really occurred historically. As
I see it, the most challenging obstacle to implementing a ius liationis sys-
tem is that birthright citizenship is xed in time. Courts are not in a position
to predict on the date of a child’s birth the adult who will ultimately assume
parental responsibility for a child, but they can determine who the genetic or
marital parent is. Shifting to a ius liationis system, then, requires a multi-
faceted response. First, statutes outlining the requirements for citizenship
transmission at birth should be amended to identify the intended parents. In
most circumstances, the intended parents will be the genetic parents, but in
some instances they might be someone else – for example, a non-genetic
parent who contracts with a gestational surrogate or the spouse or partner of
a genetic parent. Various pieces of evidence, from birth certicates to con-
tracts to court judgments, would be necessary to determine parentage. In
cases involving ART, this solution would solve many of the current prob-
lems. A genetic tie would be but one piece of evidence in determining citi-
zenship at birth.
In addition to reforming ius sanguinis statutes, however, I believe we
must also broaden the other available pathways to citizenship outside of
birthright citizenship and traditional forms of naturalisation. There could
be a deadline – perhaps by a specied birthday – by when a functional par-
ent could request a declaration of citizenship for the child he or she has
parented since birth. This alternative means of citizenship transmission
should not substitute for birthright citizenship; as Kristin Collins points
out, making citizenship determinations using only functional tests would
put children at the mercy of ofcials seeking to deny citizenship and could
disadvantage genetic or intentional fathers who may be unable to demon-
strate that their care has been substantial enough to be ‘functional.’ But
combined with a robust recognition of genetic and intentional parentage at
birth, recognition of functional parentage later on could serve a supplemen-
tal purpose, ensuring that children will ultimately have access to citizen-
ship rights in the country in which their functional parents reside. Full
recognition of parent- child relationships requires going beyond the moment
of birth so that we can recognise the individuals who actually take on
parental responsibility.
K. Abram s

125
It is premature to forsake the recognition of parent-child relationships in
citizenship law, not when citizenship is still the mechanism for ensuring that
every human being has membership in at least one state and providing
access to basic human rights. But it is time that we abandoned the idea that
‘blood’ is the sole basis of these relationships.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the chap-
ter’s Creative Commons license, unless indicated otherwise in a credit line to the
material. If material is not included in the chapter’s Creative Commons license and
your intended use is not permitted by statutory regulation or exceeds the permitted
use, you will need to obtain permission directly from the copyright holder.
No More Blood

127© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_25
Law by Blood or Blood by Law?
David Armand Jacques Gérard de Groot
I agree to certain extent with Costica Dumbrava that ius sanguinis encom-
passes certain problematic issues, especially where it concerns newer forms
of procreation, like IVF for lesbian couples and surrogacy. However, the
origin of the problem cannot be attributed to ius sanguinis, but to non-
solidarity of states that overuse the ordre public exemption for the denial of
the recognition of parentage. But before delving into family relations and
private international law conicts, I would like to rst argue that ius sangui-
nis is still the most suitable option for the main purposes of nationality law
where it concerns children.
The main purposes of nationality
The commonly accepted main purposes of nationality are, rst of all, that
there is a territory to which an individual can always return and from which
he cannot be deported, as was already pointed out by Bauböck and Titshaw;
secondly, diplomatic and consular protection while being abroad; thirdly,
national political participation in the state of nationality; and lastly, for EU
citizens, free movement rights within the EU.
An abandonment of ius sanguinis in favour of ius soli might lead to the
situation described by Titshaw, where within the same family the children
might have different nationalities, which could, for example, lead to the situ-
ation that they would have to move to different countries in case of their
parents’ death while they are minor or that they might need to seek diplo-
matic protection from different foreign representations. Such a break-up of
the family unit due to differing nationalities would certainly conict with
the right to family life. Therefore, for the purpose of preserving the unity
and protection of the family, ius sanguinis is the most suitable option. If,
when having attained majority the children feel that they have a closer bond
with another nationality, they could still apply for naturalisation in that state.
This bond of attachment brings me to the national political participation
purpose of nationality which is connected to Dumbrava’s argument
concerning the reproduction of the political community. Having the nation-

128
ality of a certain state does not automatically mean integration into its soci-
ety. This problem, depending on the mobility of the persons involved, does,
however, not only occur with ius sanguinis and ius soli, but also with every
other form of nationality transmission that one could think of. It should
therefore be decided whom national political participation concerns most. If
the denition of a ‘state’ refers primarily to a permanent population within
its borders, long-term (non-national) residents should have national political
participation rights and long-term absent nationals should not (except if they
are working abroad in service of the state). National political participation
rights should then be detached from nationality and therefore actually not be
seen as a purpose of nationality (but that is a different discussion).
It should however be noted that for purpose of inclusion of long-term
resident families, who for some reason have not acquired the nationality by
naturalisation, into the national population, a third generation ius soli or
even a second generation ius soli, in cases where the rst generation migrant
has entered the country at a young age, would be appropriate. However, this
should not come with an option requirement for dual nationals at reaching
majority, as in Germany, in order to avoid a conict of identity if one is
forced to make a choice between the nationality acquired iure soli and
another nationality acquired iure sanguinis.
Non-solidarity of states
The problems that arise when a state does not grant its nationality to a child
due to non-recognition of parentage can only occur in cases where parentage
has been established by another state in accordance with its national family
law. In surrogacy cases this means a non-recognition of a foreign judgement
or birth certicate and in cases of dual motherhood of married or registered
lesbian couples a non-recognition of the extended pater est quem nuptiae
demonstrant principle. The pater est principle means that the husband of the
woman that gives birth to the child is automatically considered to be the
father and therefore directly at birth has a parentage link to the child.
Increasingly, states have extended this principle to stable non-marital rela-
tionships and to same-sex marriages.
If the child is born in the state of the discussed nationality the national
family law (mostly) applies to the establishment of parentage. It would
therefore not make any sense that parentage ties to a national could be estab-
lished at birth by the state in question, without also granting the nationality
D. A. J. G. de Groot

129
(if ius sanguinis is applied). The problems that arise are thus nearly always
recognition issues between states.
There is a general principle of recognition of a civil status which was
legally established abroad. Recognition can only be refused in cases of over-
riding reasons of ordre public. This ordre public principle should be limited
by the best interest of the child and the right to family life. It can never be
considered to be in the best interest of the child to have no parents at all
instead of having parents with whom (s)he has no blood ties who want to care
for her or him. This has also been stated by the European Court of Human
Rights in the Paradiso and Campanelli v. Italy case. In that case an Italian
couple had gotten a child through a surrogacy arrangement in Russia. When
they brought the child to Italy the state refused to recognise the parentage
ties, took the child away and placed him under guardianship. The Court
stated in the Chamber judgment that Italy had failed to take the best interest
of the child sufciently into consideration when weighting it against ordre
public. It had especially failed to recognise the de facto family ties and
imposed a measure reserved only for circumstances where the child is in
danger. In 2017 in its Grand Chamber judgment the Court overruled this
considering that in cases where there are no biological ties there must have
been a longer period of cohabitation in order to establish family life with the
child compared to cases where there is a biological tie. However, one should
consider that if the parents had not moved to Italy, but to another Member
State where the Russian birth certicate is recognised, the child might have
been stateless, but family life would have been assured. After some years of
family life, Italy would have no choice but to recognise this parentage and
consequently grant the nationality. Therefore, slightly paradoxically, it would
be in the best interest of the child if Italy would grant the nationality imme-
diately if the parents reside in another Member State, while it is under no
such obligation if they reside in Italy. Another example where the best inter-
est of the child should prevail is when the child from a second (polygamist)
marriage is put in a worse position than a child born out of wedlock.
The problem is thus a lack of solidarity between states that do not recog-
nise family ties legally established in another state. The parentage for the
purpose of acquisition of nationality should thus be based on family law,
including a more lenient approach in the private international law rules to
recognition of a civil status acquired abroad.
Law by Blood or Blood by Law?

130
I therefore like Bauböck’s proposal of a ius liationis. I see it, however,
more as a change from ‘law by blood’, meaning parentage ties based on
blood relationship, to a ‘blood by law’ relationship, meaning that parentage
ties are seen to be established by the law. This thus means only an extension
of the ‘blood’ denition. Bauböck’s fear that this could create a situation
where the child could not acquire a nationality at birth, due to the complex
determination of parenthood, could technically be avoided by a pre-birth
determination of parentage.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
D. A. J. G. de Groot

131© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_26
Limiting the Transmission of Family
Advantage: Ius Sanguinis with an
Expiration Date
Iseult Honohan
Costica Dumbrava has done a great service in stimulating us to reconsider
the justication of ius sanguinis and to disaggregate its different forms.
I am sympathetic to critiques of ius sanguinis as a dominant mode of citi-
zenship acquisition. Yet I acknowledge that the signicance of family life
for parents and children seems to offer some grounds for ius sanguinis citi-
zenship – at least in a world of migration controls where citizenship is the
only rm guarantee of right of entry to a country. I will argue here that to
limit the extension of inherited privilege in this domain, however, this form
of citizenship should be awarded provisionally.
Others here have shown convincingly that there is nothing inherently
ethnically exclusive about ius sanguinis. Furthermore, it does not have to be
understood in terms of bare genetic descent; so sorting out the deciencies
of current ius sanguinis provision does not depend on resolving all the issues
of biological parenthood raised by the new reproductive technologies. If ius
sanguinis can be detached from the strict genetic interpretation, it no longer
provides a warrant for indenite transmission across successive generations
on the basis of biological descent. Thus two of the sharpest criticisms of ius
sanguinis seem to have been defused.
It remains to consider in what way ius sanguinis might be necessary.
On the one hand, various forms of ius soli can be seen as giving continu-
ity of membership for the state and security for children born in the coun-
try. For those born in the country of their parents’ citizenship there is
little material difference between ius soli and ius sanguinis. But ius san-
guinis citizenship may be seen as necessary when a child is born to par-
ents living outside the state of their citizenship. Even if the child gains ius
soli citizenship in the country in which she is born, this does not guaran-
tee the security of the family. Focusing on what have been termed ‘social
parenthood’, or functional parenting relationships of care, rather than
simply biological descent, others here (Bauböck, Owen and Collins) have

132
pointed to the way in which common citizenship best secures family life
in allowing parents and children to stay together or move back to the
country of their parent’s citizenship.
What I want to address here is the further question: what forms or extent
of ius sanguinis citizenship are warranted on the basis of this account?
Protecting families but not privilege
We may start from the consideration that those in the position of parents
have an interest in and a particular responsibility to care for their children
when young, implying a clear and fundamental interest in living together
and being able to move together. These can be seen as necessary condi-
tions for realising many of the intrinsic and non-substitutable goods of
family life, or what have been called ‘familial relationship goods’, which
include child- rearing and asymmetric intimacy.1 These involve agent-spe-
cic obligations that can be realised only within family relationships of
care and throughout childhood.2 Thus this fundamental interest should be
protected. Brighouse and Swift emphasise however, that we should not, in
protecting these intrinsic goods, fail to distinguish them from other advan-
tages external to familial relationship goods that parents can confer on
their children, such as private education or concentrated wealth, which do
not warrant protection. 3
Can ius sanguinis citizenship, even if not based solely on genetic descent,
support such unwarranted transmission of privilege? Citizenship grants more
than the opportunity to live with and be cared for by your parents when you
are a child. It provides membership of a political community and the benets
at least of entry and residence in that state, the right to participate in national
elections and sometimes access to other rights. Under a regime of ius sangui-
nis, even understood as grounded in the rights of parents and children to
share citizenship, the transmission of citizenship to children born to citizens
abroad can mean that people with no connection to the country retain the
benets of citizenship, and, at the very least, can lead to a mismatch between
the citizen body and the community of those who live in, and are particularly
subject to, the state. Thus, life-long citizenship in the absence of real connec-
1 Brighouse, H. & A. Swift (2014), Family Values: The Ethics of Parent-Child
Relationships. Princeton: Princeton University Press.
2 Honohan, I. (2009), ‘Rethinking the claim to family re-unication’, Political
Studies 57 (4): 765–87.
3 Brighouse, H. & A. Swift (2014), Family Values: The Ethics of Parent-Child
Relationships. Princeton: Princeton University Press.
I. Honoha n

133
tions could well be seen as falling into the category of advantages that par-
ents should not necessarily be able to convey to their children.
This is not to suggest that ius sanguinis citizenship is just a form of prop-
erty or unearned privilege.4 But there are still concerns about how to secure
the legitimate interests of parents to care for their children, and of children
to be protected, without justifying the transmission of privilege. My focus
here is on considering how to guarantee the security of children to live and
move with their parents through shared citizenship without supporting the
unwarranted extension of privilege in the domain of citizenship.
This suggests the following limited justication for birthright ius sangui-
nis citizenship - rather than the universal child status and deferred, or provi-
sional, ius soli citizenship that Dumbrava recommends.
Provisional ius sanguinis
First, birthright citizenship per se is justied because people need the pro-
tection of citizenship from birth.5 Note that this is not mainly because they
are children and thus innocent or particularly vulnerable (pace Harder), nor
despite the fact that they are children and thus (arguably) not capable of
consenting or participating politically, but while they are children, and like
others, are both subject to the power of a state and in need of protection by
a state. Dumbrava’s proposal that children might gain a universal status of
childhood and that citizenship should depend on their being able to choose,
have established a connection, and developed capacities and virtues of citi-
zenship overlooks the centrality of the legal status of citizenship to security,
and the fact that this security should not be conditional on the qualities or
practices of citizens.
The specic justication of ius sanguinis citizenship then derives from
the way in which common citizenship between parents and children is the
most secure way of guaranteeing their ability to live and move together. This
can be in addition to the citizenship the child may acquire by ius soli; dual
citizenship of the state of birth and that of parents’ is not in itself problem-
atic if a person has connections in both countries.
4 Shachar, A. (2010), The Birthright Lottery: Citizenship and Global Inequality.
Cambridge MA: Harvard University Press.
5 Of course, not all birthright provisions apply from birth, rather than on the
basis of birth, but they generally apply from the establishment of the fact of
birth, whether in the country or to a citizen.
Limiting the Transmission of Family Advantage: Ius Sanguinis…

134
Because children need citizenship from birth, there is an argument for
birthright citizenship; because young children need to be able to live with
(and be cared for by) their parents, there is an argument for ius sanguinis
citizenship at the time where this is most needed. Both of these concerns
support an award of citizenship that is not deferred, but that is also not
always retained indenitely.
It may be objected that the withdrawal of citizenship should not be lightly
recommended. Indeed this is true. But the strongest ground for withdrawal
is the absence of any genuine link between a person and the state of citizen-
ship. Thus, writing on birthright citizenship, Vink and De Groot offer a simi-
lar suggestion6: ‘an alternative to limiting the transmission of citizenship at
birth is the provision for the loss of citizenship if a citizen habitually resides
abroad and no longer has a sufcient genuine link with the state involved’.7
Indeed they go on to say that ‘[f]rom our perspective, a provision on the loss
of citizenship due to the lack of a sufcient link is to be preferred to limiting
the transmission of citizenship in case of birth abroad’, on the grounds that
this gives the child herself the opportunity to decide whether to establish
that link, which thus should remain available until after majority, at the point
when the child is better placed to make an independent decision.8
Thus, the parsimonious account of ius sanguinis defended here suggests
that it should be awarded only provisionally – held through childhood, but
requiring the establishment of connections of certain kinds, most clearly by
a period of residence in the country of that citizenship by, or soon after,
majority.9 Conrmation would not depend on abjuring any other citizenship,
as the aim would not be to avoid or reduce dual citizenship, but rather to
reduce the numbers of citizens whose connections to a country are minimal
or non-existent.
6 Vink, M. P. & G. R. De Groot (2010), ‘Birthright citizenship: trends and
regulations in Europe’, EUDO Citizenship Observatory Comparative Report
No. RSCAS/EUDO-CIT-Comp. 2010/8. Florence: Robert Schuman Centre for
Advanced Studies.
7 Such provisions already exist in Belgium, Denmark, Finland, France, Iceland,
the Netherlands, Norway, Sweden and Switzerland (see above n. 6). In many
of these cases, however, loss of citizenship can be pre-empted by submitting a
request to retain it.
8 Above n. 6, at 12.
9 This would not necessarily be the only basis for retaining citizenship. If, for
example, the parent(s) had returned to the country of their citizenship, this also
could create a connection of their potential care in old age by adult children,
which might justify their retaining citizenship.
I. Honoha n

135
Such a conditional citizenship could take seriously the justiable claims
of families without leading to the unwarranted extension of family
advantage.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Limiting the Transmission of Family Advantage: Ius Sanguinis…

137© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_27
Retain Ius Sanguinis, but Don’t Take it
Literally!
Eva Ersbøll
There is no doubt that Costica Dumbrava has raised an important question
about whether to abandon ius sanguinis citizenship. His arguments are
that ius sanguinis is historically tainted and unt to deal with contempo-
rary issues such as developments in reproductive technologies and
changes in family practices and norms; he also claims that ius sanguinis is
normatively unnecessary, as it is possible to deliver its advantages by
other means.
In my opinion, it is not time to abandon ius sanguinis, mainly because it
is impossible to secure its advantages by other means. Admittedly, ius san-
guinis, if taken literally, is unt to deal with contemporary issues such as
complex family arrangements involving, among other things, assisted repro-
duction technologies (ART). However, it seems possible to solve many
problems by applying a modied principle of ius sanguinis translated into
ius liationis, as suggested by Rainer Bauböck and supported by most of the
participants in this debate.
What matters is, as also expressed by many authors, that children from a
human rights perspective need their parents’ citizenship - or rather, the citi-
zenship of their primary caretakers, be they biological parents or not.
A solution to many of the problems related to reproductive technologies
has been advanced by the Council of Europe, the Committee of Ministers, in
Recommendation CM/Rec(2009)13 on the nationality of children:
Member states should apply to children their provisions on acquisition of
nationality by right of blood if, as a result of a birth conceived through medi-
cally assisted reproductive techniques, a child-parent family relationship is
established or recognised by law.1
Still, it is of course necessary to examine more closely the arguments against
ius sanguinis and the practical solutions to its shortcomings.
1 See the recommendation at https://wcd.coe.int/ViewDoc.jsp?id=1563529

138
History is not an argument
As Jannis Panagiotidis writes, history cannot justify abandoning ius sangui-
nis. The use of the principle may have been problematic in the past, and still,
it may be all right today. Besides, as argued by Rainer Bauböck and others,
it is possible to overcome ethno-nationalist dispositions by modifying a ius
sanguinis principle, supplemented with ius soli and residence-based modes
of acquisition.
As things stand, ius sanguinis citizenship is in my opinion irreplaceable.
It provides, in accordance with the Convention on the Rights of the Child
(article 7) for automatic acquisition of citizenship by birth. In addition, it
seems to be one of the most simple and secure acquisition modes when it
comes to protection against statelessness, as it has the ability to protect
(most) children against statelessness from the very beginning of their life.
What is more, it is a central international law principle. For instance,
state parties to the European Convention on Nationality are obliged to grant
citizenship automatically at birth to children of (one of) their citizens (if
born on their territory, cf. article 6(1)).
To me, it seems risky to jettison such an effective principle anchored in
binding human rights standards.
Unity of the family
Ius sanguinis is not the only relevant principle. Others, like the unity of the
family, safeguard the same interests and may be applied in a broader per-
spective. To mention a few situations, take acquisition by adoption and
acquisition by lial transfer based on the fact that the target person is a natu-
ral, adopted or foster child of a citizen.
In addition, new automatic modes of acquisition by birth are developing.
Denmark, for instance, has amended its law in 2014 to provide for automatic
acquisition of citizenship by birth by children with ‘a Danish father, mother
or co-mother’. 2 This is an example of citizenship acquisition based on ius
liationis as advanced by Rainer Bauböck.
2 Costica Dumbrava gives an inadequate Danish example regarding the acquisi-
tion possibilities for children born out of wedlock. For long, such children
have been entitled to naturalise regardless of residence in Denmark, although
until 2013, it was a requirement that the father had (shared) custody over the
child. This requirement is now repealed.
E. Ersbøll

139
As Costica Dumbrava rightly anticipatesd, a reasonable reservation in
this debate has been that the main problems connected with the development
of ART do not lie with ius sanguinis citizenship but with the determination
of legal parentage. Such determination may take long time and involve a
number of legal uncertainties and ethical dilemmas. Still, as argued by
among others Rainer Bauböck and Scott Titshaw, states have in any case to
x their family law and gure out how to determine legal parenthood.
Subsequently, children’s right to their legal parents’ citizenship may not
raise major problems.
Ius liationis benets
Developing a ius liationis principle may entail even more advantages.
Among others, it may solve some of the problems originating from loss or
so-called quasi-loss of citizenship following the disappearance of a family
relationship.3 Disappearance or annulment of a family relationship may
have consequences for a person’s citizenship based on that family relation-
ship. Many states assume that if a person has acquired his or her citizenship
through a child-parent family relationship that citizenship will be lost or
even nullied if the family relationship disappears.4 If, however, states rec-
ognise citizenship based on social rather than biological parenthood, the
threat of loss or quasi-loss may not arise in the case of disappearance of a
biological family relationship.
Human rights protection at this stage
According to the Council of Europe recommendations on the nationality of
the child, quoted in the introduction, member states should apply the ius
sanguinis principle in ART-cases where the child-parent family relationship
is established or recognised by law. The crucial question is of course under
which conditions the intended parents’ country must recognise such a family
relationship if it has been legally established abroad.
David de Groot points out that states can only refuse recognition in case
of overriding reasons of ordre public, and he criticises states’ overuse of the
ordre public exemption for the denial of parentage. As he rightly argues, it
cannot be in the best interest of the child to have no parents at all, instead of
3 See more about quasi-loss of citizenship at http://www.ceps.eu/publications/
reections-quasi-loss-nationality-comparative-international-and-european-
perspective
4 See more about quasi-loss etc. at http://www.ceps.eu/publications/
how-deal-quasi-loss-nationality-situations-learning-promising-practices
Retain Ius Sanguinis, but Don’t Take it Literally!

140
caring parents without blood ties. David de Groot refers to the 2015 judg-
ment of European Court of Human Rights (ECtHR) in Paradiso and
Campanelli v. Italy.5 Here, the Court ruled that the removal of a child born
to a surrogate mother and his placement in care amounted to a violation of
the European Convention on Human Rights article 8 on respect for private
and family life.
In 2014, the ECtHR dealt with another case concerning the effects of
non-recognition of a legal parent-child relationship between children con-
ceived through assisted reproduction, Mennesson v. France.6 A French mar-
ried couple had decided to undergo in vitro fertilisation using the gametes of
the husband and an egg from a donor with the intention to enter into a ges-
tational surrogacy agreement with a Californian woman. The surrogacy
mother gave birth to twins, and the Californian Supreme Court ruled that the
French father was their genetic father and the French mother their legal
mother. France, however, refused on grounds of ordre public to recognise
the legal parent-child relationship that was lawfully established in California
as a result of the surrogacy agreement.
The ECtHR ruled that the children’s right to respect for their private
life – which implies that they must be able to establish the substance of their
identity – was substantially affected by the non-recognition of the legal
parent- child relationship between the children and the intended parents.
Having regard to the consequence of the serious restriction on their identity
and right to respect for their family life, the Court found that France had
overstepped the permissible limits of its margin of appreciation by prevent-
ing both recognition and establishment under domestic law of the children’s
relationship with their biological father. Considering the importance of hav-
ing regard to the child’s best interest, the Court concluded that the children’s
right to respect for their private life had been infringed.
The Court also dealt with the children’s access to citizenship as an ele-
ment of their identity (see also Genovese v Malta).7 Although the children’s
biological father was French, they faced a worrying uncertainty as to their
possibilities to be recognised as French citizens. According to the Court, that
uncertainty was liable to have negative repercussions on their denition of
their personal identity.
5 Case of Paradiso and Campanelli v. Italy, judgment of 27 January 2015.
6 Case of Mennesson v. France, judgment of 26 September 2014 (Final).
7 Case of Genovese v. Malta, judgment of 11 October 2011.
E. Ersbøll

141
In Mennesson, the ECtHR’s analysis took on the special dimension
where one of the parents was the children’s biological parent; it is, however,
in my opinion difcult to imagine that the Court should reach a different
conclusion in a similar case where both gametes and egg were from a donor.
Paradiso and Campanelli may underpin this position that also appears to be
supported by the fact that the Court has explicitly recognised that respect for
the child’s best interest must guide any decision in cases involving chil-
dren’s right to respect for their private life. In this context the Court has
made it clear that respect for children’s private life implies that they must be
able to establish the substance of their identity, including the legal parent-
child relationship.
Other ways to protect parent-child relationship
Costica Dumbrava argues that there are other and better ways to protect the
parent-child relationship than through the same citizenship status, for
instance by conferring full migration rights to children of citizens or estab-
lishing a universal status of legal childhood that protects children regardless
of their or their parents’ status.
I nd it hard to believe that any of these means can afford children a simi-
larly effective protection of their right to a family life with their parents in
their country.
Children need their parents’ citizenship¸ as pointed out by Rainer
Bauböck and many others, because citizenship is a part of a person’s iden-
tity. Where and to whom one is born are facts that feed into developing a
sense of belonging. Moreover, the unity of the family in relation to citizen-
ship secures that children can stay with their parents in their country.
The course of events that followed the independence of women in citi-
zenship matters seems illustrative. In Denmark for instance, when married
women gained independence in citizenship matters in 1950, it was a major
concern that in mixed marriages, where the spouses had different citizen-
ship, the woman might lose her unconditional right to stay in her husband’s
country. The legislator assumed that the aliens’ law would be administered
in such a way that a wife would not be separated from her husband unless a
pressing social need necessitated the separation.8 Things have, however,
developed differently. Nowadays, foreigners married to Danish citizens are
subject to the same requirements for family reunication as foreign couples.
8 See the Danish citizenship report at http://cadmus.eui.eu/bitstream/han-
dle/1814/36504/EUDO_CIT_CR_2015_14_Denmark.pdf?sequence=1
Retain Ius Sanguinis, but Don’t Take it Literally!

142
Thus, a foreign spouse may be expelled if for instance her Danish husband
has received cash benets within the last three years before a residence per-
mit could be granted; notably, this may apply regardless of whether the cou-
ple has a child with Danish citizenship.
A need for international guidelines on legal recognition
of parenthood
As already mentioned, there is no doubt that Costica Dumbrava has raised
an important discussion about continuous application of ius sanguinis citi-
zenship. While there seems to be little support for abandoning the ius san-
guinis principle, there seems to be almost unanimous support for modifying
and modernising it. As recommended by the Council of Europe, states
should apply to children conceived through medically assisted reproductive
techniques their provisions on ius sanguinis acquisition of citizenship.
The problem remains that states must establish or recognise the child-
parent family relationship by law, and often, two states with different
approaches are involved in the recognition procedure. Therefore, ordre pub-
lic considerations may arise as demonstrated in many of the concrete cases
mentioned in this Citizenship Forum. In order to achieve consensus about
the recognition of a parent-child family relationship in the best interest of
the child, states should engage in international cooperation with a view to
adopting common guidelines – as they have done in adoption matters.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
E. Ersbøll

143© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_28
Distributing Some, but Not All, Rights of
Citizenship According to Ius Sanguinis
Ana Tanasoca
In an article published in 1987 Joseph Carens famously remarked that ‘[c]
itizenship in Western liberal democracies is the modern equivalent of feudal
privilege – an inherited status that greatly enhances one’s life chances. Like
feudal birthright privileges, restrictive citizenship is hard to justify when
one thinks about it closely’.1 Some 30 years after, he himself offers a justi-
cation of birthright citizenship, a change of heart and mind that he partly
explains by the following: ‘I thought that my open borders argument was
getting at an important truth. At the same time, I recognised that it was not a
practical proposal and that it did not provide much guidance for actual pol-
icy issues…’; ‘In thinking about what to do in a particular situation, we have
to consider questions of priority and questions of political feasibility, among
other factors. One cannot move always from principles to a plan of action’.2
Yet succumbing too much to such feasibility constraints, to use a popular
term in the eld, is dangerous. Moral (political) theorising should not be too
tightly hemmed in by empirical facts. Rather it should be the other way
around, insofar as our moral and political theory aims to tell us what existing
empirical facts we should strive to change or overcome.
That is why Costica Dumbrava’s critique of the ius sanguinis principle of
citizenship ascription is, in a way, a much-needed intervention.3 While I
overall agree with Dumbrava’s argument that ius sanguinis is unable to cope
with the diversication of family structures and is not that morally appealing
to begin with, I disagree with him on the details. I disagree especially with
his background assumption that family ties (although not exclusively
genetic, as it is presently the case) must play a salient role in the distribution
of citizenship – although in the second part of this contribution I do offer a
1 Carens, J. (1987), ‘Aliens and citizens: the case for open borders’, Review of
Politics 49 (2): 251–73.
2 Carens, J. (2013), The Ethics of Immigration. Oxford: Oxford University Press,
x, 3.
3 I say ‘in a way’ because he also relies heavily on empirical facts when arguing
against ius sanguinis.

144
potential defence of his view against what is probably the strongest objec-
tion to his argument, which is that the abolishment of ius sanguinis would
split families apart.
The main question is: Why should we insist on ius sanguinis except
because it would ensure that nobody is stateless, that is, that everyone’s
human right to citizenship is satised? And insofar as statelessness can be
equally avoided via ius soli, why should blood ties create an entitlement to
citizenship?
The problem of making citizenship dependent on family ties
Dumbrava notices that ius sanguinis is unable to cope with the increased
diversication of family structures made possible by the assisted reproduc-
tion technologies (ART). Yet there are solutions to that problem.
One would be, as Scott Titshaw notices, to reform family laws as to rec-
ognise diverse forms of parentage. Another one would be to replace ius san-
guinis with ius liationis, as Rainer Bauböck proposes. If the purpose of
upholding ius sanguinis citizenship is to recognise and protect the family,
we should replace it with more reliable indicator(s) of parenthood in the
case where parenthood is no longer uniquely a matter of biology. As Kerry
Abrams argues, the recognition of parenthood now requires ‘going beyond
the moment of birth’.
Notice, however, were multiple indicators of parenthood to be accepted,
those individuals born via ART might be entitled to multiple citizenships.
They might, for example, be entitled to the citizenship of the egg donor or
the sperm donor or the surrogate mother, as well as to the citizenship of
those who intend to raise the child. Such a situation may be deemed prob-
lematic in various respects: rst because it would create great inequalities;
second, because it would end up trivializing citizenship if all types of par-
enthood (e.g., the relationships the surrogate mother, the egg donor or the
sperm donor, and the intended parents have with the child) were to be treated
as equally morally relevant and therefore worthy of state recognition.
Dumbrava also bemoans ius sanguinis as failing to capture the political
function of citizenship. If we grant citizenship to the children of citizens
because we expect such children to develop the attitudes and skills required
for political participation in their parents’ state, why not wait to confer citi-
zenship until these attitudes and skills are actually conrmed? And what if
they never developed these skills and attitudes? Should people be deprived
of their birthright citizenship altogether, or perhaps only of their political
A. Tanasoca

145
rights? Besides, while we might have a clear idea of what skills (e.g., read-
ing and writing to enable voting) citizenship requires, what can we say of
the attitudes citizens should display? Should apathetic voters be stripped of
their political rights for failing to display the right attitude towards their
right to vote? According to Dumbrava’s reasoning, perhaps they should.
But the main problem both with Dumbrava’s critique and the other con-
tributors’ accounts is that they conceive of citizenship as primarily reecting
a bond (genetic or affective or intentional) between two individuals – the
parent and the child – and not as a bond between an individual and a state,
or an individual and a political community. Such accounts overlook the
political nature and function of citizenship and are also likely to leave us
with a very limited, rigid, and exclusionary conception of the demos, one
that is at the same time unjust and inefcient. As Rainer Bauböck put it else-
where, ‘[n]ormative principles for membership must instead lead to bound-
aries that avoid both under- und over- inclusiveness’,4 particularly in the
context of increased global mobility.
In his contribution to this Forum, however, Bauböck argues that birth-
right citizenship creates a ‘quasi-natural equality of status’ among those
entitled to it. He represents it as avoiding divisions, by making citizenship
part of people’s unchosen and permanent personal features, namely, where
and to whom one is born.5 Yet as such birthright creates exclusion and
inequality between those entitled and those unentitled that can be hard to
justify or overcome, as Lois Harder rightly notices. Why should the son of a
citizen of state A be entitled to citizenship in that state, but not a regular
immigrant residing for years in state A, paying taxes there and having virtu-
ally all of his interests deeply affected by the institutions of state A? While
the rst has unconditional and automatic access to citizenship – a right to
citizenship in virtue of his blood ties to another citizen – the second has to
apply for naturalisation, which is subject to the state’s discretionary powers.
That is, his residence in that state, contributions to the community, or his
interests being affected by that state’s institutions do not automatically
ground any right to citizenship for him in the same way blood ties do for the
citizens’ progeny.
4 Bauböck, R. (2015), ‘Morphing the demos into its right shape. Normative
principles for enfranchising resident aliens and expatriate citizens’,
Democratization 22 (5): 820–39.
5 This last bit is problematic in itself. Tying citizenship – that has an immense
inuence on individuals’ life opportunities and welfare – to underserved and
permanent personal features like ancestry is after all morally problematic even
if practically convenient for states.
Distributing Some, but Not All, Rights of Citizenship According to Ius…

146
Why should the boundaries of the demos be dened by family ties, rather
than by social or political kinship? By ascribing citizenship on the basis of
blood ties we conceive of political communities as big extended families
rather than communities gathered around common interests, values, and
goals. Such a conception of the demos is disrespectful of individual consent
(no one consents to being born, to having these parents rather than others, or
to the colour of their passport). It attaches too much value to contingencies
and too little value to individual choices. A political community based on
ancestry is, after all, just an overinated dynasty.
Limiting the scope of ius sanguinis
While abolishing ius sanguinis might be a good idea, we could nonetheless
be worried that the transition costs would outweigh potential benets. After
all, most families today are still founded on blood ties. Abolishing ius san-
guinis altogether could create situations where parents and children are not
citizens of the same state. Such policy, it is argued by several contributors,
would have the disruptive effect of potentially separating families, prevent-
ing parents from discharging their parental duties, and leaving children
deprived of the care they are entitled to. (Of course, nothing prevents par-
ents from applying for a visa or for citizenship if they wish to reside or share
a citizenship with their progeny; but let us assume that the parents do not
have the means to do that, or that even doing that would not guarantee that
they can be reunited with their child immediately as we would wish.) This
is, I think, the strongest argument against Dumbrava’s proposal.
One solution would be, of course, to replace ius sanguinis with another
principle for citizenship allocation, perhaps affected interests or perhaps ius
domicilii. As children’s and parents’ interests are interdependent, the
affected interests principle would ensure that children and parents are mem-
bers of the same state. So would ius domicilii, at least in cases where parents
and children are currently domiciled in the same state (although it would
provide no citizenship-based grounds for family reunion, in cases where
they are not).
My proposal, however, takes a different tack. Notice that in a world with
genuinely open borders we need not be worried that parents and children
would be separated if they are citizens of different states. The solution I
propose would therefore be to limit the scope of ius sanguinis – that is dis-
tribute some, but not all rights traditionally associated with citizenship, on
the basis of ius sanguinis. This would be an appealing compromise, insofar
as some of us may think citizenship should not be distributed on the basis of
A. Tanasoca

147
blood ties, while nonetheless accepting that blood ties are one (albeit not the
only) relevant ground for the distribution of some categories of rights.
As Bauböck notices in his contribution, immigrant minors who are EU
citizens have a ‘right to stay’ that protects their primary caregivers from
deportation. Yet, most likely, this policy is a recognition of an entitlement to
care that the child has – not a recognition of a right the parents have to stay
strictly in virtue of their blood ties to the child. Blood ties may simply serve
as the operational indicator of the primary caregivers.
My preferred solution, however, would entitle a person to the limited
enjoyment of some rights in a state, on the basis of having blood ties to
someone who is already a citizen of that state. I primarily have in view,
among that limited subset of rights, the right to enter and leave the state and
the right of residence. By ‘limited’ I also mean that the enjoyment of these
rights, purely on the basis of ius sanguinis, should be time-constrained. 6
Take the case of minors having a different citizenship from their parents.
My proposal would be: either the parents should be granted extensive resi-
dence rights, until the minor reaches adulthood as in the case above; or else
the minor should be granted these rights, provided the parents wish to remain
in their country of citizenship. Consider the case of a couple, both citizens
of state A, who move to state B and give birth there to a child, who becomes
via ius soli citizen of B. Under my proposal, the parents would be automati-
cally entitled to residence in state B until the child is 18, provided the family
decides to reside in state B; equally, the child would be automatically enti-
tled to reside in state A until 18 if the family decides to reside there.
Things would be different in the case of adults. Say my mother and I are
citizens of different countries, she of state A and I of state B. Under my pro-
posal, I as an adult would not be entitled to all the current rights of citizen-
ship in state A on the basis of ius sanguinis. Still, I may nonetheless be
automatically entitled on the same ground to a right to freely enter state A
and reside there for a limited period of time (for example, 1 month). That
would allow me to visit and spend time with my mother, preserving my
family ties intact and allowing me to discharge whatever ordinary duties I
have towards family members. But what if my mother becomes frail or ill,
6 In the same vein, Iseult Honohan proposes in her contribution to this debate
that minors born in another states other than that of their parents should also be
entitled to their parents’ citizenship but only until they reach adulthood; from
then on, they can lose this citizenship if they do not continue residing in the
country of parental citizenship. This would be another way of limiting ius
sanguinis entitlements.
Distributing Some, but Not All, Rights of Citizenship According to Ius…

148
and I become her main caregiver and thus need to spend more than one
month in state A? If the circumstances require it, I should be able to petition
for my right to remain to be extended, and that petition should be automati-
cally granted so long as authorities are satised that the requisite circum-
stances really do prevail. The period for which one can enjoy such rights,
and the categories of rights one enjoys, might be extendable in this way.
Alternatively, of course, I could bring my mother to reside with me in state
B on a (elderly) dependent visa.
Under my proposal, there would thus be a limit to what one is entitled to
under ius sanguinis alone. We should not think of the distribution of citizen-
ship rights as an all-or-nothing affair. Among the many component rights
currently associated with citizenship, different rights can and should be dis-
tributed separately according to different criteria. By the same token, many
different criteria can serve as a legitimate ground for the distribution of any
one of those constituent rights.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
A. Tanasoca

149© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_29
Learning from Naturalisation Debates:
The Right to an Appropriate Citizenship
at Birth
Katja Swider and Caia Vlieks
Citizenship has a political and a legal dimension. In his opening contribu-
tion, Costica Dumbrava only marginally addresses the legal dimension of
citizenship, acknowledging its importance, but suggesting that it is replace-
able with alternative arrangements, such as a universal status for children.
Maybe he is right in his priorities; maybe citizenship status should primarily
be reserved for the purpose of fostering a political community. But in reality
much legal baggage is attached to citizenship, and one cannot simply shake
it off, even if this appears normatively attractive. In a way, the whole human
rights movement can be seen as an effort to separate access to legal rights
from possessing a status of political membership, and this attempt has not
reached its goal (yet). As Jannis Panagiotidis points out, ‘most so-called
human rights are in fact citizens’ rights’. Citizenship is still the ‘right to have
rights’. Avoidance of statelessness is therefore not just a legal whim; it is a
human rights failsafe mechanism.
In our contribution we start from the assumption that leaving anyone,
including (and especially) children, without a citizenship for any signicant
period of time is not an option due to the essential legal rights that are attached
to the status of national citizenship. The question therefore is not whether
children should acquire a citizenship at birth, but which citizenship they
should acquire at birth. Should it be the citizenship of their parents? And if not,
what alternatives to birthright citizenship arrangements are adequate?
While we consider attribution of citizenship at birth to be necessary, we
also maintain that it is inherently unfair, regardless of what mechanisms of
attribution are relied upon. There is nothing fair about attaching the fate of a
child to one state, when states differ so tremendously in their ability (and
willingness) to provide access to basic rights, such as education, healthcare,
physical safety and pursuit of happiness for their minor citizens. Rainer
Bauböck shifts attention from this unfairness by suggesting that ‘we have to
address the causes of global inequality directly’ instead of criticising the

150
contingencies of birthright citizenship. However, we should not forget that
this discussion takes place largely among the privileged ‘winners’ of the
‘birthright lottery’.1 There is no doubt that global inequalities need to be
addressed, but is it morally justiable to suggest to the ‘losers’ of the birth-
right lottery to wait for global equality?
If fairness in birthright citizenship cannot be achieved and leaving chil-
dren without any citizenship is unacceptable, what is the normative ideal
that we could strive towards in attributing citizenship at birth? As Lois
Harder correctly argues here, rules about birthright attribution of citizenship
are as politically charged as rules about acquiring and losing a nationality
during adulthood, even though the former are not as much part of the public
debate. According to Harder, ‘[t]he magical power of birthright citizenship
is that it makes it possible for us to know and rehearse [politically charged]
rules while simultaneously making birthright seem straightforward, static
and apolitical’. Can we reverse this logic, and perhaps also learn from the
extensively politicised discourse on migrants’ rights to naturalisation in
order to improve birthright citizenship rules?
In particular, we suggest applying the concept of appropriate citizenship
to strengthen the normative foundation of birthright citizenship attribution.
This notion is based on the ideas of Ernst Hirsch Ballin, who advocates ‘a
citizenship that is appropriate to everyone’s life situation, where he or she is
at home – which can change during the course of a person’s life: a natural
right to be recognized as a citizen, born free’.2 He believes that this type of
citizenship and citizens’ rights can overcome the existing gap between ‘the
universality of human rights’ and ‘the changing political and social settings
of people’s lives’.3 Drawing on that, we feel that appropriate citizenship, even
when acquired at birth, could do the same. Appropriate citizenship is of
course a highly subjective concept, the interpretation of which would be
dependent on numerous cultural and specic national legal factors. Ensuring
that birthright citizenship is appropriate would imply a case-by-case evalua-
tion of the individual situation of each new-born, a process which in most
cases would be as simple as the registration of birth, but in some cases would
require a complex investigation to be conducted in a very brief period of time.
1 Shachar, A. (2009), The Birthright Lottery: Citizenship and Global Inequality.
Cambridge, MA: Harvard University Press.
2 Hirsch Ballin, E. (2014), Citizens’ Rights and the Right to Be a Citizen.
Nijhoff: Brill, 145.
3 Ibid. 144.
K. Swider and C. Vlieks

151
While perhaps logistically counter-intuitive, introducing the normative
standard of appropriateness into the attribution of citizenship at birth is not
more complex than trying to solve ad hoc ‘hard cases’ of citizenship within
the traditional logic of ius sanguinis versus ius soli. This complexity of some
birthright citizenship cases has been extensively discussed in the contribu-
tions by Dumbrava and Scott Titshaw. Requiring that birthright citizenship
is appropriate emphasises the importance of (meaningful) ties4 of a person
(including a child) to a country, and thus incorporates the idea of ius nexi
discussed by David Owen. With the criterion of appropriateness we accept
that birthright citizenship is a political issue, not a contingent biological fact
of life, and therefore should be based in a reasoned decision-making process
and subjected to normative criticism.
The requirement that citizenship acquired at birth needs to be appropriate is
far from being precise. However, we believe that a certain amount of exibility
is necessary in order to ensure that attribution of citizenship at birth has a nor-
mative foundation in each individual case. The exact modes of implementation
of the criterion of appropriateness would need to be developed within the indi-
vidual legal systems, but important factors to be considered include the ones
that have been discussed elaborately in this Forum discussion:
• the nationalities of the persons that are expected to care for the child (bio-
logical, social or functional parents or otherwise, thus including and rein-
forcing the ius liationis proposal put forward by Bauböck);
• the country where the child is born;
• the country where the child is expected to build his or her future, receive
education and effectuate his or her rights as a citizen;
• the necessity of ensuring that at least one nationality is acquired and that
the best interests of the child are safeguarded (in line with the almost
universally ratied Convention on the Rights of the Child).5
It is not always easy to determine all the relevant criteria for establishing
appropriateness of citizenship with a high degree of certainty. Kerry Abrams,
for example, identies some possible obstacles when discussing Bauböck’s
ius liationis proposal, namely that courts sometimes cannot determine who
will ultimately be the parent that is truly (legally) responsible for the child.
However, since the proposal of appropriate nationality is based on multiple
relevant factors rather than a single one, the risks associated with the inability
4 Or ‘genuine connection(s)’, see also Nottebohm (Liechtenstein v Guatemala)
ICJ Reports 1955, p. 4; General List, No 18.
5 See Articles 3(1) and 7 of the Convention on the Rights of the Child.
Learning from Naturalisation Debates: The Right to an Appropriate…

152
to assess some of the factors are ameliorated by the availability of other fac-
tors that can compensate for uncertainties.
Finally, we would like to emphasize that Hirsch Ballin’s ideas and the
concept of appropriate nationality that we have introduced are compatible
with having multiple nationalities, as well as changing one’s nationality
over the course of one’s life. It is appropriate to enable children, as well as
adults, to acquire a new nationality to reect the changes in their personal
circumstances. When attributing an appropriate nationality at birth to a
child, states therefore do not need to embark on the impossible task of pre-
dicting the future.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
K. Swider and C. Vlieks

153© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_30
Don’t Put the Baby in the Dirty Bathwater!
A Rejoinder
Costica Dumbrava
This has been a fascinating debate that succeeded in unravelling some of the
major issues about the past, present and future of ius sanguinis citizenship. I
was delighted to see that many of the contributors shared my concerns about
the failings of the current system of transmission of citizenship from parent
to child. I learned a great deal from reading the various reactions to my
deliberately provocative propositions. With these concluding remarks, I use
the privilege of the last word to engage with several key points emerging
from the debate and to clarify and, as much as possible, elaborate my posi-
tion. However, I am hopeful that this debate does not nish here and I look
forward to continuing through other ventures.
How ethnic is ius sanguinis and why does it matter?
I think we are in agreement that ius sanguinis is not inherently ethnic and
that it can take on ethnic connotations depending on particular historical and
policy contexts. The apple of discord is whether the gravity of such occur-
rences recommends the abolishment of ius sanguinis. I concede that empiri-
cal evidence is not conclusive for dismissing the principle of ius sanguinis.
However, I caution that we should not underestimate the dangers of ethnon-
ationalist instrumental uses of ius sanguinis.
Panagiotidis explains clearly the difference between legal descent
(descent from a citizen) and ethnic descent (descent from a non-citizen of a
particular ethnicity) and shows that the objection about the ethnic character
of ius sanguinis is founded on a big conceptual confusion. While I agree that
ius sanguinis is conceptually distinct from ethnic or racial descent, I would
hesitate to say that the two have ‘nothing to do’ with one another.
Unfortunately, it is not only distracted scholars that make this confusion.
The ambiguity between legal and ethnic descent is often present in legal
practices and political discourses about birthright citizenship. In my initial
contribution I mentioned co-ethnic citizenship because these policies fre-
quently rely on the ambivalence between legal and ethnic descent. For
example, legal criteria of descent from citizens (or from former citizens or

154
from former citizens of a former part of a country, etc.) are often used as a
smoke screen for selecting future citizens according to (perceived) ethnic
descent. It matters less that these policies rarely achieve the goal of ethnic
selectivity as long as the very statement of the commitment to include co-
ethnics is likely to bring signicant political and ideological gains. As
Decimo and Harder argue, despite being a technical and legalistic principle,
ius sanguinis carries signicant ideological connotations, among which the
myth of commonality of blood or ethnic descent is often prevalent.
I also doubt that the ethnonationalist uses of ius sanguinis are only a mat-
ter of the past and I am not convinced that they are unlikely to be ‘used like
that in the future’ (Panagiotidis). What else if not the fear of ethno-national
extinction drove Latvia and Estonia in 1990 to reinstate their pre-war citi-
zenship laws and to apply ius sanguinis retrospectively back to pre-1940
citizens? It is besides the point that not all newly recognised citizens were
ethnic Latvians or Estonians (as not all of the pre-war citizens were). The
political-nationalist gains obtained from the perception that the overwhelm-
ing majority of them were co-ethnics and from the symbolic reinstatement
of the original national citizenry were signicant. The same can be said
about the Romanian policy to restore citizenship to all those who lost
Romanian citizenship independently of their will. In this case, ius sanguinis
has been used to trace descendants of citizens several generations back in
view of recovering the ‘national stock’ lost with the territorial changes dur-
ing WWII.
It is true, as Bauböck and Collins rightly point out, that both ius sangui-
nis and ius soli (and combinations thereof) can have either emancipatory or
exclusionary implications, depending on the context. Since empirical facts
do not translate well into normative arguments (Tanasoca), I think that wres-
tling over empirical evidence about the positive or negative effects of ius
sanguinis is not going to help us settle the normative questions about the
justication of the principle of ius sanguinis. If we have strong moral rea-
sons for maintaining ius sanguinis, we should endorse it regardless of how
wrong it is applied in practice and how often this happens. Of course, we
should adjust the ways in which to implement a morally justied principle
to match changing empirical circumstances. Yet, the prior question is
whether ius sanguinis can be morally justied as a principle of admission to
citizenship.
C. Dumbrava

155
Whybotherxingiussanguinis?
Many contributors to this debate grant that ius sanguinis is a morally justi-
ed principle and propose ways to reform the ways in which we implement
it. Bauböck, Ersbøll and Abrams argue that the ethno-nationalist disposition
of ius sanguinis can be counterbalanced through adopting supplementary ius
soli and residence-based naturalisation. Bauböck, Titshaw, Abrams and De
Groot discuss possibilities of rethinking legal parentage in order to accom-
modate complex cases of citizenship determination in the context of ART
birth.
There is a broad consensus that ius sanguinis should be reformed, albeit
disagreements prevail as to how and by whom. Bauböck’s proposals of ius
liationis, which reinterprets legal parenthood as a combination of genetic
and social parenthood, is cheered by some but welcomed with scepticism by
others. Titshaw and Collins, for example, worry that ius liationis will not
eliminate the uncertainty related to the determination of legal parentage and
that it may also encourage abuse. Another contention is about the adminis-
trative level at which decisions about ius sanguinis should be taken. Writing
in the context of the US federal system, Titshaw argues that xing the family
law will solve many problems related to legal parentage and therefore to ius
sanguinis citizenship. Yet, Collins fears that leaving citizenship determina-
tion to those applying the family law will unwarrantedly expose citizenship
to parochial concerns (e.g. immigration control). I think this is an important
point, which we should consider beyond the level of administrative decision-
making. I argue that the recognition of legal parentage and the determination
of citizenship should not only be implemented through two separate proce-
dures, but also regarded as two normative processes driven by distinct prin-
ciples. While I appreciate the practical importance of the proposals for
reforming ius sanguinis, I am not convinced that the strategy of xing legal
parentage addresses the prior and more fundamental question about the
moral justication of ius sanguinis as a principle of admission to
citizenship.
It is surprising to me that in a debate about ius sanguinis citizenship so
little is being said about citizenship. Most contributors seem to take for
granted the normative link between parentage and citizenship and to give
priority to instrumental arguments over normative ones. Let me explain this
point by discussing three key arguments in support of ius sanguinis: (1) ius
sanguinis protects children against statelessness; (2) ius sanguinis enables
and protects family life; and (3) ius sanguinis expresses the social identity of
the child.
Don’t Put the Baby in the Dirty Bathwater! A Rejoinder

156
Preventing statelessness
There is a wide consensus in the debate that children need (at least one) citi-
zenship from birth and that ius sanguinis provides the ‘most simple and
secure’ means (Ersbøll) to prevent statelessness. This view is accepted even
by those who argue that birthright citizenship is ultimately an unfair arrange-
ment (Swider and Vlieks). It is true that in today’ world the possession of the
legal status of citizenship (aka nationality) predetermines access to a set of
important rights and privileges, in the absence of which a person’s life is
signicantly constrained. It is also true that, despite a number of complica-
tions caused by changing family patterns and the spread of assisted repro-
ductive technologies, ius sanguinis still provides a relatively simple solution
to tackle statelessness at birth. However, one can think of other ways to
prevent statelessness that are equally convenient, as well as better justied
normatively.
The problem of statelessness could be arguably solved by a system of
generalised unconditional ius soli or by a citizenship lottery in which new-
borns are assigned randomly the citizenship of a state. These alternatives
remove the uncertainties associated with the determination of legal parent-
hood for the purpose of ius sanguinis. However, convenience alone does not
count for normative justication. Against the citizenship lottery suggestion,
defenders of ius sanguinis would probably insist that new-borns should
receive the citizenship of ‘their’ parents. Notice that this is not an argument
about convenience anymore but one about the importance of a shared citi-
zenship between parents and children. But nothing in the argument about
avoiding statelessness requires shared citizenship between parents and their
children. To avoid statelessness at birth (in the absence of ius soli), it is suf-
cient that a child receives one citizenship from either of the parents. This
means that in international families only one parent needs to transmit citi-
zenship to the child and, if a parent has multiple citizenships, he or she needs
to transfer only one these citizenships to the child. The argument about
avoiding statelessness does not offer any guidance as to which citizenship
should be shared between parents and children and why.
Alternative solutions based on ius soli elements may offer better norma-
tive justications. I argued elsewhere that states have a collective duty to
grant access to a fundamental status of legal protection (nationality) to those
born and living in their jurisdiction due to states’ joint participation in an
international system that leaves individuals no real possibility of opting out,
i.e. to establish a new citizenship or to remain stateless. My point here is not
that the parent-child relationship has no normative implications for
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157
citizenship; it is merely that the argument about avoiding statelessness is
unable to bring such normative concerns to the surface.
Protecting family life
The second major argument in defence of ius sanguinis is that the (automatic
and immediate) transmission of citizenship from parent to child enables and
protects family life. In the absence of a shared citizenship between parents
and children, it is feared, family life would be severely disrupted as family
members risk being separated from one another by borders and immigration
restrictions. I do not contest that family life deserves special protection and
that the legal recognition of parent-child relationship provides ‘critical pro-
tection for their [children’s] wellbeing’ (Abrams). However, I am not con-
vinced that the automatic and immediate transfer of citizenship from parent
to child is a major normative prerequisite of family life.
It appears to me that the overwhelming majority of contributors sub-
scribe to an indirect and instrumental defence of ius sanguinis. The biggest
concern is about securing joint migration rights for family members, which
are instrumental for family life. De Groot mentions two other important citi-
zenship privileges, i.e. diplomatic and consular protection and political par-
ticipation, but surrenders quickly to the concern about migration rights. The
prevailing argument in these interventions is not so much a defence of ius
sanguinis citizenship but a defence of ius migrationis sanguine – the right to
migrate in virtue of a blood relationship. The downside of linking too tightly
ius sanguinis to family migration rights is that the argument only holds as
long as migration rights are strictly determined by citizenship status and as
long as there are no other ways to secure migration rights for family mem-
bers apart from ius sanguinis. Hence in a world of (more) open borders,
where children would not be separated from their parents or siblings by
migration restrictions, ius sanguinis citizenship loses its importance.
However, a system of generalised family migration policies, such as the one
suggested by Tanasoca, could provide the ‘permanence and stability’
(Titshaw) required for achieving meaningful family life in the absence of ius
sanguinis citizenship.
Expressingsocialidentity
Another intriguing argument in defence of ius sanguinis rests on the idea
that (birthright) citizenship is an important part of a child’s social identity.
According to the judgement of the European Court of Human Right in the
case Genovese v Malta, the failure to acquire a particular citizenship at birth
Don’t Put the Baby in the Dirty Bathwater! A Rejoinder

158
is likely to affect negatively the identity of the child. I distinguish two ver-
sions of this argument: a softer/instrumental version, according to which the
ius sanguinis principle ‘makes citizenship a part of citizens’ personal identi-
ties that they are like to accept’ (Bauböck); and a harder/essentialist version,
for which the ius sanguinis principle recognises and conrms the (inherited)
identity of the child.
The essentialist version of the argument about a child’s social identity
can be easily dismissed by pointing at the fact that citizenship is a contingent
social and legal convention rather than a mechanism that conrms prior
genetic, ethnic or cultural identities. Recall that in the Genovese case the
Court used this argument in connection with the principle of non-
discrimination. The failure to acquire citizenship via ius sanguinis by a child
born out of wedlock will affect negatively his or her social identity because
children born in wedlock do not face similar restrictions of ius sanguinis as
children born out of wedlock. The situation can be remedied not only by
removing the discriminatory treatment in the application of ius sanguinis
but also by abolishing ius sanguinis altogether. The instrumental version of
the identity argument is more interesting, not least because it supports our
intuition that (birthright) citizens are likely to feel attached to their country
of birth. However, this is valid for both ius sanguinis and ius soli, so the
instrumental argument cannot show why we should preserve ius sanguinis
or why we should chose one form of birthright citizenship over another.
Long-lasting institutions usually shape people’s attitudes and generate
attachments and identities. They acquire the kind of ‘quasi-naturalness’ that
Bauböck ascribes to birthright citizenship. However, the test of time and
familiarity is not a valid moral test because bad institutions can also acquire
that kind of ‘magical power’ (Harder). We ought to question the moral foun-
dations of deeply rooted institutions such as birthright citizenship especially
because they are so popular and because they shape our identity.
Opportunitiesforintergenerationalmembership
There are several arguments in the debate that deal more seriously with nor-
mative aspects of ius sanguinis citizenship. I agree with Owen that the prin-
ciple of ius nexi or genuine connection is the best we have for determining
access to citizenship and that this general principle can be served by differ-
ent policy arrangements, including some form of qualied ius sanguinis. I
assume that the principle of ‘appropriate citizenship’ defended by Swider
and Vlieks goes along the same path. My concern with their proposal is that
allowing for ‘a case-by-case evaluation of the individual situation of each
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159
newborn’ (Swider and Vlieks) might not serve well the commitment to avoid
statelessness, which seems essential to the principle of appropriate
citizenship.
Honohan endorses the principle of genuine connection and defends a
limited version of ius sanguinis by arguing for imposing restrictions to the
intergenerational transmission of citizenship. She endorses ius sanguinis but
proposes that citizenship be withdrawn from (adult) citizens who fail to
develop a genuine link with the country. I am sympathetic to this proposal
but I am not fully convinced about its underpinning justication. Honohan’s
main objection to ius sanguinis, which is shared by Decimo and Harder, is
that the unconditional acquisition of citizenship by children from their par-
ents can amount to an unfair privilege. Although I acknowledge the implica-
tions of citizenship policies in today’s world characterised by sharp economic
inequalities, I think that the concern with economic privilege should be dis-
connected from the concern about admission to citizenship. I agree with
Bauböck that there are more appropriate means to ght global inequality
and injustice than redistributing citizenship (e.g. economic redistribution,
fairer migration policies).
Honohan rightly argues that citizenship ‘provides membership of a polit-
ical community’ but she does not explain why children should be admitted
in the political community of their parents rather than in another (e.g. the
best political community). My answer is that both parents and children have
an interest in the continued participation to a particular intergenerational
political project. This interest can be served through providing opportunities
for intergenerational membership in the form of provisional ius sanguinis.
The citizenship acquired provisionally at birth should be withdrawn upon
majority from those (provisional) citizens who do not have a genuine link
with the country. However, if a person fails to prove a genuine link with at
least one country, his or her provisional citizenship should still be extended
but only in the form of formal legal membership, i.e. without political rights.
Notice that the argument for intergenerational provisional citizenship
stands even after we solve the problems related to the recognition of parent-
hood and to migration restriction for family members. Bauböck points at
this when talking about the ‘signalling effects of birthright citizenship’ but
his argument slides into an instrumental and collectivist defence of birth-
right citizenship. My argument for intergenerational citizenship puts empha-
sis on the individual interests in continued political membership. Incidentally,
this solution is also likely to have positive implications for the political com-
munity as a whole, e.g. by fostering ‘a sense of responsibility towards the
common good and future generations’ (Bauböck). I am sympathetic to
Don’t Put the Baby in the Dirty Bathwater! A Rejoinder

160
Harder’s idea of political membership as a ‘lively on-going process of nego-
tiation in which everyone has a stake’. However, I disagree that admission
to political membership should be entirely up to negotiation, as I maintain
that there are certain concerns that demand inclusion regardless of people’s
preferences and abilities. I also no not think that political membership should
be ‘limited by our mortality’ (Harder). While I reject continuation based on
genetic, ethnic and racial traits or simply convenience, I argue that there
should be opportunities for intergenerational political continuity, which can
be provided through provisional ius sanguinis.
It is beyond dispute that any attempt to dislodge a deeply rooted and
widespread institution such as ius sanguinis is bound to pose serious practi-
cal challenges. However, if one has compelling moral reasons for disman-
tling such an institution, one ought to work towards this end. Babies are born
into a physical world and from actual bodies but they are not naturally born
into families and citizenship. The latter are social conventions that demand
our acceptance when they are justied and our courage to change and replace
them when they are not. To my critics who worried that abolishing ius san-
guinis amounts to throwing out the baby with the dirty bathwater I reply that
we should not put the baby in the dirty bathwater in the rst place.
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C. Dumbrava

Part III: The Return of Banishment
Abstract
There is a growing trend in Europe and North America of using denationali-
sation of citizens as a counter-terrorism strategy. The deprivation of citizen-
ship status, alongside passport revocation, and denial of re-admission to
citizens returning from abroad, manifest the securitisation of citizenship.
Britain leads in citizenship deprivation, but in 2014 Canada passed new
citizenship-stripping legislation and France’s Conseil Constitutionnel
recently upheld denaturalisation of dual citizens convicted of terrorism-
related offences. In the wake of the on-going crisis in Iraq and Syria, assorted
legislators in Austria, Australia, the Netherlands, and the United States have
expressed interest in enacting (or reviving) similar legislation. The contribu-
tors to the Forum Debate consider the normative justication for citizenship
deprivation from a variety of disciplinary perspectives. There is relatively
little disagreement among commentators about the limited instrumental
value of citizenship revocation in enhancing national security, and more
diversity in viewpoint about its signicance for citizenship itself. The con-
tributors discuss the characterisation of citizenship as right versus privilege,
the relevance of statelessness and dual nationality, the relative merits of citi-
zenship versus human rights as normative framework, and the expansive-
ness of banishment itself as a concept.
Keywords
Denationalisation · Deprivation · Citizenship · Terrorism · Banishment · Exile

163© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_31
The Return of Banishment: Do the New
Denationalisation Policies Weaken
Citizenship?
Audrey Macklin
After decades in exile, banishment is back. Britain resuscitated the practice
as part of its counter-terrorism strategy in the wake of the 9/11 and 7/11 ter-
rorist attacks in New York, Washington and London. Canada followed suit
with the 2014 Strengthening Canadian Citizenship Act.1 As we enter the
third decade of the 21st century, assorted legislators in Austria, Australia,
Netherlands, and the United States expressed interest in enacting, reviving,
or extending citizenship stripping laws.2
From antiquity to the late 20th century, denationalisation was a tool used
by states to rid themselves of political dissidents, convicted criminals and
ethnic, religious or racial minorities. The latest target of denationalisation is
the convicted terrorist, or the suspected terrorist, or the potential terrorist, or
maybe the associate of a terrorist. He is virtually always Muslim and male.
Citizenship-stripping is sometimes defended in the name of strength-
ening citizenship, but it does precisely the opposite. The dening feature
of contemporary legal citizenship is that it is secure. Making legal citi-
zenship contingent on performance demotes citizenship to another cate-
gory of permanent residence. Citizenship revocation thus weakens
citizenship itself. It is an illegitimate form of punishment and it serves no
practical purpose.
1 The Canadian legislation was subject to constitutional challenge following
completion of this article. It was repealed by a new government in 2017 before
the legality of hte legislation was determined and beforeany revocations went
into effect.
2 For a more elaborate comparative analysis of recent legislative developments
in the United Kingdom, Canada and the US, see Macklin, A. (2014),
‘Citizenship Revocation, the Privilege to Have Rights and the Production of
the Alien’, Queens Law Journal 40 (1): 1–54.

164
Denationalisation refers to involuntary loss of citizenship.3
Denaturalisation is a subset of denationalisation, and applies selectively to
those not born into citizenship via ius soli or ius sanguinis. The most com-
mon basis for denaturalisation is fraud or misrepresentation in the acquisi-
tion of citizenship. The operative premise is that had the material facts been
known at the relevant time, the state would not have conferred citizenship in
the rst place. Denaturalisation for fraud simply annuls the erroneously con-
ferred citizenship and restores the status quo ante.4
My remarks focus exclusively on denationalisation for allegedly disloyal
conduct by a citizen, while a citizen. In its present incarnation, citizenship
revocation is best understood as a technique for extending the functionality
of immigration law in counter-terrorism. Since 2001, states have turned to
deportation to resolve threats to national security by displacing the embod-
ied threat to the country of nationality. But deporting one’s own citizens is
exile, and exile extinguishes a singular right of citizenship, namely the right
to enter and to remain. Citizenship revocation circumvents that problem by
introducing the two-step exile: rst, strip citizenship; second, deport the
newly minted alien.
The British Nationality Act authorises the Secretary of State for Home
Affairs (Home Secretary) to deprive a person of British citizenship where
she ‘is satised that deprivation is conducive to the public good.’ That hap-
pens to be the same low and vague standard for depriving a person of per-
manent resident status (indenite leave to remain), which provides one
illustration of the downgrading of citizenship. In Canada, the executive
power to revoke citizenship depends on a criminal conviction for a listed
3 Before the widespread acceptance of dual citizenship, acquisition of a second
citizenship or marriage to a foreign man commonly triggered denaturalisation.
In a world where states tolerated only one legal bond between individual and
state at a time, acquisition of a second nationality denoted a transfer of
membership from one state to another.
4 The United States law combines renunciation of citizenship and denationalisa-
tion for birthright citizens into a category labelled expatriation. The US
Constitution guarantees the citizenship of ius soli citizens as a constitutional
right. The doctrine of expatriation operated on the legal ction that certain acts
by a citizen denoted an intention to renounce citizenship. In a series of
judgments culminating in 1967 in Afroyim v. Rusk, the US Supreme Court
progressively restricted the government’s ability to deem conduct short of
explicit renunciation as conclusive proof of an intention to expatriate, and the
executive effectively abandoned attempts to pursue constructive expatriation in
the 1980s.
A. Macklin

165
offence and a minimum sentence of either ve years or life imprisonment.
The offences include treason, spying, any terrorism offence dened under
the Criminal Code and a variety of offences applicable to members of the
military. In the case of terrorism offences, the conviction may be by a for-
eign court for an offence committed outside Canada, if it would also con-
stitute a terrorism offence under Canadian law.5 The UK law authorises
citizenship stripping of naturalised citizens (but not birthright citizens)
even if it renders them stateless. The Canadian law prohibits the creation of
statelessness but puts the onus on the individual to satisfy the Minister that
statelessness would ensue from revocation. The UK declines to publicly
disclose the exact number, identities or circumstances of those deprived of
UK citizenship, but investigative journalists estimate that at least 53 Britons
have lost citizenship since 2002, over half on national security grounds. In
2013, the Home Secretary deprived 20 UK nationals of citizenship, more
than all other years since 2002 combined.6
Citizenship revocation raises an array of practical, legal and normative
questions: Does it advance a valid objective? Does it comply with domestic,
constitutional and/or transnational law? Is it normatively defensible? The
answers turn, in part, on one’s underlying conception of citizenship as legal
status. Defenders of citizenship revocation liturgically intone that ‘citizen-
ship is a privilege, not a right’. The rhetoric of citizenship-as-privilege trades
on a popular and laudable sentiment that is sometimes expressed as follows:
‘I feel privileged to be a citizen of Canada, or the UK, or Italy, etc., and I
consider it my duty to demonstrate my commitment through actively par-
ticipating in civic life, or joining the armed forces, and standing up for my
country as a good and loyal citizen should do.’ But a privilege in law is
something different: A privilege emanates from the patron (here a govern-
ment minister) and can be rescinded from an undeserving beneciary (here
the citizen) at the former’s discretion.
In two US Supreme Court cases in the 1950s, Chief Justice Warren rejected
the classication of citizenship as privilege, proclaiming that ‘citizenship is not
a licence that expires on misbehaviour’. Instead, he invoked Hannah Arendt’s
5 The law also permits revocation of a citizen who ‘served as a member of an
armed force of a country or as a member of an organised armed group and that
country or group was engaged in an armed conict with Canada.’ This is not a
criminal offence, though it is almost identical to the existing offence of
treason, except that it includes non-state armed groups, whereas the offence of
treason only includes armed forces of a state.
6 Ibid.
The Retu rn of Banish ment: Do the New Den ationalisat ion Policies Weaken…

166
famous depiction of citizenship as ‘no less than the right to have rights.’7
Framing citizenship as a right vests citizenship in the rights- bearer. Depicting
it as a meta-right dramatically increases the justicatory burden for any cur-
tailment, because it places all rights in the balance.
Yet the force of Arendt’s ‘right to have rights’ aphorism may seem atten-
uated, at least with respect to liberal democratic states of the twenty rst
century. After all, permanent residents enjoy almost all the same rights as
citizens, and even foreigners without status can, in principle, claim a long
menu of basic human rights under international law and many domestic
legal orders. But this rejoinder overlooks one crucial fact. The exercise of
virtually all rights depends on territorial presence within the state,8 and only
citizens have an unqualied right to enter and remain on state territory. So
once stripped of the right to enter and remain in the state, enforcement means
that one is effectively deprived of all the other rights that depend (de jure or
de facto) on territorial presence. This fact has not been lost on the present
UK government: With two exceptions, all her targets were abroad when the
Home Secretary chose to exercise her discretion to strip them of citizenship.
This meant they were absent and unable to respond when the notice of inten-
tion to deprive was delivered, and therefore barred from entry qua alien in
order to appeal the decision.
Another strand of citizenship discourse describes citizenship as a contract
in which the citizen pledges allegiance to the sovereign in exchange for the
sovereign’s protection. Acts of disloyalty amount to fundamental breach of
contract, and so citizenship revocation simply actualises in law the citizen’s
voluntary severance of the relationship. This was, more or less, the logic of
constructive expatriation under US law9. But neither the rhetoric of contract
nor privilege can mask the agrantly punitive rationale for the citizenship
7 The unattributed quote comes from Arendt, H. (1951), The Origins of
Totalitarianism. New York: Harcourt & Brace, at 294. It was picked up by US
Supreme Court Justice Warren in Perez v. Brownell, 356 US 54 (1958) at 64
and again in Trop v. Dulles, 356 U.S. 86 (1958) at 102. See discussion in Weil,
P. (2013), The Sovereign Citizen. Philadelphia: University of Pennsylvania
Press.
8 Expatriate voting is one exception. Many people suppose that diplomatic or
consular assistance is also a right available outside the territory of the state,
except that states tend to deny that they owe a legal duty to extend assistance
to their citizens abroad. See, e.g. R (Abbasi) v Foreign Secretary [2002]
EWCA Civ 1598.
9 The US model of expatriation implicitly relied on this metaphor to characterise
a series of acts, from desertion, to voting in a foreign election, as acts signify-
ing an intention to renounce citizenship.
A. Macklin

167
revocation regimes currently in play in the UK and Canada: baldly stated,
some citizens are very bad citizens, and therefore do not deserve to be citizens.
The move from ‘bad citizen’ to ‘not citizen’ is explicit in the Canadian law,
where conviction for a criminal offence is a condition precedent to revocation
and eventual deportation. Citizenship revocation in the UK arguably turns on
prevention of future risk rather than punishment for past wrong, but state-
ments by UK politicians like ‘We think that deprivation is a way of expressing
extreme displeasure at the way in which someone has behaved’, reveal that
the difference is more apparent than real.10
Banishment as criminal penalty has a long pedigree, and dates to a time
before the rise of penal systems that enabled states to segregate, punish,
rehabilitate and reintegrate wrongdoers within the state. In other words,
modern states have criminal justice systems and an infrastructure that obvi-
ates the utility of banishment. These systems can, and are, deployed in
response to the range of conduct encompassed under the rubric of terrorism.
Banishment is both superuous and anachronistic.
One might counter that offences threatening national security are quali-
tatively distinct from other offences. For these putative ‘crimes against citi-
zenship’, incarceration is insufcient and withdrawal of citizenship is
uniquely appropriate as supplement or substitute. It bears noting, however,
that none of the Canadian offences precipitating loss of citizenship on
grounds of national security – including treason – apply exclusively to citi-
zens. Moreover, the idea that ‘national security’ misconduct is an affront to
the state and so warrants a distinctive punishment fails to take proper account
of the fact that all crime is regarded as an affront to the state’s maintenance
of public order (the ‘King’s Peace’ in common law systems) and its monop-
oly on the legitimate use of violence. It is this public dimension of criminal
law that differentiates it from private law, and confers on the state the author-
ity to investigate, prosecute and punish wrongdoers, in addition to and apart
from any private remedy that an individual victim might seek in tort, con-
tract or property.
10 See See United Kingdom, Parliamentary Debates, HC Standing Committee E,
30 April 2002, col 54 (Angela Eagle), quoted in Thwaites, R. (2014), ‘The
Security of Citizenship?: Finnis in the Context of the United Kingdom’s
Citizenship Stripping Provisions’, in F. Jenkins, M. Nolan & K. Rubenstein
(eds.), Allegiance and Identity in a Globalised World, 243–266. Cambridge,
UK: Cambridge University Press, at note 94.
The Retu rn of Banish ment: Do the New Den ationalisat ion Policies Weaken…

168
The purported symmetry between ‘crimes against citizenship’ and dena-
tionalisation echoes the defence of the sovereign’s other technique for perma-
nent elimination of wrongdoers, namely the death penalty. Banishment ts
the crime of disloyalty the way capital punishment ts the crime of murder.
When tethered to expulsion, citizenship revocation effects a kind of ‘political
death’. A citizen stripped of nationality and banished from the territory is, for
all intents and purposes, dead to the state. Once outside the territory, the state
has neither legal claim nor legal duty in respect of the former citizen, and is
relieved of any obligation to object if another state tortures, renders or kills
one of its nationals.11 Indeed, denationalisation is not only a political ana-
logue to death, it may also be a prelude to it.12 At least two former UK citizens
were executed by US drone strikes after the Home Secretary deprived them
of citizenship, and another was rendered to the United States for trial on ter-
rorism charges.
As with the death penalty, denationalisation extinguishes the prospect of
rehabilitation or reintegration. The paradigmatic subject of citizenship revo-
cation – the terrorist – is excluded from the ambit of human dignity that
underwrites contemporary penal philosophy and afrms capacity for auton-
omy, rational self-reection and reform. He is, in that sense, not fully human
and thus incapable of rehabilitation. Banishment operates as pure and per-
manent retribution. There is no re-entry into the political community, no life
after political death. Even creative and sophisticated attempts to classify and
isolate those crimes that merit denationalisation from those that do not still
founder on the instability of the distinction and the legitimacy of pure
retribution.13
11 Since the United States’ lethal drone strike on US citizen Anwar al Awlaki (and
his son), the United States’ position is that it may lawfully execute its own
citizens without trial when they are abroad. This, of course, obviates the
necessity to strip citizenship prior to execution. See ‘US cited controversial
law in decision to kill American citizen by drone’, The Guardian, 23 June
2014, available at https://www.theguardian.com/world/2014/jun/23/us-justi-
cation-drone-killing-american-citizen-awlaki. See also Spiro, P. (2014),
‘Expatriating Terrorists’, Fordham Law Review 82 (5): 2169–2187.
12 This was the case with the Nazi extermination of German Jewry, as Hannah
Arendt recounted. First, the Nazi government stripped Jews of German
nationality and then, when no country would take them in, proceeded to
murder them.
13 For a recent example, see Lavi, S. (2011), ‘Citizenship Revocation as
Punishment: On the Modern Duties of Citizens and Their Criminal Breach’,
The University of Toronto Law Journal 61 (4): 783–810, at 806.
A. Macklin

169
One might object that that this parallel neglects the statelessness con-
straint. To the extent that a prerequisite of denationalisation is actual or
potential possession of another citizenship, the individual has another
political life to live somewhere else. This is also an answer to the complaint
that stripping citizenship from dual nationals but not mono-nationals vio-
lates the principle of equality of citizenship.14 The dual national is not simi-
larly situated to the mono-national precisely because the former has another
citizenship and the latter does not, so differential treatment does not consti-
tute invidious discrimination. (Of course, the counter-intuitive consequence
of this reasoning is that dual citizenship becomes a liability. Multiple citi-
zenship becomes less than the sum of its parts: the mono-citizen is secure
from revocation, while the dual or multiple citizen is not).
The cogency of this argument depends on how one characterises the
impact of citizenship revocation. From an external, statist perspective, the
function of nationality is to catalogue the world’s population and to le each
person under at least one state. Nationality provides states with a return
address they can stick on non-citizens for purposes of deportation, and is
one reason why statelessness is an inconvenient anomaly for states. And just
as all sovereign states are formally equal under international law, so too are
all citizenships. Within this framework, citizenship becomes fungible.
Statelessness is the problem, and nationality the solution. So, it may not
actually matter what nationality a person possesses – Canadian or Somali,
Brazilian or North Korean – as long as he or she possesses at least one. All
nationalities are equal for purposes of averting statelessness.15 This formal
equality of nationality may partly explain international law’s difdence, or
at least ambiguity, on whether citizenship deprivation that does not induce
statelessness may nevertheless be arbitrary and contrary to international
law.16 In any event, as long as an individual retains a nationality somewhere,
denationalisation poses no human rights problem.
From an internal, individual perspective, however, citizenship is not fun-
gible.17 The revocation of citizenship severs a unique relationship between
14 It does not, of course, answer the charge of discrimination against naturalised
mono-citizens under UK law. They are exposed to the risk of statelessness
whereas birthright citizens are not.
15 One could even imagine how a creative government wedded to this view might
venture that protecting mono-citizens from statelessness is really an afrmative
action initiative under s. 15(2) of the Charter.
16 See Spiro, P. (2011), ‘A New International Law of Citizenship’, Am J. Int’l
Law 105 (4): 694-746, at 711–12.
17 Thwaites makes a similar argument, supra note 9, at 263.
The Retu rn of Banish ment: Do the New Den ationalisat ion Policies Weaken…

170
the individual and a specic state. It is unique in two respects: First, the
formal equality of nationality suppresses the substantive inequality of citi-
zenship. The bundle of social, political, economic, cultural and legal
opportunities and entitlements to which citizenship provides access varies
radically between countries. Canadian or Brazilian citizenship is dramati-
cally and indisputably heftier than that of present-day North Korea or
Somalia.
Secondly, the subjective experience of that legal bond, what the
International Court of Justice in Nottebohm v. Guatemala calls ‘the social
fact of attachment’18 is as innitely diverse as the people who make up the
citizenry. It may range from the ‘nominal citizen’ whose social attachment is
highly attenuated, to the individual whose existence is, and has always been,
wholly and exclusively embedded in the country of residence. Citizenships
are not substantively equal in comparison to one another and the nature of the
individual citizen-state relationship is not invariant. But my point is not to
propose a metric capable of measuring the quantitative, qualitative, experien-
tial, emotional, personal, familial, cultural, social, nancial, linguistic and
political impacts of exile on any individual, in order that some state ofcial
could determine precisely when citizenship revocation inicts an appropriate
versus excessive degree of punishment. Citizenship as legal status obviates
both the need and the legitimacy of an on-going or comparative evaluation
by state authorities of how much or how well a citizen performs as a citizen.19
The very act of subjecting a subsisting citizenship to this kind of normative
scrutiny subverts the security that distinguishes legal citizenship from other
statuses that dene the relationship between state and individual.
The history of banishment generates only cautionary tales about the
inevitably arbitrary and prejudicial abuse of a discretionary power to iden-
tify the ‘bad’ citizen for purposes of relegating him or her to the non-status
of non-citizen. The violence of rupturing the link between citizens and state
is not negated by possession of citizenship status in another polity, if one
conceives of the relationship (whatever its intensity, depth, etc.) between a
state and a citizen as singular and unique. On this view, citizenship revoca-
18 Nottebohm (Liechtenstein v. Guatemala), ICJ 4 (1955) at 23.
19 This does not preclude an argument that the depth and duration of a resident
non-citizen’s relationship to a state could and should generate an entitlement to
remain and to be put on a path to citizenship. See, e.g. Carens, J. (2013), The
Ethics of Immigration. Oxford: OUP.
A. Macklin

171
tion inicts an intrinsically grave harm that is separate from (though exacer-
bated by) the harm of statelessness.20
I leave to one side an account of the myriad procedural and substantive
deciencies of the UK and Canadian denationalisation regimes that make
them ripe for legal challenge. Nor do I dwell here on the dubious practical
value of denationalisation in preventing terrorism or protecting national secu-
rity. Sufce to say that if the aim of citizenship revocation is deterrence, there
is no evidence that stripping citizenship will deter a potential terrorist any
more or better than the prospect of a criminal conviction and lengthy impris-
onment or, for that matter, the risk of blowing oneself up, getting killed or
executed, or being detained indenitely, rendered, or tortured. To the extent
that exile supposedly makes a country more secure by removing dangerous
people, the justication knows no limits: it is not obvious why Canadians or
Britons would not also be made safer by exiling all citizens who commit vio-
lent offences. From the other side, expelling convicted or alleged terrorists is
an oddly parochial response that transfers rather than reduces risk. Depending
on the destination country, deportation may actually make it easier for the
individual to engage in activities that pose a threat to global security.21
And, nally, the sheer absurdity of banishment as a response to the terror-
ist qua global outlaw is best illustrated by speculating on what would happen
if all states behaved like the UK and Canada: Imagine a dual UK-Canada
citizen who is convicted of a terrorism offence in the UK. Since terrorism is
a global menace, Canada can treat a terrorism conviction in the UK as proof
of being a bad Canadian citizen. Both Canada and the UK can lawfully dena-
tionalise him. But both states are also somewhat constrained in law not to
create statelessness, and both want and need to nd another state to admit the
expelled person. And the only country that has a legal obligation to do is a
state of nationality. So, now it becomes a race between Canada and the UK
to see which country can strip citizenship rst. To the loser goes the citizen.
Modern exile, as imagined under UK and Canadian law, is erected upon
unsustainable and incoherent propositions about the nature of legal citizen-
ship. If citizenship is irrevocable only where withdrawal causes stateless-
ness, then citizenship is a right for mono-citizens but a privilege for dual or
20 For a similar argument, see Rayner Thwaites, supra note 9.
21 Macklin, A. (2001), ‘Borderline Security’, in R. Daniels et al. (eds.), The
Security of Freedom: Essays on Canada’s Anti-Terrorism Bill, 383-405.
Toronto: U of T Press; ‘Still Stuck at the Border’, in C. Forcese & F. Crépeau
(eds.), Terrorism, Law and Democracy: 10 Years After 9/11, 261–306.
Montreal: Canadian Institute for the Administration of Justice.
The Retu rn of Banish ment: Do the New Den ationalisat ion Policies Weaken…

172
multiple citizens. Legal citizenship can be contingent on normative criteria
for one state if and only if it is not similarly contingent for another state.
State A can deprive a national of citizenship and banish him because he is a
bad citizen. But State A can do so lawfully if and only if State B is com-
pelled to admit the individual simply because he is a citizen of State B,
irrespective of whether he is a good or bad citizen of State B. One state’s
authority to deem the bad citizen a non-citizen presupposes another state
lacking that same authority.
To contend that punitive denationalisation in the twenty-rst century is
an illegitimate and futile exercise of sovereign power does not refute or
deny that social solidarity, belonging and allegiance have a place in concep-
tions of citizenship and deserve to be promoted. It is rather that these goals
will not and cannot be advanced by citizenship revocation. Nor will citizen-
ship revocation make any state, or the global community, more secure.
Citizenship revocation only enhances the discretionary and arbitrary power
of the executive, at the expense of all citizens, and of citizenship itself.
Banishment deserves to be banished again. Permanently.
Open Access This chapter is licensed under the terms of the Creative Commons
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which permits use, sharing, adaptation, distribution and reproduction in any medium
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were made.
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chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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Terrorist Expatriation: All Show,
No Bite, No Future
Peter J. Spiro
I agree with the bottom line of Audrey Macklin’s excellent kick-off for the
Forum. New expatriation measures adopted by the United Kingdom and
Canada are ill-advised and possibly unlawful. The UK and Canada moves
make for a kind of trendlet, and other states (even human rights-pure
Norway) are considering similar measures as the ‘foreign ghter’ phenom-
enon captures global attention. Denationalisation of terror suspects clearly
merits the attention of scholars and activists; after decades of disuse, states
are now stepping back into the practice of forced expatriation. Macklin sets
the scene with a primer on recent developments and a powerful critique of
the UK and Canadian measures.
But I would get to the destination along another path. I see denationalisa-
tion as anachronistic and toothless in the face of diminished conceptions of
citizenship as an institution and changed locations of allegiance. The expa-
triation measures are empty gestures, a kind of counter-terror bravado to
make up for the deciency of more important material responses. Government
ofcials must be seen to be doing something, and so they may (for appear-
ances sake) throw expatriation into the counter-terror toolbox. But expatria-
tion won’t advance the counter-terror agenda in any real way. Given the lack
of policy advantage, I expect that the human rights critique will sufce to
suppress the broad use of denationalisation in this context.
In theory, expatriation could help shore up the boundaries of membership
and national solidarity. Terrorist expatriation might be consistent with the
historical practice of terminating nationality upon formal transfer of alle-
giance. This was once the near-universal practice; original nationality was
lost automatically upon naturalisation in another state. Military and govern-
ment service in another country would also typically result in expatriation,
even when the other state was a friendly one. This practice helped police the
boundaries of community. One could be a member of one or another polity,
but not both. States that continue to prohibit dual citizenship still operate on
this principle. A Japanese citizen who naturalises as an American, for exam-
ple, automatically forfeits her Japanese nationality.

174
One might situate security-related expatriation in this tradition. To the
extent that ghting for the Islamic State represents a shift of loyalty incom-
patible with loyalty to the United Kingdom, expatriation merely reects
social conditions on the ground. Membership in the United Kingdom would
be exclusive of membership in forces associated with the Islamic State.
Expatriation claries the ‘us’ and ‘them’ in a way that claries social soli-
darities and the special obligations that come with co-nationality. (Ayelet
Shachar makes a similar argument with respect to ‘hollow’ citizens acquir-
ing citizenship on the attenuated basis of descent.)
But this logic doesn’t map out onto denationalisation in the current secu-
rity context. There is no citizenship in the Islamic State (ISIL not being a
state, the label notwithstanding). One cannot naturalise or be born into ISIL;
there is no formal evidence of loyalty or membership. Expatriation doesn’t
work without the symmetry. To the extent that only dual nationals are sub-
ject to security-related expatriation, the criterion no longer makes any sense:
the other citizenship is random, unrelated to the motivation for expatriation.
(As Macklin points out, it could lead to a strange dynamic in which states
allied against groups such as ISIL could race to expatriate foreign ghters in
an effort to offshore putative threats.) The condition then arbitrarily dis-
criminates against individuals on the basis of their dual-citizen status.
That takes care of the only normatively tenable rationale for the expatria-
tion measures. The punitive basis is more easily dispatched. Punitive uses of
expatriation have long been condemned. As early as 1958, the U.S. Supreme
Court was able to observe that ‘[t]he civilized nations of the world are in
virtual unanimity that statelessness is not to be imposed as punishment for
crime.’ The Canadian measure marks a return to the practice of exile. As
Macklin argues, non-application to cases in which statelessness would result
does not save it from this rap. A person may well feel a deep social attach-
ment to one country while holding alternative nationalities (which them-
selves may be nominal). The denationalisation of a Canadian citizen
long-resident in Canada will feel like banishment even as he holds another
nationality, especially to the extent the latter is attenuated.
Finally, the protective rationale for terrorist expatriation makes little
sense as a practical matter. The ‘foreign ghter’ problem is largely framed
as a problem of return. Citizens radicalised by their experience in Iraq and
Syria with brutal ISIL forces will return to their home countries in the West
to undertake terror attacks. It’s a potent narrative of weaponised citizens.
Without citizenship, these individuals would have no right of re-entry, thus
defusing their utility as ISIL operatives.
P. J. Spiro

175
Or so our politicians would have it. In practice, denationalisation adds
little counter-terror value. You can’t take away someone’s citizenship for
being associated with ISIL before you know that he’s associated with
ISIL. But once the security apparatus is aware of the connection, it will have
other, standard counter-terror tools to protect against the threat. There will
be the possibility of criminal prosecution in many states on material support
charges, with incarceration on conviction. (Canada’s punitive scheme can
hardly sustain even the pretence of a protective rationale.) Short of prosecu-
tion, watch lists and well-practiced surveillance techniques should prevent
returning foreign ghters from undertaking terror attacks. Passport revoca-
tion and travel bans will help prevent citizens from becoming foreign ght-
ers in the rst place.
So terrorist expatriation advances counter-terror efforts not at all. It sup-
plies yet another example of security-related theatre, a feel-good move that
will be popular with some voters. (The features are shared with some
Western responses to the vastly exaggerated Ebola threat, where politicians
must be seen to respond dramatically even if dramatic moves make no sense
in policy terms.) Terrorist expatriation is unlikely to have staying power
against a powerful human rights critique. The UK and Canadian measures
may well fall to legal challenges, domestic or international. Even if they are
sustained in court, they are unlikely to be put to broad use. Few other states
will follow suit (it is interesting that terrorist expatriation has almost no
political traction in the United States, its aggressive counter-terror posturing
notwithstanding). The failure will evidence an emerging norm against invol-
untary expatriation. If states can’t make expatriation stick here, they won’t
be able to make it stick anywhere.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
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chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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permitted use, you will need to obtain permission directly from the copyright holder.
Terrorist Expatriation: All Show, No Bite, No Future

177© The Author(s) 2018
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https://doi.org/10.1007/978-3-319-92719-0_33
Should Those Who Attack the Nation Have
an Absolute Right to Remain Its Citizens?
Peter H. Schuck
Audrey Macklin’s call for the banishment of banishment is eloquent and
persuasive on many points. She is surely right that particular denationalisa-
tion regimes may suffer from a variety of fatal defects. The standards for
revocation may be too vague to constrain ofcial discretion or to provide
adequate notice to the citizen concerning what conduct will risk revocation.
Most important, the grounds for revocation must be limited to only the most
extreme, unmitigated attacks on the nation’s security, attacks that are consis-
tent only with a desire to bring the nation to ruin. This conduct must be
scrupulously-dened and highly specic conduct; mere malignant thoughts
will not sufce. Revocation cannot be permitted to lead to statelessness and
thus a loss of the ‘meta-right’ (as Macklin puts it) to have rights, especially
the right to the territorial presence that in turn confers a broad panoply of
liberal rights. The procedures for revocation must be robust in all respects,
including of course the right to be actually or virtually present rather than
having to contest the government’s action ex post and from exile. The gov-
ernment’s burden and standard of proof must be exceedingly demanding,
perhaps even the proof beyond a reasonable doubt required for criminal
convictions.
But even these extraordinarily demanding and rare preconditions are
irrelevant to Macklin; she is utterly categorical in her rejection of the very
notion of denationalisation. She would preclude denationalisation even if
these (and other) strict conditions were met; indeed, no protections for the
individual citizen – or for the threatened nation – would sufce. Here is
where we disagree. I see no reason in logic or justice why a state should be
powerless to protect itself and its people from imminent, existential threats
(suitably dened) from an individual who has launched a dangerous attack
(suitably dened and rigorously proved) on itself and its people, whose
interestsm both international law and domestic politics obligates it to pro-
mote. And I see no reason in logic or justice why that state cannot defend
itself and its people against such an attack by, among other things, severing

178
the attacker’s connection to a state with which he is manifestly at war,
thereby making it much more difcult for him to succeed in that war. Should
the individual’s interest in maintaining that connection, which (by my de-
nition, embedded in the preconditions listed above) can only be tactical and
cynical, utterly and categorically outweigh the nation’s interest in protecting
those for whom it bears a sacred trust? This question, I submit, answers
itself – and the answer is grounded not merely in a utilitarian balancing but
in a deontological principle: the nation’s fundamental duty to protect its
people.
I also have some reservations about a few of Macklin’s other, less funda-
mental arguments. First, she claims that denationalisation weakens citizen-
ship by eliminating its security and thus rendering it a form of mere legal
residence. I don’t understand her logic. Am I less secure in my citizenship if
I know that the state may execute me or imprison me for life if I murder a
fellow citizen? I suppose that I am less secure, but that insecurity is war-
ranted and I can easily avoid it. Moreover, there is a sense in which dena-
tionalising one who has demonstrably satised the exceedingly demanding
conditions for revocation that I have specied does, contrary to Macklin’s
claim, strengthen citizenship by reafrming the conditions on which it is
based.
Second, she categorically condemns revocation in part because it cate-
gorically denies the individual the opportunity to rehabilitate himself. We
should and ordinarily do protect a wrongdoer’s opportunity to rehabilitate
himself, but there are many situations in which we don’t. An employer who
catches an employee embezzling from the company may re him without
giving him an opportunity to rehabilitate himself there; if he wishes to reha-
bilitate himself, he will have to do so elsewhere, on his own time. When we
sentence a murderer to life imprisonment without parole, we are denying
him the right to regain his freedom through rehabilitation.
Third, it is true that denationalising a dual citizen would still leave him
with a state while denationalising a mono citizen would not. But so long as
we do not allow revocations that would render one stateless, this particular
inequality between categories of citizens is hardly one that should trouble
us – any more than we should be troubled that a dual citizen has an addi-
tional passport and can vote in an additional polity.
Finally, Macklin states that there is no evidence that denationalisation
will deter a would-be terrorist if other, more conventional counter-terrorism
measures fail to do so. I agree, but so what? Deterrence may be an important
reason to punish wrongdoers but it is by no means the only reason to do so.
P. H. Schuck

179
If we are justied in punishing them, that justication is not nullied by a
claim that the punishment will not deter others. And if more conventional
measures are indeed effective in eliminating threats, they should of course
be our rst and perhaps nal resort. In such situations, denationalisation
may well be a superuous, unnecessary remedy. But this is a question of
policy and prudence, not of moral principle.
Macklin is certainly right to worry about the possible abuses of denation-
alisation. The history of political banishment is hardly reassuring on this
point. But a liberal constitutional regime can control such abuses by scrupu-
lously controlling the state’s exercise of this power through a variety of
familiar institutions and practices. These include a careful denition and
exacting limitation of the grounds for revocation; demanding procedural
and evidentiary requirements before such a power can be exercised; a right
to legal counsel; and an independent judiciary accustomed to challenging
state power in the name of protecting individual rights. We have entrusted
our precious liberties to the faithful working through of these institutions
and practices. Some of these liberties are even more precious than our right
to retain our citizenship when we have knowingly acted in horrendous ways
that make it justiable, under the safeguards I have described, for the state
to declare that status forfeited.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Should Those Who Attack the Nation Have an Absolute Right to Remain Its…

181© The Author(s) 2018
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https://doi.org/10.1007/978-3-319-92719-0_34
Terrorists Repudiate Their Own Citizenship
Christian Joppke
The recent trend to strip international terrorists of their citizenship raises
general questions about the changing nature of terror and of citizenship. Let
us start with ‘terror’. In the era of Marxist-inspired violence against the
state (or rather ‘capitalism’, of which the state was suspected to be merely
a servant), terror was a purely domestic affair, committed by the ower
children of the elite, particularly its most educated and morally minded. No
one would have fathomed stripping an Ulrike Meinhof or Andreas Baader,
leaders of the 1970s’ German Red Army Faction (RAF), of their German
citizenship. The current ‘return of banishment’ is a response to an alto-
gether different type of terror, one that transcends borders and is committed
by people who explicitly posit themselves outside the political community
of the nation-state—allegiance to the community of believers (ummah)
cancels out the secular community of citizens, it is even deliberately mobil-
ised against the latter. Only notice the cynical ritual of the Islamic State`s
henchmen to have a fellow-national do the mediatised head-chopping. By
the same token, RAF limited its murderous acts to high-ranking repre-
sentatives of the ‘system’ (of which ordinary citizens were seen as merely
victims who thus stood to be recruited as fellow-ghters). Al Qaeda and its
Islamic State sequel seek death for ordinary citizens, whose humanity is
denied through being demoted to ‘unbelievers’. Paul Kahn took the ubiqui-
tous threat of terror to be today’s ultimate moment of citizenship, the
‘moment of conscription’.1
Indeed, Islamic terror is meant to be ‘war’, while RAF aspired to ‘revolu-
tion’ – two very different things, with obvious implications for citizenship in
the former but not the latter. That terror against citizens should lead to recon-
sidering the citizen status of its culprits, who proved the ties to their state of
citizenship to be at best ‘tactical and cynical’, as Peter Schuck writes in his
contribution, seems logical. One is therefore astounded about the measured
response by Western states, which have mostly respected the international
norm of avoiding statelessness (only lately, in response to the unspeakable
1 Kahn, P. (2011), Political Theology. Ithaca, N.Y.: Cornell University Press,
p. 138.

182
atrocities committed by the ghters of the Islamic State, have there been
cracks in this commitment, most notably in Britain). But academics cry out
that ‘banishment weakens citizenship’, as Audrey Macklin does. They draw
an idyllic and reality-resistant picture of ‘singular and unique’ ties between
terrorists and the citizenship they despise; ‘intrinsically grave harm’ is said
to be inicted here, separate even from ‘the harm of statelessness’. Evidently,
more sympathy is invested on the culprits than on their victims.
Make no mistake. One should hold no illusion about populist, spin-
doctored politicians, from Britain to America, Norway to Italy, who hide
their chronic incapacity to lead in our contemporary ‘audience democracies’
behind the sable-rattling ‘security’ and ‘War on Terror’ rhetoric that the peo-
ple wish to hear.2 Macklin has a point when she nds that under the guise of
‘security’ only ‘the discretionary and arbitrary power of the executive’ is
increased. Particularly the recent experience in Britain under Tory Home
Minister Theresa May, with a rather capricious practice of citizenship strip-
ping for the loosely dened reason of being ‘conducive to the public good’,
with sometimes lethal and conspiratorially concocted consequences for the
targeted individuals, lends itself to this interpretation. And Peter Spiro is on
target that conducting the ght against terrorism on the citizenship front is
‘empty gestures’ and not likely to have much effect – though his proposal of
‘passport revocation and travel bans’ in lieu of denationalisation reads eerily
off the mark after the recent tragedy of a would-be jihadist, who had been
grounded by the Canadian government exactly in these terms, turning his
rage about the passport denial against an innocent guardsman in Ottawa.
The practical question of effectiveness is secondary to the principled
question whether citizenship for proven (naturally not just suspected or
potential) terrorists who conduct war (in the literal sense) against Western
states and their citizens should be unassailable. At heart, the issue is one of
‘loyalty and allegiance’, as the Canadian Immigration Minister, Chris
Alexander, defended the 2014 Strengthening Canadian Citizenship Act in
parliament. This act, representative of similar bills currently being consid-
ered in a number of European states, Australia, and the United States, allows
the stripping of citizenship in the cases of treason, spying, taking up arms
against the Canadian Forces, and terrorism, even if the latter is committed
outside Canada and sentenced by foreign courts, should the action in
question constitute a terrorism offence also under Canadian law. The
expanded geographic scope for terrorism, which stirred controversy, was
2 Manin, B. (1997), The Principles of Representative Government. New York:
Cambridge University Press, Chapter 6.
C. Joppke

183
clearly dictated by heightened security concerns. But it also recognises the
global nature of the new terror and its affront to the secular state and citizen-
ship at large, wherever it may occur; one might read it as a comity of nations
response to a global challenge. In any case, it is not just bizarre but self-
destructive to measure the ‘strength’ of citizenship in terrorists’ unencum-
bered possibility to make tactical use of it in their war against the godless
state and its unbelieving median citizen.
For calibrating banishment, next to taking into account the changing
nature of terror, one also needs to recognise the changing nature of citizen-
ship in a globalising world. Whoever has reected for a second on the colos-
sal injustice inicted on the vast majority of mankind by being born into the
‘wrong’ kind of state that cannot guarantee its ‘citizens’ physical safety and
the elementary means of survival3, must be irritated to see citizenship
depicted as something that an individual should never be able to lose, how-
ever randomly it had been assigned to her in the rst place, and however
much a particular individual has done to undermine or even destroy this
very citizenship (and the state that guarantees it). Audrey Macklin sees the
danger of banishment in ‘making legal citizenship contingent on perfor-
mance’. ‘Performance’ strikes me as a rather vague and anodyne term for
the behaviour in question. It is one thing to make citizenship acquisition
contingent on virtuous behaviour, which could never be exacted on born
citizens (as Britain entertained for a while in its ‘probationary’ or ‘earned’
citizenship scheme that was never implemented); it is quite another to make
a declared war against the secular state and its citizens a ground for renun-
ciation. As much as one should eschew virtuous citizenship from a liberal
perspective, one should welcome, even require the withdrawing of citizen-
ship from someone to whom it is at best a tactical weapon.
It may warm the heart to elevate citizenship to a ‘right to have rights’,
enunciated by US Supreme Court Chief Justice Earl Warren in a different
time and context (voting in foreign elections4 and desertion during World
II5, in both cases without any third-party harm inicted and at best a vague
and constructed violation of allegiance). The gospel of citizenship stripping
as ‘cruel punishment’, pronounced in Trop v. Dulles (1958), needs
reconsideration in the age of global terror. And the accompanying formula
of citizenship as a ‘right to have rights’ obscures that persons without states
3 See Shachar, A. (2009), The Birthright Lottery: Citizenship and Global
Inequality. Cambridge, Mass.: Harvard University Press.
4 Perez v. Brownell, 356 U.S. 54 (1958).
5 Trop v. Dulles, 356 U.S. 86 (1958).
Terrorists Repudiate Their Own Citizenship

184
or citizenship are no longer the ‘scum of the earth’ they may have been in
the late 1940s, when Hannah Arendt wrote the Origins of Totalitarianism.
But most importantly, the formula ‘rights to have rights’ dodges the fact that,
indeed, citizenship in a globalising world is increasingly ‘privilege’ and
‘contract’. It is a privilege if one considers the mentioned exclusion from a
lucrative OECD-state citizenship of most of mankind (that has to make do
with less than US$ 2 per day). And it is a contract by denition for the ever
growing number of immigrants who are not born with it but seek it out for
their own benet. In the post-feudal world, most states allow the possibility
to renounce one`s citizenship—this was the point of departure of ‘demo-
cratic’ America from ‘monarchical’ Britain. But then it is not outlandish (or
illiberal) to concede the converse capacity to states to rid themselves even of
born citizens who have despised or patently abused their citizenship through
their actions (and why stop at the threshold of statelessness?).
Macklin claims that banishment is ‘both superuous and anachronistic’
because states now have ‘criminal justice systems’ at their disposal to
‘rehabilitate and reintegrate wrongdoers within the state’. This claim is
misleading and paternalistic. International terrorists are not criminals but
warriors—they don’t want to be ‘reintegrated’. The liberal state should
acknowledge their claim, eye to eye, by taking away from them what they
have factually renounced and even wish to destroy. Canadian minister Chris
Alexander is right: ‘They (terrorists) will have, in effect, withdrawn their
allegiance to Canada by their very actions.’ Peter Spiro lawyerly ups the
ante by arguing that there could not be a ‘shift of loyalty’ on the part of
Islamic terrorists because ‘there is no citizenship in the Islamic State’. Does
he want to wait until they have acquired a seat in the United Nations?
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
C. Joppke

185© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_35
It’s Not About Their Citizenship,
it’s About Ours
Vesco Paskalev
The very passion and fury pouring from Christian Joppke’s contribution
should prompt both the lawyer and the political philosopher that he is wrong.
I too am outraged by what ISIS ghters are doing, but it is well known that
the function of constitutional rights, and of the constitutions themselves, is
precisely to assure that the legislator is not driven by the passion of the day.
One decade after 9/11 we know that the actions taken both by the President
and the Congress of the US, based on the rationale that it is a new world that
we have woken up into, were not all reasonable, to put it mildly. So may be
today’s rush to strip terrorist suspects of their citizenship. When watching
the daily news on TV, one is easily tempted to think that we are living in
extraordinarily dangerous times, which warrant a return to what the US
Supreme Court considered to be ‘cruel punishment’ half a century ago. Yet
as a matter of statistics, and despite our contrary impressions, violence of all
kinds in the world is actually declining.1 On the other hand, the capacity of
law enforcement agencies for surveillance and control, especially in the
OECD countries, has increased dramatically, so the return to practices which
have long been abandoned is difcult to justify. This is not to say that that
citizenship is a sacred cow and any return to abandoned practices is excluded
by some historic laws of human progress. Nothing can be further from the
truth. But it does follow that the proponents of banishment must provide a
more subtle justication than we have seen so far.
Joppke has a point when distinguishing the old school revolutionaries
from the contemporary jihadists, who conceive of themselves as members
of the global ummah, and not of any state. (Do we know that for sure? ISIS
aims to create an Islamic state after all). He also has a point that waging war
against a country is a good reason to strip the warrior of the citizenship of
that country. I can accept even stretching this argument to apply to all those
who take up arms against any allies of that country, or even to those who
1 Pinker, S. (2011), The Better Angels of our Nature. New York: Viking.

186
have taken arms against the international system of states. This would bring
me already quite close to the position of the ‘deprivationists’.
What I nd difcult to accept is the unquestioned assumption that this
gesture would serve any of the goals Joppke, and the politicians favouring
banishment, may have. If the jihadists were as cosmopolitan as he takes
them to be, deprivation would not have any meaning, neither for the actual
ghters, nor for any like-minded followers. It might be the case that taking
their passport will have the practical effect of preventing them from travel-
ling to Syria or back, but as a person who is genuinely outraged by their
deeds, I would rather see them locked up in prison rather than left at large in
a legal limbo (in the Middle East out of all places!). For Joppke the practical
side is only of secondary concern, but I am afraid his theoretical argument is
self-defeating.
Now, if we accept that the jihadists just do not care if they are deprived
of their western citizenships, let us consider whether this would still matter
for anyone else. On the one hand, there are the ‘normal’ citizens of the same
country who may wish to see the extremists publicly excommunicated. This
is a legitimate concern. However, it is in no way different from the desire of
many law-abiding citizens to see murderers and rapists sent to the electric
chair. So the usual objections to the latter punishments apply here too. More
importantly, while there is some commensurability between a murder and a
death sentence, the very gravity of the offences of the jihadists make citizen-
ship deprivation superuous. Ironically, not the cruelty of citizenship depri-
vation, but its softness make it appear quite inappropriate for the case of
terrorists. If we take into account also the practical difculties arising in the
prosecution of a foreigner, on balance it might be better to keep him as a citi-
zen. On the other hand, the possibility or impossibility of revocation denes
and redenes the meaning of the concept of citizenship itself – of our citi-
zenship, not of theirs. That is why many academics, whose professional duty
is to care for precisely such nuance, are so uneasy about the recent trend. I
would be glad if this concern remains conned to the ivory towers of the
academia, but I suspect that the conditionality of citizenship is more than a
theoretical concern for those citizens who are not white, Anglo-Saxon and
Christian and have only recently arrived from the wrong side of the OECD
border.
One may argue, as Peter Schuck does, for deprivation administered under
narrowly circumscribed conditions. Indeed, due process can alleviate some
of the anxieties the conditionality of citizenship would create, but he does
not provide much of a justication for this conditionality in the rst place.
He also relies on the intuitive, yet questionable assumption that citizenship
V. P a s k al e v

187
deprivation serves to protect the state and its people. But all grounds for
deprivation he suggests already constitute a serious crime, and if the
perpetrator must be convicted to be denationalised as he suggests, then
again, what difference would it make if those imprisoned for a very long
time remain citizens or not? If deprivation were administered properly – for
grave crimes and with due process, it becomes redundant.
Beyond these conceptual concerns, and paying due consideration to the
all too present terrorist threats, I want the Islamic State bombed out of exis-
tence, and I want all jihadists punished for what they do. But as a citizen I
also want my tax money spent on police to put the bad apples in jail, not on
border patrols to keep them out.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
It’s Not About Their Citizenship, it’s About Ours

189© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_36
You Can’t Lose What You Haven’t Got:
Citizenship Acquisition and Loss in Africa
Bronwen Manby
The heading for this discussion makes a person focused on sub-Saharan
Africa scratch her head somewhat. Which ‘new’ denationalisation policies
are we talking about? In Africa, we have continued to see the same old dena-
tionalisation policies that have been in place since the 1960s. The context of
national security has changed in some countries, especially the threat of 21st
century terrorism methods in places such as Kenya or Nigeria, but the meth-
ods used by the governments in response have not changed.
The legal provisions
If we start from a survey of the laws, most African countries allow for depri-
vation of nationality acquired by naturalisation, some of them on quite
vague and arbitrary grounds. The former British colonies borrow language
from the British precedents and provide for deprivation on the grounds of
‘disloyalty’ or the ‘public good’; while the francophone countries talk about
behaviour ‘incompatible with the status of a national’ or ‘prejudicial to the
interests of the country’. However, more than half of Africa’s 54 states for-
bid deprivation of nationality from a national from birth (of origin, in the
This text was written in November 2014 and reects events current at that time.
Some important later developments are not reected, including, most importantly,
the readmission of Morocco to the African Union in January 2017 and the decision
of the African Court on Human and Peoples’ Rights in the Anudo case against
Tanzania issued in March 2018.
The original version of this chapter was revised. A correction to this chapter is
available at https://doi.org/10.1007/978-3-319-92719-0_62

190
civil law terminology), whether or not the person would become stateless.1
And although a large number of the remaining countries have a provision
framed along the lines provided in the 1961 Convention on the Reduction of
Statelessness for a person who works for a foreign state in deance of an
express prohibition to lose their nationality,2 only a small handful provide
for deprivation of a birthright citizen in case of a crime against the state –
Egypt, Eritrea and Mali.3
None of the sub-Saharan countries come close to the extremes of Egypt,
where citizenship can be deprived from anyone (whether a citizen from birth
or by naturalisation) if, among other things, ‘at any time he has been qualied
as Zionist’.4
On the positive side, the South African and Ethiopian constitutions pro-
vide blanket prohibitions on deprivation of nationality, whether from birth
or naturalised (though South Africa then goes on to violate this prohibition
in its legislation).5 Several constitutions and laws create serious due process
hurdles for governments seeking to revoke citizenship. In Kenya for exam-
ple, the 2010 constitution requires a naturalised citizen (citizenship by birth
cannot be revoked) to have been actually convicted of a serious crime,
including treason;6 less specically, Burundi, Malawi, and Rwanda have
1 Botswana, Burkina Faso, Burundi, Chad, Comoros, Ethiopia, Gabon, Gambia,
Ghana, Kenya, Lesotho, Libya, Mauritius, Namibia, Nigeria, Rwanda,
Seychelles, Somalia, South Africa, Swaziland, Tanzania, Uganda, Zambia and
Zimbabwe. In the case of Botswana, Ethiopia, Libya, Tanzania and Zambia,
dual nationality is not permitted, and voluntary acquisition of another national-
ity results in automatic loss. Lists from Manby, B. (2010), Citizenship Laws in
Africa: A Comparative Study. Open Society Foundations, 2nd edition; updated
information for a forthcoming 3rd edition. On the number of states in Africa:
Morocco is not a member of the African Union, while the Sahrawi Arab
Democratic Republic is: if both are counted, there are 55 states.
2 Angola, Cameroon, CAR, Congo Republic, Côte d’Ivoire, Djibouti, Egypt,
Equatorial Guinea, Eritrea, Guinea, Guinea Bissau, Liberia, Madagascar,
Morocco, Mozambique, Sao Tomé & Príncipe, South Sudan, Sudan, Togo and
Tunisia.
3 Egypt Law No. 26 of 1975 Concerning Egyptian Nationality, Article 16(7);
Eritrea Nationality Proclamation 1992 Article 8; Mali Nationality Code 1962,
Article 43 (amended 1995).
4 Law No. 26 of 1975 Concerning Egyptian Nationality, Article 16(7), transla-
tion from UNHCR website, http://www.refworld.org/docid/3ae6b4e218.html.
Libya had similar rules until they were changed in 2010.
5 South Africa Constitution 1996, Article 20; Ethiopia Constitution 1993, Article
33.
6 Kenya Constitution, 2010, Section 17.
B. Manby

191
constitutional provisions forbidding arbitrary deprivation of nationality.7
Meanwhile, Gambia, Ghana, Liberia and Rwanda all provide that depriva-
tion can only be done by a court, on the government’s application;8 and a
majority, though not all, others provide for judicial review of administrative
decisions to deprive.9 A few countries provide for protection against
statelessness in deprivation cases: just Lesotho, Mauritius, and Zimbabwe
(since 2013) provide in principle for protection from statelessness in all
cases where nationality is revoked by act of the government; and Namibia,
Rwanda, Senegal and South Africa provide partial protection, allowing
statelessness to result in some circumstances.10
On the negative side, Botswana, Lesotho, Malawi, Mauritius, Seychelles,
Tanzania, Zambia and Zimbabwe — notably, all with a British legal inheri-
tance — explicitly state in their legislation that the decision of the minister
on any matter under the nationality law cannot be reviewed in court.11 These
are all countries which do not allow for deprivation of birthright citizenship
(though some provide for loss in case of acquisition of another nationality);
but it’s questionable what the protection against statelessness in deprivation
7 Burundi Constitution 2005, Article 34; Malawi Constitution 1994 (as amended
to 1998), Article 47 ; Rwanda Constitution 2003, Article 7.
8 Gambia Constitution 1996, article 13; Ghana Constitution 1992 Article 9,
Citizenship Act 2000, Article 18; Liberia Aliens and Nationality Law 1973,
Articles 21.53; Rwanda Nationality Law No.30 of 2008, Article 20.
9 Most of the civil law countries provide quite detailed procedures for national-
ity litigation through the courts; the Commonwealth countries tend to have
weaker protections, and do not have the same tradition of providing procedures
in the substantive law itself, but South Africa for example, provides for all
decisions of the minister to be reviewable by the courts, as do Gambia and
Kenya.
10 Lesotho Constitution 1993, as amended to 2001, Article 42 (however, this
provision is not respected in the Citizenship Order 1971 Article 23); Mauritius
Citizenship Act 1968, as amended to 1995, Article 11(3)(b); Namibia
Constitution 1990, as amended to 2010, Article 9(4); Rwanda Nationality Law
2003, Article 19; Senegal Nationality Code 1961 as amended 2013, Article 21;
South African Citizenship Act 1996, as amended 2013, Article 8; Zimbabwe
Constitution 2013, Article 39(3) (but this is not respected in the Citizenship
Act, 1984, as amended to 2003, Article 11(3), which provides in principle
prohibition of rendering a person stateless, but allows the minister to override
if it is in the ‘public good’ to do so).
11 Botswana Citizenship Act 1998, Article 22; Lesotho Citizenship Order 1971,
Article 26; Malawi Citizenship Act 1966, Article 29; Mauritius Citizenship Act
1968 Article 17; Seychelles Citizenship Act 1994, Article 14; Tanzania
Citizenship Act 1995 23; Zambia Citizenship Act Article 9; Zimbabwe
Citizenship Act 1984 Article 16.
You Can’t Lose What You Haven’t Got: Citizenship Acquisition and Loss…

192
cases provided by Mauritius means, if the decision of the minister cannot be
challenged. In Swaziland, where a certicate of nationality ‘shall’ be issued
by the minister to a person who is qualied to be a citizen, it is also provided
that the minister ‘may revoke’ a certicate and no grounds are specied.12
Namibia allows deprivation of nationality on the grounds that a person was
already deprived in another country, increasing the likelihood of rendering
them stateless.13
In 2013, the Seychelles inserted a new article to its citizenship law
expanding the grounds for deprivation of citizenship if the minister ‘is
satised’ that the person has been involved in terrorism, piracy, drug oences,
treason, and other oences, or has acted with disloyalty.14 In 2010, the South
African Citizenship Act was amended to provide for automatic loss of citi-
zenship by a naturalised citizen ‘if he or she engages, under the ag of another
country, in a war that the Republic does not support’, leaving lawyers won-
dering how you would know whether or not the Republic ‘supported’ a par-
ticular war (and would it matter which side the person was on?).15
The practice
But this review of deprivation provisions has a slightly unreal feel. These
procedures are hardly used, so far as one can tell. Only South Africa pub-
lishes any statistics – or at least it used to do so – revealing that at least 17
people have been deprived of citizenship since 2001-02 (despite the consti-
tutional ban on deprivation), though no details are given. Countries such as
Kenya and Nigeria, both facing well-publicised and serious security threats
from the Al-Qaeda-aliated Al-Shabaab and Boko Haram are not known to
have deprived any individual of citizenship through the formal procedures
of the law on deprivation.16
12 Swaziland Citizenship and Immigration Act 1992, Article 20.
13 Namibia Citizenship Act 1990, Article 9(3)(e).
14 Section 11A of the Citizenship Act, No. 18 of 1994, inserted by Act 11 of
2013.
15 South African Citizenship Act 1996, as amended 2013, Article 6(3). This
amendment came into force on 1 January 2013. The 1996 Constitution
provides in Article 20 that ‘No citizen may be deprived of citizenship.’ It is
possible that the phrasing of the revised Article 6(3) is designed to avoid this
prohibition by providing for automatic loss. See further Submission on the
South African Citizenship Amendment Bill, B 17 – 2010, Citizenship Rights in
Africa Initiative, 6 August 2010.
16 Email correspondence, November 2014, with Chidi Odinkalu of the Nigeria
National Human Rights Commission and Adam Hussein Adam of the Open
Society Initiative for East Africa, both following these issues closely.
B. Manby

193
The legal provisions on deprivation of citizenship are, in fact, more or
less irrelevant in countries where (a) as described above, citizens from birth
cannot be deprived of citizenship under law except in the rather rare circum-
stance of working for another state despite a formal request not to do so; (b)
naturalisation is very dicult to obtain; and (c) the government has easily
accessible other means of achieving the same result in relation to (people
who believed they were) birthright citizens, obviating any need to amend
the law on withdrawal of nationality.
As regards (b), statistics on naturalisation are hard to come by, but it seems
that only a handful of people a year may be naturalised in most countries –
even in Nigeria, with more than 150 million people, only around a hundred
people acquire nationality by naturalisation or marriage annually – and those
who are naturalised are mostly non-Africans operating in the formal economy,
with all the panoply of lawyers and documents to support their claim.17 So few
people are involved, and the procedures for obtaining naturalisation are so
highly discretionary, that it seems unlikely that anyone who has the slightest
possibility of becoming a threat to the security of the state could pass that bar-
rier – and therefore be at risk of subsequent deprivation. It’s not impossible of
course; but very unlikely. South Africa has had much more accessible natu-
ralisation procedures, rendering it perhaps more vulnerable in this regard; but
the numbers have dropped dramatically in recent years, without explanation.
Therefore, (c) comes into play. The methods traditionally used in Africa
to ‘denationalise’ a person are simply to deny that he or she ever had nation-
ality to start o with; to argue that the nationality documentation previously
held was issued in error, or to fail to issue or renew a document providing
proof of nationality (not even requiring an allegation of fraud). The key
amendments to nationality laws in Africa have not been to increase govern-
ment powers to deprive, but to restrict access to nationality based on birth
and residence and to exploit any ambiguity in the rules applied on succes-
sion of states at independence.18 These are the methods used against some
high prole individuals: Kenneth Kaunda of Zambia and Alassane Ouattara
of Côte d’Ivoire most famously; but also John Modise of Botswana, who
found himself no longer considered a national by birth when he set up a
political party in order to run for president. These cases reached the African
Commission on Human and Peoples’ Rights, but there are many others liti-
gated only at national level involving politicians, journalists or activists.
17 Manby, B. (2015), Nationality, Migration and Statelessness in West Africa.
Dakar: UNHCR and IOM.
18 Manby, B. (2014), ‘Trends in citizenship law and politics in Africa since the
colonial era’, in E. F. Isin & P. Nyers (eds.), Routledge Handbook of Global
Citizenship Studies, 172–185. Oxon; New York: Routledge.
You Can’t Lose What You Haven’t Got: Citizenship Acquisition and Loss…

194
UNHCR’s clear guidance is that a retrospective nding that a person was
not a national and was issued nationality documents in error is just as subject
to rules on arbitrariness as any procedure under formal provisions on depri-
vation.19 However, under national law, why bother with deprivation
proceedings if you can manage matters so much more easily by other meth-
ods? And this applies especially when whole categories of people are seen
as problematic, or potentially so.
It is, in fact, not the individual dicult cases that raise the greatest con-
cerns in the African context, but the tendency to attribute collective respon-
sibility to whole groups of citizens when a country is faced with a (real or
perceived) security threat – or simply an organised opposition with support
from a particular ethnic group. Faced with the challenges of ‘nation- building’
in states created by colonial at, the question of who belongs is not necessar-
ily an obvious one to answer. African states have a history of mass expulsions
based on ethnic grounds – there is even a style of bag known in Nigeria as a
‘Ghana Must Go’ bag, dating to one such episode in the 1980s when (actual
or alleged) Ghanaians had to pack up and leave – and it remains the case that
the usual approach is to assert that someone is a non-national, and then expel
them.20 The prevalence of such practices led to the inclusion of a specic
provision banning mass expulsions, not found among similar treaties, in the
African Charter on Human and Peoples’ Rights.21 Even where those who
have been expelled fail to nd recognition in their alleged country of origin,
they may be unable to reclaim their status in the former country of residence:
among those persons of Eritrean origin who were expelled by Ethiopia to
Eritrea during the 1998 war between the two countries, a number subse-
quently became refugees from the highly repressive Eritrean regime. Even in
their case, when some applied for reacquisition of Ethiopian nationality, they
were reportedly told that they were security risks, so could not get papers.22
In Kenya, discriminatory measures in relation to documentation and
identity have been sharply stepped up against Kenyan Somalis and coastal
Muslims, tarred with the brush of the Westgate Mall siege and other out-
19 Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding
Statelessness resulting from Loss and Deprivation of Nationality (‘Tunis
Conclusions’), UNHCR, March 2014, especially paragraph 9.
20 See Manby, B. (2009), Struggles for Citizenship in Africa. London: Zed Books,
Chapter 4.
21 Article 12(5) of the African Charter.
22 ‘Ethiopians in Limbo: from statelessness to being a refugee in one’s own
country’, ECADF Ethiopian News and Views, 14 February 2014, available at
https://ecadforum.com/2014/02/14/
ethiopians-in-limbo-from-statelessness-to-being-a-refugee-in-ones-own-country/
B. Manby

195
rages. In addition to a general round up and detention of suspected youth,
the issuance of national ID cards has been suspended in the three counties
that are located in the former North Eastern Province bordering Somalia
(Garissa, Wajir and Mandera Counties, created by the 2010 Constitution),
meaning that those without IDs cannot travel out of that zone, and eec-
tively lose the reality of citizenship rights – without the need for the govern-
ment to undertake any bothersome legal proceedings.23 In Nigeria, the
peculiar features of the country’s federal system have led to the possibility
of ‘denationalisation’ from a particular part of the country, even though such
measures haven’t been taken at national level. In the context of the threat
from Boko Haram, governors of states in the south-east of the country in
2014 stepped up long-standing discrimination based on the idea of ‘indige-
neity’ to adopt controversial measures to register and possibly deport ‘non-
indigenes’, leading to an emergency meeting of the National Council of
State in July 2014 to condemn these practices (but no action beyond estab-
lishing a committee to make recommendations).24 Ghana’s consul-general
in Nigeria indeed recently blamed the Boko Haram insurgency on ‘stateless
people’ excluded from the benets of citizenship, and urged eorts to
strengthen documentation across the sub-region.25
There are the beginnings of recognition that stronger guarantees around
the right to a nationality may be part of the solution to some of the security
challenges in the continent. The African Commission on Human and Peoples’
Rights is working with the AU Commission in Addis Ababa to draft a proto-
col to the African Charter on the right to a nationality.26 The African
Committee of Experts on the Rights and Welfare of the Child recently
adopted a General Comment on the rights of children to a name, birth regis-
tration and a nationality.27 In parallel, there is a major push to improve docu-
23 Email communication, Adam Hussein Adam, OSIEA, November 2014.
24 ‘Council of State moves to stop citizens’ registration, deportation’, The Citizen,
1 August 2014, available at https://thecitizenng.com/council-of-state-moves-to-
%E2%80%8Estop-citizens-registration-deportation/. On the history of discrim-
ination in relation to nationality in Kenya, see Manby, B. (2009), above n. 20,
Chapter 6; on Nigeria and ‘indigeneity’, see Chapter 5.
25 ‘Envoy Blames Insecurity in Nigeria, Others on Stateless People’, Premium
Times, 29 April 2014, available at https://www.premiumtimesng.com/
news/159587-envoy-blames-insecurity-nigeria-others-stateless-people.html
26 See ACHPR Resolution 234 on the Right to Nationality, 53rd Ordinary
Session, 9-23 April 2013, Banjul, The Gambia; Resolution 277 on the drafting
of a Protocol to the African Charter on Human and Peoples’ Rights on the
Right to Nationality in Africa, 55th Ordinary Session, 28 April to 12 May
2014, Luanda, Angola.
27 Available at the Committee of Experts website: http://acerwc.org/the-commit-
tees-work/general-comments/
You Can’t Lose What You Haven’t Got: Citizenship Acquisition and Loss…

196
mentation through the initiation or strengthening of requirements to hold a
national identity card, for civil registration in general, and for the use of
biometric data in these documents. But this push on information technology
carries signicant risks that governments will seek only to police the bound-
aries of their systems, excluding anyone of ‘doubtful’ nationality, while fail-
ing to reform legal provisions and administrative practices that restrict access
to nationality for those who constitute no security threat at all. To date, the
international agencies responsible on these issues — especially UNHCR,
UNICEF and IOM — are also failing to join up the dots with a coherent
approach on nationality and documentation in their interventions with
national governments. Given the very real security threats they face, it
remains an open question whether governments such as Nigeria’s and
Kenya’s will commit to more secure rights to citizenship, rather than only
more secure documentation.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
B. Manby

197© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_37
Revocation of Citizenship of Terrorists:
A Matter of Political Expediency
Kay Hailbronner
Let’s be clear: We are not in a dispute about the use of denationalisation
policies to get rid of unwanted citizens who do not comply with a code of
conduct how to behave as a ‘good’ or ‘loyal’ citizen. Nor are we talking
about deprivation or revocation of citizenship on account of race, political
opinion, religion, descent etc. There are clear rules of public international
law prohibiting discriminatory citizenship policies and none of the policies
discussed here call these into question. What we are discussing is the differ-
ent and by no means absolutely novel issue of revoking the citizenship of
persons who have given up or are irrefutably considered as having renounced
that basic attachment which distinguishes citizenship from a residence per-
mit. A recent report of de Groot and Vink for the European Commission1
lists voluntary military service and non-military public service in nine, and
eight EU countries respectively as a ground for revocation of citizenship,
subject of course to some restrictions (prevention of statelessness) and
exceptions.
In around half of the 28 countries included in the study, seriously preju-
dicial behaviour is considered as a ground for revocation of citizenship. The
European Convention on Nationality of 6 November 1997 provides for
revocation of citizenship for conduct seriously prejudicial to the vital inter-
ests of the State party (Art.7 para 1 lit.d). Very similar provisions on revoca-
tion are laid down in Art. 8 para 3 of the Convention on the Reduction of
Statelessness of 1961.
What is new is the inclusion of a specic type of seriously prejudicial
behaviour which is considered as endangering the safety of the population
of a state and its security into this catalogue. The actors are not totalitarian
or authoritarian regimes but democratic states with well-established
1 de Groot, G.-R. & M. P. Vink (2015), A Comparative Analysis of Regulations
on Involuntary Loss of Nationality in the European Union. Brussels: CEPS,
available at https://www.ceps.eu/publications/
comparative-analysis-regulations-involuntary-loss-nationality-european-union

198
institutions to protect human rights and to ensure the rule of law. Not that the
democratic character of the states in question would dispense us from closely
watching the transfer and exercise of powers to the executive branch, par-
ticularly in such a rights-sensitive area as denationalisation policies.
Safeguards against arbitrary actions and abuse of power, conditions and pro-
cedures must be predominant on the watch list, as Peter Schuck rightly
emphasizes. But why should revocation of citizenship of terrorists result
inevitably in arbitrary and abusive exercise of power, as Audrey Macklin
assumes?
What makes international terrorism so distinctive is not only its criminal
and administrative relevance, but also its relevance for discontinuance of
that special relationship established by citizenship. In order to answer this
question it is not sufcient to conjure up emphatically the uniqueness of the
ties between a citizen and a state. It is true that citizenship establishes a spe-
cial relationship based upon security and stability. Security and stability on
the side of the individual citizen require that denationalisation remains a rare
exception. Citizenship implies rights, whether it is designated as a privilege,
as a right to have rights or as a contract. For that reason deprivation of citi-
zenship requires an overriding public interest and is subject to
proportionality.
Ordinary crimes, even of a serious nature, have not been considered as
sufcient under Art. 7 of the European Convention to destroy the bond of
citizenship. Yet, fundamental and persistent alienation from the nation as a
political community has – in spite of divergent interpretations and applica-
tions – frequently been considered as a justication for revocation of citi-
zenship. Democratic states in the defence of their constitutional order and
protection of the safety of their population and the security of the state are
not restricted to a regime of criminal and administrative sanctions if their
own nationals turn against them.
Legal comparison shows that there is no uniformity. States, according to
their particular political conditions, and history that is sometimes reected
in constitutional provisions, have largely prohibited involuntary revocation
of citizenship. Germany is one example, though it provides for loss of citi-
zenship for voluntary service in foreign military services or in case of vol-
untary acquisition of a foreign citizenship. Other states, like Britain, have
applied the concept to high treason, espionage, etc. International treaties,
like the European Convention on Nationality of 1997 or the Convention on
the Reduction of Statelessness provide further barriers. States may not pro-
vide for the loss of nationality if the person concerned would become state-
less (except in case of fraud). One could discuss what this means if a state’s
K. Hailbronner

199
national joins a group or organisation, such as the ‘Islamic State’, which is
dominating a state-like territory and exercises state-like authority.
Discussion of the international and constitutional law prerequisites of
revocation of citizenship is not the concern of Audrey Macklin. She argues
primarily with illegitimacy. As a lawyer I have some difculty with this
term. If it is not illegal, what are the criteria for illegitimacy or immorality?
Her personal idea of how democratic states should behave? That of course
may be an acceptable political reasoning, provided I learn more about its
ideological premises which I may share or not. I do understand Peter Spiro’s
objection about the revocation of citizenship as a ‘security theatre’ although
I feel not condent on the basis of the facts to judge whether it is true that
revocation of citizenship for international terrorists is impractical and irrel-
evant. The arguments of illegitimacy, in my view are hardly convincing.
Assuming that revocation of citizenship is a (prohibited) form of punish-
ment simply ignores the legal nature of revocation of citizenship. It is not
destined to sanction acts of international terrorism, in addition to a potential
criminal or administrative sanction. By untying the bond of citizenship, the
former citizen can no longer rely upon his/her citizenship for unlimited
entry and residence and free international travel. The further argument that
there is no chance of rehabilitation is based on the same misunderstanding
of revocation of citizenship as a special form of punishment. Citizenship of
such persons is revoked because they have given up their attachment to a
community by attacking the very fundament of that community, not by
merely violating its internal rules of public order. To talk in this context of
an inalienable right of rehabilitation, distorts the purpose of citizenship
revocation.
The hard questions arise with the formulation of a precise and judicially
reviewable provision authorising the executive to revoke citizenship.
International terrorism as such is a term open to divergent interpretations.
We do, however, have quite some experience, based upon the jurisprudence
of national and international courts and Security Council Resolutions, in
dening international terrorism. In order to be effective, a provision must
include such actions as joining extremist organisations for training in order
to use such training for participation in terrorist activities, as well as a mem-
bership in an organisation destined to ght against the state whose citizen-
ship the person concerned possesses.
A further question is whether the introduction of a new provision on
revocation of citizenship serves a useful purpose. Utility cannot be denied
by reference to criminal law. It goes without saying that acts of international
terrorism should be punished and that administrative action should, where
Revocation of Citizenship of Terrorists: A Matter of Political Expediency

200
possible, be taken to limit the use of passports for international travel for the
purpose of preparing or assisting international terrorism – the technical and
cynical use of citizenship rights, as Peter Schuck has phrased it. Criminal
and administrative sanctions are always attached to specic activities. They
do not cover the aspect of using citizenship in a general and in principle
unforeseeable manner for acts destined to endanger the security of the state
of which the perpetrators are citizens.
The cosmopolitan nature of this type of terrorism, as Christian Joppke
has aptly described it, is misunderstood by Vesco Paskalev when he argues
that the jihadists do not care about their citizenship. They might indeed not
care about their attachment to the state whose citizenship they posses but
they do care about the possibilities that a Canadian, US, British or German
passport conveys with visa-free international travel, free entry and residence
in their ‘home’ country and diplomatic protection if something does not go
quite as smoothly as expected.
Revocation of citizenship means a substantial interference with individ-
ual rights. It can only be justied if tightly dened material conditions in
accordance with the constitutional law of each country and its international
commitments are fullled. Risk assessment and proof of an afliation, assis-
tance or membership in an international terrorist organisation will be essen-
tial elements in this procedure. Whether there is a practical value in
revocation of citizenship for citizens engaged in international terrorism in
addition to criminal and administrative sanctions is within the framework of
law a matter of political expediency which may well lead to different results
in different countries.
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Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
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https://doi.org/10.1007/978-3-319-92719-0_38
Whose Bad Guys Are Terrorists?
Rainer Bauböck
Peter Schuck, Christian Joppke and Kay Hailbronner have provided strong
arguments why liberal democracies should have the power to strip terrorist
suspects of their citizenship. As good lawyers, Schuck and Hailbronner add
that such power must be exercised with restraint and hedged in by the rule
of law.
Everybody in this debate agrees that terrorists ought to be punished.
Most would also agree that liberal states need exceptional powers in order to
prevent terrorism and that this justies some constraints on freedom of
speech and association, for example by making incitement to terrorist vio-
lence or joining a terrorist organisation punishable crimes.
Terrorists commit particularly evil crimes. Yet denationalisation does not
look like punishment for these crimes. First, it is normally based on execu-
tive order rather than court judgment. Second, it does not meet the standard
purposes for criminal punishment. It cannot be justied as retribution, since
it is not proportionate to the monstrosity of the crime. It does not promote
rehabilitation, since the effect is to remove the criminal from the jurisdic-
tion. And it is not effective in deterring or preventing terrorist crimes, since –
as Vesco Paskalev has argued – global jihadists hardly care about losing
citizenship status in a Western democracy that they detest.
Hailbronner points out that terrorists care about losing their right to
travel, but restricting their freedom to move can also be achieved by other
means, e.g. by invalidating their passports without denationalising them.
Banishing jihadists to exactly those states where they want to go anyway to
commit their atrocities can hardly count as an effective strategy against
global terrorism. As a political scientist I suspect that governments have
other motives apart from policy effectiveness when they seek denationalisa-
tion powers. They do not only want to do something against terrorism, they
also want to be seen by voters as doing something. Stripping terrorist sus-
pects of their citizenship is a strongly visible policy and for that reason pos-
sibly also a strongly symbolic one, as suggested by Peter Spiro.

202
This is not yet a conclusive refutation, since on some views it is exactly
the symbolic nature of the sanction that justies the denationalisation of ter-
rorists. This argument starts from the assertion that liberal democracies are
value-based political communities. Their basic values include freedom of
conscience and religious practice, of speech and association and democratic
self-government. Since these states are liberal, they cannot force their citi-
zens to share their basic values. These are instead enshrined in their consti-
tutions and their political institutions are designed to protect these values.
Terrorists do not merely reject liberal values, they act to destroy the very
institutions that protect these values. So why should liberal states not take
away citizenship from those who attack the very foundations of liberal citi-
zenship? Wouldn’t this serve to defend these states’ core values?
The answer is that the norms guiding the acquisition and loss of citizen-
ship status have little to do with either the promotion or the defence of lib-
eral values. In all states, including liberal ones, citizenship is acquired
automatically at birth and normally retained over a whole life. Native citi-
zens are never asked to show their commitment to liberal values as a condi-
tion for retaining their citizenship, nor are they stripped of their status when
they commit crimes. Serious criminals are locked up in prison and thereby
stripped of many citizenship rights, most importantly that of free movement.
In some countries they also lose – and in my view much more question-
ably – voting rights. But they do not lose their citizenship status. Citizenship
in our world has an extremely sticky quality. It does not have an expiry date,
it can be passed on to subsequent generations and it can be carried abroad
and increasingly also exercised from outside the state territory.
Yet many liberal states have introduced citizenship tests or naturalisation
oaths in which immigrants are asked to afrm their commitment to the pol-
ity and its constitution.1 Doesn’t this show that acquisition of citizenship
status and therefore also its loss may depend on a commitment to liberal
values? No, it doesn’t. Leaving aside the tricky question whether such com-
mitments can be tested by lling in a questionnaire or taking an oath, natu-
ralisation integrates newcomers into a political community that is based on
birthright membership and equal citizenship. No matter how they have been
selected and how they have acquired their citizenship, all citizens have equal
1 See: Bauböck, R. & Joppke, C. (eds.) (2010), ‘How Liberal are Citizenship
Tests?’, Robert Schuman Centre for Advanced Studies-EUDO Citizenship
Observatory Working Paper N. 2010/41. Florence: European University
Institute, available at: http://cadmus.eui.eu/handle/1814/13956.
R. Bauböck

203
membership status and those who have got it through naturalisation can
retain it in the same way as if they had got it by birth.
This statement needs two minor qualications. First, if citizenship has
been acquired unlawfully, for example through concealing a criminal record,
then it may be withdrawn. This reasoning cannot be applied to citizens who
assert their commitment to a liberal constitution in a citizenship test or loy-
alty oath that they subsequently violate. Because liberal states cannot force
ordinary citizens to support their core values, they also cannot claim that
citizenship status has been acquired unlawfully if a naturalisation applicant
was not sincere when swearing loyalty or was sincere and subsequently
changed his views.
Second, the norm of equal treatment of native and naturalised citizens is
not accepted by all liberal states – as we all know, the American President
must be a native citizen. It is, however, enshrined in Art. 5 of the 1997
European Convention on Nationality and it is not difcult to see why unequal
treatment of citizens based on their circumstances of birth is discriminatory
and undermines the core value of equality. Faced with terrorism that is now
no longer just imported but also home-grown, Western governments may
anyhow be reluctant to limit the application of their denationalisation pow-
ers to naturalised immigrants.
There are two closely connected reasons why citizenship status is sticky
and why it should not be taken away even for acts that attack the foundations
of the polity. The rst reason has to do with the function of nationality in the
international state system. Citizenship is a mechanism for assigning respon-
sibility for individuals to states. In its 1955 Nottebohm judgment the
International Court of Justice asserted that citizenship should be based on a
genuine connection in order to prevent states from abusively bestowing
their citizenship on individuals residing abroad who want to escape a legal
duty towards their host country. The same genuine link argument has been
invoked by the European Parliament and Commission against Malta in
January 2014 as an objection against the sale of EU citizenship to wealthy
foreigners without a residence requirement.2 If states can abuse their powers
to confer citizenship by naturalising foreigners who lack a genuine
2 See the press release of EU Justice Commissioner Vivian Reding ‘Citizenship
must not be for sale’ (15 January 2014), available at http://europa.eu/rapid/
press-release_SPEECH-14-18_fr.htm, the ‘European Parliament resolution of
16 January 2014 on EU Citizenship for Sale’, available at http://www.europarl.
europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-
0038+0+DOC+XML+V0//EN and Part I of this volume.
Whose Bad Guys Are Terrorists?

204
connection, they can also do so by denationalising their citizens in order to
shift responsibility for them to another state. This is exactly what happens
when Western countries deprive terrorist suspects of their citizenship. As
Audrey Macklin has already explained, the effects can be particularly per-
verse for dual citizens. Since deprivation does not make them stateless, each
of the two states involved has an incentive to act rst so that the other state
becomes responsible.
International law can thus not provide a full answer to our question. We
must also consider what depriving terrorist suspects does to the citizenship
bond as an internal relation between an individual and a state. Joppke points
out that Germany did not expatriate the left wing terrorists of the Red Army
Faction. They wanted to transform the German state whereas the global
jihadists de facto renounce their membership by afliating themselves with
an Islamic pseudo-state. But the RAF was certainly as effective in shaking
the foundations of a liberal Rechtsstaat by triggering illiberal responses as
was Al Qaeda when it fell the twin towers in New York – and much more so
than IS, which primarily wants to scare Western powers out of Iraq and
Syria. In any case, the question here is not whether Ulrike Meinhof and
Andreas Baader had a moral claim to German citizenship that jihadist terror-
ist suspects do not have. The question is whether Western democracies can
shed responsibility for their home-grown citizen terrorists and shoulder it
upon other states. This is what the new denationalisation policies are about.
Imagine for a moment that after 1945 Germany or Austria had posthu-
mously denationalised Adolf Hitler. Would this symbolic act have strength-
ened their post-war liberal orders by demonstrating their abhorrence of
Hitler’s destruction of their liberal constitutions and his genocidal elimina-
tion of Jews and Roma from the political community? The answer is clearly
no, because Hitler’s denationalisation would have entailed a denial of
responsibility for his crimes and their consequences and would thus have
achieved the very opposite of the intended defence of liberal values.
Moreover, if either Germany or Austria had taken such a decision, it would
have signalled that they merely wanted to pass on the buck to the other state.
Recognising that Hitler was ‘our bad guy’ was therefore crucial for building
a liberal democratic consensus in both countries and good relations with
other states that were the victims of Nazi aggression.
Why should this be different today with the jihadist terrorists? Joppke’s
answer involves an attempt to distinguish domestic from global terrorists.
This may be often difcult, since Hitler turned out to be a global terrorist
too. But the crucial point is that citizenship is by its very nature a domestic
relation between an individual and a state. By cutting the bond, states deny
R. Bauböck

205
their responsibility, including that towards the rest of the world upon whom
they inict the terrorist threat.
If denationalisation were a necessary and effective tool to prevent terror-
ism, it might be justiable on such utilitarian grounds. But as a symbolic
defence of the liberal values that terrorists attack it is entirely
unconvincing.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Whose Bad Guys Are Terrorists?

207© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_39
Human Rights for All Is Better than
Citizenship Rights for Some
Daniel Kanstroom
This is an exceptionally rich and challenging discussion in which I am hon-
oured to participate, though space limitations will inspire brevity. Audrey
Macklin’s essay reaches two major conclusions with which I heartily agree:
1. Citizenship-stripping weakens the concept of citizenship;
2. Itisofhighly-questionableefcacyandlegitimacyaspunishment;1
Despite my deep agreement with Macklin about the dangers of denationali-
sation trends in the UK, Canada, and elsewhere, I am not convinced that she
has chosen the best way to counter them. In brief, I fear that Macklin may
have missed some of the forest for the trees.
My view of the forest is this: Denationalisation should be situated against
a broader backdrop in which pervasive rights deprivations against nonciti-
zens – and even such extraterritorial rights deprivations against citizens as
drone strikes – are central components. Macklin points us in this direction
when she distinguishes the aspirational safe harbour of citizenship from a
functional methodology:
But my point is not to propose a metric capable of measuring the quantitative,
qualitative,experiential,emotional,personal,familial,cultural,social,nan-
cial, linguistic and political impacts of exile on any individual, in order that
some state ofcial could determine precisely when citizenship revocation
inictsanappropriateversusexcessivedegreeofpunishment.
I fully support Macklin’s desire to enhance ‘the security that distinguishes
legal citizenship.’ I worry, though, about what certain approaches to such
securitymightmeanfor‘otherstatusesthatdenetherelationshipbetween
state and individual.’ The challenge is to protect citizenship rights without
relegating those ‘other statuses’ unduly tenuous and marginal.
1 Though I agree with Kay Hailbronner that legitimacy is an elusive concept in
needoffurtherdenition.Ibelievethatonecandothisrelativelyeasilyinthis
context.

208
Put simply, I suggest that the best way to do this is less (formally) citi-
zenship–centred and more (functionally) rights-centred. By ‘rights-centred,’
I mean, essentially, a critical examination of state practices (including the
government’sintentionsandjustications,andthepractices’mechanisms,
and effects) measured against the norms of a fully-developed human rights
protection system.2Morespecically,theimportantlegalandpolicyques-
tions raised by Macklin may be best answered by viewing denationalisation
along a continuum of state practices that use citizenship status and territorial
formalism to achieve policy goals with weakened (and in some cases no)
rule of law encumbrances. This is one of the great human rights legal chal-
lenges of our times. It must be engaged fully – in all of its manifestations –
in order to be properly understood and effectively engaged.
Macklin rightly notes that, ‘…citizenship revocation is best understood
as a technique for extending the functionality of immigration law in counter-
terrorism.’ Moreover, ‘[s]ince 2001, states have turned to deportation to
resolve threats to national security by displacing the embodied threat to the
countryofnationality.’However,thedeepsignicanceoftheseinsightsmay
be lost by too formalistic and narrow an examination of the particular prac-
tice of denationalisation. A basic reason for this is the powerful attraction –
symbolic and practical – of citizenship as a safe harbour. That, in and of
itself, is unobjectionable. But it risks denigration of the rights claims of
noncitizens. Let me emphasize that I do not think that Macklin intends this
at all. Still, her method may take us there.
Hereisanexample.Macklinwrites,‘Banishmenttsthecrimeofdisloy-
altythewaycapitalpunishmenttsthecrimeofmurder.’Thisworksforme
passably well as analogy (though, of course, the ‘crime’ of disloyalty is a
much more complex proposition than murder). But the analogy prompts a
question: How does banishment (of citizens) differ from what I have termed
‘post-entry social control deportation,’ which in the U.S. has resulted in life-
time exclusion of many thousands of long-term legal residents from their
families and communities due to minor criminal offenses?3 Does their lack
of citizenship status render the death penalty analogy less apt? In another
passage, Macklin correctly worries about ‘arbitrary and prejudicial abuse of
a discretionary power.’ What do we make of the fact that such abuses are
2 See e.g., A and others v Secretary of State for the Home Department [2004]
UKHL 56, available at http://www.bailii.org/uk/cases/UKHL/2004/56.html
3 See e.g., Kanstroom, D. (2007), Deportation Nation: Outsiders in American
History. Cambridge: Harvard University Press; Kanstroom, D. (2012),
Aftermath: Deportation Law and New American Diaspora. New York: Oxford
University Press.
D. Kan st room

209
rare against citizens and troublingly common against noncitizens? Macklin
isthusright,butperhapsinsufcientlyexpansivewhensheassertsthatthe
particular practice of denationalisation ‘is exile.’ Is denationalisation cate-
gorically different from expulsion and removal of long-term legal residents
because, as Macklin argues, it ‘extinguishes a singular right of citizenship,
namely the right to enter and to remain’? This seems formalistic and perhaps
a bit circular. A fuller exploration might consider the actual effects of depor-
tation and denationalisation on people of various statuses, various levels of
assimilation, and various fears of harm. This would help explain why the
‘right’ to enter and remain is so crucial to protect against disproportionate or
arbitrary state action against all people.
My main concern is about the potential implications of Macklin’s meth-
odology.Theformalisticreicationofcitizenshipmayjustifytherelegation
of noncitizens to a nether world of inferior balancing tests.4 This is espe-
ciallythecaseifthatreicationisconnectedtoanimplicitlyexclusivesetof
rights claims to enter and remain. Noncitizens have such rights, too, at least
undercertaincircumstances.Insufcientattention to such rights –though
they are concededly still works–in-progress – is especially dangerous where
the rights claims at issue include the right to life, to proportional punish-
ment, to family unity, against arbitrary detention, and to procedural
fairness.
Let us also consider the etiology and evolution of denationalisation.
Harsh expulsion and exclusion practices against noncitizens can provide a
conceptual matrix that facilitates similar practices against citizens. As
Thomas Jefferson – writing to oppose the Federalists’ Alien Friends Act,
Alien Enemies Act, and Sedition Act – warned in 1798: ‘The friendless alien
hasindeedbeenselectedasthesafestsubjectofarstexperiment,butthe
citizen will soon follow...’5 The best response to this concern, however, is
not a regime of exclusive protections only for citizens. Rather, we should
strengthen reasonable (procedural and substantive) human rights protec-
tions for all people, regardless of status or location. I expect that Macklin
would not strongly disagree with this. Still, insufcient attention to such
experiments against noncitizens have had metastatic tendencies in the past.
4 I suppose that the opposite might also be true in certain circumstances. Rights
gains won by citizens could form models that protect long term residents,
albeit in depreciated form. But this pathway works best if citizenship is viewed
on a continuum.
5 The Kentucky Resolution, Documents of American History 181 (Henry Steele
Commager ed., 6th ed. 1958).
Human Rights for All Is Better than Citizenship Rights for Some

210
Denationalisation should not be viewed as an anomalous practice that
requires a unique normative critique grounded on a strong, formalistic con-
ception of citizenship as the (supposed) Arendtian ‘right to have rights.’
Rather, it should be viewed as the apotheosis of an evolving array of exclu-
sion and removal practices, as well as the episodic search by governments
for what some termed Guantánamo Bay: ‘a legal black hole.’6 A more capa-
cious analysis would thus not only critique the British, ‘conducive to the
public good’ standard as relegating citizens to the status of permanent resi-
dents. It would equally question the standard’s legitimacy and propriety for
the latter group.7 (Indeed, its attempted application to citizens might be
ironically salutary, as political opposition will be more readily mobilised if
it is practiced widely.)
Easy denationalisation deserves normative and practical critique, to be
sure. As Rainer Bauböck properly highlights, citizenship is (and should be)
‘sticky’ and thus denationalisation must be justied as punishment. This
practiceisilladvised,problematic,andespeciallydifculttojustifyinlib-
eral democracies for the reasons he highlights. However, critique should be
primarily grounded in a broader set of human rights norms that apply when-
ever a state seeks to use its power disproportionately or arbitrarily against
anyone anywhere. This is especially important for those who are strongly
assimilated, who would be rendered juridically or functionally stateless or
who would face severe harm, persecution, or torture.
In a similar vein, I would not recapitulate the rather formalistic and ulti-
mately sterile debate between a ‘right’ and a ‘privilege,’ nor rely too readily
on Justice Earl Warren’s implicit references to Hannah Arendt. When Warren
asserted that citizenship is ‘the right to have rights,’ he was tactically using
this phrase to justify a particular position in a dissent in a 1958 case.8 The
case involved a U.S. citizen (by birth) who had lived most of his life in Texas
6 See Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (concluding: ‘We have assumed
… that Hamdan is a dangerous individual whose beliefs, if acted upon, would
cause great harm and even death to innocent civilians, and who would act upon
those beliefs if given the opportunity. … But in undertaking to try Hamdan and
subject him to criminal punishment, the Executive is bound to comply with the
Rule of Law that prevails in this jurisdiction.’) See also, Steyn, J. (2004),
‘Guantanamo Bay: The Legal Black Hole’, The International and Comparative
Law Quarterly 53 (1): 1–15.
7 By which I mean conformity to the best understanding of the ‘rule of law’ in
all its aspects, including procedural and substantive protections of basic rights.
8 Perez v. Brownell, 356 U.S. 44 (1958).
D. Kan st room

211
and had voted there in 1946.9 The court narrowly upheld the denationalisa-
tion (also called ‘expatriation’). Justice Warren wrote a somewhat rambling
dissent built around the (unattributed) reference to Arendt.10 He concluded
with two apparently contradictory propositions. The rst was seemingly
absolute, if a bit puzzling: ‘The Government is without power to take citi-
zenship away from a native-born or lawfully naturalized American.’11 The
second conclusion focused on the intention of the citizen: ‘The citizen may
elect to renounce his citizenship, and under some circumstances he may be
found to have abandoned his status by voluntarily performing acts that com-
promise his undivided allegiance to his country.’ Thus, even Justice Warren
accepted that certain conduct could justify expatriation, so long as the con-
duct was voluntary.12Butthis tspoorlywiththe absolutistreadingofthe
‘right to have rights.’ Who would voluntarily relinquish the right to have all
rights?
Later U.S. cases elaborated on the criterion of voluntariness, ultimately
elevating it to the dominant principle.13 However, as Justice Harlan once
noted, the historical evidence limiting government power to voluntary
9 The 1940 law at issue had been passed largely in response (ironically for our
purposes) to voting by American citizens in a 1935 plebiscite relating to
Hitler’s annexation of the Saar region. As one member of congress put it. The
legislation would ‘relieve this country of the responsibility of those who reside
in foreign lands and only claim citizenship when it serves their purposes.’ Id. at
55 (in opinion of Justice Frankfurter).
10 (joined by Justices Douglas and Black)
11 Puzzling because the latter practice (denaturalisation) was well accepted in a
wide variety of situations, such as where naturalisation had been illegally
procured. The term, ‘lawfully,’ thus meant that one could not be denaturalised
absentandingthatthenaturalisation(viewedretrospectively,hadbeenin
some way unlawful).
12 Cf. Trop v. Dulles, 356 U.S. 86 (1958) (in which Justice Warren, writing for a
plurality, found denationalisation of a military deserter to be invalid for similar
reasons, and also invalid as cruel and unusual punishment, because it resulted
in ‘the total destruction of an individual’s status in organized society.’)
13 See e.g., Aforyim v. Rusk, 387 U.S. 253 (1967) (‘First we reject the idea…
that…Congress has any general power, express or implied, to take away an
American citizen’s citizenship without his assent.’); Vance v. Terrazas, 444
U.S. 252 (1980) (‘[T]rier of fact must in the end conclude that the citizen not
only voluntarily committed the expatriating act prescribed in the statute, but
also intended to relinquish his citizenship.’ Proof may be by a ‘preponderance
of the evidence’ standard.) See also, Pub.L.99–653 (1986) (adopting this
approach).
Human Rights for All Is Better than Citizenship Rights for Some

212
expatriation was questionable, to say the least.14 Harlan highlighted a more
functional, less formalistic defence of citizenship: ‘Once obtained, citizen-
ship is of course protected from arbitrary withdrawal by the constraints
placed around Congress’ powers by the Constitution….’ This model seems
to dovetail with Peter Schuck’s proposal in this debate.15 It has the powerful
virtue of situating denationalisation within the rubric of well-accepted pro-
tections of the rule of law.
Finally, one should also note something obvious but worth highlighting:
Hannah Arendt’s position was not that citizenship should be the ‘right to
have rights.’ Rather, as she expressly put it: ‘The Rights of Man, supposedly
inalienable, proved to be unenforceable…whenever people appeared who
were no longer citizens of any sovereign state.’16 Her concerns were practi-
cal: Such people lacked any real protection. When she explored the subject
substantively her argument was much more nuanced: ‘…recent attempts to
frame a new bill of human rights, which seem to have demonstrated that no
one seems able to dene with any assurance what these general human
rights, as distinguished from the rights of citizen, really are.’17 But Arendt
published The Origins of Totalitarianism in 1951. It hardly needs to be said
that–despiteitsevidentchallengesanddeciencies–thecorpusofhuman
14 Senator Howard, who had sponsored the Citizenship Clause of the Fourteenth
Amendment, had conceded that citizenship could be ‘forfeited’ due to ‘the
commission of some crime.’
15 It should also be noted that US law has long provide for such denationalisation
for a wide variety of actions, including: ‘committing any act of treason against,
or attempting by force to overthrow, or bearing arms against, the United States,
violating or conspiring to violate any of the provisions of section 2383 of title
18, United States Code, or willfully performing any act in violation of section
2385 of title 18, United States Code, or violating section 2384 of said title by
engaging in a conspiracy to overthrow, put down, or to destroy by force the
Government of the United States, or to levy war against them, if and when he
is convicted thereof by a court martial or by a court of competent jurisdiction.’
Immigration and Nationality Act Sec. 349. [8 U.S.C. 1481].
The operative standard, as noted, is the following:
‘A person who is a national of the United States whether by birth or naturali-
sation, shall lose his nationality by voluntarily performing any of the following
acts with the intention of relinquishing United States nationality- …’ Kay
Hailbronner correctly highlights the prevalence of such standards elsewhere
thoughIamlessoptimisticthanheabouttheabilityofstatestodeneterrorism
withsufcientprecisiontojustifydenationalisation.
16 Arendt, H. (1966), The Origins of Totalitarianism. New York: Harcourt, Brace
& World, Inc., 293.
17 Indeed,Arendtherselfdenedthe‘righttohaverights’notasformalcitizen-
ship status as such, but as the right ‘to live in a framework where one is judged
by one’s actions and opinions…’ She distinguished this from the related ‘right
to belong to some kind of organized community.’ (Ibid: 296–7)
D. Kan st room

213
rights protections is today more specic, more robust, and more widely
enforced than was the case during the times she considered.
Arendt also poignantly described the ‘calamity of the rightless’ as ‘that
they no longer belong to any community whatsoever.’ The main reason this
was a calamity was that ‘no law exists for them.’18 The best way to avoid
such calamities is not only to strengthen citizenship protections. That may
well have the perverse consequences of, on the one hand, rendering citizen-
ship ever harder to achieve, and on the other, relegating noncitizens to an
increasingly rightless realm. We must do the harder, more basic work of
deningandinstantiatingmeaningfulhumanrightsprotectionsforallpeo-
ple,regardlessofstatus,orlocation.Focusingtoospecicallyontheprob-
lem of deprivation of citizenship must not blind us ‘to the numerous small
and not so small evils with which the road to hell is paved.’19
18 Ibid: 295.
19 Arendt, H. (1994), Essays in Understanding, 1930-1954: Formation, Exile,
and Totalitarianism. New York: Schocken Books, 271.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Human Rights for All Is Better than Citizenship Rights for Some

215© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_40
Denationalisation, Assassination, Territory:
Some (U.S.-Prompted) Reections
Linda Bosniak
Unlike the several liberal states Macklin cites which have already, or will
soon, deploy citizenship revocation as an anti-terrorism mechanism, the
United States is unlikely to implement similar policies. The U.S. Constitution
has been interpreted to prohibit unilateral citizenship-stripping as a tool of
governance. Instead, denationalisation via expatriation in the U.S. requires
the individual to specically consent to relinquish the status, and such con-
sent cannot be inferred from acts alone – even from acts which some (includ-
ing some commentators in this symposium) would like to characterise as
intrinsically antithetical to citizenship identity. The vigorous safeguarding
of individual citizenship in US law is borne of the nation’s history of race-
based slavery and its aftermath. Today, courts quite stringently interpret the
Fourteenth Amendment’s guarantee of citizenship status for ‘all persons
born or naturalised in the U.S.’ I realise the matter of slavery will seem
remote from the concerns of contemporary transnational debates over
citizenship- stripping in Europe and Canada (although it might be worth
wondering, another day, if ‘slavery’ could ever serve – along with ‘political
death’ – as a fruitful analytic metaphor here. Think, for example, of the
recent mass denationalisation of Dominican-born Haitians in the Dominican
Republic1). Nevertheless, we know that national citizenship law and policy
look inward as well as outward. In the U.S., the legacy of slavery forms a
part of a deep conversational grammar about citizenship in a way that will
almost certainly stay the hand of congressional advocates of the ‘Enemy
Expatriation Act’ and similar proposed measures.
That the US is not about to join Britain and Canada and other states in a
politics of forcible expatriation, however, by no means implies that the US
does not wish to ‘permanently eliminate’ suspected or conrmed terrorists,
nor that it is unable to do so. Indeed, we have recently seen deployment by
1 ‘Stateless in the Dominican Republic: Residents stripped of citizenship’,
Aljazeera America, 4 May 2014, available at http://america.aljazeera.com/
articles/2014/5/4/stateless-in-thedominicanrepublicresidentsstrippedofcitizen-
ship.html

216
the U.S. of what Macklin calls ‘the sovereign’s other technique for perma-
nent elimination’ of such persons: namely: state-inicted death. The 2013
assassination of U.S. citizen Anwar al-Awlaki in Yemen was a widely noted
recent example of this policy (with the apparently accidental assassination
Anwar’s 16-year-old U.S. citizen son, Abdulrahman, a notorious follow-
up.) For some commentators, state acts of this kind may appear more ‘pro-
portional’ to the claimed offenses than expatriation is. Personally, I would
not endorse any policy of assassination, much less when visited upon its
target without application of due process. But my comments don’t concern
the policy’s defensibility. Instead, I raise the al-Awlaki case to frame a few
brief observations about the relationship between citizenship-stripping, tar-
geted assassination and territoriality in the United States and beyond.
First, as Macklin points out, states strip citizenship not merely in order to
territorially banish the affected going forward but sometimes perhaps, as a
‘prelude to assassination,’ whether by themselves or others. In particular,
Macklin cites the cases of Britons who were denationalised and subse-
quently killed by US drone strike in Somalia.2 Denationalisation here can be
understood to have strategically relieved Britain of the imperative of pro-
tecting its own nationals from harm, including assassination, by another
state party. In this scenario, denationalisation is not merely a form of politi-
cal death; as Macklin argues, it may facilitate bodily death as well.
Nevertheless, we have also seen that since United States law makes it
‘easier to kill than expatriate,’ in Peter Spiro’s succinct phrasing,3 the U.S.
government does not await denationalisation to assassinate its own citizens.
We could, indeed, view assassination of al Awlaki senior as the nation’s only
route to denationalise him, with assassination serving as the actual mecha-
nism for stripping his citizenship.
On the other hand, al Awlaki’s assassination precipitated a fascinating
debate in the United States about territoriality and citizenship which perhaps
bears on our transnational conversation here. In the wake of the killing, a
segment of the US political class erupted in concerted anxiety about whether
2 See ‘British terror suspects quietly stripped of citizenship… then killed by
drones,’ The Independent, 28 February 2013, available at http://www.indepen-
dent.co.uk/news/uk/crime/british-terror-suspects-quietly-stripped-of-citizen-
ship-then-killed-by-drones-8513858.html and ‘Britain Increasingly Invokes
Power to Disown Its Citizens’, The New York Times, 9 April 2014, available at
http://www.nytimes.com/2014/04/10/world/europe/britains-power-to-disown-
its-citizens-raises-questions.html?_r=3
3 Spiro, P. (2014), ‘Expatriating Terrorists’, Fordham Law Review 82 (5):
2169–2187, at 2177.
L. Bosniak

217
the government actually claimed authority not only to assassinate US citi-
zens abroad but to do the same ‘on US soil.’ Senator Rand Paul led a libus-
ter against the conrmation of proposed CIA Director John Brennan,
promising to ‘speak as long as it takes until the alarm is sounded from coast
to coast that our Constitution is important, that your rights to trial by jury are
precious, [and] that no American should be killed by a drone on American
soil without rst being charged with a crime, [and] found…guilty by a
court.’ Much media fan-aming followed, and eventually, Attorney General
Eric Holder conceded that targeting any U.S. citizen for assassination within
national territory – in the absence of imminent threat – is unacceptable. 4
What was striking in this episode was the normative distinction taken up
in popular discourse between in-country and out-of-country citizen assassi-
nation. The implied claim was that death of a citizen by its own government
was somehow uniquely intolerable when accomplished inside national ter-
ritorial bounds. For that moment, at least, the American political imaginary
seemed to coalesce more around fear of tyrannical government than of the
foreign terrorist within.
Of course, if government were in fact bound by this normative logic –
i.e., that territorially present citizens are uniquely out of bounds for targeted
killing – then the target would need to be denationalised and/or territorially
expelled rst and only executed thereafter. Yet since the US state is con-
strained in denationalising citizens, and since, like all states, it is precluded
from expelling citizens, it would seem to have to await such person’s travel
outside the country in order to strike. This seems odd, yet it notably parallels
the form denationalisation practices take in many countries – where, accord-
ing to Macklin, governments tend to strip citizenship from those citizens
who are already located abroad. In both settings, we see not only that
territorially- present citizens are regarded as possessing more fundamental
protections against government power than those territorially absent, but
that governments make opportunistic use of citizen absence to act against
them. Among other things, this amounts to a kind of penalty on citizen
mobility, and seems to rest on an arbitrary locational distinction. This, at
least, is what the US Supreme Court itself concluded in 1957 in a related
context when it wrote that a citizen’s constitutional rights may not ‘be
stripped away just because he happens to be in another land.’5
4 For more extensive discussion and citations, see Bosniak, L. (2013), ‘Soil and
Citizenship’, Fordham L. Rev. 82 (5): 2069–2075.
5 Reid v. Covert, 354 U.S. 1 (1957).
Denationalisation, Assassination, Territory: Some (U.S.-Prompted) Reections

218
Of course, territoriality’s relationship with citizenship sometimes reaches
back well beyond any possible denationalisation and assassination to the
moment of the citizen’s birth. For some, the Awlaki affair itself evoked long-
standing debates about assignment of citizenship based on territorial pres-
ence at birth, with Awlaki an exemplar of the ‘nominal citizen’ whose
extraterritoriality for most of his post-natal life rendered his social attach-
ment to the nation ‘highly attenuated’ (to use Macklin’s phrase). Yet in this
setting as well, the United States will remain robustly-citizenship protective.
The country’s inclusive birthright citizenship rules are another stanchion of
its post-slavery, post-Civil War, constitutionalism. Consequently, and much
as some ‘anti-birthers’ wish it were otherwise, citizenship cannot be easily
eliminated on the front end here, except by way more stringent immigration
and border control policies to prevent, ex ante, potential parents’ territorial
presence. Broadly drawn and often selectively-applied grounds of inadmis-
sibility and deportability based on ‘terrorist activity’ arguably go some of
the distance in accomplishing that end.6
In short, citizenship status, especially for those in national territory, still
remains more secure in the U.S. than it is in some other national settings.
Our government works to counter the alleged ‘bad guys’ (Bauböck’s short-
hand) by different means.
6 E.g., Legomsky, S. H. (2005), ‘The Ethnic and Religious Proling of
Noncitizens: National Security and International Human Rights’, Boston
College Third World Law Journal 25 (1): 161-196.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
L. Bosniak

219© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_41
Beware States Piercing Holes into Citizenship
Matthew J. Gibney
I nd a great deal to agree with in Audrey Macklin’s trenchant and wide-
ranging argument against denationalisation power’s recent revival in
Western countries. Yet I also understand where her critics are, somewhat
abrasively, coming from. It is of course possible to imagine carefully fash-
ioned cases where denationalisation seems a morally appropriate response
as long as a range of guarantees are met (for example, when an individual
represents a clear threat to the state, where there are no doubts about his guilt
or intentions, and where he could be stripped of citizenship without being
made stateless.) However, while this realisation might help us identify the
terms on which the denationalisation of a particular individual is permissi-
ble, it tells us little about the broader consequences of piercing the norm of
unconditional citizenship for punitive reasons.1 I think that once we are real-
istic about the political dangers of conceding to the state powers to withdraw
citizenship, we’re brought back to a position compatible with Audrey
Macklin’s ban on denationalisation.
Before explaining why I think an absolute bar might be justied let make
a couple of comments on the previous discussion. The rst of these is on
what one might call the statelessness constraint. All of the critics of Audrey
Macklin’s position start (with the possible exception of Christian Joppke) by
accepting that individuals, even those who commit terrorist acts, should not
be made stateless. This constraint against statelessness is not simply a matter
of international or domestic law; it is also a normative constraint that stems
from basic liberal commitments. The problem with statelessness is that it
leaves individuals subject to state power without citizenship’s basic protec-
tions against that power, including security of residence, political rights, and
potentially a host of other entitlements. If we accept this normative rationale
for guarding against statelessness, as I think we should, we will also want to
1 My focus in this short piece is exclusively on the punitive withdrawal of
citizenship. There are, of course, other reasons why states have sought to
‘pierce’ citizenship, for example, to address fraudulent acquisition of citizen-
ship or to prevent dual nationality.

220
ensure that those denationalised are not made de facto stateless, that is,
forced to rely on a state that is unable and unwilling to protect them or oth-
erwise to deliver the fundamental rights citizenship (or nationality) is sup-
posed to guarantee.2
Yet taking this additional constraint seriously is going to be very conse-
quential. The secondary citizenships of the individuals Western states most
want to strip of citizenship tend to be those of countries with dubious human
rights records and histories of civil war and conict (Somalia, Iraq, Eritrea,
Sudan, to name a few).3 If de facto statelessness is a bar, most of the prime
targets are going to be out of denationalisation’s reach. Of course, de facto
statelessness does not establish a case for an absolute rejection of the state’s
power to denationalise. But it does show why the power’s scope may be
very narrow indeed, at least for liberals.
Second, I nd myself attracted to the position of Rainer Bauböck that
one reason denationalisation is unacceptable is because it involves states
‘passing the buck’ of their own responsibilities on to other states, a point that
adds a different dimension to Audrey Macklin’s claim that citizenship is, in
important respects, not fungible. This view that banishment is unfair to other
states is a very old one. None other than Voltaire argued against the practice
of banishment on the grounds that it involves throwing into our neighbour’s
eld the stones that incommode us in our own.
Powerful as it is, however, the consideration that there’s something
wrong with denationalising ‘home grown’ terrorists, wouldn’t mean that
denationalisation was always inappropriate. States might still claim the
moral right to denationalise individuals who had held citizenship only for a
short period of time or had spent most of their lives living in the other
2 Cf. Barry, C. & L. Ferracioli (2013), ‘Withdrawing Citizenship’, paper
delivered at the Australian National University, Canberra, 16 July 2013. I
accept that specifying exactly what is included in the concept of ‘de facto
statelessness’ is not necessarily clear, as is the relationship between de facto
statelessness and simple human rights abuses. A good starting point for further
consideration of this issue is Sawyer, C. & B. K. Blitz (eds.) (2011),
Statelessness in the European Union: displaced, undocumented, unwanted.
Cambridge: Cambridge University Press.
3 Note, for example, the second nationalities of the denationalised individuals
that the Bureau of Investigative Journalism has been able to track, available at
https://www.thebureauinvestigates.com/stories/2014-12-10/
what-do-we-know-about-citizenship-stripping.
M. J. Gibney

221
country in which they held citizenship. Germany certainly should not have
posthumously denationalised Hitler. But Hitler was the leader of the German
state and celebrated in this role by a signicant proportion of the German
people during the 1930s and 1940s. Putting aside the question of what
should be done posthumously, some citizens have a much more tenuous,
even a merely nominal, relationship to the state. Not all are even grown at
home.
These considerations help to clarify some of the constraints necessary for
a liberal denationalisation power. Even from the short discussion here, we
can identify plenty of others. Peter Schuck suggests that an individual’s
threat to the state needs to be ‘rigorously proven’ and Kay Hailbronner
argues that citizenship deprivation must be ‘subject to proportionality’. It’s
clear that satisfying all of these different requirements will make the con-
struction of denationalisation law consistent with liberal principles a
Herculean task. However, where I part company with the denationalisers is
not so much over whether it’s possible to identify a liberal starting point for
the practice.4 Rather, my concern is over the illiberal direction denationali-
sation seems likely to take once it returns to the political repertoire. Here my
position has been greatly inuenced by the recent experience of the UK.5
When denationalisation was rst revived after over thirty years of desue-
tude by the Blair government in 2002, the power was tightly constrained: the
denition incorporated was taken from the European Convention on
Nationality, only dual nationals were targeted, and an automatic judicial
appeal was to follow any decision by the Home Secretary. The government
promised to use the power rarely. This modest beginning for denationalisa-
tion did not last. After the London bombings in July 2005, a new act passed
by the Blair government in 2006 lowered the standard required for denation-
alisation. While previously the Home Secretary had to be satised that an
individual had engaged in actions that threatened the ‘vital interests of the
UK’ state, now he or she had only to be satised that taking away someone’s
citizenship was ‘conducive to the public good’. The standard for continuing
4 I discuss the normative complexities of denationalisation in Gibney, M. J.
(2013), ‘Should citizenship be conditional? The ethics of denationalization’,
The Journal of Politics 75 (3): 646–658.
5 I give a fuller account of the history of UK denaturalisation power in Gibney,
M. J. (2013), ‘“A Very Transcendental Power”: Denaturalisation and the
Liberalisation of Citizenship in the United Kingdom’, Political Studies 61 (3):
637–655.
Beware States Piercing Holes into Citizenship

222
to hold British citizenship had now become the same as the one used to
judge whether a non-citizen should be deported. Even after this radical
change, it was possible to convince oneself that the government would use
the power sparingly. Only a handful of people lost their citizenship under the
Labour government’s watch.
But with the coming of the Conservative/Liberal Democrat coalition
government things have gone seriously awry. In the Cameron government’s
rst year of ofce in 2010-11, no fewer than six people were stripped of
their citizenship. This was more people than the Blair and Brown govern-
ments had denaturalised in the previous nine years (in the immediate after-
math of the terrorist events of September 11, 2001 and July 7, 2005). The
enthusiastic use of deprivation power has continued apace in the years since,
though almost always in secret. By May 2014, it was evident that Cameron’s
government had some 23 people stripped of citizenship on ‘not conducive’
grounds in the last three years. Almost all of these individuals were stripped
of citizenship while outside the UK, undermining real access to appeal pro-
cedures. In January 2014 the government presented a bill to parliament
requesting the power to strip citizenship from naturalised citizens even if
they would be made stateless. The amendment passed, albeit, in a modied
form. Under current law in the UK a naturalised citizen can be made state-
less if the Home Secretary deems there are reasonable grounds for believing
they have access to another citizenship.
Now it might be said – and Christian Joppke would probably be the one
to say it – that the UK is an outlier. The unravelling of constraints on dena-
tionalisation evident in Britain is unlikely to be repeated elsewhere because
other Western countries are less insouciant about protecting rights. But note
that the circumstances that have geed along transformation in UK law are
generally applicable: terrorist events (the 2005 Tube bombing) and a change
of government (the coming of the Conservatives to power). Moreover, I’m
not condent that other countries are as legally protected against creep of
denationalisation power as they might seem. Australia has fewer rights
based protections even than the UK; Canada has some alarming inclusions
in its recent denationalisation legislation, including the state’s ability to rely
on a conviction for terrorist offences in another country; and, as I write, a
large number of prominent US politicians (buoyed by public opinion polls)
have effectively endorsed torture as a practice for dealing with terrorists past
and future.
I thus nd myself agreeing with Audrey Macklin’s embrace of uncondi-
tional citizenship, albeit because I fear where we will end up if we try to
pierce even a small – liberal size – hole into citizenship to punish terrorists.
M. J. Gibney

223
Liberalism is not simply a set of principles, it’s also a political stance – one
that encourages a healthy scepticism of state attempts to encroach upon
established rights and protections. In these fraught times, it is wise to adopt
the stance as well as to protect the principles.
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Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
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chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Beware States Piercing Holes into Citizenship

225© The Author(s) 2018
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IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_42
Disowning Citizens
Reuven (Ruvi) Ziegler
Macklin’s kick-off focused ‘exclusively on denationalisation for allegedly
disloyal conduct by a citizen, while a citizen’. Most contributions to this
debate weighed the predicament of the former citizen against state interests.
In my contribution, I offer a typology of cases in which revocation could be
sought according to some of the contributors. I contend that disowning of
citizens by their states is incoherent, tenuous, or disingenuous.
The rst type of case involves acts which, according to Hailbronner,
undermine the constitutional order by seriously threatening public safety
and state security. Hailbronner contends that individuals performing such
acts ‘have given up their attachment to a community by attacking the very
fundament of that community, not by merely violating its internal rules of
public order’. However, this line-drawing exercise seems to be quite dif-
cult: every crime may cause insecurity, threaten public order, and prevent
democratic societies from functioning properly; citizens (and decision-
makers, including those entrusted with citizenship revocation) will diverge,
based on their ideological biases, as to whether particular crimes cross
Hailbronner’s threshold. For instance, did the perpetrators of the Brighton
hotel bombing on 12 October 1984 cross the threshold in light of the poten-
tial ramications of Thatcher’s assassination for the stability of the United
Kingdom? If so, would a person nancing such an attack qualify, too?
Nevertheless, perhaps a ‘core’ case can be identied, such as a criminal
conviction for treason. One of the constituent elements of such acts is often
that they are committed by citizens qua citizens. For instance, Lord Haw-
Haw (William Joyce) could be convicted of espionage for Germany in the
Second World War because he possessed British nationality; he unsuccess-
fully argued that he did not owe loyalty to the Crown.1 If the basis for Joyce’s
conviction was that his crimes against the state were committed as a British
national, then disowning Joyce ex post facto seems incoherent: the state
1 ‘Lord Haw-Haw – The Nazi broadcaster who threatened Britain’, Lord
Haw-Haw Collection, BBC Archive, available at http://www.bbc.co.uk/archive/
hawhaw/

226
must reject the claim that treasonous acts amount to renunciation of citizen-
ship, because that would disable the state from prosecuting the perpetrator
for treason (for an analogous argument concerning the legitimacy of disen-
franchisement of convicted adult citizens, see my article2).
The second type of case involves crimes (including crimes dened as
‘terrorism’ under international treaties or domestic law) committed by a citi-
zen of state A against individuals or institutions in state B. The fact that the
person who has committed such crimes holds the citizenship of state A
seems incidental. Consider the attack on the Jewish museum of Belgium in
Brussels on 24 May 2014, which is likely to have been carried out by a
French national afliated with ISIL3. ISIL has been designated as a terrorist
organisation by the EU, of which France is a member, as well as by the
UN. Were France to revoke the citizenship of this member of an internation-
ally designated terrorist organisation, it would be severing legal relations
with a citizen even though the citizen’s actions were not directed specically
towards the French state, its institutions, or its population. This seems rather
tenuous.
Joppke argued that ‘international terrorists are not criminals but war-
riors’. But the state exercises its sovereign powers vis-à-vis ‘international
terrorists’ qua citizens. The fact that such persons commit acts that are of an
international character does not make it more plausible for their state of
nationality to legally disown them as a result. Hailbronner argues that ‘[w]
hat makes international terrorism so distinctive is … also its relevance for
discontinuance of that special relationship established by citizenship.’ I am
not quite sure why engagement in international terrorism (such as the ISIL-
sponsored attack on the Jewish museum) necessarily or even plausibly indi-
cate that a citizenship bond has been severed by the terrorist. This seems to
conate the fact that their state of nationality perceives (and rightly so) the
terrorist’s act as heinous with a direct effect on that state.
The third type of case concerns acts which are committed by a citizen in
the name of the Ancien Régime. Following political transformation, the
state wishes to disassociate itself from such past acts by dissociating itself
2 Ziegler, R. (2011), ‘Legal Outlier, Again? U.S. Felon Suffrage: Comparative
and International Human Rights Perspectives’, Boston University International
Law Journal 29 (2); Oxford Student Legal Studies Paper No. 01/2011.
Available at SSRN: https://ssrn.com/abstract=1689665
3 ‘French suspect in Brussels Jewish museum attack spent year in Syria’, The
Guardian, 1 June 2014, available at https://www.theguardian.com/world/2014/
jun/01/french-suspect-brussels-jewish-museum-attack-syria
R. Ziegler

227
from the perpetrators. As Bauböck rightly notes, Hitler’s posthumous dena-
tionalisation by either Germany or Austria would have been considered ‘a
denial of responsibility for his crimes and their consequences’. In addition
to the revocation’s outward-looking dimension (towards the international
community), it has an inward-looking dimension too. When Augusto
Pinochet stood trial in in 2004, he was charged with crimes committed by
him as head of the military junta which ruled Chile after the 1973 coup. He
died in 2006 before the conclusion of his trial. Let’s imagine that Pinochet
had another (nominal) citizenship, and that his conviction would have
resulted in his denationalisation. This would have seemed, rightly, as an
attempt to undermine the fact that these acts were committed in the name of
the Chilean state.
Paskalev asserted that, ironically, the ‘softness of citizenship revocation
makes it appear quite inappropriate for the case of terrorists’. However, even
if (some) terrorists may be blasé about losing their citizenship, we ought to
be concerned about states’ eagerness to wash their hands of them.
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Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
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Disowning Citizens

229© The Author(s) 2018
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IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_43
Our Epoch’s Little Banishments
Saskia Sassen
I arrive late to this discussion, to these excellent pieces that cover much
ground... not much left to cover. For the sake of debate and commentary,
rather than scholarly analysis, let me throw into the discussion what is no
more than a little wrench.
Denationalisation is an ambiguous concept. This discussion has given it
one sharp meaning: being stripped of one’s nationality and thrown out of
one’s country. In my own work I have used it to capture more ambiguous
meanings, thereby giving it the status of a variable that can be applied to a
range of domains, not only citizenship.1
Thus, I see denationalisation at work when, beginning in the 1980s,
global rms pushed for and got most national governments to institute
deregulations and privatisations so as to maximise their access into any
national economy.2 It meant that states had to denationalise key elements of
the legal framing (i.e. protections) they had long offered their own rms,
markets, investors. One might say that in doing so, these states instituted a
partial ‘banishment’ of their own national rms from a legal framing that
granted these national rms exclusive privileges/rights. This is a form of
banishment that does not entail a physical departure from a country’s terri-
tory. It only entails a loss of particular exclusive rights and protections. We
can conceive of it as a kind of micro-banishment.
Similarly, I would argue that such internal micro-banishments are also
present in the decisions of many national states, beginning in the 1980s and
onwards, to eliminate a few rights here and there that their citizens may long
have had. Examples for the U.S. are, among several others, Clinton’s 1996
Illegal Immigration Reform and Immigrant Responsibility Act which took
away the rights of citizens to bring legal action against the INS in lower
1 See chapters 4, 5, and 6 in Sassen, S. (2008), Territory, Authority, Rights: From
Medieval to Global Assemblages, 2nd ed. Princeton: Princeton University
Press.
2 Sassen, S (2017), ‘Predatory Formations Dressed in Wall Street Suits and
Algorithmic Math’, Science, Technology & Society 22 (1): 1–15.

230
courts; or when credit card companies obtained the right to pursue payment
even if a household had declared bankruptcy – a right so abusive it eventu-
ally got cancelled. We might argue that in these cases, citizens experienced
a partial banishment from specic rights (even as some new rights were also
attained, notably gay marriage). The better language to describe these losses
may be what Audrey Macklin refers to elsewhere as civil death.3
Current examples for the gains of rights for global rms and the loss of
protections for national rms and workers can be found in some of the
clauses of both the Transpacic and the Transatlantic Trade Partnerships.
Long before we get to the dramatic gure of the terrorist, where the
debate about banishment turns clearly pro or contra, I see a range of micro-
banishments that take place deep inside national territory. If I wanted to give
this image an extreme character, I would say that in today’s interaction prone
world (see, for instance, the earlier behind closed-doors negotiations
between Iran and the U.S., or, for a period, between the U.S. and the Taliban)
there is no more terra nullius for banishment.
If I were to use the term ‘banishment,’ I would want to use its conceptual
power to get at the multiple little banishments that happen inside our coun-
tries and that often entail a move into systemic invisibility – the loss of
rights as an event that produces its own partial, or specialised, erasure. I
refer to these micro-banishments as expulsions, a term I intend as radically
different from the more common term ‘exclusion,’ which refers to a condi-
tion internal to a system, such as discrimination.4 I conceive of such expul-
sions as a systemic capability, clearly a use of the term capability that
diverges from the common use which marks it as a positive. Thus micro-
banishments can be seen as a profoundly negative systemic capability that is
far more widespread than our current categories of analysis allow us to see.5
To conclude I would like to return to Audrey Macklin’s argument.
I agree with Audrey Macklin’s proposition that citizens should not be ban-
ished even when they engage in terrorist attacks on their own country. I share
3 Macklin, A. (2014), ‘Citizenship Revocation, the Privilege to Have Rights and
the Production of the Alien’, Queen’s Law Journal 40 (1): 1–54, at 8.
4 Sassen, S. (2014), Expulsions: Brutality and Complexity in the Global
Economy. Cambridge, Mass: Harvard University Press.
5 This also raises the possibility of an obverse condition: that the tissue con-
structed via the recurrence of micro-banishments inside a nation-state could,
with time, become the tissue for a claim to transnational citizenship. Could it
be that as citizens experience the limits of national citizenship, transversal
notions of membership become more plausible? I am thinking here of substan-
tive conditions for transnational citizenship, not just ideational ones.
S. Sassen

231
her concern with the importance of protecting a robust form of citizenship.
But I do so partly also from a transversal and dystopian perspective that may
have little to do with the rationale put forth by Macklin. Let me clarify. It is not
only terrorists that are destructive and attack the innocent; it is also predatory
actors of all sorts – corporate rms that exploit workers worldwide, nancial
speculators, abusive prison systems. Further I agree with Macklin that a coun-
try should develop the needed internal instruments to deal with terrorists rather
than banish them. But again, I would take this beyond terrorists who are citi-
zens, and include the types of predatory actors I refer to above.
Beyond all of this, I am above all concerned with the larger history in the
making that I refer to earlier in this short text. This larger history is shaping
an epochal condition that takes me away from prioritising banishment as
loss of citizenship and of the right to live in one’s country as discussed in
this Forum.
Briey put, I would argue that the conceptual locus of the category ban-
ishment in today’s world is not banishment in the historical sense of the
term, but a new kind of banishment. It is one predicated on the formation of
geographies of privilege and disadvantage that cut across the divides of our
modernity – East-West, North-South. The formation of such geographies
includes a partial disassembling of the modern national territorial project,
one aspiring (and dependent on) national unity, whether actual or idealised.
This then also means that there is a weakening of the explanatory power of
the nation-based encasements of membership (for citizens, for rms, for
political systems) that have marked our modernity. The micro-banishments
I refer to are part of emergent (and proliferating!) geographies of disadvan-
tage (for citizens, rms, districts) internal to a country.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Our Epoch’s Little Banishments

233© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_44
Deprivation of Citizenship: Is There
an Issue of EU Law?
Jo Shaw
The purpose of this short intervention in the debate on The Return of
Banishment initiated by Audrey Macklin, where the pros and cons of vari-
ous forms of deprivation policies pursued by, or sought by, liberal states
have been fully debated, is to add an element of EU law. Specically, in the
light of the judgments of the European Court of Justice in Rottmann1 and
Ruiz Zambrano2, how – if at all – are Member States’ laws and procedures
on involuntary loss of citizenship affected by EU law, given that the primary
competence to determine the rules on the acquisition and loss of citizenship
remains with Member States? At the time of the hearing, well informed
observers3 who followed the UK Supreme Court hearing in the case of B2
(Pham) v SSHD4 concerned with the UK’s rather extensive deprivation
powers and the issue of statelessness indicated that they thought it likely that
the Supreme Court would make a reference to the Court of Justice. It seemed
that the judges would ask the CJEU if it really meant what it said when it
decided the case of Rottmann. B2 (Pham), like the earlier cases of G1 (dis-
cussed below) and as well as the case of 5, a former Iraqi citizen who has
1 C-135/08, available at http://curia.europa.eu/juris/liste.jsf?num=C-135/08
2 C-34/09, available at http://curia.europa.eu/juris/liste.
jsf?language=en&num=C-34/09
3 Cox, S. (2014), ‘Rottmann Rules UK? Can British citizenship be taken away
without regard to EU law?’, EU Law Analysis, available at http://eulawanaly-
sis.blogspot.com.es/2014/11/rottmann-rules-uk-can-british.html; Woodrow, P.
(2014), ‘Statelessness, deprivation of nationality, and EU Citizenship…what is
B2 in the Supreme Court really all about?’, freemovement, available at https://
www.freemovement.org.uk/statelessness-deprivation-of-nationality-and-eu-
citizenshipwhat-is-b2-in-the-supreme-court-really-all-about/. In the event, no
reference was made [comment added in June 2018 to text prepared in 2014].
4 Pham (Appellant) v Secretary of State for the Home Department (Respondent)
[2015] UKSC 19, available at https://www.supremecourt.uk/cases/uksc-2013-
0150.html
5 Secretary of State for the Home Department v Al -Jedda [2013] UKSC 62 (9
October 2013), available at http://www.bailii.org/uk/cases/UKSC/2013/62.html

234
twice been stripped of his UK citizenship as well as spending time in mili-
tary detention in Iraq6, all concern naturalised citizens who are suspected of
some form of terrorist involvement, but against none of whom criminal pro-
ceedings have been brought in the UK.
We are likely, therefore, to be in a phase of further legal development –
initially in iteration between the UK courts and the Court of Justice, but with
implications for all of the Member States as quite a number of states have
started to look closely at using expatriation measures in order to combat
radicalisation and terrorist threats, even if many judge this approach to be
ill-advised and inappropriate.
I will explain briey what the issues are. The Rottmann case was the
subject of an earlier Forum Debate7 on the EUDO Citizenship website.
Rottmann was a case of loss of citizenship conferred by naturalisation, after
it came to light that the naturalisation had been obtained by fraud. In this
case, Rottmann, an Austrian citizen, had failed to reveal that he had been the
subject of unconcluded criminal proceedings in Austria when seeking natu-
ralisation in Germany. Rottmann raised issues of EU law in his appeal
against the deprivation decision before the German administrative courts,
which led to a reference to the Court of Justice. He pointed out that having
obtained German citizenship he lost Austrian citizenship, by operation of
law. Thus, if he were deprived of German citizenship he would be stateless,
and – furthermore – he would have lost his EU citizenship. One issue that
had been raised – and which caught the attention of Advocate General
Maduro in his Opinion – was whether this was a ‘wholly internal situation’ –
i.e. a German court reviewing a decision of a German public authority
regarding a German citizen. In that sense, it could be said, EU citizenship
was not engaged at all. In response, the Court repeated its standard formula-
tion when dealing with matters which fall outside the competence of the EU
and its legislature. It reminded us that EU cannot adopt measures with regard
to national citizenship, but none the less while national competence remains
intact, it must be exercised ‘with due regard’ to the requirements of EU law
in situations covered by EU law. Specically, in this case, said the Court:
6 ‘Al-Jedda, “statelessness” and the meaning of words’, Freemovement, 25
October 2013, available at https://www.freemovement.org.uk/
al-jedda-statelessness-and-the-meaning-of-words/
7 Shaw, J. (2011), ‘Has the European Court of Justice Challenged Member State
Sovereignty in Nationality Law?’, Robert Schuman Centre for Advanced
Studies, EUDO Citizenship Observatory Working Paper No. 2011/62,
Florence: European University Institute, available at http://cadmus.eui.eu/
handle/1814/19654
J. Shaw

235
It is clear that the situation of a citizen of the Union who, like the applicant in
the main proceedings, is faced with a decision withdrawing his naturalisation,
adopted by the authorities of one Member State, and placing him, after he has
lost the nationality of another Member State that he originally possessed, in a
position capable of causing him to lose the status conferred by Article 17 EC
[i.e. Union citizenship] and the rights attaching thereto falls, by reason of its
nature and its consequences, within the ambit of European Union law (para.
42 of the judgment).
The Court went on to recognise that states may have legitimate reasons to
withdraw citizenship, but it is worth noting that the Court of Justice does
not, in this paragraph, focus on statelessness, but rather on the loss of the
rights specic to EU law. In other words, this can be seen as an EU-specic
reason for requiring the testing of any decision to withdraw citizenship
against – as the Court went on to hold – a standard of proportionality. Factors
to be borne in mind in assessing the proportionality of the withdrawal deci-
sion included the gravity of the original offence or deception, lapse of time,
the impact on the subject of the decision and their family, the possibility of
recovering the original citizenship lost at the time of naturalisation, and the
availability of other less severe measures than withdrawal.
While some have suggested that the essence of Rottmann lay in the way
that the claimant is strung across between the national citizenship laws of
two EU Member States, one at least of which claims exclusivity and thus
operates an automatic rule of withdrawal in the event that a citizen acquires
the citizenship of another state, the point about loss of the benets of EU
citizenship as a freestanding principle of EU law without regard to prior
movement from one Member State to another was given a further boost in
the case of Ruiz Zambrano. In that case, the EU citizens threatened with los-
ing their rights of citizenship were the children of the claimant, who were
born in Belgium and who had acquired Belgian, and thus EU, citizenship at
birth. Meanwhile, through a combination of circumstances their Colombian
citizen father had not regularised his situation in Belgium (or had perhaps
been prevented from doing so by a series of delays perpetrated by the
Belgian authorities in relation to his case). Because the refusal of a residence
permit for Ruiz Zambrano and his wife would, in effect, have meant that the
EU citizen children would have been obliged to leave, with their parents, the
territory of the EU and thus would not have been able to avail themselves of
their rights as EU citizens (notably the right of free movement which they
had not yet exercised, but which they might exercise in the future), the Court
concluded that a Member State could not refuse to grant either a residence
permit or indeed a work permit. The test that the Court articulated was
Deprivation of Citizenship: Is There an Issue of EU Law?

236
whether the measure taken in relation to a third country national upon whom
the EU citizen children were dependent was whether it would make them
unable to exercise ‘the substance of their rights’ as citizens of the EU.
Neither Rottmann nor – in particular – Ruiz Zambrano have been met
with unalloyed enthusiasm at the national level. It goes beyond the scope of
this short comment to discuss how and why Member States and indeed their
courts might react to challenging judgments of the Court of Justice that
appear to extend the scope of EU law and, in particular, the scope of EU citi-
zenship.8 That said, there is no evidence to suggest that, thus far, Rottmann
has had a signicant or disruptive effect on national citizenship laws.9
The UK is one of the few states where Rottmann has thus far been dis-
cussed in national cases, but – until the case of B2 (Pham) which is before
the Supreme Court – the limit of consideration had been a rather dismissive
swipe at the Court of Justice taken by Lord Justice Laws in the Court of
Appeal in the case of G1 v SSHD10. Laws LJ sceptically asked ‘[u]pon what
principled basis, therefore, should the grant or withdrawal of State citizen-
ship be qualied by an obligation to “have due regard” to the law of the
European Union?’ (para. 38), given that the grant and withdrawal of citizen-
ship remains a matter of Member State competence.
The Supreme Court refused to give leave to appeal to the applicant in G1,
but perhaps it was only a matter of time, given the salience of deprivation of
citizenship in the UK at the present time, before it had to grasp the nettle of
considering not only the meaning of statelessness in the context of the then
applicable UK law (this having moved on somewhat since that time, as
Gibney’s contribution to the Forum highlights) but also the possible appli-
cability of EU law as a restraint upon executive freedom, and as a standard
8 Blauberger, M. (2012), ‘With Luxembourg in mind ... the remaking of national
policies in the face of ECJ jurisprudence’, Journal of European Public Policy
19 (1): 109–126; Blauberger, M. (2014), ‘National Responses to European
Court Jurisprudence’, West European Politics 37 (3): 457–474; Schmidt, S.
(2014), ‘Judicial Europeanisation: The Case of Zambrano in Ireland’, West
European Politics 37 (4): 769–785.
9 See Shuibhne, N. N. & J. Shaw (2014), ‘General Report General Report:
Union Citizenship: Development, Impact and Challenges’, in U. Neergaard,
C. Jacqueson & N. Holst-Christensen (eds.), Union Citizenship: Development,
Impact and Challenges. The XXVI FIDE Congress in Copenhagen, Congress
Publications Vol. 2, Copenhagen: DJØF Publishing. at p. 154–155.
10 G1 v Secretary of State [2012] EWCA Civ 867. Available at http://www.bailii.
org/ew/cases/EWCA/Civ/2012/867.html
J. Shaw

237
which UK courts, in exercising their review function, would need to uphold.
Hence the appellant in B2 has been given leave to appeal, with perhaps a
reference to the Court of Justice still to come.
As the discussion by Simon Cox11, a lawyer working with the Open
Society Institute which intervened in this case12, has made clear, it seems
quite likely that if the applicability of EU law as a frame of reference against
which UK deprivation legislation needs to be judged is duly established by
the Court of Justice and accepted by the Supreme Court, then the propor-
tionality standards which need to be applied by UK courts exercising their
review function may differ from those otherwise applicable within UK pub-
lic law. The key issue seems likely to surround the putative autonomy of EU
citizenship: is there a freestanding EU law related concern with citizenship
stripping, namely the loss of EU citizenship rights, which goes beyond the
issue of statelessness? Rottmann seemed to suggest there was, but this is the
issue on which the Supreme Court may probe the CJEU further. It should be
noted that there may also be higher standards of disclosure of otherwise
secret evidence, following the judgment of the Court of Justice in the ZZ
case13, if the applicability of EU law is accepted.
Finally, it should be pointed out that the OSI interest in the case is not
directly with the Rottmann point, but concerns the denition of stateless-
ness, which, they argue also has an EU element and should have a common
EU level denition to which Member States are obliged to adhere. This call
stems from the fear that in its earlier judgment in B2 (Pham) the Court of
Appeal14 created signicant difculties when it resolved that B2 was not to
be judged as de jure stateless, once deprived of UK citizenship, because
although the Vietnamese government indicated they did not recognise him
as a citizen, it was clear that this was unlawful under Vietnamese law.
The UK courts, said the Court of Appeal, were bound by the rule of law.
Therefore, they could not recognise an unlawful act of the Vietnamese gov-
ernment. This seems to be peculiarly Kafka-esque reasoning and the OSI,
given its investment in the campaign against statelessness on-going under
11 Cited above n. 3.
12 Case No. UKSC 2013/0150, available at http://www.opensocietyfoundations.
org/sites/default/les/b2-v-home-secretary-case-intervener-20 141105_0.pdf
13 C-300/11, available at http://curia.europa.eu/juris/liste.jsf?num=C-300/11
14 B2 v Secretary of State for the Home Department [2013] EWCA Civ 616 (24
May 2013), available at http://www.bailii.org/ew/cases/EWCA/Civ/2013/616.
html
Deprivation of Citizenship: Is There an Issue of EU Law?

238
the leadership of the UNHCR, would be concerned if this reasoning were to
take hold in the UK, which is bound to have further cases coming before the
courts, given the remarkable rate15 at which the state is now expatriating its
citizens on grounds that this is conducive to the public good.
15 ‘Government release number of deprived of British citizenship since 2013’,
The Bureau of Investigative Journalism, 19 December 2014, available at
https://www.thebureauinvestigates.com/stories/2014-12-19/
government-release-number-deprived-of-british-citizenship-since-2013
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
J. Shaw

239© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_45
On Producing the Alien Within: A Reply
Audrey Macklin
Shortly after the last contributor posted a comment on this Forum, reports of
the Charlie Hebdo attacks erupted in the media. The assailants were two
French brothers (Cherif and Siad Kouachi) who claimed afliation to Al
Qaeda in Yemen. Hours later, an associate (Amiday Coulibaly) killed a
police ofcer, then rampaged through a kosher Hyper Cacher supermarket
and murdered four hostages. All three men were slain two days later in con-
frontations with French police and security. That same day, the notorious
‘Finsbury Mosque cleric’, British national Abu Hamza, was sentenced to
life in prison by a US court for terrorism related crimes. Most recently, the
French Conseil Constitutionnel upheld a law permitting denaturalisation of
dual-national French citizens convicted of terrorist offences.1 One cannot
but wonder whether the Charlie Hebdo and Hyper Cacher attacks cast a long
shadow over the Conseil Constitutionnel’s deliberations, even though all
three men were French by birth and therefore outside the purview of the
denaturalisation law.
The horric deeds of the French perpetrators struck at the heart of liberal
democratic values: freedom of expression and religious tolerance. States
understandably seek new and better tools to prevent future atrocities; the
impulse toward retribution at such moments seems hard to resist. Do these
attacks make the case for citizenship revocation? I remain sceptical that citi-
zenship revocation advances the objective of protecting liberal democracies,
or that pursuit of unalloyed retribution is an objective worthy of liberal
democracies.
Defenders of citizenship stripping offer a mix of instrumental and non-
instrumental justications, but Kay Hailbronner, Christian Joppke and Peter
Schuck lean toward the latter more than the former. Despite its rejection by
1 The law permits denaturalisation of dual nationals who commit terrorism
offences within fteen years of naturalisation (‘Moroccan-born man jailed on
terror charges to lose French nationality’, The Guardian, 23 January 2015,
available at http://www.theguardian.com/world/2015/jan/23/
moroccan-born-man-jailed-terror-lose-french-nationality-sahnouni)

240
the US Supreme Court over fty years ago, both Hailbronner and Joppke
revert to the legal ction of constructive renunciation and insist that certain
conduct communicates an irrefutable intention of terrorists to renounce their
own citizenship. Schuck revises the ction by acknowledging that perpetra-
tors may not actually wish to renounce citizenship, but then discounts an
intention to maintain citizenship for ‘tactical and cynical’ purposes. But
however attractive the ction of constructive renunciation, it does not
become truer with repetition, or with the passage of time, or by writing new
characters into the narrative. Citizenship revocation for misconduct while a
citizen is not chosen by the citizen; it is inicted by the state.
Joppke explains that Germany would have been wrong to regard mem-
bers of the RAF as menacing enough to warrant denationalisation, and I
suspect he would also condemn the United States denaturalisation of
Communist citizens in the twentieth century as hysterical overreaction. But
he remains condent that one can transcend historic patterns of panic-
induced political myopia and he thus arrives at the conclusion that Islamic
terrorists are uniquely suitable for citizenship revocation. Peter Schuck con-
tends that citizenship revocation, when employed judiciously against terror-
ists, strengthens the value of citizenship itself. Kay Hailbronner adds that
my arguments do not address the illegality of citizenship revocation under
international or constitutional law, but rather proceed from unarticulated
notions of legitimacy and morality. Space does not permit a proper reply to
the last criticism. Readers are invited to read my published article on citizen-
ship revocation in the Queen’s Law Journal, which addresses citizenship
revocation for misconduct under international and constitutional law.2
Consider citizenship revocation in relation to the goal of bringing perpe-
trators to justice. As I mentioned in my kick-off text, fear of citizenship
revocation is unlikely to deter those bent on martyrdom, and the deaths of
the Kaouchi brothers and Coulibaly seem to demonstrate that. As for Abu
Hamza, it is worth noting that the UK did attempt to strip him of citizenship.
It was thwarted because deprivation would have rendered the Egyptian-born
cleric stateless. But the fact that Abu Hamza remained in the UK as a UK
citizen made him available for extradition to face charges in the United
States, where he was tried, convicted and sentenced to life imprisonment for
terrorism offences after an open and fair trial. Had he been stripped of UK
2 Macklin, A. (2014), ‘Citizenship Revocation, the Privilege to Have Rights and
the Production of the Alien’, Queen’s Law Journal 40 (1): 1–54.
A. Macklin

241
citizenship and expelled to Egypt, he would never have faced justice in a US
court, or anywhere for that matter.3 I take the view that prosecution, trial and
conviction are preferable responses to past acts. As for pre-empting incipi-
ent risks, various states have begun revoking passports of citizens allegedly
bound for IS camps in Syria and Iraq. Restricting exit in this manner is only
available in relation to citizens. Stripping citizenship permits states to shed
their duty and responsibility toward nationals; it also deprives them of the
authority to subject them to criminal prosecution and to thereby make a
tangible contribution to bringing terrorists to justice under the rule of law.
Schuck, along with Hailbronner and Joppke, concede that existing prac-
tices of citizenship revocation breach basic norms of fairness. They regard
these aws as contingent defects that are severable from the abstract ques-
tion of whether citizenship revocation for misconduct can be justied. I nd
the attempt to segregate theory from practice unconvincing in this context,
and Matthew Gibney’s intervention highlights the way in which attempts by
the judiciary to hold the state to requirements of legality simply breed more
tactics of state evasion. A chronic failure of a state practice to comply with
fundamental norms of legality across time and space invites the inference
that there is something about what the state is endeavouring to do that
ineluctably and incorrigibly perverts the process of how it does it.4 A fair
process leading to banishment, like a fair process culminating in the death
penalty, can only ever operate as a mirage that legitimates on-going prac-
tices that will – inevitably and necessarily – fail to meet basic norms associ-
ated with the rule of law.
This leaves a defence of citizenship revocation that does not depend on
practicality or utility, but instead rests on the insistence that revocation is
just and tting punishment of those who abuse the privilege of citizenship. I
argue that when citizenship becomes revocable for misconduct, citizenship
3 Egypt does not extradite its nationals, and the Egyptian criminal justice system
does not inspire condence in its capacity to administer justice.
4 This point draws on the insight of legal theorist Lon Fuller. He admitted that
his principles of legality were formal in the sense that they did not stipulate
any substantive moral content to law. But he also maintained that legal systems
that were intent enacting morally repugnant laws would be hard pressed to
reconcile achievement of those objectives with compliance with principles of
legality. I extend Fuller’s intuition to suggest that a chronic pattern of non-
compliance with principles of legality in relation to a particular law supports
an intuition that the law is normatively defective in substance.
On Producing the Alien Within: A Reply

242
as legal status is demoted from right to privilege. This is a specically legal
argument about the juridical fragility of a privilege compared to a right.
Joppke’s comment that citizenship in western states is a privilege because
citizenship delivers so little to citizens of most non-western states is a non-
sequitur. I may feel privileged to be a Canadian citizen and to benet from
the rights, entitlements and security of Canadian citizenship, but that does
not make citizenship as such a privilege. And it would be peculiar indeed if
only liberal democratic states that guarantee robust citizenship were entitled
to revoke citizenship qua privilege, while poor and dysfunctional states that
deliver only a meagre citizenship, were not so entitled. Schuck maintains
that citizenship revocation, properly wielded, does not weaken citizenship,
but can actually ‘strengthen citizenship by reafrming the conditions on
which it is based.’ I am not sure exactly what this means but his subsequent
invocation of capital punishment does alert one to the rhetorical symmetry
of his claim with similar assertions by death-penalty advocates: If one is
convinced that the value of life is strengthened when the state executes a
murderer, perhaps one will also be persuaded that citizenship is strength-
ened when the state denationalises a terrorist. The corollary also applies: If
one is not attracted by the rst proposition, perhaps one should resist being
seduced by the second.
Jo Shaw’s insightful intervention about the implications of denationali-
sation for EU citizenship brings to the discussion the important issue of
proportionality, a matter Hailbronner also addresses briey. Stepping back
from the specicities of EU citizenship, a proportionality inquiry into citi-
zenship deprivation directs us to the question of whether the state can
achieve its objectives through less rights-infringing means than the impugned
law. If one takes seriously the injunction against statelessness, the answer
must surely be yes. However one frames the goals and purposes of citizen-
ship deprivation, it remains true that states can and do deploy other means to
address, contain and denounce threats to national security from mono-
nationals.5 They must do so because denationalisation is not a legal option,
5 States can and do use the criminal law to prosecute people for terrorist related
offences committed at home and abroad. Expanded police powers of investiga-
tion and surveillance enable detection. Passport conscation that prevents
travel to conict zones restrains a right of citizenship (exit), and some states
prosecute citizens who participation in combat abroad when the return. Some
states also restrict the right of citizens abroad to re-enter in the name of
national security. I consider this less defensible as a matter of law, both in
relation to the excluded citizen and other affected states but cannot develop
that argument here.
A. Macklin

243
yet no state will be heard to say that it is disabled from protecting the nation
adequately because it cannot denationalise mono-citizens.
Schuck proclaims that a state is ‘powerless to protect itself and its people
from imminent, existential threats’, if denied access to denationalisation as
a weapon. Not only does this ignore the resources currently available to
states, it dramatically overestimates what citizenship revocation would add
to the arsenal. Unless a state could mount evidence showing that dual citi-
zens pose a qualitatively different and graver threat to national security than
mono-nationals, I doubt that citizenship revocation for some citizens (but
not others) could survive a rigorous proportionality analysis. And by advanc-
ing revocation as a response to 'imminent, existential' threats, he defeats his
own claim that the process of citizenship revocation can, in principle, abide
by standards of procedural fairness. Fair processes take time, so whatever
threat revocation purports to eliminate, it cannot be imminent. And is it
really a good idea to dump an ‘imminent, existential threat’ on another state
and its people anyway?
Rainer Bauböck correctly and helpfully reminds us that what is at issue
is citizenship as legal status. Legal citizenship, as an institution that regu-
lates membership within and between states, performs certain specic func-
tions that have formal implications. Among liberal states, equality of status
and security of that status are two dening features of legal citizenship. The
former speaks to citizenship’s internal dimension by ensuring that all citi-
zens within a state are recognised and treated as equal to one another. The
latter speaks to citizenship’s external dimension. In functional terms, nation-
ality not only protects individuals from what Michael Walzer calls the ‘in-
nite precarity’ of statelessness, it also serves an international system of
sovereign states in ensuring that at least one mailing address is afxed to
every individual for purposes of state responsibility and deportation.
Apart from Joppke, all contributors accept statelessness as a constraint
on citizenship stripping. In the world as we know it, where all habitable
space is already assigned to some state, the claim that a citizen, by virtue of
his or her conduct, does not belong to this state must, therefore, entail the
claim that the person does belong to that state.6 This exposes two related
problems for conduct-based revocation. The rst is that the people whom
6 One could, I suppose, imagine a world where states re-appropriate stateless-
ness in order to resurrect the gure of the global legal outcast (hostis humani,
or perhaps homo sacer). Stripped of law’s protection, this global outlaw could
be killed or punished with impunity. I will set this aside this possibility, and I
am unsure if this is what Joppke has in mind.
On Producing the Alien Within: A Reply

244
Joppke depicts as appropriate targets of denationalisation are not merely
enemies of a particular state or government. On his view, they ‘explicitly
posit themselves outside the political community of the nation-state’. In
other words, they repudiate citizenship as such or, if one prefers, pose as
‘citizens’ of a non-state entity that every other state in the world rightly
regards as deeply threatening and inimical to their security. One expects that
they will be as ‘tactical and cynical’ in their connection to one citizenship as
to another. The Canadian citizenship revocation law validates this model of
the global terrorist by making conviction for a terrorist-related offence in
another country grounds for revoking Canadian citizenship. If another state
regards a Canadian citizen as a terrorist, that is reason enough for Canada to
conclude that his citizenship connection to Canada is inauthentic and
warrants severance.
Joppke’s own characterization of the terrorist’s relationship to citizen-
ship makes his argument about denationalisation self-defeating. If terrorists
disavow citizenship as such, and are indeed hostis humani generi (enemies
of all humanity), the same facts that would allow Joppke to pronounce that
the Kouachis (for example) did not really belong to France must also yield
the conclusion that they did not belong to any other state either. As a practi-
cal matter, if one state declares that formal possession of legal status is nor-
matively insufcient to attach the terrorist to that state, it can hardly press
the claim that legal status is sufcient to attach him to another state.
Joppke mocks Peter Spiro for making the sensible observation that nei-
ther al Qaeda nor Islamic State are states, which means that they are not
deportation destinations. Hailbronner abets Joppke by musing about whether
IS’ military control over patches of land in the midst of violent conict could
be ratcheted up into something approximating statehood. If this is meant to
hint at a viable legal option for where to dispose of otherwise stateless citi-
zens, one might as well explore the equally plausible (from a legal perspec-
tive) option of launching them into space to orbit the globe aboard some
inter-galactic Flying Dutchmen.7 Alternatively, perhaps we are meant to
7 It seems more likely that the UK will simply continue the practice of depriving
citizens of their UK citizenship while abroad, now accompanied with a
statement that the Home Secretary believes that target can obtain citizenship
elsewhere. Even if the person does not, in fact, have access to another citizen-
ship, the individual’s physical location outside the UK and inside another state
(to which they may have no legal relationship) will impose insuperable hurdles
on challenging the decision or compelling the UK to repatriate him.
A. Macklin

245
shrug off as a convenient fact that powerful states can opportunistically
denationalise their citizens while they are abroad in conict zones. Even if
they are rendered stateless, they become some other [failing] state’s
problem.
Bauböck’s contribution directs one to another dimension of belonging,
which reveals the second problem with Joppke’s approach. Citizenship
stripping’s revival traces back to the anxiety about so-called ‘home-grown’
terrorists who, unlike the iconic foreign menace, actually possess citizen-
ship by birth. Revoking citizenship enables the state to recast them as the
alien within, in order to then cast them out. Denationalisation serves the
narrative of terrorism as always and essentially foreign to the body politic
by literally transforming the citizen-terrorist into the foreign outcast. But the
very term ‘home-grown’ refutes the premise. The Kaouchi brothers were
French citizens. They were orphaned as children and raised as wards of the
French state. It is difcult to see them other than as products of French soci-
ety. The ideology that seized them originated elsewhere, but their receptivity
to it also directs one’s attention inward. Indeed, any viable anti-terrorism
strategy must attend carefully and critically to the local conditions that pro-
duce a descent into disaffection, hatred and violence – whether of the
Islamist, neo-Nazi or any other variety. The French assailants may have
been alienated from France, but there is no state to which they belonged
more.8
Ultimately, arguments about citizenship revocation turn on underlying
conceptions of what citizenship is for, and expectations about what citizen-
ship as legal status can achieve. Citizenship signies membership, but
beyond that general descriptor, citizenship inhabits multiple registers across
many disciplines which are not reducible to or fully commensurate with one
another. Citizenship as legal status is powerful because it carries the force of
law, but also limited in what it can achieve for precisely the same reason. It
is enabled and constrained because it is citizenship law and because it is citi-
zenship law.
8 One might object that the sample set is too limited: After all, there are dual
citizens (especially those who naturalised as adults) who might reasonably be
understood as more connected to their country of origin. A short answer is that
even if true, it would be a clear conict of interest to let one state of citizenship
make that determination. A fuller answer, which lies beyond the scope of this
intervention, would explain why this type of calculus is inimical to the security
that distinguishes citizenship from other statuses.
On Producing the Alien Within: A Reply

246
States can and do use law to promote and endorse commitment, patrio-
tism and active citizenship. They do it through public education, programmes
for social inclusion, support and assistance, sponsorship of the arts and rec-
reation, and other policies that build solidarity and encourage ‘good citizen-
ship’. These various spheres of public activity are enabled through legal
frameworks, and so law plays an important role here. Citizenship law’s chief
constructive contribution lies in imposing (reasonable) requirements for
naturalisation, such as residence and language acquisition, that genuinely
facilitate integration and commitment to the national community.
The state must also be concerned about ‘bad citizenship’ and it falls to
the criminal justice and national security regimes to address the most egre-
gious conduct that endangers or harms the national community. To conclude
that contemporary citizenship law is ill-suited to advancing punitive goals
does not deny that some people are very bad citizens, or that law plays a
crucial role in addressing that fact. It simply opposes the recruitment of citi-
zenship law to punish bad citizens by demoting them to non-citizens.9 A
man who attacks his mother may be a terrible son who deserves to be pros-
ecuted for his crime, but it is not the job of family law to disclaim him as the
son of his mother. Citizenship law is not criminal law. Nor is it national
security law. Nor should it be rigged to operate as a trap door that shunts citi-
zens to immigration law.
Accounting for citizenship status’ specic legal character also guides us
toward what law can (and cannot) achieve. A number of plausible accounts
of citizenship’s normative foundation circulate in political theory. They typ-
ically involve some idea of commitment or allegiance, whether to the state,
the constitution, or democratic self-government. I do not here express a
preference among them, but rather observe that they tend to focus on the
internal relationship between state and citizen, and the grounds upon which
the relationship may be properly said to have ruptured. They do not attend
to the external dimension of legal citizenship, namely the role of nationality
in stabilising the international ling system for humanity, and they do not
9 The various legal strategies currently in use to detect, deter, prevent and
respond to terrorism can and do fail, sometimes tragically and spectacularly. Is
this because states have not arrogated to themselves sufcient coercive powers,
or do inadequate human, technical and nancial resources explain more about
operational failure?
A. Macklin

247
furnish a satisfactory normative explanation for why the ‘bad citizen’ should
be assigned to another state.
Citizenship law cannot subject to legal regulation the myriad values,
practices and aspirations ascribed to citizenship-as-belonging. This is unsur-
prising: Citizenship status enfranchises citizens above the age of majority,
but there is no legal compulsion to vote (except in Australia, Belgium, Brazil
and a few other states) and citizenship law does not purport to penalise those
who never exercise their right or duty of active citizenship. Nor does citizen-
ship law purport to regulate access to most types of civil and social citizen-
ship (in Marshallian terms), and I suspect most commentators agree that that
is a good thing.
Nevertheless, defenders of revocation insist that citizenship law can and
should regulate ‘loyalty and allegiance’ of citizens. The criminal law can
punish people for intentionally committing wrongful acts, including treason,
murder, and all other forms of horric violence that concern us here. Some
assailants may openly express contempt for their country of citizenship,
while others (like the Ottawa shooter Joppke cites) display a messy history
of mental illness, drug addiction and petty criminality preceding recent con-
version to Islam. The putative value added by citizenship revocation is pre-
cisely that it makes lack of allegiance and loyalty the central element in
dening crimes against citizenship. But to paraphrase Aldous Huxley, loy-
alty and allegiance are like happiness. They are by-products of other activi-
ties. Fostering love of country is a valid aspiration of states and worth
cultivating. But it cannot be manufactured by the carrot of a citizenship oath
(as Joppke has elsewhere10 acknowledged), nor will it be conjured by the
stick of revocation. Law is not adept at producing sentiment on command.
Space constraints have led me to focus on those submissions that directly
challenge my own position, and I have not responded to the cogent, pro-
vocative and creative insights offered by so many contributors. My own
thinking has been deepened and challenged by them, for which I express
gratitude and appreciation. I admit that I took as my remit citizenship revo-
cation only in the literal, legal sense. I also acknowledge the criticism that
10 Bauböck, R. & Joppke, C. (2010), ‘How liberal are citizenship tests?’, Robert
Schuman Centre for Advanced Studies, EUDO Citizenship Observatory
Working Paper No. 2010/41, Florence: European University Institute, available
at http://cadmus.eui.eu/handle/1814/13956
On Producing the Alien Within: A Reply

248
conning my focus to citizenship revocation does not pay due regard to the
compelling claim, for example, that deportation of non-citizens may also
constitute banishment in some circumstances, with attendant human rights
implications. I hope that nothing I have said here gives the appearance of
foreclosing or prejudging broader or different conceptions of banishment.
There is always more to be said, and much to be done.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
A. Macklin

Abstract
New digital technologies are rapidly changing the global economy and have
connected billions of people in deterritoralised social networks. Will they
also create new opportunities for global citizenship and alternatives to state-
based political communities? In his kick-off essay, Liav Orgad takes an opti-
mistic view. Blockchain technology permits giving every human being a
unique legal persona and allows individuals to associate in ‘cloud communi-
ties’ that may take on several functions of territorial states. 14 commentators
discuss this vision. Sceptics assume that states or business corporations have
always found ways to capture and use new technologies for their purposes.
They emphasise that the political functions of states, including their task to
protect human rights, require territorial monopolies of legitimate coercion
that cannot be provided by cloud communities. Others point out that indi-
viduals would sort themselves out into cloud communities that are internally
homogenous which risks to deepen political cleavages within territorial
societies. Finally, some authors are concerned that digital political commu-
nities will enhance global social inequalities through excluding from access
those who are already worse off in the birthright lottery of territorial citizen-
ship. Optimists see instead the great potential of blockchain technology to
overcome exclusion and marginalisation based on statelessness or sheer
lack of civil registries; they regard it as a tool for enhancing individual free-
dom, since people are self-sovereign in controlling their personal data; and
they emphasise the possibilities for emancipatory movements to mobilise
for global justice across territorial borders or to create their own internally
democratic political utopias. In the boldest vision, the decits of cloud com-
munities as voluntary political associations with limited scope of power
could be overcome in a global cryptodemocracy that lets all individuals par-
ticipate on a one-person-one-vote basis in global political decisions.
Keywords
Global citizenship · Digital technology · Blockchain · Cloud community ·
Virtual democracy · Legal persona
Part IV: Cloud Communities

251© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_46
Cloud Communities: The Dawn
of Global Citizenship?
Liav Orgad
The idea of global citizenship
About 70 years ago, an American peace activist named Garry Davis created
a registered concept of ‘world citizenship.’ A naïve enterprise at its infancy,
this concept looks more realistic today for three reasons. The rst reason is
global interconnectedness. The internet has profoundly changed the notion
of public space. About 50 per cent of the world population uses the internet
and global internet use is consistently growing – from 16 per cent in 2005 to
48 per cent in 2017. 71 per cent of the world’s youth population (15-24) uses
the internet, 94 per cent in the developed world.1 2.3 billion people use
smartphones, almost one-third of the global population. Facebook and
WeChat in China have an estimated 3 billion users together. Internet tech-
nologies and cloud computing enable people to establish digital IDs, which
could eventually become recognised as an international legal personality, be
connected with one another, disentangled from physical borders, and act at
a distance.
The second reason is identity. Ever since Aristotle, membership in a
political community denotes an identity of some kind. Shared identity is a
cornerstone of citizenship – it creates a sense of community and a commit-
ment toward a common good.2 While the idea of global citizenship goes
back to ancient Greece – the Greek philosopher Diogenes is credited to be
the rst to dene himself as ‘a citizen of the world’3 – it is only in recent
1 International Telecommunications Union (2017), ITU Facts and Figures.
Geneva: International Telecommunications Union, available at https://www.itu.
int/en/ITU-D/Statistics/Documents/facts/ICTFactsFigures2017.pdf
2 Joppke, C. (2010), Citizenship and Immigration. Cambridge: Polity Press.
3 Nussbaum, C. M. (1994), ‘Patriotism and cosmopolitanism’, The Boston
Review.
The research is supported by the European Research Council (ERC) Starting Grant
(# 716350). I thank Ehud Shapiro and Primavera De Filippi for inspiring discus-
sions on the concept of self-sovereign digital identity.

252
years that a transformation of consciousness from local to global identities
has been identied. Recent polls reveal that people are increasingly identify-
ing themselves as global, rather than national, citizens. For example, a 2016
BBC World Poll shows that 56 per cent of the respondents consider them-
selves, rst and foremost, as ‘global citizens,’ rather than national citizens.4
A 2016 World Economic Forum Survey indicates that the vast majority of
young people identify themselves rst as ‘human’ (40.8 per cent) and ‘citi-
zens of the world’ (18.6 per cent), while national identity only comes third
(13 per cent).5 National identity remains central, but, particularly in emerg-
ing economies, a perception of global social identity is on the rise.6 For the
rst time in history, a large percentage of the world’s population places
global identity above any national or local identities; there is a growing
sense of a global community that transcends national borders.
The third reason is responsibility, a central component of a republican
conception of citizenship. In a republican view, members of a political com-
munity share public responsibilities to promote a common good and con-
front common challenges. Today, more than ever, human beings face
common global challenges and human activities have a cumulative effect on
the global scale.7 Although there are no global individual responsibilities, at
least not in the legal sense, private individuals are increasingly showing
global responsibility in different policy areas (food consumption, global
warming, animal rights) by taking actions (e.g., buying organic food, recy-
cling, becoming a vegetarian) based on free choice and without state coer-
cion. Some of the global challenges have become urgent and cannot be
adequately addressed on the national level. By showing global responsibil-
ity, even if limited and with a weak sense of agency, individuals are
participating in activities whose scope and target audience go beyond
4 GlobeScan (2016), Global Citizenship a Growing Sentiment Among Citizens of
Emerging Economies: Global Poll. Available at https://www.globescan.com/
news-and-analysis/press-releases/press-releases-2016/383-global-citizenship-
a-growing-sentiment-among-citizens-of-emerging-economies-global-poll.html
5 World Economic Forum (2017), Global Shapers Annual Survey 2017.
Available at http://www.shaperssurvey2017.org/static/data/WEF_GSC_
Annual_Survey_2017.pdf; World Economic Forum (2016) Global Shapers
Annual Survey 2016. Available at http://www.shaperssurvey2017.org/static/
data/GSC_AS16_Report.pdf
6 Buchan, N., M. B. Brewer, G. Grimalda, R. K. Wilson, E. Fatas & M. Foddy
(2011), ‘Global social identity and global cooperation’, Psychological Science
22 (6): 821-828.
7 Dower, N. (2003), ‘Does Global Citizenship Require Modern Technology?’
Ideas Valores 52 (123): 25-42.
L. Orgad

253
national boundaries. The changing public opinion thus goes hand in hand
with changes in individual actions motivated by a sense of global political
responsibilities.
Status: international legal persona
Under the current structure of international law, individuals exist as legal
persons only through a status conferred to them by a state. Individuals are
citizens or residents of some state; an international legal status of a ‘human
being’ is non-existent.8 True, international law speaks in universal terms of
international human rights law, even natural rights, but it makes them
largely dependent on citizenship and territorial sovereignty, as if a person
only legally exists through a state – a feudalist approach.9 This state of
affairs raises three issues. First, human rights: an estimate of 1.1 billion
people, 15 per cent of the world population, lacks an ofcial identication.10
Without a national identication, one cannot have access to basic services
and participate in modern life; one lacks, as coined by Hannah Arendt, the
‘right to have rights’. For refugees and displaced persons, having no national
identity can lead to detention and deportation. But even people with a
national ID may wish to have a universal ID that allows them to choose an
identity free of state limitations (think of national restrictions on gender
identity, sexual orientation, and names). The legal source for an interna-
tional legal personality can be found in Article 6 of the Universal Declaration
of Human Rights, according to which ‘Everyone has the right to recognition
everywhere as a person before the law’ (also Article 16, ICCPR).11
The second issue is lack of self-governance. Existing citizenship regimes
are based on Westphalian sovereignty under which citizens govern their life
8 It has a few exceptions: individual criminal responsibility and some civil
liabilities in international law.
9 Benhabib, S. (2005), ‘Borders, Boundaries, and Citizenship’, Political Science
and Politics 38 (4): 673-677.
10 Desai, V., M. Witt, K. Chandra & J. Marskell (2017), ‘Counting the uncounted:
1.1 billion people without IDs’, The World Bank. Available at http://blogs.
worldbank.org/ic4d/counting-uncounted-11-billion-people-without-ids
11 United Nations (1948), Universal Declaration of Human Rights. Available at
http://www.un.org/en/universal-declaration-human-rights/; Also: United
Nations (1966), International Covenant on Civil and Political Rights. Adopted
by the General Assembly of the United Nations on 19 December 1966, avail-
able at https://treaties.un.org/doc/publication/unts/volume%20999/volume-
999-i-14668-english.pdf
Cloud Communities: The Dawn of Global Citizenship?

254
indirectly – through the state.12 This means that the status of citizenship
perpetuates the monopoly of the state to control the exercise of individual
rights. On the national level, the exercise of rights is connected with the
status of citizenship (though less today than in the past);13 on the transna-
tional level, following the development of a standard travel document, the
passport, the exercise of freedom of movement outside the state has become
connected with citizenship (perhaps more so today than in the 18th and 19th
centuries).14 It also means that the participation of individuals in interna-
tional law-making, even in decisions that directly affect them, is only
realised through state representatives and depends a great deal on who is
included in the boundaries of the demos. Minorities that have minimal polit-
ical inuence or no citizenship rights remain unheard in international
decision- making, and so are people who are ineligible to vote in national
elections due to electoral law restrictions and citizens in authoritarian
regimes.15 The actual inuence of individuals in the creation of international
law is innitesimally small.
The third issue is unequal representation. Since the 17th century, the
Westphalian concept of sovereignty has been based upon two fundamental
ideas that have marched together – nation-states and territories – accompa-
nied by a third idea, equality: the notion that sovereign states are equal.16
The Peace of Westphalia ended the medieval hierarchical system of power
among rulers – though not among humans – and replaced it with a system of
territorial sovereignty and sovereign equality of states (this idea is recog-
nised today in Article 2(1) to the UN Charter).17 Unlike sovereign states,
individuals do not have an equal voice in international affairs. International
law is organised on a ‘one-state, one-vote’ basis – a system that creates dis-
parities in individual voting power. Citizens of San Marino (33,000 people)
12 Peters, A. (2016), Beyond human rights: the legal status of the individual in
international law. New York: Cambridge University Press (Huston J. tran.).
13 Spiro, P. (2008), Beyond Citizenship: American Identity After Globalization.
New York: Oxford University Press.
14 Dehm, S. (2018), ‘The Passport’, in Hohmann J. & D. Joyce (eds.), The
Objects of International Law. Oxford: Oxford University Press (forthcoming).
15 Shaw, J. (2017), ‘Citizenship and the Franchise’, in Shachar A., R. Bauböck,
I. Bloemraad & M. Vink (eds.), The Oxford Handbook of Citizenship, 290-313.
Oxford: Oxford University Press.
16 Walker, N. (2017), ‘The Place of Territory in Citizenship’ in A. Shachar,
R. Bauböck, I. Bloemraad & M. Vink (eds.), The Oxford Handbook of
Citizenship, 553-575. Oxford: Oxford University Press.
17 United Nations (1945), Charter of the United Nations. Available at http://www.
un.org/en/sections/un-charter/chapter-i/index.html
L. Orgad

255
have the same voting power in the UN as citizens of India (1.2 billion). The
disparity in individual voting power in governance of global issues (e.g.,
global warming and the environment) undermines the equal value of citi-
zenship under international law.
Digital identity: blockchain technology
The UN Sustainable Development Goals recognise the importance of legal
identity for all. Article 16.9 aims to ‘provide legal identity for all, including
birth registration’ by 2030. Through the ID4D program, the World Bank
assists in the promotion of the UN goal by nancially assisting states to
provide recognised IDs.18
The internet already offers the infrastructure for the realisation of digital
IDs, yet new technologies, e.g. blockchain, are likely to bring further
improvements necessary to turn the idea into reality. The internet is a system
of interconnected computer networks, which allows for exchange and trans-
fer of data. All present major internet applications are structured in a client-
server application, where the participants access it via an app or a web
browser (client) and the company providing the application runs the compu-
tations and data on their own computers (server). This structure gives these
companies (and governments) total control over the service they provide and
all the data produced by its users. Blockchain technology offers the rst
internet applications that works differently; it is designed as a peer-to-peer
system that is not controlled by a central entity and in which data exchange
is not stored in a single physical location. On the blockchain, shared data are
hosted by all the computers in the network simultaneously and are publicly
accessible to all. Blockchain technology is a game changer; it can provide
people with self-sovereign identity – they are the ones who create and regis-
ter their identity and they are the only ones who control what to do with it
and with whom to share what. In such a decentralised system, one’s identity
is not owned by a central server (Facebook, LinkedIn, a state ministry), but
by the person herself; she can decide which data to share and for what pur-
pose. Hence, blockchain technologies can help achieving the UN goal of
granting an ID to everyone, not just to those who can obtain it from a state,
in a decentralised way that is not necessarily controlled by the UN or by
states.
18 Above n.11.
Cloud Communities: The Dawn of Global Citizenship?

256
Several organisations are currently working on the creation of the tech-
nological infrastructure required for a trustworthy global digital ID.19 The
achievement of this goal involves some challenges: who will register people
for a global ID? What will be the relation between a global ID and a national
ID – will the global ID rely on national registries or be independent? When
will a global ID be created – at birth, or at later age when the person can
exercise control? Which details will be included – only a birth certicate, or
also physical characteristics and biometric data? Will there be a standard
form? Will the possession of a global ID be a right, or also a duty? How to
create digital IDs for people in places where the required technology does
not exist or in authoritarian regimes that restrict their subjects’ access to
information technology? How to create an ID that is immune to identity
theft and fake identities? These are important questions, but the very idea of
a global digital identity for everyone, giving all people a legal status as a
‘human being,’ is no longer a far-fetched possibility.
A global ID is not a status of citizenship – nor does it create, in and of
itself, an international legal status, although it is a prerequisite for it. Yet, in
my view, this is not supposed to be its main purpose. An international legal
persona should not be seen as a replacement of national citizenships but
rather as a status and identity complementary to national citizenships (it is
thus not identical to cosmopolitan visions of global citizenship)20. It is a
legal concept that will provide everyone with a global unique ID of a ‘human
being.’ This status will be the default lifelong identity and membership for
every person, which cannot be waived or withdrawn, and on top of it indi-
viduals will have other forms of membership, such as national
citizenship.21
19 E.g., ID2020; uPort; Accenture Unique Identity Service Platform;
BITNATION; Democracy Earth Foundation, Jolocom, Evernym, Decentralized
Identity Foundation.
20 See discussions in: Shachar, A. (2009), The Birthright Lottery: Citizenship and
Global Inequality. Cambridge: Harvard University Press, 45-48.
21 My focus is on a formal legal institution – status – and the political delibera-
tion that can follow it. Other issues that may be associated with an interna-
tional legal status – e.g., rights (think of global basic income), duties (think of
global tax system), or identity (think of global core curriculum) – require a
different discussion.
L. Orgad

257
Political participation: ‘Cloud Communities’
Imagine that every person has a trustworthy unique international legal per-
sona; what are we going to do with it? The range of applications is enor-
mous. The question is not only which functions are technologically possible,
but which ones are normatively desirable, i.e., which values should be
achieved by using technology?
In international law, a ‘state’ possesses four qualities: a permanent popu-
lation, a dened territory, government, and a capacity to enter into relations
with other states (Article 1, Montevideo Convention, 1933)22. International
law does not recognise the concept of a ‘virtual state,’ yet existing virtual
communities, such as Bitnation (https://bitnation.co/) – a decentralised bor-
derless virtual nation that functions as a government service platform – chal-
lenge the denition of a ‘state,’ and raise the question of why some of the
institutional functions of the state, for which it was rst established, cannot
be effectively served also by a virtual political community?23 Can we inter-
pret a ‘dened territory’ to include cyberspace, or instead talk of ‘state-like’
non-territorial polities?
The concept of an international legal persona will enable individuals to
establish ‘Cloud Communities’ of different kinds. Conceptually, cloud com-
munities have traditional characteristics of political communities, but not
necessarily a physical territory. The communal bond can be global in
nature – such as a shared concern about climate change, ageing, veganism
and animal rights (i.e., a universal community, open to everyone) – or ascrip-
tive, such as a Jewish / Bahá'í faith / Diasporic Cloud Nations, a form of
‘transnational nationalism’ (i.e., a selective community, open only to certain
members). It can be thematic or geographic – region, country, state, city,
village – based on a shared interest or territorial identity, even if not corre-
sponding to existing borders or legally recognised communities. Membership
is based on consent; a person can be a member of several communities or
none. The goal varies, but my focus is political communities. Cloud com-
munities are not social networks, but political communities whose aim is
political decision-making and in which individuals take part in a process of
governance and the creation of law. The legal source for it can be Article
22 Convention signed at Montevideo December 26, 1933. Available at http://
avalon.law.yale.edu/20th_century/intam03.asp
23 Tarkowski Tempelhof, S., E. Teissonniere, J. Fennell Tempelhof & D. Edwards
(2017), Bitnation, Pangea Jurisdiction and Pangea Arbitration Token (PAT):
The Internet of Sovereignty. Planet Earth: Bitnation.
Cloud Communities: The Dawn of Global Citizenship?

258
25(1) of the International Covenant on Civil and Political Rights (ICCPR),
according to which ‘every citizen shall have the right and the opportunity …
to take part in the conduct of public affairs, directly or through freely chosen
representatives.’ Such a community may function in four areas: law (consti-
tution, membership acquisition, registry), governance (political institutions,
diplomacy, international agreements, taxes), welfare services (education,
healthcare, social security), and economy (trade, corporate activities, fees).
It can provide an ID registry, a dispute resolution system, collaborative
decision- making, a virtual bank, and a voting system. In a sense, religions
are a form of ‘cloud communities’: virtual and borderless, but not voluntary
and decentralised.
Procedurally, cloud communities can be established in two ways. A top-
down community can be set up by an international organisation, such as UN
organs, as an advisory body to an existing UN organ (WHO, FAO,
UNESCO), or in policy areas of global importance (the 17 UN Sustainable
Development Goals is a good start). A bottom-up community can be set up
by any number of international legal personas on a topic of common inter-
est; as time passes by and the community reaches a certain numerical thresh-
old, it can apply for a ‘Consultative Status’ at the UN (Article 71, UN
Charter24). As in other mechanisms of advisory decision-making (e.g., advi-
sory referendum), the outcome may become politically, even if not legally,
binding.
Cloud communities are not a replacement for the state, but they offer
global citizens sharing a common goal, interest, or identity new ways of
interacting and collaborating with each other; they are ‘state-like’ entities.
The future of citizenship: dynamic and multilayered?
In today’s world, one is a participating member in multiple political com-
munities, each of which has different functions and comes with a different
set of rights and duties. Citizenship is multilayered.25 It is, for example,
national and supranational, as demonstrated by European Union citizenship
24 Available at http://www.un.org/en/sections/un-charter/un-charter-full-text/
25 Bauböck, R. (2017), ‘Political Membership and Democratic Boundaries’, in
Shachar, A., R. Bauböck, I. Bloemraad & M. Vink (eds.), 60-82. The Oxford
Handbook of Citizenship. Oxford: Oxford University Press.
L. Orgad

259
or – quite differently – an African Union passport.26 It can be territorial and
digital, as demonstrated by e-Estonia (https://e-estonia.com/), the rst digi-
tal residency program in the world. In the blockchain-based digital society
of e-Estonia, everyone can acquire e-residency in Estonia in order to access
its digital governmental services; e-residents can establish a business in
Estonia, register a company, participate in an e-school, open a bank account,
and have an Estonian digital ID (e-residents are not entitled to physical resi-
dency in Estonia unless they full the regular visa requirements – thus, they
are e-residents without physical residency rights.) In July 2017, there were
more e-residents than newborns in Estonia27 and the country is planning is
to reach 10 million e-residents by 2025, which will make its virtual popula-
tion almost ten times larger than its territorial population (1.3 million in
2017).
Existing attempts to create ‘cloud communities’ – such as Bitnation and
e-Estonia – already offer non-territorial forms of political membership,
remodel the way people think about sovereignty, and challenge the deni-
tion of the state as we know it – as a legal entity that must have a physical
territory and a centralised governance.28 Citizenship, à la Bitnation and
e-Estonia, resembles a business model where states are service providers
and ‘citizens’ are billed for the service – from education to healthcare to
infrastructure. In this model, there is no lifetime membership but xed
membership contracts, which can be renewed or become permanent.
If we had to design a new international legal system, given today’s politi-
cal and technological conditions, would it be like the current system? The
world is ready, more than ever before, for realising of one of the most
morally- desirable notions in human history – global citizenship
26 The implementation of the African Union Passport, which is set to 2020, will
facilitate the notion of an international legal persona as it would provide a legal
identication to million Africans who currently lack a registered ID.
27 Fraga, D. (2017), ‘The Birth of a Digital Nation in Estonia’, Next Nature
Network, August 30, available at https://www.nextnature.net/2017/08/
estonia-more-e-residents-than-babies/
28 Certainly, e-Estonia and Bitnation represent opposite functions of cloud
communities. While e-Estonia uses new technologies to expand the global
reach of a nation-state, Bitnation seeks to disrupt the current system by
offering an anarchic post-nation state world of voluntary virtual communities. I
thank Rainer Bauböck for this point.
Cloud Communities: The Dawn of Global Citizenship?

260
(Weltbürgerschaft) without a world state, as envisioned by Immanuel Kant
in 1795. Such a vision is an addition to, and an improvement of the existing
citizenship regimes that evolved in a completely different era. Are we ready
to embrace the global citizenship that new technologies offer to us?
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
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the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
L. Orgad

261© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_47
Citizenship in Cloud Cuckoo Land?
Rainer Bauböck
We are in the midst of a digital revolution that could transform societies
worldwide as profoundly as the agrarian revolution of the Neolithic age
and the industrial revolution of the 19th century did. No doubt, new tech-
nologies will also deeply affect the structure and boundaries of political
communities and the meaning of citizenship. Liav Orgad tells a hopeful
story about the benets of blockchain technology. It can serve to create an
international legal identity for every human being and new forms of non-
territorial political community in which citizenship is based entirely on
consent. I share Orgad’s sense of excitement about the speed and depth of
change that we are witnessing. But I am less optimistic about the future of
citizenship.
The progressive potential: providing global legal status
and enabling global civil society
Orgad’s rst suggestion is that digital technologies will make it possible to
provide every human being with an international legal persona, a ‘default
lifelong identity and membership for every person, which cannot be waived
or withdrawn’ (original emphases). This would indeed be a major achieve-
ment. In less developed countries and autocratic regimes, millions of births
are not registered. Unregistered persons are de facto stateless and cannot
claim services or rights from governments that do not recognise them as
nationals.1
Yet blockchain, the technology that he sees as most promising for this
task, is not a tool to improve governments’ administrative capacities. It is a
decentralised ledger that is not under the control of any government or cor-
poration. Individuals control themselves what their registered identity is
(e.g. their chosen gender) and who gets access to their linked data (such as
1 For Africa see Manby, B. (2016), Citizenship Law in Africa. A Comparative
Study. New York: Open Society Foundations, 3rd edition, available at https://
www.opensocietyfoundations.org/sites/default/les/citizenship-law-africa-
third-edition-20160129.pdf

262
health or education records). This is why Orgad sees in blockchain
technology a potential ‘to provide people with self-sovereign identity’ (orig-
inal emphasis).
There is an obvious tension between these two goals: providing every
human being with an unalterable and unique identity, on the one hand, and
providing them with sovereign control over their identity related data, on the
other hand. Births and deaths must be registered by someone else than the
individuals concerned. Presumably adult individuals, too, are constrained in
their choices because they must not opt out by deleting their international
legal identity or subvert the global registry by assuming that of another per-
son. More importantly, governments will not be out of business. Even if the
act of registration is certied in a decentralised ledger, governments must
recognise it in order for individuals to enjoy legal statuses and rights that
only states can grant.
Orgad seems to be aware of this tension when he writes that a global ID
is not a status of world citizenship and that it would supplement rather than
replace national citizenships assigned by governments. But he also wants to
put it to uses that would undermine the international system of sovereign
states as we know it. When Orgad suggests that all individuals could be
represented equally in making international law, he must have some form of
global federal democracy in mind, e.g. a ‘peoples’ assembly’ enjoying co-
legislative powers with a body in which each state has one vote, as in the UN
General Assembly.2
His main vision is, however, the emergence of alternative forms of politi-
cal community at the sub-global level: cloud communities or virtual nations
that individuals can join based on shared concerns or ascriptive identities
that transcend the territorial boundaries of states. Orgad envisages two ways
how these communities can come about: bottom up or top down. People
concerned about global social justice could form cloud communities pro-
moting this goal, whereas others may want to join a global ethnic or reli-
gious diaspora. The UN could initiate cloud communities that support its
development or climate change goals, but also states or regions could set
them up to empower their diasporas.
2 Proposals for a UN reform along these lines have been made since the 1990s.
See Archibugi, D. (1993), ‘The Reform of the UN and Cosmopolitan
Democracy: A Critical Review’, Journal of Peace Research 30 (3): 301-315.
R. Bauböck

263
To me, these applications of cloud communities look like an expansion
of civil society, of international organisations, or of traditional territorial
polities into cyberspace, rather than like genuinely new forms of political
community. If this is what they are, then cloud communities could provide
great opportunities. They could mobilise individuals across the world for
goals of global justice or climate protection. And they would provide new
spaces for civil society in states that suppress individual liberty and oppress
ethnic or religious minorities. I imagine that states and global corporations,
even if they cannot control the underlying blockchain registries, will nd
ways to instrumentalise or hijack cloud communities for their own purposes,
as they already do with the internet and social media. Autocrats have done
so with new communication technologies ever since the invention of the
printing press. Yet this is not my main worry. It would be wrong as well as
futile to reject new technologies that enhance individual freedom because
they can also be used to constrain it.
The threat to democracy: should we be ruled by voluntary
associations?
My main worry is that cloud communities may provide new global spaces
for citizenship as civic participation while undermining its foundation as
equal membership in territorial polities. This tension emerges from contrast-
ing mechanisms for determining membership in civil society and in political
communities. Civil society is the realm of voluntary association in between
the involuntary associations of families, rms and states.3 In contrast with a
global ID, which would register another form of involuntary membership,
that of belonging to the human species, cloud communities must be volun-
tary associations. Individuals sort themselves into such communities by
applying for membership or opting out while communities enjoy collec-
tively powers to determine the conditions for admission. A vibrant sphere of
voluntary associations is an essential element of democratic citizenship.
And in an increasingly interconnected world it is indeed highly desirable to
expand civil society so that individuals can act as global citizens in volun-
tary associations that pursue global agendas.
But they can do so only because and insofar as they have a secure ter-
ritorial citizenship that protects their fundamental rights and makes them
3 See Bauböck, R. (1996), ‘Social and Cultural Integration in Civil Society’, in
R. Bauböck, A. Heller & A. Zolberg (eds.), The Challenge of Diversity.
Integration and Pluralism in Societies of Immigration, 67-132. Aldershot, UK:
Avebury.
Citizenship in Cloud Cuckoo Land?

264
equal members of a political community that most of them have not cho-
sen to belong to. The social contract metaphor that has informed liberal
thinking about citizenship since Hobbes, Locke and Rousseau is mislead-
ing in this respect. Citizenship as a legal status of membership in a territo-
rial polity has never been based on consent. Citizenship in today’s states is
generally acquired at birth – either through birth in the territory or descent
from citizen parents. Immigrants may opt in through applying for naturali-
sation but – as the word itself signals – they join a birthright community.
Emigrants may opt out through renouncing their nationality, but they can
generally do so only if they have already resided abroad for some time and
have acquired another citizenship. The non-voluntary nature and auto-
matic acquisition of citizenship are even stronger at local and regional
levels. Local citizenship is, or should be, generally based on residence
rather than birth. By taking up residence in another municipality I become
a local citizen and acquire rights to be represented in local government. In
an increasing number of democracies this principle of ius domicilii is also
extended to foreign nationals who are granted voting rights in local elec-
tions.4 Finally, regional citizenship in federal states or supranational
unions is automatically derived from nationality. I am a citizen of the
province of Lower Austria and a citizen of the European Union because I
am an Austrian national. Birthright, residence and derivation are three
complementary ways how territorial polities determine who their citizens
are.5 None of them is based on voluntary association.
But why should we not see cloud communities building on blockchain
technology as nally realising the social contract ideal by enabling us to
shed the coercive straightjacket of nonvoluntary citizenship and transform-
ing all political communities into voluntary associations? My response is
that this would be fatal for democracy. Already Aristotle knew that, unlike
families, democratic polities are association of diverse individual. These
have only one thing in common: a shared destiny that links the freedom and
well-being of each to the collective freedom and good of all. The territorial
bases and automatic attribution mechanisms of citizenship create political
community among individuals that differ profoundly in their interests, iden-
tities and ideas about the common good. Democracy is a set of institutions
and procedures that provide solutions to collective action problems and
4 Arrighi, J.-T. & R. Bauböck (2017), ‘A multilevel puzzle. Migrants’ voting
rights in national and local elections’, European Journal of Political Research
56 (3): 619–639.
5 See Bauböck, R. (2017), Democratic Inclusion. A Pluralistic Theory of
Citizenship. Manchester: Manchester University Press, 57-87.
R. Bauböck

265
legitimacy for coercive government exercised over a set of individuals who
have been thrown together in a territory instead of having chosen each other
in a voluntary association.
Voluntary associations in civil society and territorial democracies are
thus based on categorically different membership principles. Cloud com-
munities could strengthen democratic citizenship if they contribute to
expanding civil society to global scale. They would, however, undermine
democracy if they took over the provision of public goods and functions
of coercive government from territorial polities. Imagine what kind of
cloud communities would be formed if these enjoyed powers similar to
today’s states. Individuals would sort themselves out into like-minded sets
just as they do in the echo chambers of today’s social media networks. The
rich would form non-territorial polities that provide them with the best
medical, educational and private security services worldwide without
being taxed to nance adequate services also for the local poor. The dreams
of nationalists of matching ethnocultural with political boundaries would
nally come true if the latter are no longer territorial since, unlike terri-
tory, voluntary association is not a scarce resource. The boundaries of
political communities would be constantly reshaped in efforts to get rid of
minorities or lower classes who have become redundant in a digitalised
economy.
This is in my views a dystopian rather than a utopian scenario. I do not
think it is likely to happen any time soon, because states are powerful beasts
that have been skilful in adapting to technological revolutions and using
them for their purposes. I also think that most individuals are attached to
territorial democracy and citizenship and will ght back politically against
what they regard as excesses of globalisation. Unfortunately, they do so
today often through voting for populist parties and politicians that promote
an illiberal transformation of democracy. The task for liberal democrats is to
strengthen the integration of territorial democracies by bridging the cleav-
age between mobile and globally oriented populations, on the one side, and
immobile ones that experience a shrinking of their opportunities and life-
worlds, on the other side.
But maybe this is a period of transition and the next generations of digital
natives will be much more footloose than today’s sedentary majorities? A
combination of a steep rise in global mobility with digital technologies
empowering non-territorial political communities may make preserving ter-
ritorial democracy and citizenship a hopeless goal. Individuals’ primary
political allegiances would then no longer be to a community of citizens
rooted in a particular territory but to their self-selected cloud community.
Citizenship in Cloud Cuckoo Land?

266
It may happen, but democracy would then separate individuals living next
to each other instead of uniting them as equal citizens in spite of their differ-
ences. This is not going to be Aristophanes’ happy cloud cuckoo land.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
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permitted use, you will need to obtain permission directly from the copyright holder.
R. Bauböck

267© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_48
Citizenship in the Era of Blockchain-Based
Virtual Nations
Primavera De Filippi
In the last decades, modern democracies have been witnessing a low rate of
political participation and civic engagement with existing governmental
institutions. Low voter turnout, especially with younger generations, is rais-
ing signicant concerns for many representative democracies, and trust in
public institutions has dropped to a point that it has become difcult for
people to engage in political activity.1
Civic participation is not dead, however, it is only shifting to a new space.
With the advent of internet and digital technologies, citizens of the world are
coalescing into increasingly globalized social movements,2 paving the way
for new forms of political engagement.3 With the blockchain, these indi-
viduals could nd new ways to spontaneously organize and coordinate
themselves into transnational ‘cloud communities’, and – as Liav Orgad
suggests (chapter “Cloud Communities: The Dawn of Global Citizenship?”) –
even acquire their own self-sovereign identity that subsists independently of
any nation-state. Those, I believe, are some of the most compelling develop-
ments of blockchain technology, which I have been following closely over
the past few years.
But what makes blockchain technology a powerful tool for promoting
disintermediation and decentralized coordination – i.e. a trustless technol-
1 According to Pew Research, in 2016, only 19 per cent of Americans said they
trust their government, among the lowest levels in the past half-century. See
http://www.people-press.org/2015/11/23/beyond-distrust-how-americans-view-
their-government/. The same is true at the international level. A GCF survey
found out that 85 per cent of the respondents in eight countries believe that the
UN needs to be reformed to better deal with global risks and 71 per cent
support the establishment of a new supranational organization. See https://api.
globalchallenges.org/static/les/ComRes.pdf
2 Cohen, R. & R. Shirin (eds.) (2004), Global social movements. London: A&C
Black.
3 Della Porta, D., & S. G. Tarrow (eds.) (2005), Transnational protest and global
activism. Lanham (MD): Rowman & Littleeld.

268
ogy – also constitutes one of its greatest limitations, especially when it comes
to political deliberation. While politics is about reaching a compromise
between conicting interests and values, blockchain technology operates via
distributed consensus and an exit-based conict resolution system. As under-
lined by Rainer Bauböck, relying on voluntary cloud communities as a
means to govern society could signicantly increase inequalities, leading to
an overall loss of democratic representation and wealth redistribution.
In a sense, I agree with the diverging views of both Orgad and Bauböck.
When brought to an extreme, blockchain technology could create – simulta-
neously – a utopian society characterized by greater individual freedom and
autonomy, and a dystopian society driven by market-based incentives and
self-dealing. But reality is neither black or white; it often has many different
shades of grey. I see blockchain technology as neither the cure nor the curse
of today’s political institutions. Rather, I see it as a tool that could enable us
to experiment with new governance structures and alternative political sys-
tems – in a world where there is very little room left for experimentation.
Multiple shades of activism
Digital activism is a not a recent phenomenon. Social movements increas-
ingly leverage the power of digital technologies to coordinate themselves
and communicate to a broader audience – as illustrated by the role played by
social media during the Arab uprisings in 2011.4 But the internet also enabled
the emergence of new communities of kinship, with a variety of online plat-
forms (e.g Facebook, Twitter, Whatsapp) gathering people around specic
interests or values, regardless of their political views. Some of these com-
munities operate as tight social groups, providing members with a newfound
sense of belonging and a collective identity.5 While they do not engage in
what we usually regard as political activity, these online communities play a
key role in shaping the way people organize and coordinate themselves, in
ways that signicantly differ from those of existing political institutions.6
Apart from the legal regime these communities operate in, they are gov-
4 Howard, P. N., A Duffy, D. Freelon, M. M. Hussain, W. Mari & M. Maziad
(2011), ‘Opening closed regimes: what was the role of social media during the
Arab Spring?’, Project on Information Technology & Political Islam Working
Paper 2011.1, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_
id=2595096
5 Wellman, B. & M. Gulia (1999), ‘Virtual communities as communities: Net
surfers don’t ride alone’, in M. A. Smith & P. Kollock (eds.), Communities in
cyberspace, 167-194. London; New York: Routledge.
6 Norris, P. (2002), ‘The bridging and bonding role of online communities’,
Politics 7 (3): 3-13.
P. De Filippi

269
erned by their own systems of rules and social norms – which members
voluntary abide by.
In her book, ‘Social Movements and Their Technologies: Wiring Social
Change’, Stefania Milan illustrates the different approaches of social move-
ments in materializing their ideas into the world.7 Insiders adopt a coopera-
tive attitude: they recognise existing institutions as a legitimate source of
power and actively engage in their game, through advocacy and traditional
decision-making procedures.8 Outsiders adopt a more confrontational atti-
tude: they reject the rules of these institutions and choose instead to exert
pressure from the outside, through campaigns, protest or other form of polit-
ical resistance.9 Finally, what she refers to as beyonders are a wholly differ-
ent bunch. Beyonders simply refuse to engage with existing institutions:
they do not want to ght them nor do they want to change them, they simply
regard them as a leftover from a past era – which they are trying to render
obsolete by building new systems.10 Thus, relatively to the other two groups,
beyonders operate in a way that is more autonomous or independent; they
do not play for or against the established political system, they just decide to
ignore it or bypass it.
Is it fair to conclude that beyonders do not play a political role in society?
Clearly not. By creating an alternative to existing institutions, they exert an
indirect pressure forcing them to adjust themselves to maintain their posi-
tion. Perhaps more so than insiders and outsiders, who operate within a
given political framework, beyonders are deeply concerned with social
change. Their political action is the result of a constructive reaction to the
current state of affairs. They are responding to their own needs using new
schemes and methodologies, leveraging the power of communities to create
new institutions that will help them full their missions – through what
essentially amounts to a new form of political organisation.
7 Milan, S. (2013), Social movements and their technologies: Wiring social
change. London: Springer, 118-136.
8 Moe, T. M. (2005), ‘Power and political institutions’, Perspectives on Politics
3 (2): 215-233.
9 Maloney, W. A., G. Jordan & A. M. McLaughlin (1994), ‘Interest groups and
public policy: the insider/outsider model revisited’, Journal of Public Policy
14 (1): 17-38.
10 Hintz, A. & S. Milan (2011), ‘User rights for the Internet age: Communications
policy according to “Netizens”’, in R. Mansell & M. Raboy (eds.), The
handbook of global media and communication policy, 230-241. Chichester,
West Sussex; Malden, MA: Wiley-Blackwell.
Citizenship in the Era of Blockchain-Based Virtual Nations

270
Beyond the blockchain
Today, in the shadow corners of the internet, a new group of beyonders is
emerging, looking at blockchain technology as a means to replace many of
our traditional institutions. While most of the attention was put, initially, on
Bitcoin disrupting banks and other nancial operators,11 as people under-
stood the full potential of blockchain technology, they saw it a means to
implement new governance structures that could potentially replace some of
our existing systems of governance.12
At the extreme end of this spectrum are those who envision the creation
of new blockchain-based virtual nations, with a view to ultimately replace
the nation-state. This is the case, for instance, of Bitnation: an initiative
aimed at creating a new sovereign jurisdiction that operates only and exclu-
sively in cyberspace, independently of any geographical boundaries.
Founded in 2014, Bitnation describes itself as a decentralized borderless
voluntary nation that anyone can join or leave as they wish:13 a transnational
community of global citizens that spontaneously coordinate themselves,
with no recourse to coercion.
To early internet pioneers, this might sound familiar. Already in 1996, in
the ‘Declaration of the Independence of Cyberspace’, John Perry Barlow
described the digital world as an independent space that simply could not be
regulated, because – he claimed – governments did not have the right nor the
capacity to exert their sovereignty over it14 (even though history has eventu-
ally taught us otherwise).
11 De Filippi, P. (2014), ‘Bitcoin: a regulatory nightmare to a libertarian dream’,
Internet Policy Review 3 (2): 43.
12 Davidson, S., P. De Filippi & J. Potts (2016), ‘Disrupting governance: The new
institutional economics of distributed ledger technology’, available at SSRN:
https://ssrn.com/abstract=2811995
13 According to the Bitnation website, Bitnation is a decentralized is fostering ‘a
peer-to-peer voluntary governance system, rather than the current “top-down”,
“one-size-ts-all” model, restrained by the current geographical apartheid,
where your quality of life is dened by where you were arbitrarily born.’ See
https://bitnation.co/join-the-team/
14 ‘Governments of the Industrial World, you weary giants of esh and steel, I
come from Cyberspace, the new home of Mind. On behalf of the future, I ask
you of the past to leave us alone. You are not welcome among us. You have no
sovereignty where we gather.’ Barlow, J. P. (1996), Declaration of
Independence of Cyberspace. Available at http://homes.eff.org/~barlow/
Declaration-Final.html
P. De Filippi

271
Barlow was essentially a beyonder – mocking the various governmental
attempts at regulating the internet landscape, in ways that he considered to
be ineffective in this new digital era. Similarly, Bitnation is mostly the result
of a beyonders’ approach to governance, trying to create a new sovereign
nation that ignores the rules and procedures of existing nation-states,
regarded as obsolete in this new digital world. Because it operates on a
transnational and decentralized peer-to-peer network (the Ethereum block-
chain), Bitnation is not under the control of any one government. Indeed, by
relying on blockchain technology, Bitnation is creating a system that not
only tries to escape from the hegemony of nation-states – because it has no
single point of failure, or control – but also tries to compete with existing
institutions and governmental systems – by providing self-sovereign identi-
ties, notarization services, property rights and company registration, dispute
resolution systems, etc. which are usually associated with the functions of
the public administration. The Ethereum blockchain is particularly useful in
this context, because – as a public and transnational blockchain – it provides
the necessary transparency, veriability, incorruptibility and trust that one
would expect from these governmental services.
‘Governance in the real world is so fucked. We have to start thinking
about how to build it in the virtual world’ said Lawrence Lessig in an inter-
view15, after he resigned from the 2016 presidential campaign. While Lessig
was referring to the creation of a massive multiplayer online game16 inviting
players to experiment with different forms of governances, it might be worth
investigating whether initiatives such as Bitnation, and other attempts at
creating blockchain-based virtual nations (such as Cultu.re) or even
blockchain- based virtual worlds (such as Decentraland) could actually pro-
vide a new space of experimentation, allowing people to experiment with
new political systems that operate outside of any dened territory. Indeed,
these initiatives – which rely on decentralised blockchain-based systems –
are not located in any given jurisdiction: they subsist in a transnational
space, which has yet to be colonised by new governance structures and
experimental political regimes.
15 ‘“Governance in the Real World Is So Fucked:” Lawrence Lessig Is Working
on an MMO’, Motherboard, 8 June 2017, available at https://motherboard.
vice.com/en_us/article/neweqm/lawrence-lessig-is-working-on-an-mmo-
game-seed
16 ‘Think the government is doomed? See if you can build a better one in
“Seed”’, Digital Trends, 8 March 2017, available at https://www.digitaltrends.
com/gaming/seed-mmo-interview-democracy-lawrence-lessig/
Citizenship in the Era of Blockchain-Based Virtual Nations

272
Blockchain-based virtual nations
Can these blockchain-based systems support the emergence of a new frame-
work for global citizenship (as suggested by Liav Orgad, amongst others17)
where people pledge allegiance not to an existing government or nation-
state, but to a global community that transcends national boundaries?18 Can
they support a new understanding citizenship as collective identity, provid-
ing new opportunities for collective action and civic participation in a post-
national world?19 As with many things today, the answer is not a simple one.
The concept of blockchain-based virtual nations is interesting because it is
highly controversial. It is, in fact, supported by different groups, for very
different purposes.
On the one hand, the concept of a virtual nation is appealing to many
libertarians, who see it as an opportunity to reduce the room for governmen-
tal intervention, by creating new ad-hoc governmental structures aimed at
creating a society governed by (unregulated) market forces, and nothing
else. This is the vision brought forward most prominently by Peter Thiel,
who envisions the creation of a new sovereign nation on an offshore articial
island20, built 200 miles off the Californian coast. This vision is also shared
by a number of crypto-libertarians,21 such as the team behind Bitnation, who
believe that – since we have lost trust in our governments – we shall now
17 The notion of ‘world citizen’ has been endorsed by a variety of scholars,
activists and social movements. See, in particular, Ulrich Beck’s notion of
‘cosmopolitanism’ and discussions on the ‘post-westphalian’ international
system. See Beck, U. (2003), ‘Toward a new critical theory with a cosmopoli-
tan intent’, Constellations 10 (4): 453-468; Beck, U. & N. Sznaider (2006),
‘Unpacking cosmopolitanism for the social sciences: a research agenda’, The
British Journal of Sociology 57 (1): 1-23.
18 See also the work of Tölölyan, K. (1996), ‘Rethinking diaspora(s): Stateless
power in the transnational moment’, Diaspora: A Journal of Transnational
Studies 5 (1): 3-36; Grewal, I. (2005), Transnational America: feminisms,
diasporas, neoliberalisms. Durham: Duke University Press; and Van Hear, N.
(2005), New diasporas: The mass exodus, dispersal and regrouping of migrant
communities. London: Routledge (on diasporas as transnational entities).
19 Sassen, S. (2002), ‘Towards post-national and denationalized citizenship’, in
E. F. Isin & B. S. Turner (eds.), Handbook of citizenship studies, 277-292.
London: Sage.
20 ‘Libertarians Seek a Home on the High Seas’, The New Republic, 29 May
2017, available at https://newrepublic.com/article/142381/
libertarians-seek-home-high-seas
21 May, T. C. (1994), Crypto anarchy and virtual communities. Available at http://
aom.jku.at/archiv/cmc/text/may_n01.pdf
P. De Filippi

273
rely on blockchain technology to create trustless systems (i.e. systems where
trust is no longer needed) with a view to support and facilitate a series of
atomic peer-to-peer interactions in a seemingly stateless environment.22
On the other hand, there are people who see virtual nations as an opportu-
nity to overcome the lack of trust in governmental institutions, through the
creation of new trusted communities with a global scope. These communities
can experiment with new institutional structures that operate independently
from, or as a complement to existing institutions. They can support the emer-
gence of grassroots initiatives intended to ll the gaps generated by the pro-
gressive shrinking of the welfare state – i.e. the provision of public services
and shared infrastructure, the pursuit of the common good, and the protection
of individual and collective rights.23 Blockchain technologies could provide
new mechanisms of social or political coordination, allowing for transna-
tional communities and activist groups (such as human rights defenders,
internet freedoms advocates and climate change campaigners) to gather
around a newfound sense of identity and organise themselves as a collective.
The idea is not to replace nation-states with new or competing forms of
sovereignty, but rather to provide new means for global communities to
mobilise and experiment with new ways of engaging in civic life. If political
participation no longer nds its place in the context of traditional govern-
mental structures, perhaps these virtual communities – or cloud communi-
ties, as Orgad calls them – might be able to bring civics back to life. Indeed,
if citizenship refers not only to a legal status, but also to an individual’s
political activity and collective identity,24 we might soon witness the
emergence of new global citizens, who regard these new virtual nations as
polities and self-identify as their members.
This is the vision supported by initiatives like Democracy Earth and
Aragon, two blockchain-based platforms providing tools for small and large
organisations to operate in a globalised post nation-state world, through
their own governance rules and dispute resolution systems. Without trying
22 Atzori, M. (2015), ‘Blockchain technology and decentralized governance: Is
the state still necessary?’, available at SSRN: https://ssrn.com/
abstract=2709713 or https://doi.org/10.2139/ssrn.2709713
23 Feigenbaum, H., J. Henig & C. Hamnett (1998), Shrinking the state: The
political underpinnings of privatization. Cambridge: Cambridge University
Press.
24 Dalton, R. J. (2008), ‘Citizenship norms and the expansion of political
participation’, Political Studies 56 (1): 76-98; Eisenstadt, S. N. & B. Giesen
(1995), ‘The construction of collective identity’, European Journal of
Sociology 36 (1): 72-102.
Citizenship in the Era of Blockchain-Based Virtual Nations

274
to replace the role of the state as a political institution, these initiatives are
exploring whether (and how) some of the functions undertaken by govern-
mental authorities – e.g. the issuance of identity cards, recordation of vital
records and maintenance of public registries, etc. – could be transposed into
a blockchain-based system.
People are ideally free to decide, on a case-by-case basis, whether they
want to rely on traditional institutions and governmental frameworks, or
whether they would rather adopt these new experimental systems, whose
values they might feel more attuned with. As a general rule, citizens cannot
easily revoke their allegiance to a particular nation-state, because – as high-
lighted by Rainer Bauböck – the social contract described by Hobbes and
Rousseau is not a negotiable contractual agreement entered into by consent
(i.e. citizenship as a legal status is generally something that one does not
chose and that, once acquired, cannot be easily gotten ridden of). Yet, to the
extent possible, they could choose to acquire additional citizenships, becom-
ing members of multiple communities based on afnity and consent. Insofar
as they provide valuable services to their citizens, these virtual communities
(or virtual nations) may be competing with one another – and potentially
with nation-states – so as to expand their user-base.
While this might sound speculative at best, we are already seeing glim-
mers of this new world. For several years, the republic of Estonia has been
trying to create a ‘digital nation for global citizens,’25 as illustrated by its
e-residency program, which provides a government-issued digital ID to all
individuals requesting it. Inspired by the notion of government as a
platform,26 e-Estonia is trying to become the hub for every governmental
service, providing all of its electronic residents with a secure identication
system, notarisation services, and even the ability to run a company or open
a bank account, without ever putting foot into Estonia. With over 28,000
e-residents from all over the world, today, the state of Estonia increasingly
operates on a digital layer, enabling people to interact with its governmental
platform independently of their country of citizenship or residency.27
25 ‘E-Residency is a new digital nation for global citizens, powered by the
Republic of Estonia.’ See https://e-resident.gov.ee/
26 O’Reilly, T. (2011), ‘Government as a Platform’, Innovations 6 (1): 13-40.
27 According to Taavi Kotka, Chief Innovation Ofcer of Estonia since 2013:
‘Countries are like enterprises. They want to increase the wealth of their own
people.’ Heller, N. (2017), ‘Estonia, the Digital Republic’, The New Yorker, 18
December, available at https://www.newyorker.com/magazine/2017/12/18/
estonia-the-digital-republic
P. De Filippi

275
Competing sovereignties
Competition between nation-states, trying to collect new members by pro-
viding more efcient or reliable governments services, has already begun. If
Estonia can collect e-residents on a global scale – in spite of its national
boundaries – what would prevent virtual nations from doing the same, with-
out a physical territory? Are we actually moving towards a world in which
multiple nations are competing to attract more citizens, in the same way as
companies are today competing to attract more customers?28
Of course, things get murky when we move from purely administrative
tasks – like identity, property and company recordation – to more political
tasks, involving policy and decision-making. If people could choose to
become citizens only of the communities with whom they agree, they would
essentially engage in a generalised version of nation-shopping, constantly
trying to nd the jurisdictions that seem the most advantageous for them.
When brought to an extreme, this would ultimately mean the end of politics.
Politics is all about compromises, in order to accommodate different
viewpoints without entering into a conict. An opt-in or exit-based political
system essentially eliminates the notion of politics, because it removes the
need for compromise. People with different values or opinions would no
longer need to argue and deliberate in order to reach consensus, because if
they’re in disagreement, they can simply leave.
As Bauböck recognises, there are signicant challenges in letting people
choose which nation they want to pledge allegiance to. The state as a sover-
eign entity – Hobbes’ Leviathan – is not only responsible for preserving the
public order, it is also in charge of promoting the general interests, produc-
ing common goods and creating a collective sense of redistribution and
justice. All these functions could disappear as we move towards a more
market-based approach to citizenship.
I am, however, more pessimistic than Bauböck when it comes to the way
nation-states will adapt to these technological changes. Given the progres-
sive disengagement of citizens in local politics, and the growing distrust in
existing institutions – whose legitimacy is increasingly put into question – it
might not be surprising to see a new wave of nationalism emerging all over
the world, with nation-states drawing on nationalist and anti-immigration
28 According to its website: ‘Bitnation is creating a new world where thousands
or millions of nations actually compete for customers by providing better
services, instead of using force. It’s a world where everyone can choose.’ See
http://bitnation.co
Citizenship in the Era of Blockchain-Based Virtual Nations

276
narratives to reinforce their hegemony over the territory, essentially reden-
ing on-going relationships between citizens and non-citizens.29
At the same time, due to the increasing trends towards globalisation,
large internet corporations, like Google or Facebook, are progressively tak-
ing on some of the functions that were once specic to the nation-state: from
the task of supporting the discourses in the public sphere to their role as
identity providers.30 With several billions of users on their platforms, these
corporations are slowly turning into de facto corporate nations, with their
own system of rules that they unilaterally dene and impose on their ‘citi-
zens’. Traditional nation-states might, therefore, soon have to compete not
only with virtual nations, but also with these new transnational corporate
nations – similar to Neal Stephenson’s franchulates as science-ction fans
will certainly point out.31
New opportunities for experimentation
It is in this convoluted (and daunting) context that I see the rise of blockchain-
based virtual nations as a positive omen. Perhaps the reference to virtual
nations is not the most accurate one, because the term has a strong political
connotation and somewhat gives the impression that these communities are
assuming the role of traditional nation-states. While some of these commu-
nities do intend to replace the gure of the nation-state (e.g. Bitnation), oth-
ers are simply trying to experiment with new and allegedly apolitical
governance systems,32 which nevertheless play a crucial political function.
Because they rely on voluntary association, virtual communities might
well remove the need for compromise within a single community, yet they
do not eliminate the need for compromise between multiple communities.
Hence, politics are not gone, they are simply moving into a different layer.
By aggregating people with similar values and opinions, these virtual com-
munities could in fact strengthen the voice of certain minorities – usually
stied by the majority’s opinion – and create a more lively debate and politi-
cal discourse at the outside (rather than on the inside) of these communities.
As such, they could end up participating in conventional politics, along with
other real-world interests groups.
29 Mitchell, K. (1997), ‘Transnational discourse: bringing geography back in’,
Antipode 29 (2): 101-114.
30 Habermas, J. (1991), The structural transformation of the public sphere: An
inquiry into a category of bourgeois society. Cambridge, MA: MIT press.
31 Stephenson, N. (1992), Snow crash. New York: Bantam-Random.
32 Atzori, M. (2015), ‘Blockchain technology and decentralized governance: Is
the state still necessary?’, available at SSRN: https://ssrn.com/
abstract=2709713 or https://doi.org/10.2139/ssrn.2709713
P. De Filippi

277
To conclude, let me take the stance of a beyonder for a moment. As a
member of Creative Commons,33 I have always been fascinated by its solu-
tion. Instead of trying to reform copyright law from the inside or ght it
from the outside, Creative Commons introduced an alternative legal regime
for creative works that coexists with the existing regulatory framework (in
fact, it is based on it) for authors to experiment with new business models
that do not rely on the exclusivity and articial scarcity of copyright law.
Today, with the advent of blockchain technologies, a new wave of inno-
vation is underway in the realm of governance. This innovation is one that
will benet everyone: the insiders, i.e. governmental authorities like Estonia,
relying on blockchain technology to increase the transparency and account-
ability of public administrations; the outsiders, like Peter Thiel, trying to
create new self-sovereign nations with the intention to escape from the laws
and control of existing nation-states; and, of course, the beyonders, like
Bitnation et al., eager to use the technology to support the coordination of
transnational communities of voluntary association that operate indepen-
dently of traditional nation-states, but are capable of peacefully coexisting
with them. It is the latter which I am the most excited about, and which I
believe could contribute to developing new governance models that might
help us build a real global democracy.
33 Creative Commons is an organisation devoted to expanding the range of
artistic, academic, and other content available for people to share and build
upon. See http://creativecommons.org
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Citizenship in the Era of Blockchain-Based Virtual Nations

279© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_49
Global Citizenship for the Stay-at-Homes
Francesca Strumia
Technological advances sometimes alter our experience of well-established
notions. The night is as dark today as in the 18th century. However street-
lights have pierced its veil. The distance between Turin and Rome is the
same today as it was in the rst century AD. Yet what was once at least a
week-long journey has become with high speed trains a commute of a few
hours. Similarly, distributed ledgers technology, by making it technically
possible for every individual to create and maintain a globally recognised
digital identity, has the potential to materially alter the experience and the
meaning of citizenship.1 Such technological advances, and their possible
applications, make global political participation, moral commitment and
rights claiming as envisioned by global citizenship theorists one touch closer
to reality.2 Liav Orgad and Rainer Bauböck emphasize from different per-
spectives that new technologies are not meant to supplant citizenship as we
know it; they rather add to it. The notion of an international legal persona –
explains Orgad – is a complement to national citizenship. And cloud politi-
cal communities are – in Bauböck’s view – an extension of existing political
communities. Hence, global citizenship comes to ank long-established
notions of citizenship.
I agree with them on the complementary nature of global citizenship in
respect to traditional one. And in this contribution I focus on the latter rather
than on the former. I propose to consider how the prospect of technology-
enabled global citizenship alters the concept, legal structure and scope of
citizenship as we know it. The possibility of novel virtual frontiers chal-
lenges further traditional citizenship as a state-based, non-voluntary and
1 For an overview of the technology and its applications, see: UK Government
Ofce for Science (2018), Distributed Ledger Technology: beyond block chain.
Available at https://www.gov.uk/government/uploads/system/uploads/attach-
ment_data/le/492972/gs-16-1-distributed-ledger-technology.pdf
2 Archibugi, D. (2008), The Global Commonwealth of Citizens: towards
Cosmopolitan Democracy. Princeton, N.J.; Woodstock: Princeton University
Press; Falk, R. (1994), ‘The Making of Global Citizenship’, in B. van
Steenbergen (ed.), The Condition of Citizenship, 127-140. London: Sage.

280
bounded membership. A web of relations beyond the bilateral one between
state and individual comes within the purview of the concept; consensual
citizenship acquires a new role; and citizenship becomes increasingly
unbounded from national borders.
A network model of citizenship
Cloud communities can cause a conceptual shift as they strike at the heart of
the role of states in shaping citizenship. As Bauböck observes, global citi-
zenship cannot push the state out of business. States remain responsible for
providing a range of fundamental services and benets. Yet the advent of
distributed ledgers technology potentially breaks the state’s monopoly in
attributing and authenticating citizens’ identities.3 This nuances in turn the
state’s role as the main counterpart of the citizen. Citizenship no longer
focuses on a binary relation between lord and vassal, sovereign and subject,
state and individual. While that relation loses part of its feudalist character,
to echo Orgad, citizenship comes to express a relation between different
classes of ‘belongers’ to a legal and political community: the birthright
members, the voluntary joiners, the reluctant leavers, the engaged passers-
by, to mention just a few. Blockchain and other technologies will mean that
their interactions are no longer exclusively mediated by the state and its
rules. They would rather articulate through a web of virtual relations enabled
by encrypted and self-governed digital identities.
A network model of citizenship pushes us to rethink, and possibly
reframe, the legal structure and scope of citizenship as we know it. First,
consent potentially gains a heftier role than it has traditionally played in the
domain of citizenship. Second, cross-border citizenship receives a new lease
of life.
More room for consensual citizenship
Consensual citizenship is traditionally the exception rather than the rule.
The vast majority of humans are attributed a citizenship through a birthright
lottery.4 A tiny minority exercises consent to change citizenship through
3 For an explanation in this sense, see Dumbrava, C. (2017), ‘Citizenship and
Technology’, in A. Shachar, R. Bauböck, I. Bloemraad & M. Vink, Oxford
Handbook of Citizenship, 767-778. Oxford: Oxford University Press.
4 Shachar, A. (2009), The Birthright Lottery: Citizenship and Global Inequality.
Cambridge: Harvard University Press.
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281
processes of naturalisation,5 or renounces a citizenship automatically
received. And consent is still only exercised within the narrow tracks
designed by states for attribution and removal of citizenship. But otherwise
citizenship is the legacy of blood relations or territorial connections one has
never chosen.
With technology enabling participation of virtual citizens in cloud com-
munities, the relative weight of consensual citizenship potentially changes.
This is because participation in a cloud community could allow citizens to
virtually vote with their feet.6 It would enable everyone to decide to spend
their digital identity in a community other than the territorial one to which
one is assigned at birth. With the opening up of opportunities for virtual exit
from the cage of territorial citizenship, the negotiating balance in the rela-
tion between state and individual changes. The question ‘why am I a citizen
of this nation state’ no longer nds an obvious answer and individual citi-
zens gain more clout against the states to which they automatically belong.
On the one hand, this transformation may lead to rethink the opportunities
for birthright members to conrm or withdraw their consent to member-
ship.7 On the other hand, it may result in states pushing their efforts to attract
consenting passers-by into the ranks of their territorial citizenry, as they
already do in part with investor citizenship programs.8
More room for consensual citizenship is not necessarily good news, as
Bauböck observes. There are risks linked to consent. Bauböck sees the non-
voluntary character of citizenship as a condition for preserving democracy:
non-voluntary determination of citizenship is the only guarantee that politi-
cal communities, whether territorial or virtual, preserve a healthy level of
diversity. A further risk is that consensual cloud communities are resorted to
5 For instance, in the US out of a population of ca 300,000,000, only 19.8
million are naturalised citizens. See Pew Research Center, Recent Trends in
Naturalization 1995-2015, June 29 2017, available at http://www.pewhispanic.
org/2017/06/29/recent-trends-in-naturalization-1995-2015/ (consulted 19th
January 2018).
6 For an argument about voting with one’s feet in federal states, see Tiebout, C.
(1956), ‘A Pure Theory of Local Expenditures’, The Journal of Political
Economy 64 (5): 416-424.
7 For the theory of voice and exit see Hirschman, A. O. (1970), Exit, Voice and
Loyalty: Responses to Decline in Firms, Organizations and States. Cambridge/
London: Harvard University Press.
8 See Shachar, A. & R. Bauböck (eds.) (2014), ‘Should Citizenship be for Sale’,
Robert Schuman Centre for Advanced Studies, EUDO Citizenship Observatory
Working Paper 2011/62, Florence: European University Institute, available at
cadmus.eui.eu/bitstream/handle/1814/29318/RSCAS_2014_01.pdf
Global Citizenship for the Stay-at-Homes

282
as a means to harden the link between citizenship and territory rather than to
loosen it. Cloud communities may easily become a tool for amplifying
cultural traditions and national sentiments. They offer a platform for joining
virtually different territorial pockets of supporters of closure and exclusion.
From this perspective cloud communities risk to widen the gap between the
mobile and globally oriented citizens on the one hand, and the immobile
ones on the other hand, as Bauböck points out.9 Should this cleavage come
to inform the competition among virtual nations that Primavera de Filippi
envisions, global society could end up split between the virtual communities
of those engaged across borders and the ones of those living in splendid
isolation.
But technology-enabled global citizenship does not only nudge states
gently towards consensual citizenship. It also enhances qualitatively the
prospects of cross-border citizenship. Enhanced cross-border citizenship
may hold the key to the bridge across the above referred gap between the
mobiles and immobiles.
A citizen’s stake beyond national borders
It goes without saying that digital identities and their applications multiply
the opportunities for long-distance citizenship. They can help states to
engage their diasporas through virtual communities. Or enable expats to
receive benets and services issued by their state of origin in a state of resi-
dence. In this sense, technology supports and complements the legal infra-
structure underpinning cross-border movement and transnational
citizenship.10
Beyond this, cloud communities of digitally identied participants have
the potential to alter the very nature of cross-border citizenship. They open
up opportunities for extending the reach of citizenship beyond the national
territory even without cross-border movement. Cloud communities indeed
offer to individuals the option to raise their voice, or claim benets and ser-
9 For an insightful analysis of the new gap between supporters and opponents of
‘drawbridges up’, see ‘The New Political Divide’, The Economist, 30 July
2016, available at https://www.economist.com/news/leaders/21702750-fare-
well-left-versus-right-contest-matters-now-open-against-closed-new (consulted
19 January 2018)
10 Infrastructure that has one of its more sophisticated expressions in the citizen-
ship of the European Union. See Strumia F. (2017), ‘Supranational
Citizenship’, in A. Shachar, R. Bauböck, I. Bloemraad & M. Vink, Oxford
Handbook of Citizenship, 669-693. Oxford: Oxford University Press.
F. St ru mi a

283
vices, in territorial communities to which they do not physically belong.
States can open their communities to new classes of e-citizens along the
lines of Estonia’s e-residence program.11 And sedentary citizens could nego-
tiate virtual membership in states to which they will never travel.
In this sense, digital identities and cloud communities may create the
right to have, and exercise, a stake in legal and political communities beyond
the borders of one’s own nation.12 On a practical level, they enable states to
recognise forms of ad hoc political citizenship and temporary virtual admis-
sion to accommodate the stakes of non-citizens. Relevant non-citizens could
be given voice in selected deliberations of the territorial political commu-
nity, touching upon the interests of a larger cohort of virtual denizens. On a
conceptual level, the right that technology enables, if adequately recognised
and framed within the legal structure of national citizenship, could funda-
mentally alter the scope of traditional citizenship. It would no longer be just
the right to have rights, and raise a voice, within a bounded national territory
but the right to have rights and to participate wherever interests, careers,
affective life, chance or just curiosity bring one’s stakes.
In a similar scenario, the counterpart of the citizen would no longer be
just one state (or two in the case of dual nationals), but potentially the plural-
ity of states within whose territorial boundaries a person’s virtual interests
unfold in the course of a lifetime. ‘Why should states even bother to open
their virtual borders to such virtual denizens?’, one could wonder. In part,
because a state’s citizens would reciprocally benet from the same opportu-
nity in other states. Hence a state would accommodate virtual denizens to
protect the interests of its own citizens. Further, states may have an eco-
nomic, or even political interest, in activating the stakes of some external
e-citizens. Relevant citizens may contribute capital or economic initiative.
Or they may support governmental policy choices.
Global citizenship for the stay-at-homes
The citizen’s right to have a stake beyond national borders potentially
bridges the cleavage between the globally mobile and the immobile. It
belongs to, and appeals to the interests of, both classes of citizens. It can be
exercised physically by the former group, and virtually by the latter through
11 See Republic of Estonia e-residency program, available at https://e-resident.
gov.ee/
12 For the concept of stakeholder citizenship see Bauböck, R. (2017), Democratic
Inclusion. Rainer Bauböck in Dialogue. Manchester, UK: Manchester
University Press.
Global Citizenship for the Stay-at-Homes

284
the novel channels that technology opens up. It is this very right that holds
the potential to respond to nationalist and protectionist stances variedly rep-
resented in the contemporary political spectrum of several western coun-
tries. To the extent that these stances are driven by fear and insecurity, the
concrete conferral of a right to have a stake beyond one’s borders can teach
the 21st century citizens an important lesson: that protection and security do
not come from populist retrenchment into closure and exclusion. They rather
come from the broadening of the umbrella under which citizenship claims
can nd accommodation.
As the night has become less dark and millenary cities have grown closer,
also national citizenship can change to track not only the territorial boundar-
ies of nation states but also the virtual ones of human stakes and interests.
Never mind the gap between the mobiles and the immobiles. New technol-
ogy brings about the gift of global citizenship for the stay-at-homes.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
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285© The Author(s) 2018
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IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_50
A World Without Law; A World
Without Politics
Robert Post
I have read with great interest the stimulating contributions of Liav Orgad,
Rainer Bauböck, Primavera De Filippi, and Francesca Strumia. It is impor-
tant to ask how a universal internet will affect the nature of citizenship, the
status of which has heretofore been dominated by territorially-dened nation
states.
I confess, however, that I know nothing about blockchain technology. So
I accept Orgad’s assertion that blockchain technology ‘can provide people
with self-sovereign identity – they are the ones who create and register their
identity and they are the only ones who control what to do with it and with
whom to share what.’ I accept that nation states can off-load this identica-
tion function to some technological mechanism.
But Orgad seems to believe that this mechanism creates the possibility of
‘realizing one of the most morally-desirable notions in human history –
global citizenship without a world state.’ This is because the mechanism
potentially shatters a Westphalian system in which legal personality is con-
ferred by nation states.
Orgad writes that ‘the concept of an international legal persona will
enable individuals to establish “Cloud Communities” of different kinds.
Conceptually, cloud communities have traditional characteristics of political
communities, but not necessarily a physical territory. The communal bond
can be global in nature – such as a shared concern about climate change,
ageing, veganism and animal rights (i.e., a universal community, open to
everyone) – or ascriptive, such as a Jewish / Bahá’í faith / Diasporic Cloud
Nations, a form of “transnational nationalism” (i.e., a selective community,
open only to certain members). It can be thematic or geographic – region,
country, state, city, village – based on a shared interest or territorial identity,
even if not or legally recognised communities. Membership is based on con-
sent; a person can be a member of several communities or none.’
So described, cloud communities are, as Rainer Bauböck properly
observes, ‘an expansion of civil society.’ It is a far jump from expanding

286
international civil society to creating global citizenship. A global citizen
must be a member of a global political community. Orgad acknowledges
this point. He states that his ‘focus is political communities. Cloud commu-
nities are not social networks, but political communities whose aim is politi-
cal decision-making and in which individuals take part in a process of
governance and the creation of law.’
It is at precisely this point that I lose track of the argument. Orgad is cor-
rect to observe that the dening characteristic of political communities is the
production of ‘governance and the creation of law.’ What I do not under-
stand is how cloud communities produce governance and law.
By imposing sanctions of expulsion, any given cloud community can
govern itself; it can create its own law. But this is true for every group within
civil society. Every church has its rules and its criteria for excommunication.
The point about a political community, however, is that it imposes law upon
those who, as Bauböck observes, are not voluntarily members. Political
communities govern all those within their jurisdiction. That is precisely the
difference between political communities and a private organization. It is
why law ultimately must have recourse to force, even to violence (as Max
Weber observes).
A world in which every community is voluntary is a world in which
every norm is also voluntary. It is therefore a world without law. Because
politics is the social form by which we create law, it is also a world without
politics.
If I commit murder, the necessity of my punishment is not bounded by
my consent. Cloud communities, which are dened by consent, are thus
irrelevant. The question is who we will entrust with the fearsome power of
involuntary punishment, which is not a purely textual, purely mediated con-
sequence. To the extent that punishment operates on the body of the guilty,
it cannot be within the purview of cloud communities.
De Filippi shrewdly observes that the attraction of blockchain technolo-
gies is to create ‘trustless systems (i.e. system where trust is no longer
needed).’ The hope that technology will remove the human element is an old
one. We all long to leave behind the esh and live only in the spirit. But this
is merely a fantasy. There is always corruption, and for that reason we can
never escape the need for politics, police, and law.
Suppose someone inltrates the blockchain and manipulates it for nefari-
ous ends. To whom will we entrust the power of ensuring the integrity of the
chain? And don’t think that it can never happen. It always happens. All tech-
R. Po st

287
nology is ultimately wielded by human hands that can become dirty. Who
will have the power (to use an old-fashioned word) to cleanse the chain and
restore the system? And how will that power be legitimised? How will we
come to trust that power?
Politics is what we use in the face of such problems, when we must con-
front each other as distinct human beings and reach accommodation about
essential matters in which we differ. Another way of seeing this point is this:
If cloud communities create, as Strumia writes, ‘citizens’ who can ‘virtually
vote with their feet,’ who will protect global citizens as they travel between
cloud communities?
At their best, cloud communities can inspire all the virtues that de
Tocqueville saw in civil associations. They can train us in the benets of
participation and sociality. But in the contributions of Strumia and Orgad, I
sense also another value, that of free, autonomous, marketplace consumers.
Orgad writes that e-Estonia ‘resembles a business model where states are
service providers and “citizens” are billed for the service.’ Strumia imagines
e-states that provide services to expats or ‘virtual denizens.’
Strumia and Orgad emphasise real and important developments. But it is
a mistake to confuse these possibilities with the creation of political com-
munities. Strumia and Orgad are instead describing ordinary marketplace
consumer transactions. If states can sell services more cheaperly than a pri-
vate entity, and if they can sell these services internationally, that may be all
to the good.
But what does this have to do with law and governance? To answer this
query, we need to ask questions like: Who can (involuntarily) tax virtual
denizens? Who can determine the commercial law that will govern the mar-
ket transactions that a state conducts with virtual denizens? and so forth.
Every market transaction presupposes a legal environment that is outside
the transaction itself. Setting the requirements of that environment is a polit-
ical task.
It is quite true that traditional states can ofoad services that now we
associate with governmentality. Perhaps states can ofoad the determination
of identity status to a blockchain. As the EU has taught us, it is a mistake to
confuse government sovereignty with the particular shape in which it is
presently exercised. But insofar as we wish to deploy government sover-
eignty – insofar as we wish to exercise state functions backed by the force
of law – it is a fearsome and unstable thing to do so without a corresponding
political community, as the EU has also taught us.
A World Without Law; A World Without Politics

288
If the very denition of cloud communities is that they are voluntary
and exist only at the whim and interest of members, I do not see how
blockchain cloud communities promise the creation of global citizenship.
They seem instead to signal the emergence of global civil society or at
most a global market in government services. And, to the extent that cloud
communities are involuntary, I must ask how their members are con-
scripted and governed. I must also ask how blockchains or any other tech-
nological device can offer hope that governance will be more just or more
democratic than what presently exists in traditional territorially-bounded
nation states.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
R. Po st

289© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_51
Virtual Politics, Real Guns: On Cloud
Community, Violence, and Human Rights
Michael Blake
The creation of novel forms of information technology will put pressure on
traditional forms of state sovereignty. The future, then, will be unlike the
past. That much – to me, at least – seems beyond question. The more inter-
esting subject, though, is whether we will be able to predict – from where
and when we now are, with the technologies and histories we now inhabit –
what that future will look like. Liav Orgad, in his lead essay, offers us a
compelling – and profoundly optimistic – vision of one possible future. In
that future, our current world of sovereignty, in which human rights are
nested in territorially limited sovereign states, is supplemented by a plural-
istic and polycentric network of voluntary communities, mediated by infor-
mation technology based upon self-sovereign forms of digital identity. The
notion of global citizenship, in that world, might move from useful meta-
phor to lived reality; we could, at last, inhabit a world of our own choosing –
a world in which, as Francesca Strumia adds, we might join new worlds
while never leaving home.
It is my lot, in these debates, to provide reasons to worry. I want to high-
light and describe problems that stand in the way of moving from where we
are now to where Orgad thinks we might soon be. I want to present these
worries, not as permanent obstacles to the forms of life Orgad describes, but
as problems we would have to solve before that world could be made real.
The worries I describe stem from features of the state system that I think are
poorly replicated in the world of cloud community and voluntary associa-
tion; territorial states right now provide us with goods that cannot be pro-
vided by even the best systems of informational technology. To denigrate
the importance of territorial states, in favour of these voluntaristic forms of
association, might make things worse, rather than better.
I follow the lead of Rainer Bauböck, who notes the ways in which diver-
sity of thought might be placed at risk in voluntary association, and Robert
Post, who argues that the power of the state to punish cannot be replicated
by a virtual and voluntary community. My own challenge is broader: the
protection of human rights, I believe, can only be accomplished by means of

290
violence and force, in both policing and in punishment – and this violence is
in our world reserved (as a matter of right, if not reality) for use by states.
Orgad’s polycentric vision, in other words, must either acknowledge the
continued relevance of the state system, and provide space for the preserva-
tion and maintenance of that system – or it must provide us with the resources
to move beyond that system, by showing how violence might be rightly used
by dispersed forms of intentional community. What I think cannot be done –
or, at any rate, cannot be done easily – is to insist that informational technol-
ogy has fundamentally transformed political reality, in the world in which
we live. It might do so, of course; but I do not think it has done so yet – and
there is a great deal of work to do, for philosophers and politicians alike,
before that transformed world is open to us.
To see this, we might begin by looking at the notion of a failed state.
What does such a state look like? A failed state, in the rst instance, involves
the absence of a political community sufcient to provide the means of sur-
vival; food, shelter, water, and so on.1 But the state rarely actually provides
these goods itself; we do not expect the government to actually deliver us
food and water, unless circumstances (or that government) have become
very dire. What the state provides, instead, is coercion – coercion directed,
in the rst instance, at those people who would steal our food or water; at
people who would break contracts with us as regards our labour; and so on.
A state fails when it fails to provide the coercive means needed to preserve
these liberties – or, on a broader vision of failure, when it sometimes pro-
vides the means of survival, and sometimes refrains from doing so.2
This is, to be sure, a minimal account of what a state must do; but it is
already instructive. We should note, to begin with, that the use of coercion
by the state is not here an optional part of its toolkit; coercion – which is to
say, violence – is required of any state that is doing the job of the state. The
second thing to note is that a great deal of political philosophy amounts to
understanding what particular forms of violence might be justied speci-
cally to the people gathered together within the coercive grasp of the state.3
Most of us, after all, regard the state as having a duty to do more than avoid
failure; it has to be just in how it deploys these coercive powers that make it
distinct. The state must, therefore, do justice to those people over whom it
claims the power of rightful coercion. The nal thing to note is that the state
1 Rotberg, R. I. (ed.) (2003), When States Fail: Causes and Consequences.
Princeton: Princeton University Press.
2 Easterly, W. R. (2002), The Elusive Quest for Growth. Cambridge: MIT Press.
3 Rawls, J. (1989), Political Liberalism. New York: Columbia University Press.
M. Bla ke

291
is supposed to be capable of offering, in any particular dispute about what
justice demands, something very much like nality. Once the state has
decided some matter of controversy, it is entitled to insist that its determina-
tion shall be non-optional for the political community over which it rules.4
Why, though, is any of this relevant to our discussion of blockchain and
cloud community? It is relevant, I think, because of how our most important
rights are linked to the state’s use of violence. Our human rights are concep-
tually linked to violence; Hannah Arendt’s often-cited ‘right to have rights’
demands the existence of an agency that will deploy force against those who
would presume to deny or trespass on those rights.5 Our civil rights, too, are
conceptually linked with violence; the reason I have the right to vote in the
United States and not France, goes the argument, is that the law of the United
States – and not France – gets to order me around, and to coerce me if I
resist. This sort of coercion, though, is unavailable to even the most robust
and well-developed forms of virtual association. We have, I think, very little
sense of what it would be for them to have such coercive rights; and we have
some good reason to worry that a world in which they had such rights might
be a bad one indeed.
We can use these thoughts to develop some more specic worries about
the examples used by Orgad in his essay. Take the notion of political partici-
pation in a virtual political community. Orgad suggests that such communi-
ties would form valuable spaces for political negotiation. I agree – so long
as we are aware that such communities are political in only a secondary and
derivative sense. The political community of the United States must engage
in discourse whose aim is to determine what sorts of things the law of the
United States shall do. This sort of political community is, I think, political
in a primary sense; if the discourse were to stop, the justice of coercive law
in the United States would necessarily cease. Other forms of political asso-
ciation, though, are political communities only in a secondary sense. If they
were to cease their discussions, the world of discourse would likely be
impoverished; but the justice of United States legal determinations, for
example, would not be automatically placed into doubt. I think we might
usefully call the United States’ citizenry, and Amnesty International, politi-
cal associations; certainly, they both seem associative, and they both seem
political. But the two are distinct in how they relate to violence. The United
States uses violence. Amnesty International offers criticism about how that
violence is used. The latter sort of political community, in short, could not
4 Hart, H. L. A. (1961), The Concept of Law. Oxford: Clarendon Press.
5 Arendt, H. (1994 [1951]), The Origins of Totalitarianism. New York: Harcourt.
Virtual Politics, Real Guns: On Cloud Community, Violence, and Human Rights

292
even in principle replace the former. It might make the political delibera-
tions in the former more robust, and more likely to do justice. (Certainly, a
world without Amnesty International would likely have worse states in it
than our own world.) But the virtual political community cannot do the job
of the state’s political community. The fact that we can use the phrasing of
political community in both contexts should not obscure the vast differences
between the two sorts of human association.
I would suggest that something similar might be felt about blockchain
cryptography, which produces self-sovereign forms of identication. These
forms of identication are sovereign, in that they are initiated with and con-
trollable by the individual; but the individual has no greater sovereignty, in
the sense used in international law, after her digital ID than before it. What
the digital ID would provide, after all, is information. Information, we say,
is power; but so too is, well, power, in the ordinary sense in which states use
military might to preserve their sovereignty. What is required for rights to be
protected, following on our discussion above, is a set of powerful agents
willing to deploy violence against those who would do violence against us.
The digital ID might be used to frustrate some forms of malignant state
action – and, of course, allow others. What it cannot do is provide the vio-
lence that is conceptually linked with our human rights. If one is not pos-
sessed of a state willing and able to use violence on one’s behalf prior to the
digital ID, one is not provided with one once that ID is created.
I suspect similar things might be said of the Estonian experiment. People
have long been able to engage in contracts with foreign companies, and
foreign states, for particular ends; we engage in international trade, we
accept particular patterns of dispute resolution, we agree to the terms limit-
ing our rights as foreign visitors, and so on. It is not clear what, in particular,
changes with the creation of a computer system capable of centralising and
administering our dealings with a foreign state. I am open to being con-
vinced otherwise, but my initial reaction is that registering as an e-Estonian
no more makes me Estonian than changing planes at Heathrow makes me
British. The Estonian state has obligations to its own citizens that it does
not – or, at least, does not yet – have to me. So long as the e-Estonian system
leaves that fact fundamentally unchanged, it is not clear to me that the vir-
tual association it creates is even a pale shadow of a genuine political
community.
All this, I should repeat, is intended not to defeat Orgad’s vision, but to
outline what I take to be signicant worries about how we might make that
vision real. Orgad does not want these voluntary forms of transnational
institution to take the place of states, but insists upon their validity and
M. Bla ke

293
power as ‘state-like entities.’ It is this latter point with which I take issue. If
these institutions are to become genuinely state-like, they must have some
part in doing what it is that states do; and we must understand how they
could do that sort of thing, and how we could move from where we are to
where we might be. If, in contrast, these institutions are merely places for
debate and for the creation of solidarity, then we have had them for a very
long time indeed; Amnesty International has been helped by the digital revo-
lution, but had a life prior to that revolution. It is not clear what these tools
provide us with except for scale and ease. Either way, I suggest, we have
some work to do. Orgad is, I believe, well-positioned to help with this work;
as I noted at the beginning, his vision is profoundly hopeful, while my own
is not, and I genuinely hope I can be proven wrong.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
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permitted use, you will need to obtain permission directly from the copyright holder.
Virtual Politics, Real Guns: On Cloud Community, Violence, and Human Rights

295© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_52
A World Wide Web of Citizenship
Peter J. Spiro
Liav Orgad offers a characteristically insightful and provocative speculation
on how novel technologies will facilitate global citizenship. Global inter-
connectedness is transforming individual identity composites to include
transnational elements, and the migration of identity is, as Orgad argues,
establishing more pervasive understandings of global responsibility. Along
these three dimensions of interconnectedness, identity, and responsibility,
we are assimilating an understanding of global citizenship. A recent world-
wide poll1 found that a majority of respondents consider themselves more
global citizens than citizens of their own countries.
Orgad is also to be congratulated for identifying the citizenship-related
possibilities of blockchain technologies, which might further enable that
sense of global identity. Blockchain could deliver a formal identity detached
from national citizenship and sovereign control. Indeed, a blockchain iden-
tity could plausibly displace the passport as the standard form of identica-
tion in the same way that Bitcoin might plausibly displace national
currencies. So long as it were insulated from the surveillance capacities of
states and powerful non-state actors, a blockchain ID might enhance indi-
vidual autonomies on a global landscape.
I am less taken by the concept of cloud communities as such. The inter-
net facilitates the making of transnational and non-state communities, but
for the most part these are communities that exist on the ground. Eliminating
friction in long-distance global communication, the web enables connected-
ness among individuals who might otherwise maintain only thin or even
non-existent ties. This is the case with almost all real-space identities that
are not based on territorial location. The Web collapses location, allowing
territorially dispersed communities to establish dense networks.
True, some communities exist only or primarily on the web. The com-
munity of video gamers, for example, is mostly an online identity, constituting
1 ‘Identity 2016: “Global citizenship” rising, poll suggests’, BBC News, 28 April
2016, available at http://www.bbc.com/news/world-36139904

296
(perhaps) a genuine cloud community. But even as our online selves become
more prominent in our everyday lives, they are now and will be for the fore-
seeable future only a slice of our identity composites. (Remember Second
Life?) There is also the interesting phenomenon of e-residence as innovated
by Estonia. But that ‘residence’ doesn’t represent community, even in its
virtual sense; really, the label is misplaced. No sense of solidarity is likely to
ow from e-citizenship in that form any more than individuals with bank
accounts in the Cayman Islands compose a community on that basis. It’s a
market convenience and little more.
The false dichotomies of political community
Of course, one way in which the web facilitates communities is as a vehicle
for community self-governance and in turn, global self-governance. Almost
all communities are political. In this respect, I would part ways with the
dichotomization of political, state-based communities and civil society that
appears in other contributions to this Forum (Rainer Bauböck’s and Robert
Post’s in particular). At the very least, it is a continuum rather than a binary.
The web will as a general matter enhance transparency. The web allows
voices to be heard. No organisation, community, identity group, or move-
ment can be governed in an insulated, top-down fashion.
So the web (more so than cloud communities as such) is already enhanc-
ing self-governance. It will not solve the problem of unequal representation.
As Orgad notes, the international system continues formally to work from
the principle of sovereign, not individual, equality, so that the citizen of San
Marino has much greater clout than the citizen of China, both countries hav-
ing one vote in international institutions but San Marino having many fewer
citizens deciding how that vote will be cast. It’s an extreme departure from
the one person, one vote benchmark of democratic governance. But sover-
eign equality masks vast power disparities that in many pairings will more
than compensate for inequality at the level of the individual. The citizen of
China may be one of almost one and a half billion, the citizen of San Marino,
one of thirty thousand, but China’s global heft surely gives its citizens a
more powerful voice (however measured) than those of its pipsqueak
counterpart.
The web does help level the playing eld against state power generally.
In that sense the web may mitigate political inequality. Global governance is
not the sole preserve of state representatives, as Orgad appears to have it;
non-state communities are exercising increasing powers, formal or not, at
the international level. The web supplies an important channel of global
inuence that does not institutionally favour state-based communities (it
P. J. Spiro

297
may even disadvantage them, insofar as bureaucracy inhibits technological
adaptation). That translates into greater global self-governance capacities,
and a redistribution of power away from states. The citizen of San Marino
who is an environmentalist, who has an LGBTQ identication, or for that
matter is a Catholic has alternate vehicles of representation at the global
level, and those vehicles are empowered by the revolution in global
communications.
But inequalities will persist, even if they are redistributed. I agree with
Bauböck that Orgad’s implication of a world federalism based on block-
chain equality present an improbable prospect. In this respect, the technol-
ogy does not answer standing objections to one-person, one-vote at the
global level. Cloud communities, such as they exist, will themselves operate
on the basis of internal formal equality in limited contexts only.
Corroded Leviathan
The corrosion of state power, meanwhile, will accelerate. Francesca Strumia
articulates a new question, ‘why am I a citizen of this nation-state?’ That
question has new salience, most dramatically with the rise of investor and
other forms of instrumental citizenship. But it also begs the question, ‘why
should I care that I am a citizen of this (or that) nation-state?’ It is no doubt
true that possessing a premium passport expands life opportunities.2 But
within the universe of developed states, the question is not so obviously
answered. There are inevitable spatial elements to our physical existence
that are best governed through territorially delimited community, but those
necessities need not be addressed at the level of the state. Many are better
addressed at the subnational level, with respect to which ‘voting with your
feet’ is practicable as a preference-sorting mechanism into ‘like-minded
sets’, in Bauböck’s formulation.
This gives the lie to the other misplaced critique of cloud communities,
that they are voluntary and monolithic where states are involuntary and
diverse. Here again, a descriptive spectrum is more appropriate than an arti-
cial binary. It is true of course that most individuals are born into the states
of which they will remain members (at the same time that a growing number
change nationality after birth). But many are effectively born into non-state
communities as well. Religion supplies an obvious example. In some con-
texts, the exit costs – perhaps a better metric than voluntariness – of leaving
2 The Henley & Partners – Kochenov Quality of Nationality Index, available at
https://www.henleyglobal.com/quality-of-nationality/
A World Wide Web of Citizenship

298
a religious community3 are higher than leaving a state-based one. Communities
based on race, ethnicity, and sexual orientation are more or less involuntary.
They can also be remarkably diverse, sometimes more so than state-based
communities. The Catholic Church represents a more diverse constituency
than does Austria, for example, and its internal dynamics surely implicate
politics in any but the most formalistic denition of the term.
I understand the liberal nationalist tendency to lament the corrosion of
state-based communities. There was a time (the latter half of the twentieth
century) when the state impressively if imperfectly delivered on redistribu-
tionist solidarities. But wishing a return to that era is starting to look some-
what sentimental. States are powerful beasts, as Bauböck observes. They
will linger in the way of other once-dominant legacy institutions (think the
Holy Roman Empire). But they are clearly in crisis, and it seems unlikely
that we will be able to re-right the ship to its formerly commendable course.
In the meantime, we should be setting our sights on making the new
world a better one than it might otherwise be. They are many dystopian pos-
sibilities (some of them almost apocalyptic) if the state collapses and other
locations of power replace it. Wishing the resurrection of the state will do us
no good to the extent that the state can’t withstand material developments on
the ground. A necessary rst step will be to map the new institutional land-
scape, of which cloud communities will clearly be a part.
3 ‘Off the path of Orthodoxy’, The New Yorker, 31 July 2015, available at
https://www.newyorker.com/news/news-desk/off-the-path-of-orthodoxy
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
P. J. Spiro

299© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_53
Citizenship Forecast: Partly Cloudy
with Chances of Algorithms
Costica Dumbrava
In his thought-provoking kick-off contribution, Liav Orgad enthusiastically
embraces the idea of a global digital citizenship that could remedy some of
the deciencies of the present system of territorial national citizenships and,
potentially, transform the meaning of democratic citizenship. Technologies
such as blockchain could allow people to create virtual communities based
on shared interests and sustained by instantaneous consent, beyond the reach
of nosy governments and regardless of national borders. By widening access
to rights, expanding political voice and creating more secure and diverse
identities, digital citizenship could address current challenges related to the
imperfect attribution of status and rights (statelessness, disenfranchisement),
widespread political apathy among citizens and articial divisions created
by national borders. To paraphrase the text of a famous cartoon: ‘on the
internet nobody knows you are a foreigner’.
Other contributors to this Forum have pointed out several important ten-
sions and dangers lurking in Orgad’s proposal. Rainer Bauböck worries that
replacing political communities, which are based largely on ascribed but
equal citizenship, with freely chosen cloud communities would be ‘fatal for
democracy’. Purely consensual political communities cannot work because
political associations need coercive systems capable to enforce laws. As ‘exit-
based conict resolution systems’ (Primavera De Filippi), virtual communi-
ties are too volatile to ensure stable membership and commitment to rules.
They are also ill equipped to do the policing and punishing required by politi-
cal organisation (Robert Post, Michael Blake). Orgad’s cloud communities
could be seen instead as akin to civil society organisations. As novel forms of
coagulating solidarity, interests and identities, they can be instrumental for
checking, challenging or complementing governments, but they have neither
the means, nor the legitimacy to replace democratic citizenship.

300
I agree that technologies may offer surprising opportunities for improv-
ing and reimagining our social and political life (Francesca Strumia, Peter
Spiro). Information and communication technologies already offer to some
people better access to legal status (digital IDs), allowing them to participate
more effectively in political deliberations and decision making (e-forums,
e-voting), to mobilise against authoritarian regimes (twitter revolutions) and
to transcend borders in order to engage with communities of origin (dias-
pora politics).1 Using powerful computers, myriads of sensors and sophisti-
cated algorithms, ‘smart cities’ can identify and address public issues and
concerns, such as trafc congestions and security threats. However, I worry
that we too often take technologies for granted and fail to discern between
technological opportunity and mythology.
My contribution to this debate is to raise two general points about the
risks involved by linking citizenship to technology, namely making citizen-
ship vulnerable to biases and failures that typically affect technology and
increasing citizenship’s dependence on technology.
Technologies are not neutral. They are embedded in and tend to rein-
force certain values, norms and expectations to the detriment of others. For
example, predictive algorithms used by police are more likely to identify
black persons as suspects of crime2 and facial recognition software seems
to recognise better white male faces.3 When they are not biased by design,
smart technologies may quickly pick up biases from their surroundings. In
2016, Microsoft created Tay, a chatbot that used machine learning to emu-
late a teenage user on Twitter. However, after a few hours of ‘learning’ on
the social media platform Tay began posting Hitler-praising and other racist
1 Dumbrava, C. (2017), ‘Citizenship and Technology’, in Shachar, A.,
R. Bauböck, I. Bloemraad & M. Vink (eds.), Oxford Handbook of Citizenship,
767–788. Oxford: Oxford University Press.
2 ‘Big data may be reinforcing racial bias in the criminal justice system’, The
Washington Post, 10 February 2017, available at https://www.washingtonpost.
com/opinions/big-data-may-be-reinforcing-racial-bias-in-the-criminal-justice-
system/2017/02/10/d63de518-ee3a-11e6-9973-c5efb7ccfb0d_story.
html?utm_term=.5513fe110740
3 ‘Facial recognition software is biased towards white men, researcher nds’,
The Verge, 11 February 2018, available at https://www.theverge.
com/2018/2/11/17001218/facial-recognition-software-accuracy-technology-
mit-white-men-black-women-error
C. Dumbrava

301
and sexist remarks4, which forced Microsoft to shut it down with an apol-
ogy. Bitcoin, the most well-known blockchain technology, can also be
regarded as deeply political, a product of particular ‘right-wing, liberation,
anti- government politics.’5 Such ideological bias makes blockchain unsuit-
able for becoming the repository of democratic citizenship. If the platform
itself is biased towards a particular conception of the good, how can we
expect it to serve as an arena and mediator between different conceptions
of the good?
Technologies often fall short of expectations and are usually hijacked, if
not initiated, by authoritarian governments and powerful groups. For exam-
ple, India’s population biometric database, Aadhaar, which is intended to
provide more than a billion people with digital identities and access to pub-
lic services, has been criticised for its rigidity and security problems, which
affect particularly the poor.6 The Chinese government is currently toying
with a Social Credit System7 designed to measure citizens’ trustworthiness
that would further mould their behaviour to align it with the government’s
priorities and ideology. Blockchain gurus and their followers claim that this
technology is highly secure. However, this has not prevented a hacker to
steal about 60 million USD - worth Ether (another major cryptocurrency) in
the so-called DAO attack.8 Indicative of the ideological underpinning of the
blockchain movement, and deeply troubling from many perspectives of
social justice, is that some members of the cryptocurrency community sug-
4 ‘Microsoft’s disastrous Tay experiment shows the hidden dangers of AI’,
QUARTZ, 2 April 2016, available at https://qz.com/646825/microsofts-ai-
millennial-chatbot-became-a-racist-jerk-after-less-than-a-day-on-twitter/https:/
qz.com/653084/microsofts-disastrous-tay-experiment-shows-the-hidden-
dangers-of-ai/
5 Golumbia, D. (2015), ‘Bitcoin as Politics: Distributed Right-Wing Extremism’,
in G. Lovink, N. Tkacz & P. de Vries (eds.), MoneyLab reader: An intervention
in digital economy, 118–31. Amsterdam: Institute of Network Cultures.
6 ‘In Rajasthan, there is “unrest at the ration shop” because of error-ridden
Aadhaar’, Scroll.in, 14 April 2018, available at http://scroll.in/article/805909/
in-rajasthan-there-is-unrest-at-the-ration-shop-because-of-error-ridden-aadhaar
7 ‘Big data meets Big Brother as China moves to rate its citizens’, Wired, 21
October 2017, available at http://www.wired.co.uk/article/
chinese-government-social-credit-score-privacy-invasion
8 Reijers, W., F. O’Brolcháin & P. Haynes (2016), ‘Governance in Blockchain
Technologies & Social Contract Theories’, Ledger 1 (1): 134–151.
Citizenship Forecast: Partly Cloudy with Chances of Algorithms

302
gested that the attacker should keep the money as s/he did not break the rules
but simply exploited a aw in the system.
As other products of digital technologies, the blockchain exists in online
clouds that depend on critical physical infrastructures. Online clouds are no
less fragile than on-the-sky clouds. Online systems are emanations of a
bunch of machines connected to various grids that require an awful lot of
things, such as electricity, computers, data centres, internet servers, etc.
Since this enabling infrastructure is vulnerable to hacking and shutdown, so
is democratic citizenship if embedded in digital technologies. If digital iden-
tities could be compromised (as in the Indian case) and cryptocurrency sto-
len there is little assurance that digital citizenship solutions, such as universal
IDs, e-voting systems and blockchain-based cloud communities, would not
succumb to the same illness.
My second point is about the risk of making citizenship (too) dependent
on technology. As we regularly worry about our children’s addiction to
tablets, online gaming and other technologies that could affect their social
development, we should also worry about our society’s dependence on
technologies that might affect its capacity for self-government. It is not
only about a technologically mediated withdrawal of citizens from the
physical public space, á la Putnam,9 but also about the dangers of making
democratic citizenship dependent on specic technological systems and
artefacts.
Exercising citizenship has always involved some forms of technology,
from voting pebbles in Ancient Greece to ballot boxes and electoral district-
ing algorithms10 in modern representative democracies. However, the high
levels of sophistication and, ultimately, opaqueness of technologies such as
blockchain must be a real concern should we decide to entrust these tech-
nologies with the role of embodying democratic self-government. We are
asked to take for granted the promises of new digital technologies and are
kindly invited to take our places in shiny new cloud communities. However,
we rarely understand how these technologies work, who designs and over-
sees them and whether we would be able to dispense of them if we nd them
wanting.
9 Putnam, R. D. (2000), Bowling Alone: The Collapse and Revival of American
Community. New York: Simon & Schuster.
10 ‘Of the Algorithms, by the Algorithms, for the Algorithms’, Slate, 13 January
2009, available at http://www.slate.com/articles/news_and_politics/poli-
tics/2009/01/of_the_algorithms_by_the_algorithms_for_the_algorithms.html
C. Dumbrava

303
Some religions tell you that the true God is in the clouds; tech enthusiasts
tell you that the true community is in the cloud. I recommend examining the
sky carefully before you start packing.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Citizenship Forecast: Partly Cloudy with Chances of Algorithms

305© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_54
The Separation of Territory and State:
a Digital French Revolution?
Yussef Al Tamimi
The contributions on cloud communities and citizenship in this blog raise
both hopes and fears. The reality of an idea initially as outlandish as citizens
of a digital cloud is materialising as we ponder and debate its practices.
Political theory and the law must attempt to keep up with these rapidly
changing circumstances. This comment raises some questions regarding
three assumptions in this debate:
1. Cloud states1 have no territory
2. Cloud states cannot exert violence
3. Cloud state membership is based on choice
To illustrate and perhaps formulate a response to these assumptions, it
might benet this futuristic debate to consult experiences from the past. As
suggested by the other contributors, the current transformation of the state
as a consequence of the ‘digital revolution’ is profound. Nothing less than a
separation of the state from its traditional connectedness to territory is sug-
gested. The historic event that comes close to matching such a seismic shift
in the structure of the state was the American and French Revolutions, which
set in motion the institutional untying of state and church. A historical paral-
lel is quickly drawn: if these revolutions led to the separation of Church and
State that resulted in secular states, will the digital revolution lead to the
separation of Territory and State that results in cloud states?
1 I use the term ‘cloud state’ rather than ‘cloud community’, as the latter
unnecessarily obscures the fact that, at least in this debate, the question is
whether clouds can fulll certain political functions traditionally belonging to
the state, such as conferring citizenship. Assuming that these political func-
tions can indeed be performed by clouds, this leaves no reason to call a cloud
anything else than a ‘state’, except to dissociate the cloud from the negative
connotations of the state and calling it by the more cozy term community.
However, in my opinion, one should not appropriate the political function of
the traditional state and simultaneously obscure the responsibility – which
states sometimes fail to exercise – that is inherent to that function.

306
Assumption 1: Cloud states have no territory
Robert Post, focusing on legislation in his blog post, argues: ‘A world in
which every community is voluntary is a world in which every norm is also
voluntary. It is therefore a world without law. Because politics is the social
form by which we create law, it is also a world without politics.’
For Post, a cloud state, which does not impose legislation, is not a
state at all. One can imagine that arguments sounding very similar were
once raised by opponents of the separation of Church and State: ‘a secu-
lar, neutral state, which does not impose public morals, is not a state at
all.’ I raise this parallel not to disagree with Post. Rather, it is to show
that after centuries of debate on secularism we have come to understand
that ‘neutrality’ of the state is an impossibility; a state always makes
choices that impact a state’s public sphere. That is to say that the oppo-
nents of the separation of Church and State were wrong in the rst place
because the starting premise of their critique, that the secular state would
be neutral, was incorrect.
The starting premise of the cloud state is that it is nonterritorial. Now that
we have come to know that ‘neutrality’ does not really exist, the question
arises if we have to conclude that ‘nonterritorial clouds’ do not really exist
either. In other words, is the cloud itself not territory? I do not mean this in
the strict physical sense that clouds have servers that are located in territorial
states, which itself is a valid point; yet the development of serverless cloud
computing in the future might undermine such an argument. To think of the
cloud as somehow territory-less and border-less is incongruous if one appre-
ciates that territory itself is not a natural phenomenon but a man-made con-
struct the meaning of which is dynamic and can come to encompass
non-physical spaces.
Assumption 2: Cloud states cannot exert violence
Focusing on violence in his comment, Michael Blake states: ‘My own chal-
lenge is broader: the protection of human rights, I believe, can only be
accomplished by means of violence and force, in both policing and in pun-
ishment – and this violence is in our world reserved (as a matter of right, if
not reality) for use by states.’
Blake argues that cloud states cannot protect human rights. A comparison
with anti-separationists in the French Revolution is again not far away: they
Y. Al Tamimi

307
would claim that ‘secular states cannot protect God’s law’. To make his
argument, Blake relies heavily on state force. But why could cloud states not
impose their own forms of digital violence? Perhaps an obvious damage
they could inict is to one’s reputation. An example of this is the social
credit system proposed by the Chinese government, which is a national rep-
utation system that assigns social credit to citizens. The ipside of such
reputation systems that aim to promote ‘good citizenship’ behaviour is the
potential social devaluation of ‘bad’ citizens, which can go as far as seri-
ously harming their wellbeing and possibilities in life. A punishment in
terms of such social devaluation imposed by the cloud state is conceivably
more painful and restricting to the individual than traditional methods of
punishment, such as nes or jail.
As with territory, one could counter this claim by saying that what mat-
ters for statehood is physical, rather than non-physical, violence. In that
case, the actual core of the matter is the physicality of the traditional state’s
territory and violence compared to the non-physicality of the cloud state’s
territory and violence. That raises a question that is yet to be addressed by
proponents of cloud states: What is desirable about the non-physicality of
territory and violence that makes cloud states and their citizenship superior
to traditional states and their citizenship?
Assumption 3: Cloud state membership is based on choice
Focusing on the idea of consent-based cloud communities, Rainer Bauböck
writes: ‘My response is that this would be fatal for democracy. Already
Aristotle knew that, unlike families, democratic polities are associations
of diverse individuals. The territorial bases and automatic attribution
mechanisms of citizenship create political community among individuals
that differ profoundly in their interests, identities and ideas about the com-
mon good.’
In short, for Bauböck choice cannot be constitutive for political member-
ship (citizenship). Hence, the chosen membership of cloud states is not citi-
zenship. This is a difcult topic, and the parallel with the earlier (French)
revolution escapes me. The reason for this is that in the secular revolution
separating Church and State the ‘onus’ of choice fell on the Church and not
the State: It was religion and the freedom to choose individually one’s
religion that was guaranteed by the secular state. By contrast, in the digital
revolution separating Territory and State the opening up of choice is focused
The Separation of Territory and State: a Digital French Revolution?

308
on the newfound states among which individuals can choose. In fact, one
might even be limited in exiting from a territory (think refugees, political
activists) yet have the freedom to select from a range of cloud states one
wants to join.
Yet, the notions of choice and voluntariness applied in this context
leave many questions unanswered. It is still unclear in what way we under-
stand membership in a cloud state to be a ‘choice’. The Chinese social
credit system mentioned earlier may become mandatory as of 2020. Such
a turn towards explicitly mandatory membership will probably not always
happen, but what idea of choice do we have in mind when saying that
cloud membership is a ‘choice’? Is it rational choice theory, which has
long been refuted in psychology? The conditions that move people to
decide on their cyber membership, as well as their non-rational motiva-
tions, have to be taken into account for a more realistic conception of
choice.
The question of chosen membership is closely related to issues concern-
ing identity. The idea that individuals are able to ‘create’ their own identi-
ties, which is implicit in Liav Orgad’s contribution, is mistaken. Iris Marion
Young makes a helpful distinction between associations and social groups to
tease out the distinct role of identity when membership is based on choice.
Young argues that that the contract model of society applies to associations
but not to social groups: ‘Individuals constitute associations; they come
together as already formed persons and set them up, establishing rules, posi-
tions, and ofces.’ (my emphasis).2 In contrast, social groups, in which our
identities are implicated, involve a much more complex process: ‘Group
afnity (…) has the character of (…) “thrownness”: one nds oneself as a
member of a group, whose existence and relations one experiences as always
already having been.’ This does not mean that one cannot change one’s
group afnity, for example by changing one’s gender identity as trans-
persons do. For Young, these cases illustrate thrownness precisely because
such changes are ‘experienced as a transformation in one’s identity.’ This
phenomenological approach to social groups shows that a deeper afnity is
involved in the process of membership and that social groups, which impli-
cate our identity, cannot be explained solely by ‘choice’. Young and Bauböck
therefore agree that citizenship and choice are irreconcilable, though they do
so from different standpoints: for Bauböck the presence of choice in
communities leads to a democratic decit, for Young it leads to a social de-
2 Young, I. M. (1989), ‘Polity and Group Difference: A Critique of the Ideal of
Universal Citizenship’, Ethics 99: 250–274, at 260.
Y. Al Tamimi

309
cit, a lack of social afnity or belonging. To respond to this complex debate
relating to membership, the nature of cloud membership requires further
clarication as to its position on citizenship, identity and choice.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
The Separation of Territory and State: a Digital French Revolution?

311© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_55
A Brave New Dawn? Digital Cakes, Cloudy
Governance and Citizenship á la Carte
JelenaDžankić
I have always been fascinated by the human capacity to imagine future
worlds and describe what humanity would look like in the years or decades
ahead. In the second half of the nineteenth century, Jules Verne wrote about
electricity,submarinesandyingballoons.Afew decades later,Thea von
Harbou and Fritz Lang gave birth to the world of Metropolis, which in many
ways is a metaphor of contemporary societies. In the 1970s and 1980s, Isaac
Asimov wrote about psychohistory, a discipline that combines statistics,
psychology and history to predict how the behaviour of large groups would
shape future events. Just as most of the things described by Verne, von
Harbou and Lang, or Asimov seemed technologically and politically distant
or unimaginable at their times, so do meaningful digital communities seem
to be today.
Liav Orgad sees tremendous potential in digital technologies for recon-
structing the traditional notion of citizenship by shifting status, identity and
the exercise of rights away from the state and closer to the individual. He
believes that blockchain could enhance the current structure of international
governance by strengthening human rights through the attribution of digital
identities and by offering new models for political participation through
cloud communities, which in turn would decrease the inequality engrained
in, for instance, the principles of voting in the United Nations. In other
words, with further development of blockchain technologies, states would
no longer be the sole determinants of an individual’s legal status, or have the
monopoly over the exercise of individual rights, or be the core community
for identity ascription. In this sense, I am in agreement with Orgad, Primavera
De Filippi and Francesca Strumia that we cannot but acknowledge that rap-
idly developing technologies are likely to ‘outsource’ many of the state’s
functions to cyberspace. Even so, as has been pointed out by other contribu-
tors (Rainer Bauböck, Robert Post, Michael Blake and Peter Spiro), block-
chain technologies and cloud communities raise a number of concerns about
governability and the exercise of self-sovereignty.

312
They want citizenship? Let them have digital identities
instead!
In his kick-off contribution Orgad highlights that 1.1 billion people, or a
sixthof the global populationlack an ofcialidentication.Such people,
including many refugees, displaced persons, nomadic pastoralists or socially
marginalised minorities like the Roma are consequently excluded from par-
ticipating in or accessing services of modern states. According to Orgad,
blockchain technologies already provide the infrastructure for attributing
such people global digital IDs, which would grant them recognition as
‘human beings’. Blockchain-based digital IDs would enable individuals to
create and register their own identity. This identity would be validated
through multiple decentralised network nodes. It would also be permanent
and immutable.
I agree with the general need to recognise every human being before the
law. However, the attribution of a global digital ID scarcely resolves this
problem for two reasons. The rst one is recognition. Our legal status is
attributed by states recognising us as legal persons. The international system
of mutual recognition among states allows us to be considered a legal per-
sonaelsewherepreciselybecausethestatusthatwehavehasbeenconrmed
by a state. Hence, any global digital ID would still need to be recognised by
states or an international organisation in order to have external validity.
Initiatives, such as ID20201 speak about the need to tackle the problem of
the lack of ‘ofcially recognised identity’ through digital technology but
offer scarcely any practical pointers as to how these identities would be rec-
ognisedand by whom. Furthermore, ifsuch digital identication were to
create a ‘status and identity complementary to national citizenships’, I am
wondering what kind of status and rights it would yield for those whose
predicament Orgad seeks to resolve. If a digital ID has no external recogni-
tion, it has little value for a person with no other proof of identity. They will
still lack the status that a digital identity could complement but cannot sub-
stitute for. Isn’t the offer of digital identity for them a bit like Marie
Antoinette’s cake for the hungry crowds in revolutionary Paris?
1 ID2020 Alliance at a Glance, available at https://static1.squarespace.com/
static/578015396a4963f7d4413498/t/5a5f92bcc8302548e722
dff3/1519157409748/ID2020+Alliance+Doc+-+Jan+2018.pdf
J. Džankić

313
Governance by blockchain: digital hierarchies or direct
democracy?
Orgad’s second claim looks prima facie stronger. Recent experiments with
blockchain-based virtual communities, such as Bitnation, indicate that
blockchain technology has the potential to substitute or complement some
elements of state governance. In theory, in a blockchain-based cloud com-
munity, members agree on a set of laws regulating their interaction, and
these laws are then amended by consensus.
Pazaitis, De Filippi and Kostakis give the example of Backfeed (http://
backfeed.cc/) protocol as a conceptual model ‘for a new form of governance
with an incentivisation system implemented on the blockchain.’2 This sys-
tem would be materialised through an organisational structure of decentral-
ised cooperation based on peer-to-peer evaluation and a reputation system
as grounds for allocating communal inuence. This kind of cooperation
would presume that a number of members come together to establish a digi-
tal community and reach a consensus on what values underpin that commu-
nity. Members of the community own certain initial amounts of ‘reputation’
tokens and they are incentivised to participate in communal decisions
through a system that provides reputational gains to those who are best
aligned with communal values. Those contributing voluntarily to ‘values’
receive a reward if 50 per cent of the tokens representing the community’s
reputation have been invested in the evaluation of the voluntary contribu-
tion. The reward takes the form of reputation tokens, which are shared
between the contributor and those who reached the consensus on the evalu-
ation. Whenever a person evaluates a new contribution, they also give away
some of their existing reputation to it.
Let’s translate this into a thought experiment. Imagine there is a Backfeed-
based community called Scientia, in which the core value were ‘knowl-
edge’.Scientiahasbeencreatedbyvemembers(A,B,C,D,andE),each
of whom originally had 10 reputation tokens (i.e., the community has a total
of 50 tokens). Member A comes up with a proposal to create an encyclopae-
dia of cloud communities and the proposal is put to communal vote. Votes
can range from 1 to 5 (1 lowest contribution, 5 highest contribution). The
proposal will go through if at least 25 reputation tokens have been invested
in the evaluation.
2 Pazaitis, A., P. De Filippi & V. Kostakis (2017), ‘Blockchain and value systems
in the sharing economy: The illustrative case of Backfeed’, Technological
Forecasting and Social Change 125: 105–115, at 111.
A Brave New Dawn? Digital Cakes, Cloudy Governance and Citizenship á la…

314
Now, imagine a scenario where A invests 8 out of her initial 10 reputation
tokens with a vote of 5; B invests 5 tokens with a vote of 5; C invests 3
tokens with a vote of 3; D invests 5 tokens with a vote of 4; E invests 7
tokens with a vote of 5. A total of 28 tokens have been invested, with three
contributors voting 5, and hence the proposal is accepted. C and D will lose
the 8 tokens they invested, and these will be distributed between A (4
tokens), B (3 tokens), and E (1 token) in line with their initial reputation
investment. The new count of reputation tokens would be 14 for A, 13 for B,
7 for C, 5 for D, and 11 for E. In evaluating the subsequent proposal, A, B
and E would have greater voting power, as they would hold three quarters of
the community’s reputation tokens.
In my view, there are three problems with this kind of decision-making.
First,the‘overallevaluationofaspeciccontributionisbasedontherepu-
tation score’.3 This implies the use of a system of weighted voting, whereby
individuals with higher reputation (i.e., with more tokens) have a greater say
in communal decision-making. Paradoxically this would make the princi-
ples of deciding in such digital communities closer to those in ancient Rome,
feudal Prussia, or French colonies where votes were weighted on grounds of
‘wealth’ than to contemporary democracies based on the equality of votes.
In other words, this kind of system would perpetuate inequality of member-
ship in a similar way as the Chinese social credit system described by
Costica Dumbrava does. Second, even though the general idea of Backfeed-
based governance is to incentivise participation through rewards, those with
high rewards from previous rounds of evaluations may be less inclined to
participate in new evaluations as that may result in their loss of reputation.
Equally, ‘losers’ in the communal vote (such as the examples of C and D
above) may face obstacles in putting forward or voting for any proposal due
to limited resources at their disposal. Third, such a system could create
incentives to bet with the winners rather than to invest into the values that
one truly believes are in line with communal ones. This is antithetical to
democracy and turns into a market where people pursue reputational gains
instead of deliberating on what values they share. That is, a system in which
reputation is gained and lost by ‘betting’ on the levels of contribution to
communalvaluehasthepotentialtocreateastratiedsocietyinwhichdeci-
sions are made by a small number of those willing to speculate on commu-
nal value.
An alternative to this would be to think how direct democracy could
work in cloud communities. Presumably, protocols could be developed
3 Above n. 1 at 110.
J. Džankić

315
that – unlike Backfeed – base decision-making on equal voting power for
each digital identity and that offer a platform for deliberation rather than
only for voting. Such communities would be similar to voluntary associa-
tions of individuals that adopt statutes providing for internally democratic
governance: all members (independently of their duration of membership
and place of residence) and members only can participate in decisions taken
by the ‘demos’ of the association.
Now, let’s go back to the example of Scientia. Imagine that this time,
Scientia were a voluntary decentralised blockchain-based community that
operates on the basis of equal votes of its members A, B, C, D, and E. The
community votes on A’s proposal for the encyclopaedia of cloud communi-
ties and the proposal passes due to positive votes of A, B, and E. Unlike in
the previous example, since there are no reputational gains or losses, C and
D will have the same voting power in the next ballot. Hence such a model
would not disincentivise those who opposed the initiative. However, it
would then not provide incentives for contributing in the future, as Backfeed
is supposed to do. As Pazaitis, De Filippi and Kostakis rightly point out, this
would lead to ‘to the gradual dissipation of the community members, who
couldnolongerreectthemselvesintothevaluesystemofthenewentity.’4
So there is a dilemma of blockchain governance in cloud communities:
will they be based on incentives that create hierarchies or on direct democ-
racy with scarce mechanisms for motivating participation?
Citizenship as a business model?
In his kick-off contribution Orgad notes that the future of citizenship is
dynamic and multi-layered. Yet so is the present, and so has been its past.
The key question is whether we are ready to embrace a new approach to citi-
zenship, based on ‘smart contracts’ operating in cyberspace and regulating
needs of individuals, just as a business model would do. For Spiro the recent
trendtowardsaglobalmarketforpassportsexempliessuchanapproachto
citizenship: individuals with multiple passports have more choice where to
settle, pay taxes, send their children to school, etc. Hence, in some respects,
citizenship(albeitforasmallnumberofpeoplewhocanbenetfrominves-
tor citizenship programmes) is already merely an access point to a market of
goods and services that different providers (in this case states) offer.
As new technologies develop, digital markets will allow individuals to
choose the services previously provided by the state from private companies.
4 Ibid.
A Brave New Dawn? Digital Cakes, Cloudy Governance and Citizenship á la…

316
Indeed, some functions of the state have already been outsourced to compa-
nies operating in the digital world (e.g., online education instead of public
schooling, car-sharing schemes instead of public transport, etc.). Perhaps
the utopian vision of the ‘sharing economy’ is that public goods would be
produced through horizontal and voluntary cooperation among consumers.
Yet examples such as online degrees, Airbnb, Uber, and the likes prove the
contrary. They follow the logic of the market and reveal the huge potential
for corporate power based on network effects and ‘cartelisation’ of servic-
es.5 In considering the effects of citizenship as a business model, we also
need to think about possible implications for some other core functions of
the state, including adjudication and the provision of security.
And even if, in the spirit of the introductory paragraph, digital technolo-
giesbringalongnumerousbenetswehavetorecognisethattheirá la carte
approach is hardly conducive to the creation of a community of shared val-
ues among members. That is, it is hardly conducive to citizenship.
5 Atzori, M. (2015), ‘Blockchain technology and decentralized governance: Is
the state still necessary?’, available at SSRN: https://ssrn.com/
abstract=2709713 or https://doi.org/10.2139/ssrn.2709713
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
J. Džankić

317© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_56
Old Divides, New Devices: Global
Citizenship for Only Half of the World
Lea Ypi
There is no doubt that we live in an age of global communication. But who
is able to communicate and how is access to the means that enable that com-
munication (computers, mobile phones, internet lines) distributed?
Consider again the facts of global interconnectedness with which Liav
Orgad begins his piece. But consider them from a different perspective, not
that of the wealthy Western academic who blogs about cloud communities.
If half of the world population spends time online, it means that the other
half does not. While 94 per cent of the youth population in the developed
world has access to the internet, 70 per cent of youngsters in least developed
countries do not. While almost one-third of the global population uses
smartphones, the other two-thirds (the vast majority) does not. If global
internet use in 2017 was at 48 per cent, 52 per cent of the world’s population
was left out. In the least developed countries only 15 per cent of households
have access to the internet from their homes and 85 per cent rely on schools,
ofces, libraries or other public connections to access the web. The propor-
tion of men using the internet is higher than the proportion of women, and
the proportion of private internet access in developed countries is twice as
high as in developing ones.1
All this suggests that the narrative of global interconnectedness on which
the ideal of global citizenship rests is only half true and true only for half of
the world. There is of course the claim that even for the half of the world that
is connected, the technology might not work very well. There are the dangers
of digital identities being stolen and of data centres, internet servers, and the
rest of the infrastructure being vulnerable to hacking, as Dumbrava empha-
sises in his contribution. But my problem is even more basic. One of the most
attractive features of global citizenship based on blockchain technologies
1 International Telecommunications Union (2017), ITU Facts and Figures.
Available at https://www.itu.int/en/ITU-D/Statistics/Documents/facts/
ICTFactsFigures2017.pdf

318
seems to be that it does not entail the right to exclude. But either proponents
of that ideal start with the world as it is, or they do not. If they take the world
as it is, they endorse an even more pernicious form of exclusion, the exclusion
of those who have no access to the internet from the community of those that
do, and they proceed to reify the separation between the two. If they start with
the world as it ought to be, they owe us an argument on how we can get from
here to there. How can we make sure that the half of the world that has no
access to the internet can do so? How are we going to take care of the costs of
IT provision? What will put an end to the inequalities that make it the case that
for some people (like me) mobile phones are an extension of themselves and
for some others only an aspiration? Who controls the production of the tools
that lead to differentiated access of the means of connection?
It will be clear from my lines above that I approach the question of global
citizenship presented in Orgad’s piece from a radical egalitarian perspective,
concerned with inequalities of access to the material means of production,
and the related power positions of those who control such access. In the
contemporary world this means raising very basic questions, such as who
owns Apple and Microsoft, and how we can make sure that everyone has a
mobile phone that works as well in central London as it does in the remote
areas of Albania (where it typically does not). Apple and Microsoft are the
modern equivalents of cotton and spin factories. We have the same reasons
to worry about who controls their ownership and who has access to the tech-
nologies that they enable as much now as we did in the past. But if we ignore
the problem of asymmetrical access and proceed as if the internet was
already within everybody’s reach, we run the risk of entrenching one of the
most problematic divides of our time.
Given the perspective I have offered, I hesitate to show enthusiasm for
Orgad’s proposal for reasons very different from those of Robert Post,
Michael Blake or even Rainer Bauböck. My argument is not that cloud com-
munities based on voluntary membership do not offer the benets of a col-
lective coercive system of rewards and punishments like the one offered by
modern states. I do not think that states are necessarily either more just or
more democratic than cloud communities, or that they ‘provide us with
goods that cannot be provided by even the best systems of informational
technology’ as Michael Blake suggests. If you are a representative of the
half of the world that has nothing to do with the internet you are of course
failed by IT providers, but you are also failed by your state. Indeed, you are
failed by those providers precisely because you are failed by your state. It is
because the state is captured by powerful groups who merely exploit you
and who are uninterested in guaranteeing you access to those basic goods
L. Yp i

319
that the state is supposed to guarantee (at least according to the liberal myth)
that you are excluded within the state as much as outside.
When we assess the benets and limitations of state citizenship versus a
voluntary model of global citizenship, we have to make sure that we compare
like with like. We have to make sure we don’t compare an ideal of the state
with the reality of failing blockchain technologies, for example. We need to
compare the reality of the state with the reality of cloud communities or the
ideal of the state with the ideal of cloud communities. Speaking about ideals,
like Orgad, I am attracted to a system of voluntary membership where citi-
zenship does not come coupled with the right to exclude, and like De Filippi
I can see the advantages of ‘trustless systems (i.e. system where trust is no
longer needed).’ Indeed, both of those things are compatible with the kind of
utopian society Marx thought would come after capitalism had been super-
seded and when the need for a state (understood as a collective coercive
system of punishment) would have withered away. But speaking about real-
ity, capitalism is alive and kicking: capitalist relations control the state and
they will control cloud communities. Without remedying the asymmetries of
access to the means of connection, and the exclusions they generate, the ideal
of global citizenship will be as illusory as the ideal of a state that is effective
in distributing social goods. But while in the case of the state, we have at least
a history of political mobilisation and, if lucky, democratic learning processes
and institutions on which to rely when seeking change (as Bauböck also
points out in his piece), nothing of that sort is available in the cloud. So we
should probably hold on to state citizenship for the conictual period of tran-
sition and leave cloud communities to the future utopian society that may
become accessible once interconnectedness is truly global. If it ever does.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Old Divides, New Devices: Global Citizenship for Only Half of the World

321© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_57
Escapist Technology in the Service
of Neo-Feudalism
Dimitry Kochenov
This contribution agrees with Rainer Bauböck’s reaction to Liav Orgad’s
opening statement. I am, too, ‘less optimistic about the future of citizen-
ship’. My reasons are different though. There are different ways to go about
technological leaps: to turn technological breakthroughs into the tools of
improving the long-established reality, or to revolutionize society based on
technological advancements. Nikolai Fëdorov, to give an ambitious exam-
ple, aimed at conquering death and resurrecting all those previously living.1
Liav Orgad’s text proposes technology-inspired change. I suggest, respect-
fully, that by not going far enough, what is proposed by Orgad could turn out
to be dangerous and unwelcome for a large share of the world population
outside of the richest countries. Echoing Lea Ypi’s contribution, I suggest
that it will do more harm than good. The reason for this is that it puts tech-
nology to the service of the mythology of citizenship, instead of interrogat-
ing citizenship’s essence and functions and questioning its darker corners.
The core of the problem, to my mind, is the concept of citizenship as
such, not the documentation of identity, which the blockchain proposal
addresses. Virtual nations, as long as they replicate existing national struc-
tures that randomly ascribe strict identities and reinforce deep global
inequalities, will make the world worse off, especially among its poorest
half. Even if they miraculously end up playing a signicant role, the citizen-
ship framing of the issues Orgad aims to address seems to be unhelpful and
problematic, especially in the context of his rhetoric aspiring to reach out to
‘global’ citizenship, whatever this could mean.
Citizenship is a racist and sexist status of randomised violent segregation
of the world population into relatively closed groups of varying objective
value from the point of view of individual rights.2 Some come with far-
reaching rights – others with liabilities. Both are signicant both in real life
1 Fëdorov, N. F. (1906), Filosoja obshchego dela. Moscow: Vernyj.
2 Kochenov, D. (2019), Citizenship: An Alchemist’s Promise. Michigan: MIT
Press (forthcoming).

322
and in the cloud. If someone is assigned a humiliating set of liabilities in real
life, say, a Central African Republic citizenship, instead of a noble and dem-
ocratic status boosting one’s rights, say the citizenship of France, cloud
communities will not change that, unless the distinction between being
assigned to CAR as opposed to France is thereby undermined, and based on
Orgad’s suggestion it won’t be. The ‘real life’ problem thus derives from
real life inequalities between citizenships as bundles of rights and liabilities.
It is not only that citizenships by denition exclude. It is the difference
between different citizenships that matters. As long as these two premises
persist in shaping our day-to-day reality, a ‘global’ cloud community is a
meaningless proposition for those who hold inferior citizenships, reinforc-
ing the gaps between CAR citizens and the French.
Citizenship’s core function throughout history, alongside sexism and a
deep exclusion of women, has been to establish and police global race- and
wealth-based hierarchies of opportunities and rights, while providing an
impenetrable and punishing noble façade of equality and self-determination.
In this, citizenship has been very effective: it took US women almost hun-
dred years to get the right to vote and the Dutch ones waited until 1986 to
have a citizenship status independent of that of their husbands. Compared
with women, all the colonial subjects fared signicantly worse. While
African Americans obviously have not been enjoying the same rights as
‘Caucasian’ US citizens throughout the history of US citizenship, the same
is true for the European and Asian empires as well. Emmanuelle Saada
explains how arbitrary and uniquely based on skin-colour the ascription of
Frenchness in the colonies of the Republic was.3 What decolonisation
brought, however, was a racial segregation of the world under the banner of
equal citizenship among equal states. All the former colonial subjects are
now conned to the places around the world reserved uniquely for the losers
of Ayelet Shachar’s infamous birthright lottery.4 The only difference com-
pared with seventy years ago is that there is no more French judge in the
former colony, whom you can beg for a drastic status upgrade for your child,
capitalising on her unexpected blue eyes – racism is outlawed, remember?
The world has thus both changed and remained the same. It changed,
because since the Second World War the Western world has come to accept
women as the bearers of citizenship status independent of their sexual
3 Saada, E. (2012), Empire’s Children: Race, Filiation, and Citizenship in the
French Colonies. Chicago: Chicago University Press.
4 Shachar, A. (2009), The Birthright Lottery: Citizenship and Global Inequality.
Harvard: Harvard University Press.
D. Kochenov

323
partners and even grants them political rights. Racial minorities within ‘rst
world’ states are also respected – both on paper and often in practice too.
The façade of citizenship as a status of equals seems to have met – for the
rst time since its proclamation by Aristotle – its promise. Yet the world has
also remained hugely unequal. Branko Milanovic teaches us that, although
global income inequalities have recently declined when measured by coun-
try averages, country of residence is more important than class today.5 Even
the ‘occupy Wall Street’ guys belong in fact to the world’s elites, they are
only not able to realise the depth of misery of others. Indeed, those locked
into the poorest former colonies do not inhabit the same narrative as
Europeans and Americans. The main purpose of citizenship has been
upgraded: from a neo-feudal mechanism of sexist and racist governance, it
is turning into one of the core instruments of preservation and justication
of global inequality, hiding its functionality behind the old façade of politi-
cal self-determination, which had been effective to brush away women and
minorities before.
Citizenships are thus about preserving inequality worldwide. As long as
segregating remains citizenships’ main function, cloud communities are
powerless in their mission: identities are irrelevant as long as all the life
chances or the lack thereof depend on a random legal status of ascription to
authority distributed at birth. Worse still, humiliation and randomness are
routinely sanctied: while upholding and perpetuating inequality, citizen-
ship supplies a powerful and ultimately pointless narrative justifying random
privilege through the glorication of expediency in territorial governance.
The lack of any rights worldwide coming with some citizenships as
opposed to a huge bundle of rights coming with others can be measured. By
comparing GDP, HDI, travel freedom and settlement and work rights abroad
it is easy to see why being born French – with a status welcoming you to the
job market of 41 countries and all the other perks included – is innitely
better than being a Ukrainian or, God forbid, an Afghani. The Quality of
Nationality Index, which I designed together with Chris Kälin shows this in
the most graphic way (http://www.nationalityindex.com). For ordinary peo-
ple this is not all theory: the boats crossing the Mediterranean are full and
they cross the sea in one direction only. My point is, they will be going the
same way no matter what cloud communities are introduced, since the
5 Milanovic, B. (2012), ‘Global Income Inequality by the Numbers: In History
and Now’, Policy Research Working Paper No. 6259, The World Bank,
available at http://documents.worldbank.org/curated/en/959251468176687085/
Global-income-inequality-by-the-numbers-in-history-and-now-an-overview
Escapist Technology in the Service of Neo-Feudalism

324
violence of global segregation that citizenship inicts cannot be affected by
the technology proclaiming an abstract ‘global citizenship’ to be a value and
reafrming it in the cloud.
Before discussing the potential benets of a set of quasi-citizenships in
the cloud it is crucial to be fully aware of the drastic differences between
citizenships in ‘real life’ and fully internalise their ability to punish besides
simply segregating at random. Pace Arendt’s ‘right to have tights’ citizen-
ship is a status associated with rights in a handful of countries only. In many
others, it is a severe and undeserved liability and sometimes a mortal one.
What blockchain offers to a Frenchmen will thus be radically different from
what it offers to a Congolese (pick your Congo!). When refugees arrive in
Europe or America, they often destroy, sometimes even eat, their passports.
Have you tried to consider why? It is because many citizenships are so ter-
ribly poisonous and dangerous that you might be innitely better off as a
stateless person. This is because with a Central African Republic passport
your child born in Brussels will be a Central African, not a Belgian, because
you will need to wait for naturalisation longer and, ultimately, because CAR
will have to accept you back once you are out of the Belgian asylum system.
To be identiable is always as bad a liability as the citizenship or the place
of birth you will be identied with. It can ruin lives. This is where cloud
communities come in as an impermissibly rosy dream. The proposal ignores
the complexity of the world and fails to fully come to terms with its own
dangers in the context of the current functions of citizenship behind the self-
justicatory sacred façade put up uniquely for those who somehow happen
to belong to the right country in order to let them sleep tight at night.
Citizenship’s inescapable evil does not stem from the fact that it is a ran-
domly assigned benet, but from the reality that it is about branding as de-
cient those who are randomly proclaimed not to belong while treating such
exclusion as self-explanatory and just. This justice is ethically void, how-
ever, as long as we believe that it is humanity that counts morally and that
obliges us to respect others’ desire to live a worthy life, as Joseph Carens has
demonstrated.6 Should this indeed be our starting point, any serious work to
perfect the current citizenship paradigm – either on the ground or in the
cloud – is nothing else but work that opposes ethical imperatives we all
share. The untenability of citizenship’s ethical narrative, no matter which
way of telling it one chooses, is the elephant in the room, which ultimately
explains the on-going demise of the citizenship of the ‘good old times’: a
random supremacist status for armed white boys who belong and believe in
6 Carens, J. (2013), The Ethics of Immigration. Oxford: Oxford University Press.
D. Kochenov

325
the greatness of their land, whatever it might be, often at the expense of all
their neighbours.
How do the cloud communities proposed by Orgad t Joppke’s story of
the ‘inevitable lightening of citizenship’?7 In the former imperial centres
such luxury as new online associations emerging through the individual sov-
ereign governance of identity with the help of blockchain as Orgad describes
it is only welcome – our world is open and ripe with opportunities – in the
cloud and on the ground. About the rest of the world I am somewhat scepti-
cal: as Robert Post has already suggested in his contribution, life in the place
where you are is something that is of crucial importance, more than your
cloud identity, whatever that would come to mean. And as Michael Blake
points out, violence in the physical world is equally crucial. Work and edu-
cation of your choosing, residence abroad, freedom of belief and expression,
an ability to be with your loved ones, to go places – this is what a Saudi citi-
zenship, now grotesquely granted to a robot, will no doubt deny you, espe-
cially if you are a woman. Using technology for escapism is something that
falls far short, it seems to me, of its potential. A cloud community will not
even save you from beheading in Saudi Arabia for confessing atheism
online, for instance, or, if you happen to be a Chinese national, spending
three years in jail for calling Mr Xi a ‘steam bun’ in a private chat conversa-
tion in your cloud.
Once escapism has been discarded, it becomes necessary to consider
what cloud communities could be good for. And in doing so it is our impera-
tive not to replicate the repugnant nature of citizenship as a justicatory
label for random privilege and for explaining away global inequality. Here
Estonia shows the way, as Poleshchuk has demonstrated.8
It is not the cloud identity, – I am gay in the cloud since otherwise the
government will kill me – it is the functional added value of the virtual sta-
tuses and ‘residences’ that should come to the fore. What I am saying is that
clubs, no matter whether ofine or in the cloud, have nothing to do with citi-
zenships, since citizenships are involuntary and do not foster common inter-
ests or values. Consequently, calling any cloud identities ‘citizenship’ is a
misconception. One needs to move on from citizenship when technology
allows. What is possible today – and this is a great beginning Estonia
7 Joppke, C. (2010), Citizenship and Immigration. London: Polity.
8 Poleshchuk, V. (2016). ‘“Making Estonia Bigger”: What E-Residency in
E-Estonia Can Do for You, What It Can Do for Estonia’, Investment Migration
Working Papers. Available at https://investmentmigration.org/download/
making-estonia-bigger-e-residency-e-estonia-can-can-estonia/
Escapist Technology in the Service of Neo-Feudalism

326
started – is to use online residences as compensation mechanisms for the
deciencies of the statuses of citizenship, which the vast majority of the
world’s population got by birth. You are born in Afghanistan? Fine, with an
Estonian residency online you can at least open a proper bank account and
have access to basic state services – notaries, company registers etc. This is
a primary use of new digital technologies.
A second purpose – and this one should be based on a broad agreement
between states – is to use attested individual identities to judge people by
those, rather than their passports. Crucially, these cannot go hand in hand.
The core added value would be to replace one with the other. We are a long
way from here and the connection between the cloud and ‘real life’ is crucial
here, but what one can envisage is a world where babies in Afghanistan or
Pakistan are born without at least some of the drastic harmful effects of the
original sin of nationality and that peoples’ worth at international borders is
assessed via some factors other than the particular state that has been claim-
ing the possession of them from birth. This should be the future of techno-
logical thinking to bring true liberation from the neo-feudal essence of a
poisonous status, which is ethically vacuous, its political expediency not-
withstanding. A technological revolution should not become a servant of the
status quo, erecting yet higher walls between the haves and have-nots.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
D. Kochenov

327© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_58
Cloud Communities and the Materiality
of the Digital
Stefania Milan
As a digital sociologist, I have always found ‘classical’ political scientists
and lawyers a tad too reluctant to embrace the idea that digital technology is
a game changer in so many respects. In the debate spurred by Liav Orgad’s
provocative thoughts on blockchain-enabled cloud communities, I am par-
ticularly fascinated by the tension between techno-utopianism on the one
hand (above all, Orgad and Primavera De Filippi), and socio-legal realism
on the other (e.g., Rainer Bauböck, Michael Blake, Lea Ypi, Jelena Dzankic,
Dimitry Kochenov). I nd myself somewhere in the middle. In what fol-
lows, I take a sociological perspective to explain why there is something
profoundly interesting in the notion of cloud communities, why however
little of it is really new, and why the obstacles ahead are bigger than we
might like to think. The point of departure for my considerations is a number
of experiences in the realm of transnational social movements and gover-
nance: what we can learn from existing experiments that might help us con-
textualize and rethink cloud communities?
Three problems with Orgad’s argument
To start with, while I sympathise with Orgad’s provocative claims, I cannot
but notice that what he deems new in cloud communities – namely the global
dimension of political membership and its networked nature – is indeed
rather old. Since the 1990s, transnational social movements for global jus-
tice have offered non-territorial forms of political membership – not unlike
those described as cloud communities. Similar to cloud communities, these
movements were the manifestation of political communities based on con-
sent, gathered around shared interests and only minimally rooted in physical
territories corresponding to nation states.1 In the fall of 2011 I observed with
earnest interest the emergence of yet another global wave of contention: the
1 Tarrow, S. (2005), The New Transnational Activism. New York: Cambridge
University Press.

328
so-called Occupy mobilisation. As a sociologist of the web, I set off in
search for a good metaphor to capture the evolution of organised collective
action in the age of social media, and the obvious candidate was… the cloud.
In a series of articles2 and book chapters,3 I developed my theory of ‘cloud
protesting’, intended to capture how the algorithmic environment of social
media alters the dynamics of organized collective action. In light of my
empirical work, I agree with Bauböck, who acknowledges that cloud com-
munities might have something to do with the ‘expansion of civil society, of
international organizations, or of traditional territorial polities into cyber-
space.’ He also points out how, sadly, people can express their political
views – and, I would add, engage in disruptive actions, as happens at some
fringes of the movement for global justice – only because ‘a secure territo-
rial citizenship’ protects their exercise of fundamental rights, such as free-
dom of expression and association. Hence the questions a sociologist might
ask: do we really need the blockchain to enable the emergence of cloud
communities? If, as I argue, the existence of ‘international legal personas’ is
not a pre-requisite for the establishment of cloud communities, what would
the creation of ‘international legal personas’ add to the picture?4
Secondly, while I understand why a blockchain-enabled citizenship sys-
tem would make life easier for the many who do not have access to a regular
passport, I am wary of its ‘institutionalisation’, on account of the probable
discrepancies between the ideas (and the mechanisms) associated with a
Westphalian state and those of politically active activists and radical tech-
nologists alike. On the one hand, citizens interested in ‘advanced’ forms of
2 Milan, S. (2015), ‘From social movements to cloud protesting: the evolution of
collective identity’, Information, Communication & Society 18 (8): 887–900;
Milan, S. (2015), ‘When algorithms shape collective action: Social media and
the dynamics of cloud protesting’, Social Media + Society 1 (2): 1–10.
3 Milan, S. (2015), ‘Mobilizing in Times of Social Media. From a Politics of
Identity to a Politics of Visibility’, in L. Dencik & O. Leistert (eds.), Critical
Perspectives on Social Media and Protest: Between Control and
Emancipation, 53–71. New York: Rowman & Littleeld. Available at SSRN:
https://ssrn.com/abstract=2880402; Milan, S. (2013), ‘WikiLeaks, Anonymous,
and the exercise of individuality: protesting in the cloud’, in B. Brevini,
A. Hintz & P. McCurdy (eds.), Beyond WikiLeaks: Implications for the Future
of Communications, Journalism and Society, 191–208. London: Palgrave
Macmillan.
4 I am aware that there is a fundamental drawback in social movements when
compared to cloud communities: unlike the latter, the former are not rights
providers. However, these are the questions one could ask taking a sociological
perspective.
S. Milan

329
political participation (e.g., governance and the making of law) might not
necessarily be inclined to form a state-like entity. For example, many
accounts of the so-called ‘movement for global justice’5 show how ‘ofcial’
membership and afliation is often not required, not expected and especially
not considered desirable. Activism today is characterised by a dislike and
distrust of the state, and a tendency to privilege exible, multiple identities.6
On the other hand, the ‘radical technologists’ behind the blockchain project
are animated by values – an imaginaire7 – deeply distinct from that of the
state.8 While the blockchain technology is enabled by a complex constella-
tion of diverse actors, it is legitimate to ask whether it is possible to bend a
technology built with an ‘underlying philosophy of distributed consensus,
open source, transparency and community’ with the goal to ‘be highly dis-
ruptive’9 … to serve similar purposes as those of states?
Thirdly, Orgad’s argument falls short of a clear description of what the
‘cloud’ stands for in his notion of cloud communities. When thinking about
‘clouds’, as a metaphor and a technical term, we cannot but think of cloud
computing, a ‘key force in the changing international political economy’10
of our times, which entails a process of centralisation of software and hard-
ware allowing users to reduce costs by sharing resources. The cloud
5 Della Porta, D. & S. Tarrow (eds.) (2005), Transnational Protest and Global
Activism. Lanham, MD: Rowman & Littleeld; Juris, J. S. (2012), ‘Reections
on #Occupy Everywhere: Social Media, Public Space, and Emerging Logics of
Aggregation’, American Ethnologist 39 (2): 259–279; McDonald, K. (2006),
Global Movements: Action and Culture. Malden, MA and Oxford: Blackwell.
6 Bennett, L. W. & A. Segerberg (2013), The Logic of Connective Action Digital
Media and the Personalization of Contentious Politics. Cambridge, UK:
Cambridge University Press; Milan, S. (2013), ‘WikiLeaks, Anonymous, and
the exercise of individuality: Protesting in the cloud’, in B. Brevini, A. Hintz &
P. McCurdy (eds.), Beyond WikiLeaks: Implications for the Future of
Communications, Journalism and Society, 191–208. Basingstoke, UK:
Palgrave Macmillan.
7 Flichy, P. (2007), The Internet imaginaire. Cambridge, Mass.: MIT Press.
8 Reijers, W. & M. Coeckelbergh (2018), ‘The Blockchain as a Narrative
Technology: Investigating the Social Ontology and Normative Congurations
of Cryptocurrencies’, Philosophy & Technology 31 (1): 103–130.
9 Walport, M. (2015), Distributed Ledger Technology: Beyond blockchain.
London: UK Government Ofce for Science. London: UK Government Ofce
for Science, available at https://assets.publishing.service.gov.uk/government/
uploads/system/uploads/attachment_data/le/492972/gs-16-1-distributed-
ledger-technology.pdf
10 Mosco, V. (2014), To the Cloud: Big Data in a Turbulent World. New York:
Paradigm Publishers, 1.
Cloud Communities and the Materiality of the Digital

330
metaphor, I argued elsewhere,11 is an apt one as it exposes a fundamental
ambivalence of contemporary processes of ‘socio-legal decentralisation.’
While claiming distance from the values and dynamics of the neoliberal
state, a project of building blockchain-enabled communities still relies on
commercially-owned infrastructure to function.
Precisely to reect on this ambiguity, my most recent text on cloud pro-
testing interrogates the materiality of the cloud.12 We have long lived in the
illusion that the internet was a space free of geography. Yet, as IR scholar
Ron Deibert argued, ‘physical geography is an essential component of
cyberspace: Where technology is located is as important as what it is’ (origi-
nal italics).13 The Snowden revelations, to name just one, have brought to
the forefront the role of the national state in – openly or covertly – setting
the rules of user interactions online. What’s more, we no longer can blame
the state alone, but the ‘surveillant assemblage’ of state and corporations.14
To me, the big absent in this debate is the private sector and corporate capi-
tal. De Filippi briey mentioned how the ‘new communities of kinship’ are
anchored in ‘a variety of online platforms’. However, what Orgav’s and
partially also Bauböck’s contributions underscore is the extent to which
intermediation by private actors stands in the way of creating a real alterna-
tive to the state – or at least the fullment of certain dreams of autonomy,
best represented today by the fascination for blockchain technology.
Bauböck rightly notes that ‘state and corporations… will nd ways to instru-
mentalise or hijack cloud communities for their own purposes.’ But there is
more to that: the infrastructure we use to enable our interpersonal exchanges
and, why not, the blockchain, are owned and controlled by private interests
subjected to national laws. They are not merely neutral pipes, as Dumbrava
reminds us.
11 Milan, S. (2015), ‘When Algorithms Shape Collective Action: Social Media
and the Dynamics of Cloud Protesting’, Social Media + Society 1 (1): 1–10.
12 Stefania, M. (2018), ‘The Materiality of Clouds. Beyond a Platform-Specic
Critique of Contemporary Activism’. In M. Mortensen, C. Neumayer &
T. Poell (eds.), Social Media Materialities and Protest: Critical Reections.
London: Routledge.
13 Deibert, R (2015), ‘The Geopolitics of Cyberspace After Snowden’, Current
History 114 (768): 9–15, at 10.
14 Murakami Wood, D. (2013) ‘What Is Global Surveillance?: Towards a
Relational Political Economy of the Global Surveillant Assemblage’,
Geoforum 49: 317–326.
S. Milan

331
Self-governance in practice: A cautionary tale
To be sure, many experiments allow ‘individuals the option to raise their
voice … in territorial communities to which they do not physically belong,’
as beautifully put by Francesca Strumia. Internet governance is a case in
point. Since the early days of the internet, cyberlibertarian ideals, enshrined
for instance in the ‘Declaration of Independence of Cyberspace’15 by late JP
Barlow, have attributed little to no role to governments – both in deciding
the rules for the ‘new’ space as well as the citizenship of its users (read: the
right to participate in the space and in the decision-making about the rules
governing it). In those early amboyant narratives, cyberspace was to be a
space where users – but really engineers above all – would translate into
practice their wildest dreams in matter of self-governance, self- determination
and, to some extent, fairness. While cyberlibertarian views have been appro-
priated by both conservative (anti-state) and progressive forces alike, some
of their founding principles have spilled over to real governance mecha-
nisms – above all the governance of standards and protocols by the Internet
Engineering Task Force (IETF), and the management of the Domain Name
System (DNS) by the Internet Corporation for Assigned Names and Numbers
(ICANN).16 Here I focus on the latter, where I have been active for about
four years (2014–2017).
ICANN is organized in constituencies of stakeholders, including con-
tracted parties (the ‘middlemen’, that is to say registries and registrars that
on a regional base allocate and manage on behalf of ICANN the names and
numbers, and whose relationship with ICANN is regulated by contract),
non-contracted parties (corporations doing business on the DNS, e.g. con-
tent or infrastructure providers) and non-commercial internet users (read:
us). ICANN’s proceedings are fully recorded and accessible from its web-
site (https://www.icann.org/); its public meetings, thrice a year and rotating
around the globe, are open to everyone who wants to walk in. Governments
are represented in a sort of United Nations-style entity called the Government
Advisory Committee. While corporate interests are well-represented by an
array of professional lobbyists, the Non-Commercial Stakeholder Group
15 Barlow, J. P. (1996), Declaration of Independence of Cyberspace. Available at
http://homes.eff.org/~barlow/Declaration-Final.html
16 The system of unique identiers of the DNS comprises the so-called ‘names’
standing in for domain names (e.g., www.eui.eu), and ‘numbers’, or Internet
Protocol (IP) addresses (e.g., the ‘machine version’ of the domain name that a
router for example can understand). The DNS can be seen as a sort of ‘phone
book’ of the internet.
Cloud Communities and the Materiality of the Digital

332
(NCSG), which stands in for civil society,17 is a mix and match of advocates
of various extraction, expertise and nationality: internet governance aca-
demics, nongovernmental organisations promoting freedom of expression,
and independent individuals who take an interest in the functioning of the
logical layer of the internet.
The 2016 transition of the stewardship over the DNS from the US
Congress to the ‘global multistakeholder community’ has achieved a dream
unique in its kind, straight out of the cyberlibertarian vision of the early
days: the technical oversight of the internet18 is in the hands of the people
who make and use it, and the (advisory) role of the state is marginal.
Accountability now rests solely within the community behind ICANN,
which envisioned (and is still implementing) a complex system of checks
and balances to allow the various stakeholder voices to be fairly represented.
No other critical infrastructure is regulated by its own users. To build on
Orgad’s reasoning, the community around ICANN is a cloud community,
which operates by voluntary association and consensus,19 and is entitled to
produce ‘governance and the creation of law’.20
But the system is far from perfect. Let’s look at how the so-called civil
society is represented, focusing on one such entity, the NCSG. Firstly, given
that everyone can participate, the variety of views represented is enormous,
and often hinders the ability of the constituency to be effective in policy
17 Technically, of the DNS, which is only a portion of what we call ‘the internet’,
although the most widely used one.
18 Civil society representation in ICANN is more complex than what is described
here. The NCSG is composed of two (litigious) constituencies, namely the
Non-Commercial User Constituency (NCUC) and the Non-Prot Operational
Concerns (NPOC). In addition, ‘nonorganizedd’ internet users can elect their
representatives in the At-Large Advisory Committee (ALAC), organized on a
regional basis. The NCSG, however, is the only one who directly contributes to
policy-making.
19 ICANN is both a nonprot corporation registered under Californian law, and a
community of volunteers who set the rules for the management of the logical
layer of the internet by consensus. See also the ICANN Bylaws, available at
https://www.icann.org/resources/pages/governance/bylaws-en (last updated in
August 2017).
20 This should at least in part address Post’s doubts about the ability of a political
community to govern those outside of its jurisdiction. One might argue that
internet users are, perhaps unwillingly or simply unconsciously, within the
‘jurisdiction’ of ICANN. I do believe, however, that the case of ICANN is an
interesting one for its being in between the two ‘denitions’ of political
communities.
S. Milan

333
negotiations. Yet, the size of the group is relatively small: at the time of writ-
ing, the Non-Commercial User Constituency (the bigger one among the two
that form the NCSG) comprises ‘538 members from 161 countries, includ-
ing 118 noncommercial organizations and 420 individuals’21, making it the
largest constituency within ICANN: this is nothing when compared to the
global internet population it serves, conrming, as Dzankic argues, that
‘direct democracy is not necessarily conducive to broad participation in
decision-making’. Secondly, ICANN policy-making is highly technical and
specialised; the learning curve is dramatically steep. Thirdly, to be effective,
the amount of time a civil society representative should spend on ICANN is
largely incompatible with regular daily jobs; civil society cannot compete
with corporate lobbyists. Fourthly, with ICANN meetings rotating across
the globe, one needs to be on the road for at least a month per year, with
considerable personal and nancial costs.22 In sum, while participation is in
principle open to everyone, informed participation has much higher access
barriers, which have to do with expertise, time, and nancial resources.23
As a result, we observe a number of dangerous distortions of political
representation. For example, when only the highly motivated participate,
the views and ‘imaginaries’ represented are often at the opposite ends of the
spectrum.24 Only the most involved really partake in decision-making, in a
mechanism which is well known in sociology: the ‘tyranny of
structurelessness’,25 which is typical of participatory, consensus-based
organising. The extreme personalisation of politics that we observe within
civil society at ICANN – a small group of long-term advocates with high
personal stakes – yields also another similar mechanism, known as ‘the tyr-
anny of emotions’,26 by which the most invested, independently of the suit-
ability of their curricula vitae, end up assuming informal leadership
21 ‘Our membership’, available at https://www.ncuc.org/about/membership/
22 ICANN allocates consistent but not sufcient resources to support civil society
participation in its policymaking. These include travel bursaries and accommo-
dation costs and fellowship programs for induction of newcomers.
23 See for example: Milan, S. & A. Hintz (2013), ‘Networked Collective Action
and the Institutionalized Policy Debate: Bringing Cyberactivism to the Policy
Arena?’, Internet & Policy 5 (1): 7–26.
24 Milan, S. (2014), ‘The Fair of Competing Narratives: Civil Society(ies) after
NETmundial’, IPO Blog, 10 September. Available at http://globalnetpolicy.org/
the-fair-of-competing-narratives-civil-societyies-after-netmundial/
25 Freeman, J. (1972), The Tyranny of Structurelessness. Available at http://www.
jofreeman.com/joreen/ tyranny.htm
26 Polletta, F. (2002), Freedom Is an Endless Meeting: Democracy in American
Social Movements. Chicago: University of Chicago Press.
Cloud Communities and the Materiality of the Digital

334
roles – and, as the case of ICANN shows, even in presence of formal and
carefully weighted governance structures. Decision-making is thus based on
a sort of ‘microconsensus’ within small decision-making cliques.27 To make
things worse, ICANN is increasingly making exceptions to its own,
community- established rules, largely under the pressure of corporations as
well as law enforcement: for example, the corporation has recently been
accused of bypassing consensus policy-making through voluntary agree-
ments ad private contracting.28
Why not (yet?): On new divides and bad players
In conclusion, while I value the possibilities the blockchain technology
opens for experimentation as much as Primavera De Filippi, I do not believe
it will really solve our problems in the short to middle-term. Rather, as it is
always with technology because of its inherent political nature,29 new con-
icts will emerge – and they will concern both its technical features and its
governance.
Earlier contributors to this debate have raised important concerns which
are worth listening to. Besides Bauböck’s concerns over the perils for
democracy represented by a consensus-based, self-governed model,
endorsed also by Blake, I want to echo Lea Ypi’s reminder of the enormous
potential for exclusion embedded in technologies, as digital skills (but also
income) are not equally distributed across the globe. For the time being, a
citizenship model based on blockchain technology would be for the elites
only, and would contribute to create new divides and to amplify existing
ones. The rst fundamental step towards the cloud communities envisioned
by Orgad would thus see the state stepping in (once again) and being in
27 Although a quantitative analysis of the stickiness of participation in relation to
discursive change reveals a more nuanced picture (see, for example: Milan, S.
& N. ten Oever (2017), ‘Coding and encoding rights in internet infrastructure’,
Internet Policy Review 6 (1): 1–17). See: Gastil, J. (1993), Democracy in Small
Groups. Participation, Decision Making & Communication. Philadelphia, PA
and Gabriola Island, BC: New Society Publishers.
28 ‘ICANN Drifting Toward Online Content Regulation, Says Law Professor’,
Circle ID, 28 February 2017, available at http://www.circleid.com/
posts/20170228_icann_drifting_toward_online_content_regulation_says_law_
professor/
29 Bijker, W. E., T. P. Hughes & T. Pinch (eds.) (2012), The Social Construction
of Technological Systems. New Direction in the Sociology and History of
Technology. Cambridge, MA and London, England: MIT Press.
S. Milan

335
charge of creating appropriate data and algorithmic literacy programmes
whose scope is out of reach for corporations and the organised civil society
alike.
There is more to that, however. The costs to our already fragile ecosys-
tem of the blockchain technology are on the rise along with its popularity.
These infrastructures are energy-intensive: talking about the cryptocurrency
Bitcoin, tech magazine Motherboard estimated that each transaction con-
sumes 215 Kilowatt-hour of electricity – the equivalent of the weekly con-
sumption of an American household.30 A world built on blockchain would
have a vast environmental footprint.31 Once again, the state might play a role
in imposing adequate regulation mindful of the environmental costs of such
programs.
But I do not intend to glorify the role of the state. On the contrary, I
believe we should also watch out for any attempts by the state to curb inno-
vation. The relatively brief history of digital technology, and even more that
of the internet, is awash with examples of late but extremely damaging state
interventions. As soon as a given technology performs roles or produces
information that are of interest to the state (e.g., interpersonal communica-
tions), the state wants to jump in, and often does so in pretty clumsy ways.
The recent surveillance scandals have abundantly shown how state powers
rmly inhabit the internet32 – and, as the Cambridge Analytica case33 reminds
us, so do corporate interests. Moreover, the two are, more often than not,
dangerously aligned.
30 ‘One Bitcoin Transaction Now Uses as Much Energy as Your House in a
Week’, Motherboard, 1 November 2017, available at https://motherboard.vice.
com/en_us/article/ywbbpm/
bitcoin-mining-electricity-consumption-ethereum-energy-climate-change
31 Also see: Mosco, V. (2014), To the Cloud: Big Data in a Turbulent World.
New York: Paradigm Publishers.
32 Deibert, R. J. (2009), ‘The geopolitics of internet control: censorship, sover-
eignty, and cyberspace’, in A. Chadwick & P. N. Howard (eds.), The Routledge
Handbook of Internet Politics, 323–336. London: Routledge; Deibert, R. J.,
J. G. Palfrey, R., Rohozinski & J. Zittrain (eds.) (2010), Access Controlled:
The Shaping of Power, Rights, and Rule in Cyberspace. Cambridge, MA: MIT
Press; Lyon, D. (2015), Surveillance After Snowden. Cambridge and Malden,
MA: Polity Press.
33 ‘Cambridge Analytica case highlights Facebook’s data riches’, Financial
Times, 19 March 2018, available at https://www.ft.com/content/
c1f326a4-2b24-11e8-9b4b-bc4b9f08f381
Cloud Communities and the Materiality of the Digital

336
I do not intend, with my cautionary tales, to hinder any imaginative effort
to explore the possibilities offered by blockchain to rethink how we
understand and practice citizenship today. The case of Estonia shows that
different models based on alternative infrastructure are possible, at least on
the small scale and in presence of a committed state. As scholars we ought
to explore those possibilities. Much work is needed, however, before we can
proclaim the blockchain revolution.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
S. Milan

337© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_59
Cloud Agoras: When Blockchain Technology
Meets Arendt’s Virtual Public Spaces
Dora Kostakopoulou
While developments in information technology have always sparked lively
debates about democratic participation and citizenship, the advent of block-
chain technology promises to change the concept and nature of participatory
citizenship by providing an inclusive, secure and transparent mechanism of
data sharing among an unlimited number of members. Liav Orgad has writ-
ten a powerful contribution about the promise of blockchain technology. I
fully share his thoughts and his optimism. Blockchain participants are able
to interact, share information, collaborate and have access to an incredible
amount of information organised in blocks without the intervention of a
centralised authority and without any reliance on a centralised platform.
More importantly, everyone’s copy of the distributed database will be kept
updated and will be immutable; information can be added by any member of
the global network, but cannot be deleted. Blockchain is thus a platform for
worldwide information sharing, interaction and collaboration. As such, it
has the potential to enhance political participation, trigger civic mobilisation
and to provide the substratum for public action on a global scale.
Such a bottom up, participatory and size-neutral (the network could con-
sist of billions of people) digital network does not merely offer a glimpse of
what might be possible in terms of global citizenship but, as Liav Orgad has
explained, casts doubts on any arguments about the impossibility of global
citizenship. This is because blockchain simply removes three of the main
obstacles for its realisation; namely, the impermeability of state borders, the
size of the demos, and certain costs associated with political participation.
Participants just need to have internet access in order to join a network com-
prising millions of citizens from diverse regions and remote locations of the
globe who could be mobilised in inuencing public policies and taking part
in public actions.
In what follows, I will thus sidestep questions about the feasibility of
global citizenship in order to examine how the new technological revolution
will lead to innovations in political life and will create Hannah Arendt’s
public spaces of ‘virtual’ citizenship. By so doing, I take it for granted that

338
blockchain is a ‘game-changer’ and that it could have signicant transfor-
mative effects on societies, politics and citizenship. I use the verb ‘could’
because I do not wish to embrace determinism or to imply the existence of a
causal relation between technology and political processes. Blockchain has
the potential to transform the way we think about public spaces, citizenship
and political participation, but this potential can only be realised if technol-
ogy is put to uses which can enhance democratic political processes.
My critics might object here that we do not need technological advance-
ments in order to procure new conceptions of public space. Analyses
informed by the thinking of philosophers, such as Henri Lefebvre, and geog-
raphers, such as Doreen Massey and Edward Soja, have highlighted that
spaces are not given but are constructed in different ways by politics and
discursive practices. Readers might recall Peter Maier’s anthology on the
changing boundaries of the political in the late 1980s.1 In it, Maier mapped
the blurring of the distinction between the state and civil society, while a few
years later, Gilles Deleuze commented on the shifting of borders and the
proliferation of political spaces within contemporary societies of control.2
While all this is true, blockchain promises to realise those ideas in
unprecedented ways. It also holds the promise of generating huge publics
beyond (and across) geographical borders and territorially dened commu-
nities and thus of opening up new citizenship spaces. Rainer Bauböck and
Peter Spiro have noted this in their contributions. Citizenship relies on the
existence of public spaces of communication, of exchange of ideas, argu-
ments and contested viewpoints and of joint decision-making. For a signi-
cant period of time, the agoras of the direct democratic experimentation in
ancient Athens became remnants of a distant past that had no chance to be
replicated in the present and future. Now, virtual agoras ‘containing’ mil-
lions of active and activist individuals can be built onto blockchain.3 The
mythical space of a distant past becomes connected with, and re-enacted
within, the contemporary world of an embodied digital network that makes
citizenship a network good.4
1 Maier, C. C. (ed.) (1987), The Changing Boundaries of the Political.
Cambridge: Cambridge University Press.
2 Deleuze, G. (1992), ‘Postscript on the Societies of Control’, MIT Press
October 59: 3–7. Available at http://www.jstor.org/stable/778828.
3 Isin, E. & M. Saward (2013), Enacting European Citizenship. Cambridge:
Cambridge University Press.
4 Kostakopoulou, D. (2008), The Future Governance of Citizenship. Cambridge:
Cambridge University Press, 107–110.
D. Kostakopoulou

339
This is essentially the realisation of Hannah Arendt’s conception of ‘vir-
tual’ public spaces. Virtual ‘agoras’ built on blockchain will become shared
common worlds of continuous ows of speech and action, that is, spaces
where people would recognise one another as equals or at least equally enti-
tled to express their views, to ‘deal only with one’s peers’ and to decide on
common actions at national, international and global levels.5 As Arendt had
eloquently noted, the (public) space of speech and action ‘can nd its proper
location almost any time and anywhere’.6 By transcending topological as
well as institutional accounts of the ‘public space’, blockchain technology
not only lends credence to Arendt’s conception of public space, but it also
promises to open up decentralised public spaces in which all participants
can be contributors, deciders and holders of institutional memories. The par-
ticipants’ geographical location does not matter. In an unprecedented border-
transcending move, new spaces of citizenship appear ‘almost any time and
anywhere’ as Arendt had argued. What ties all the blockchain participants
together in the virtual public space of citizenship is simply their ongoing
concern and active engagement.7 These are, in reality, the characteristics
that sustain all communities, be they virtual or not: members are visibly
concerned about the common state of affairs and want their claims, needs,
and aspirations to be heard.
This development can bring about a complete reconceptualisation of the
nature of international society; non-statist ways of dening it will gain
prominence. Hedley Bull’s envisaged transformation of international soci-
ety from a society of states to a society of peoples will be progressively
realised.8 Cloud agoras will also prompt a rethinking of communitarian
ways of dening communities and international society which see society
and culture as interlocked. This is because they do not rely on some form of
cultural homogeneity or conformity to a majority’s ideas and narratives; the
rely, instead, on the coming together of strangers9 in order to share their
concerns and information, express their interests, make demands on the
political system and to articulate proposals for common action. All this is
bound to give rise to interesting questions about ways of constructing politi-
cal order and legitimacy in international relations and politics.
5 Arendt, H. (1958), The Human Condition. Chicago: Chicago University Press.
6 Above n. 5, at 198.
7 Kostakopoulou, D. (1996), ‘Towards a Theory of Constructive Citizenship in
Europe’, Journal of Political Philosophy 4 (4): 337–358.
8 Bull, H. (1977), The Anarchical Society. London: Macmillan.
9 Young, I. M. (1986), ‘The Ideal of Community and the Politics of Difference’,
Social Theory and Practice 12 (1): 1–26, at 21–23.
Cloud Agoras: When Blockchain Technology Meets Arendt’s Virtual Public…

340
While cloud agoras have the potential of dislocating citizenship from its
statist reference point and stimulating citizen involvement by delivering the
afrmative requirements for an active citizenry, namely, information shar-
ing, the exchange of ideas and preferences, capability for action and the
means of exerting inuence and pressure, they will not be able to resolve the
‘problem of equality of voice’. Claude Lefort, Nancy Fraser, Jürgen
Habermas and others have commented on the inequalities that persist in
democratic public spheres. Some voices will be louder and more inuential
than others and women will always struggle to nd time to engage even
virtually. Socio-economic disparities measured in terms of education,
income and occupation will also allow certain participants to easily convert
their possessed resources into political involvement. The cognitive and lin-
guistic skills for political articulations and activity are not uniformly distrib-
uted. Nor do they exist independently of individuals’ socio-economic setting
and geographical location across the globe. Peter Spiro, Lea Yip and Stefania
Milan correctly highlight this problem. Cloud agoras therefore will not be
able to transcend the difculties of ensuring full inclusion in the open public
grid. They will certainly be more inclusionary that the existing publics, but
they will still represent a stratied model of political community or public
space(s). They will also have their own ‘spinners’, exploiters and manipula-
tors of public opinion. I recall Jean Mansbridge’s observations about the
dark world of domination and manufactured invisibility of actors underpin-
ning deliberative democracy.10
Although it is true that participatory parity cannot be easily achieved
even in cloud agoras, it is equally true that the common world of citizenship
beyond borders, states and nations could be more activist. And this is good
news for democracy in general. It would be relatively easy for millions of
blockchain members to mobilise on specic issues and to demand change in
law and policy regionally, nationally and globally. It would also be more
difcult for decision-making elites to ignore the voices of so many people
and to pretend that they do not count or that their claims do not matter. Civic
awakenings and political mobilisations in cloud agoras are also likely to
exert inuence on other public spaces that are more conventional and delin-
eated across national and statist lines. For the boundaries of public spaces,
virtual and non-virtual ones, will always be porous and issues will leak from
one domain to another. The dawn of global citizenship will thus be a combi-
nation of the activation of an international or global society and of a more
activist citizenship. Virtual global citizenship promises to be more virtual, in
10 Mansbridge, J. (1995), ‘Does Participation Make Better Citizens?’, The Good
Society 5 (2): 1–7.
D. Kostakopoulou

341
the republican sense; citizens will continually question aspects of public
life, make public disclosures of wrongdoing, take an active part in public
affairs and engage in regular, assertive action.
That this is good news for citizenship, democracy and politics in general
cannot be denied. The virtual public space of blockchain communities will
make citizens think, engage and act more virtually. In other words, the vir-
tual reality of cloud agoras will have an impact on institutions and the par-
ticipants themselves; it will yield pressures for more open, transparent and
accountable institutions and will result in more virtuous, that is, actively
engaged, citizens. Whether cloud agoras will prove to be decisive public
spaces and strong promoters of democratic processes that make wealth,
power and privilege accountable or merely subaltern counter publics will
depend on the intentions and actions of their participants. In other words, the
answer to the question whether the virtual public space of global citizenship
will have a decisive inuence on global, regional and national public policy-
making is not theoretical or scholarly; it will be a contextual one.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Cloud Agoras: When Blockchain Technology Meets Arendt’s Virtual Public…

343© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_60
Global Cryptodemocracy Is Possible
and Desirable
Ehud Shapiro
The fascinating discussion kicked-off by Liav Orgad addresses the interplay
between the clouds and earth: How do cloud citizens and cloud communities
relate to their earthly counterparts?
Arguments by Orgad, Primavera De Filippi, Francesca Strumia, Peter
Spiro and Dora Kostakopoulou espouse the potential benets of global citi-
zenship, ordained by the clouds, and cloud communities that such global
citizens can form, inhabit and govern. Counterarguments by Rainer Bauböck,
Robert Post, Michael Blake, Costica Dumbrava, Yussef Al Tamimi, Jelena
Dzankic, Lea Ypi and Dimitry Kochenov suggest that what happens in the
cloud stays in the cloud, and may not be helpful or relevant to, or at least
cannot substitute for, earthly dominions, due to fundamental differences
between the two. I will try to counter these counterarguments.
A key introductory point made by Bauböck is that Orgad ‘must have
some form of global federal democracy in mind’, yet that ‘his main vision
is, however, the emergence of alternative forms of political community at
the sub-global level’. It is this main vision of Orgad that much of the weighty
and thoughtful criticism is directed at.
To address it, I recall a strategy from mathematics: When faced with a
difcult problem, namely a difcult theorem to prove, turn it into an even
bigger problem: Dene a more general and broader theorem, prove it, and
then the original theorem easily follows as a corollary. This seemingly-
paradoxical strategy works sometimes since a higher vantage point may
offer a clearer view of the crux of the matter. I try to apply this strategy here:
I will not address criticisms directed at sub-global political cloud communi-
ties directly. Instead, I will paint a vision of a global democracy, enabled by
the internet and the emerging technologies of blockchain and cryptocurren-
cies, explain how subsidiary communities based on shared territory or com-
mon interests, as envisioned by Orgad, can emerge and operate within it,
and respond to criticism from this broader and more encompassing
perspective.

344
From the outset, key criticisms that apply to subsidiary cloud communi-
ties do not apply to a global democracy, whether on or off the cloud (we note
in parenthesis the respective critics): It has a clear territory (Bauböck, Post,
Blake, Al Tamimi) – Planet Earth; it has diverse membership (Bauböck,
Blake) – humanity at large; membership is involuntary (Bauböck, Post, Al
Tamimi, Ypi) and by decree – just as earthly states conscript citizens by
decree; it has room for political communities ‘that differ profoundly in their
interests, identities and ideas about the common good’ (Bauböck, Al
Tamimi); and, due to all the above, it is clearly political (Bauböck, Post,
Blake, Al Tamimi). Key remaining criticisms not answered by generalising
the vision to incorporate all of humanity are those related to the use of coer-
cion in community governance (Bauböck, Post, Blake, Dumbrava, Al
Tamimi), lack of inclusivity (Ypi and Kochenov), and the risks of new tech-
nology (Dumbrava), which I will answer now in turn.
For our envisioned global democracy to be worthy of its name, it must
uphold democratic values1, including sovereignty, equality, freedom of
assembly, the subsidiarity principle, transparency, and the conservation of
the natural and imprescriptible human rights: liberty, property, safety and
resistance against oppression.2
A fundamental advantage of blockchain technology is that it is the only
technology to date that can uphold sovereignty: The multitudes participating
in the operation of the blockchain are its sovereign; no member, third party
or outside entity has omnipotent ‘super user’ or ‘administrator’ capabilities
over the system, and no-one can pull the plug on it: it will survive as long as
there are interconnected participants who are able and willing to continue its
operation.3 Hence, the answer to Stefania Milan’s question, ‘do we really
need the blockchain to enable the emergence of cloud communities?’, is:
Yes, if we want cloud communities to be sovereign and not subservient.
The situation is not as rosy with equality. Governance trepidations of the
‘cloud communities’ of the leading cryptocurrencies, Bitcoin and Ethereum,
which consist of their developers, miners and owners, resulted in community
1 Shapiro, E. (2017), ‘Foundations of e-Democracy’, Computers and Society.
Available at https://arxiv.org/abs/1710.02873
2 Ibid.
3 I acknowledge Milan’s point that such interconnectedness (but not the comput-
ers being connected!) would most-probably be commercially-owned, and that
it is essential that such interconnectedness be neutral and unhindered, even if
owned and controlled by private or government interests. Given that, global
citizens can be the true sovereign of the global democratic blockchain outlined
below.
E. Shapiro

345
breakups termed ‘hard forks’. Hence, second- and third-generation crypto-
currencies attempt to address their self-governance from rst principles.4
However, they offer only plutocratic solutions,5 espousing ‘one coin – one
vote’ instead of the ‘one person – one vote’ principle necessary for equality.
It may be ironic, given the thrust of our discussion, that the only approach
available today to realise equality on the blockchain is to piggyback on iden-
tities issued by earthly governments. Besides defeating the purpose of free-
ing cloud communities from the grasp of their earthly counterparts, this
approach cannot mix and match governments or identity- granting authori-
ties, lest people with multiple government-issued identities have multiple
votes in the cloud; and it excludes people, such as refugees, who may be
hard pressed to present a government-issued identity.
Realising truthful, unique and persistent global digital identities for all, a
precondition for making an egalitarian blockchain, is a major open chal-
lenge.6 But, for the sake of the vision we wish to paint, please suspend dis-
belief and assume that: (i) a worthy method for granting global digital
identities to all has been devised, allowing any individual to claim a global
identity (which functions as the ‘attested individual identities’ Kochenov
aspires for); call the rightful owners of such global identities global citizens;
(ii) unhindered internet access has been globally recognised as a basic civil
right and is provided, directly or via a proxy, to any individual wishing to
become a global citizen. While disbelief regarding the rst assumption could
be discharged in a decade, the second one will take longer. However, stating
the goal of universal access as a basic civil right, taking concrete steps to
implement it effectively, and making interim amends to compensate for its
temporary lack, are all essential for our vision to be legitimate (and to
address the justied criticisms of exclusion by Ypi and Kochenov). With this
in mind, let us explore the vision of bringing about a global democracy of
global citizens.
4 Bitshares (2018), Technology. Available at https://bitshares.org/technology/;
Tezos (2018), Governance. Available at https://www.tezos.com/governance
5 Buterin, V. (2018), ‘Governance, Part 2: Plutocracy Is Still Bad’, Vitalik
Buterin’s Website, 28 March, available at https://vitalik.ca/general/2018/03/28/
plutocracy.html
6 Disclosure: My team at Weizmann aims to address this global challenge. Note
that it will not be solved just by achieving broader coverage of local govern-
ment-issued IDs (‘Identication for Development’, available at http://www.
worldbank.org/en/programs/id4d).
Global Cryptodemocracy Is Possible and Desirable

346
As much as disbelief is suspended, a method for granting global digital
identities will never be perfect. Hence, the global democracy will have to
grapple with fraud (fake, duplicate and stolen identities, Sybil attacks),
extortion (the $5 wrench attack) and negligence (lost/forgotten password).
Resolving such matters with due process would require a court. Such a court
would need to rule according to a constitution. And the operation of the
court (populated most likely by a combination of people and machines) will
have to be nanced. So we have hardly left the doorstep in our journey
towards a global cloud democracy, and already discovered that in order to
realise equality we need a global court, a global constitution, and a global
currency.
That the global democracy needs a currency immediately suggests a
cryptocurrency. But, how can we entrust the future of humanity to the hands
of an environmentally-harmful7, plutocratic regime? The answer is of fun-
damental importance: Current cryptocurrencies were architected on the
premise that participants are anonymous and trustless, and resorted to the
deliberately wasteful (Milan) proof-of-work protocol to cope with trustless-
ness. If indeed we have a mechanism for granting truthful and unique global
digital identities that is reasonably resilient to attacks (e.g. at most one third
of the global identities are compromised at any time)8 then the global democ-
racy can deploy an egalitarian and planet-friendly cryptocurrency with a
democratic governance regime; let’s call such a cryptocurrency a demo-
cratic cryptocurrency.
Let’s take stock: We have a democratic cryptocurrency governed by sov-
ereign global citizens that are subject to a global court that rules according
to a global constitution and is nanced by the democratic cryptocurrency.
This may sound a bit circular, but that’s exactly how earthly states nance
their operation. For example, the democratic cryptoeconomy can be fuelled
by a universal basic income to all global citizens.9 Income, wealth and trans-
7 Present-day cryptocurrencies are unsustainable, even environmentally-harmful,
since the proof-of-work protocols that underlie, for example, Bitcoin and
Ethereum are unfathomably energy-wasteful on purpose: The ongoing opera-
tion of Bitcoin alone consumes as of today more energy than does the entire
state of Israel, with its more than 8 million inhabitants (Bitcoin Energy
Consumption Index, available at https://digiconomist.net/
bitcoin-energy-consumption)
8 Algorand (2018), Algorand Website. https://www.algorand.com/
9 Flynn, J. (2018), ‘The Cryptoeconomics of Funding a Universal Basic
Income’, Technophile Musings, 21 March, available at https://jamespynn.
com/2018/03/21/the-cryptoeconomics-of-funding-a-universal-basic-income/
E. Shapiro

347
actions could be taxed, progressively if the global democracy decides so.
Tax revenues would be disbursed to nance the operation of the global
democracy, in particular the court and the underlying computational infra-
structure (‘mining’), as well as other purposes, according to a democratically-
formed budget.10 To prevent speculative manipulation of the exchange rate
of the democratic cryptocurrency, a global central bank may be established,
with authority to purchase and sell foreign (crypto)currency to hinder such
manipulations; the bank can similarly set an interest rate. The constitution
will have to be updated as the global democracy develops, and subsidiary
legislation will have to be adopted. So, in just a few short paragraphs we
have come to realise that the global citizens of a global cloud democracy
that has its own cryptocurrency and cryptoeconomy will have to recreate
almost all the functions of earthly states; let’s call this resulting specic
vision a global cryptodemocracy, to distinguish it from the more general
and abstract idea of a global democracy. If successful, it would show that a
technology built with an ‘underlying philosophy of distributed consensus,
open source, transparency and community’ can be both ‘highly disruptive’
and ‘serve similar purposes as those of states’ (Milan); and it could achieve
that without a reliance on the private sector and corporate capital that would
necessitate paying undue attention to their interests and lobbying (Milan).
Additional key criticisms concern the ability of our global cryptodemoc-
racy to protect human rights (Bauböck, Blake, Kochenov), collect taxes
(Bauböck, Post) and in general enforce the rule of the law, given that physi-
cal coercion is possible on earth but not in the clouds (Bauböck, Post, Blake,
Dumbrava, Al Tamimi). To redress crimes against global identities, we pro-
pose that global identities be realised as programmable software agents, aka
‘smart contracts’, programmed to obey certied court orders. Thus, coercion
is achieved through design and programmability, without violence: If the
court determines a global identity to be fake, then it can directly order it to
terminate; if determined to be a duplicate, then it can be ordered to merge
into another identity, and if stolen then to change its owner. Regarding
Milan’s observation that ‘activism today is characterised by […] a tendency
to privilege exible, multiple identities’, we cannot hold the stick at both
ends: aspire for egalitarian rule of law in a global democracy, and undermine
it with exible (and hence unaccountable) and multiple (and hence unfairly
privileged) identities.
10 Shapiro, E. & N. Talmon (2017), ‘A Condorcet-Consistent Democratic
Budgeting Algorithm’, Computer Science and Game Theory, available at
https://arxiv.org/abs/1709.05839
Global Cryptodemocracy Is Possible and Desirable

348
We propose to integrate the global citizen’s global identity with her dem-
ocratic cryptocurrency wallet into one entity, termed global persona. A
global persona is the global citizen’s proxy in the cloud: it is entrusted with
the global citizen’s identity information and crypto-assets, and it performs
nancial transactions and civic duties in the global cryptodemocracy on
behalf of the global citizen it represents. Being unique and persistent makes
a global persona accountable for the global citizen it represents. Hence, in
addition to the court orders described above, a court may also issue nes
against a global persona, payable immediately from her wallet, or deducted
from her future (universal basic) income. As the global persona is pro-
grammed to obey court orders, no force is needed to collect such nes either.
Income, wealth and transaction taxes can be similarly collected without the
use of force, by programming global personas to obey the (democratically
instituted) tax rules that are in effect. Of course, the court must be open to
appeals on any decision and transaction.
A key remaining criticism relates to relying on and overseeing the tech-
nologies that will underlie our envisioned global cryptodemocracy (Post,
Dumbrava). The criticism is valid, but is mostly equally valid of any tech-
nology on which humanity depends today, and there are many. Perhaps one
key technological vulnerability is related to the democratic process itself,
ensuring that elections and more generally voting on the blockchain at least
stand up to earthly standards.11 Regarding overseeing blockchain technol-
ogy, blockchain governance is indeed an issue of active research and experi-
mentation, with the recognition that a change of underlying technology of a
blockchain is as akin to, and as grave as, a change of constitution in a democ-
racy. The global cryptodemocracy would employ the constitutional approach
to its core technology, allowing constitutional change by its sovereign global
citizens via a democratic process. Such a process must dampen the imme-
diacy of internet communication, lest mob dynamics may rule, by employ-
ing hysteresis measures such as special majority requirements.12 Recovery
mechanisms would also be established, and invoked, by democratic
decision.
Let us now consider Orgad’s vision of multiple cloud communities with
a shared concern or ascriptive, thematic or geographic memberships ‘whose
11 European External Action Service (2018), Compendium of International
Standards for Elections. Available at https://eeas.europa.eu/sites/eeas/les/
compendium-en-n-pdf.pdf
12 Shapiro, E. (2018), ‘Foundations of e-Democracy’, Computers and Society.
Available at https://arxiv.org/abs/1710.02873
E. Shapiro

349
aim is political decision-making and in which individuals take part in a pro-
cess of governance and the creation of law.’
First, we note that all these communities can be subsidiary communities
of the global cryptodemocracy, potentially with multiple levels of hierarchy
(e.g. subsidiary animal rights or Bahá'í communities, with their own subsid-
iary communities based on country of residence); that the ability to form
them is a manifestation of freedom of assembly in the clouds; and that allow-
ing them to conduct their affairs without outside intervention is in line with
the subsidiarity principle.
Second, such communities, within the context of a functioning global
cryptodemocracy, may have at least one clear political goal: To draft and
promote, within the parent global cryptodemocracy, policy and legislation
that pertain to the rights and goals of their (possibly minority) community
members. Recall the second article of the 1789 Declaration of the Rights of
Man and Citizen: ‘The goal of any political association is the conservation
of the natural and imprescriptible rights of man. These rights are liberty,
property, safety and resistance against oppression’. To uphold these, the
conduct of all subsidiary cloud communities must be transparent in order to
ensure that no subsidiary community aims to harm the liberty, property or
safety of other communities or global citizens.
Third, within these rich and multi-faceted cloud communities, a virtual
punishment with a global scope against one’s global persona, e.g. temporary
suspension or even just a public reprimand, applied to all subsidiary cloud
communities, would be severe indeed. Hence, the higher the value of the
subsidiary cloud communities to peoples’ lives, the mightier the coercive
power of the global cryptodemocracy.
While we have implicitly assumed an egalitarian, democratic decision-
making process at the core of global cryptodemocracy and in its subsidiary
communities that will choose to adopt it, we have not specied this process.
Such a mechanism faces many challenges, including ‘tyranny of structure-
lessness’, ‘tyranny of emotions’, decision-making by ‘microconsensus’
within small cliques (Milan) and many others. The question of how to best
reach a democratic decision has been investigated sporadically for centuries
(e.g. by Llull, Condorcet, Borda), and intensively for the last 70 years within
Social Choice theory. Much theory was developed, much confusion was
sowed, and condence in democracy has eroded, mainly due to Arrow’s
impossibility theorem and its follow-on work. I will just hint that adding a
Global Cryptodemocracy Is Possible and Desirable

350
taste for reality to social choice theory can undo much of this damage and
restore trust in democratic decision making, on and off the cloud.13
I have aimed to show that a vision of a global cryptodemocracy, with a rich
set of subsidiary cloud communities, is realisable and have tried to address
many of the criticisms raised in this debate. But, even if a global cryptodemo-
cracy is realisable, and successfully addresses criticism, is it desirable? My
personal answer is positive for two reasons: First, I believe that, since the days
of Kant and even before,14 the proponents of a world government own the
moral high ground, and the weakness of their position was practical: Until
now, for a world government to materialise, local governments have to volun-
teer to cease some of their power; and giving up of power is not known to
happen voluntarily. Fortunately, earthly democracies are sufciently free so
that the formation of a global cryptodemocracy does not require their consent.
True, dictatorial regimes may prevent their citizens from participating, but
this would, eventually, be at their own peril, as the interests of their people
will not be represented as well. And true, the full power of a global cryptode-
mocracy will not be realised until proponents of global democracy become
majorities in the majority of their respective earthly states. Yet, embryonic as
it may be, the global cryptodemocracy vision presented here may very well be
the only concrete proposal towards the ultimate realisation of a global demo-
cratic government based on currently available technologies.
And this relates to my second reason. I believe that for representative
democracies to rebounce from their worldwide decline, they should undergo
a major revision and adopt the practices of one of the oldest and most suc-
cessful democracies in the world, namely the Swiss federal direct democ-
racy. Given that those in power never give it up voluntarily, and that direct
democracy disempowers representatives, such a major shift cannot happen
without a major outside force in its favor. And new technology can offer
such a force. In particular, political e-parties, formed as subsidiary cloud
communities of the global cryptodemocracy, sharing the same technology
and networking to share winning practices and methods, may be able to win
earthly elections and change earthly democracies for the better. This in turn
13 Shapiro, E. & N. Talmon (2018), ‘Incorporating Reality into Social Choice’,
Computers and Society, available at https://arxiv.org/abs/1710.10117
14 Global Challenges Foundation (2018), Global governance models in history.
Stockholm: Global Challenges Foundation, available at https://api.globalchal-
lenges.org/static/les/GG%20models%20in%20history%20EN.pdf
E. Shapiro

351
may result in such earthly democracies ofcially supporting15 the global
cryptodemocracy in its rise into a bona de egalitarian democratic world
government of all global citizens.
15 For example, a state may create government-attested global personas for all its
citizens, place them in the escrow of the state notary, and assign them to
citizens upon their presentation of a government-issued ID. This would
immediately turn all state citizens into global citizens. A state citizen who
already owns a global persona will have to merge it with the received govern-
ment-attested global persona, lest she would be guilty of owning duplicate
global personas.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
Global Cryptodemocracy Is Possible and Desirable

353© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_61
The Future of Citizenship:
Global and Digital – A Rejoinder
Liav Orgad
This has been an insightful discussion that touches upon some of the most
fundamental concepts in political theory – communities, states, citizenship,
and sovereignty. New technologies challenge the meaning and essence of these
terms and blur the lines between physical and digital, local and global. The
nature of the transformation is still a puzzle, but sooner rather than later the
‘Fourth Industrial Revolution’ will reach the institution of citizenship. The pos-
sible effects are promising but, as this GLOBALCIT debate shows, scary too.
My celebration of the potential of blockchain technologies to advance
the idea of global citizenship lost in the GLOBALCIT digital agora, at least
if we count ‘votes.’ There are four rm supporters (Primavera De Filippi,
Francesca Strumia, Dora Kostakopoulou, Ehud Shapiro), ve strong objec-
tors (Robert Post, Michael Blake, Peter Spiro, Lea Ypi, Dimitry Kochenov),
and ve people who are somewhere in between, acknowledging the poten-
tial yet expressing concerns (Rainer Bauböck, Costica Dumbrava, Yussef Al
Tamimi, Jelena Dzankic, Stefania Milan). The objections are wide – theo-
retical and practical, empirical and normative, methodological and concep-
tual. The idea of blockchain-based global citizenship, which can lead to the
development of cloud communities that seek to take part in international
decision making, is seen as ‘techno-utopianism’ (Milan), ‘escapism’
(Kochenov), and ‘exclusion[ary]’ (Ypi), a risk to ‘territorial democracy’
(Bauböck) that may bring a ‘world without law’ (Post) and ‘legitimate coer-
cion’ that is so essential for the protection of human rights (Blake).
My kick-off had several premises. When discussing the need for an inter-
national legal persona for all human beings, I indicated three fundamental
problems: human rights concerns (1.1 billion people do not have an ofcial
identication), lack of self-governance (individuals have no direct voice in
The research is supported by the European Research Council (ERC) Starting Grant
(# 716350).

354
international law-making), and unequal representation (the principle of ‘one-
state, one-vote’ leads to disparities in individual voting power). I identied
three developments – the rise of global interconnectedness, identity, and
responsibility – that, taken together, can end up with the creation of an inter-
national legal persona and digital identity (as a form of ‘global citizenship’),
thereby mitigating some of these problems. I also indicated one possible out-
come of global citizenship – the emergence of (top-down and bottom-up)
decentralised ‘cloud communities’ in which global citizens, sharing a com-
mon bond, can be politically organised and collaborate with the purpose of
inuencing international decision making and, eventually, becoming part of it.
The authors in this debate have not addressed the premises, yet challenged my
observations (e.g., global interconnectedness) and my conclusion – the poten-
tial of global digital citizenship to do more good than harm. I cannot do justice
to all the subtle replies, so let me rst express my gratefulness to the partici-
pants – this has been enriching experience, although it has not changed my
optimistic view – and briey address below some issues that I see as central.
Cloud computing
A large percentage of humanity is already engaged with some forms of cloud
computing on a daily basis. Whenever you use Google Drive, Apple iCloud,
and Dropbox, you spend time ‘in the cloud.’ Whenever you use audio and
video streaming, online storage, and mobile services, you are ‘in the cloud.’
Government services, research data, medical records, and consumer services
are available ‘in the cloud.’ Social networks too are ‘in the cloud.’ I have never
physically met most of the authors who contributed to this debate, but I meet
them on a daily basis on Facebook. The reason why we call these digital struc-
tures ‘cloud’ is not due to the lack of territory – the hardware is located some-
where – but because territory is largely irrelevant for the user and the service.
Cloud computing does not create, in and of itself, a ‘community’ (Post,
Spiro), let alone a political community (Blake). Facebook is a social net-
work, not a political community. It is commercial and dictatorial – members
have no common bond and cannot create law or engage in governance – and
it does not guarantee a truthful unique identity. Yet, in recent years there
have been attempts to create cloud-based ‘communities’ by using blockchain
and other technologies. This started as private initiatives, such as Bitnation,
but spread into government initiatives, as illustrated by Estonia’s e-resi-
dency. True, e-Estonia is far from creating a ‘community’; Estonia’s e-resi-
dents do not interact with one another or cooperate for political purposes.
They are a group of clients more than a sovereign. It is also true that the
notion of DBVNs (Decentralized Borderless Voluntary Nations), where any-
one can build a ‘community’ in a Pangea jurisdiction – an IKEA-style do-it-
L. Orgad

355
yourself nation – is unrealistic and undesirable. Still, the idea of a political
community in which territory is largely irrelevant for certain political func-
tions is worth considering. Thus far, it has been regarded as radical because
it was promoted by anarchists and like-minded people looking for disruptive
technologies to replace the nation-state. But as technology becomes more
developed, it is just a matter of time until the idea will crystallise.
Political community
Even if the idea crystallises, can we really call cloud networks a ‘political
community,’ or would they be like a ‘community of video gamers,’ to use
Spiro’s analogy, or just an addition to global civil society (Bauböck, Post,
Milan)? The essence of the community I envision is indeed political, having
members who share a common bond (say, the protection of animal rights)
and seek to become part of national (and mainly international) decision
making. There are similarities between cloud communities and global civil
society (Bauböck, Post, Milan) as they are both voluntary, political in nature,
civil (in the sense of non-governmental), and usually non-prot. But there
are some differences. The global civil society is not composed of sovereign
political entities where decision making is based on a ‘one person, one vote’
principle; global civil society organisations are acting on behalf of a group,
while decentralised cloud communities can form themselves democratic
collectives acting on a global scale.
Do cloud communities merit being called ‘political communities’? It
depends on the nature of such a community and how it will be developed. At
least three components should come together: 1) members should have a
self-perception as belonging to a collective entity, a shared consciousness of
forming a political community; 2) members should have political relations
and act with a collective responsibility; 3) members should be capable of act-
ing collectively with regard to some functions. Take immigrants, for exam-
ple. If all international migrants – more than 250 million people in 2017 – joined
a virtual community, it would be the world’s fth largest ‘country’ (after
China, India, USA, and Indonesia). It could act as a self- governed collective
at the international level, negotiating with states and UN agencies, collecting
taxes, and promoting immigrant rights worldwide – all based not on repre-
sentatives or NGOs, but on direct decision-making by its members.
Digital coercion
What about coercion – how can there be a political community without a
recourse to force (Bauböck, Post, Blake, Dumbrava)? Normatively, the
coercive force of law can be independent of the state or its territory; it
The Future of Citizenship: Global and Digital – A Rejoinder

356
requires authority. Such authority exists also in a blockchain-based commu-
nity with one main difference – it is decentralised. If, for example, the
‘migrant cloud community’ decides collectively to stop migration to a cer-
tain country that does not respect migrants’ rights or to buy products from
certain retailers, and a migrant who is a member violates the rules, s/he can
be sanctioned (through nes, suspension, limited access to rights/data, or
termination of membership). As long as membership provides some bene-
ts, particularly the ability to inuence and shape decisions that affect the
member’s life, these sanctions are not minor or trivial.
Technologically, since membership is virtual, coercion is realised via
software. As Shapiro notes, one’s virtual identity (or ‘global persona’) is
programmed to obey the community’s decisions (‘coercion is achieved
through design and programmability, without violence’). In fact, state laws
represent ‘weak coercion’; there are papers that set rules (e.g., a prohibition
of murder or crossing a red light) and one decides whether to follow the rules
or violate them, in this case there are punishments and sanctions. Internet
protocols are one step further. They are a form of ‘strong coercion’; internet
codes (e.g., restrictions and blockings) are stronger than papers because the
law of the software is more difcult to violate – it is not in the discretion of
an individual but requires knowledge and effort. A digital society represents
a form of ‘absolute coercion.’ Transaction monitoring (e.g., voting, tax, or
registry) is governed by blockchain rules that one cannot violate.
Socially, ‘punishment’ in a digital society is of a different type. A person
cannot be sent to jail, but her reputation can be discredited. In the digital era,
reputation capital is a valuable asset and a factor for providing services and
products (think of Airbnb, Uber, eBay). In other words, online reputation
has a real-world value. As Al Tamimi observes, ‘A punishment in terms of
such social devaluation imposed by the cloud state is conceivably more
painful and restricting to the individual than traditional methods of punish-
ment, such as nes or jail.’
Functional sovereignty
The territorial dimension of states has been seen central to citizenship (Bauböck,
Post, Blake). Indeed, territory is considered the state’s most characteristic fea-
ture; states are, by denition (Article 1, Montevideo Convention, 19331),
territorial units. Territory is considered necessary for assuming most of the nor-
mative functions of the state – for instance, as a source of security and identity,
1 Available at http://avalon.law.yale.edu/20th_century/intam03.asp
L. Orgad

357
and for managing natural resources. Against this background, the concept of a
deterritorialised state – or cloud communities that would replace the state and
full all of its functions – is politically inconceivable. But this does not entail
that none of the state’s essential functions can be reconceptualised. Cloud com-
munities are not a state-replacement, but an improvement – they seek to add a
circle to the already dynamic and multi- layered rich dimensions of citizenship.
They are not supposed to act in the physical world – and thus have no sover-
eignty on issues like murder (Post) – but to govern the transaction of values or
data that exist in the digital world (voting, registries, certicates, etc.). However,
as cloud communities become politically more important, what happens there
will not remain conned to the cloud but inuence real-world political
decision-making.
The idea of ‘concentric circles’ of citizenship – to use Cicero metaphor –
with each circle having a different normative function, is not foreign to the
theory of sovereignty. There are three options: cloud communities can be
seen as sub-sovereign entities, semi/quasi-sovereign entities, or functional
sovereign entities. Let me focus on the third option – functional sovereignty.
Under this approach, sovereignty is divided by functions, with each being
governed by a different entity. Think of federal systems, a condominium of
states, mandate/trusteeship, autonomy (e.g., Quebec or Puerto Rico), or
municipalities (where certain functions are governed by local sovereignty).
Divisible sovereignty can be exercised over territories – e.g. Andorra, which
was a condominium before independence in 1993 and still had two heads of
state (the French president and a Catalan bishop) – or peoples. Sovereignty
can be divided between political entities, as in federations or in the European
Union, or between political and nonpolitical entities – think of religion (in
Israeli law, for example, religious law is sovereign in family issues). The idea
of functional sovereignty, as coined by Willem Riphagen in 1975,2 enables
entity A to have sovereignty over social welfare, entity B to be the sovereign
on nancial issues, and entity C to enjoy sovereignty over security – all in the
same territory. It also makes it possible for different political authorities to
exercise functional sovereignty over different peoples in the same space. The
switch is from a jurisdiction over territories to a jurisdiction over functions,
peoples and services. As this is not a new concept, we can understand how it
could be applied to blockchain-based cloud communities as well.
The normative functions of cloud communities remain an open question
in the debate. My focus has been on global topics – global warming, the
2 Riphagen, W. 1975. ‘Some Reections on Functional Sovereignty’,
Netherlands Yearbook of International Law 6: 121–165.
The Future of Citizenship: Global and Digital – A Rejoinder

358
environment, and other issues of global sustainability – but it is for the states
to decide which functions to delegate to self-sovereign communities.
Ultimately, states would set the boundaries and decide the sensitive areas in
which sovereignty cannot/should not be divided or shared.
Coda
We can construct theoretical models of digital citizenship but, as this debate
has shown, there are plenty of uncertainties – political, technological, and
psychological ones – before it can become actually operative. I agree with
Milan that ‘much work is needed . . . before we can proclaim the blockchain
revolution.’ In particular, I share the concern about global inequality gener-
ated by ideas of cloud communities due to lack of internet access (Dzankic,
Ypi, Kochenov) – this gap, however, has tremendously (and rapidly) nar-
rowed and in 104 states more than 80 per cent of the youth population (aged
15–24) are now online. The situation will further improve if a right to inter-
net access is universally recognised. And I cannot but share Bauböck’s wor-
ries about the tyranny of the majority in the cloud – addressing it is a matter
of constitutional design of voting mechanisms (note, however, that there
will be judicial review, decisions that require supermajority, and perhaps
even veto rights in the digital world as well). Discussing these (and others)
concerns will keep theorists and policy makers busy in the years to come.
While the focus of this debate is on global citizenship and virtual communi-
ties, I see it as a broader invitation to reect on the nexus between new
technologies and the future of citizenship.
Open Access This chapter is licensed under the terms of the Creative Commons
Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/),
which permits use, sharing, adaptation, distribution and reproduction in any medium
or format, as long as you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license and indicate if changes
were made.
The images or other third party material in this chapter are included in the
chapter’s Creative Commons license, unless indicated otherwise in a credit line to
the material. If material is not included in the chapter’s Creative Commons license
and your intended use is not permitted by statutory regulation or exceeds the
permitted use, you will need to obtain permission directly from the copyright holder.
L. Orgad

E1
Correction to: You Can’t Lose What You
Haven’t Got: Citizenship Acquisition
and Loss in Africa
Bronwen Manby
Correction to:
Chapter 36 in: R. Bauböck (ed.), Debating Transformations of
National Citizenship, IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_36
The footnote given by the author was inadvertently missed in the previously
published original version. The footnote is added as “* This text was written
in November 2014 and reects events current at that time. Some important
later developments are not reected, including, most importantly, the read-
mission of Morocco to the African Union in January 2017 and the decision
of the African Court on Human and Peoples’ Rights in the Anudo case
against Tanzania issued in March 2018.”
The author’s request, during proong, to add a footnote to the text, was
unfortunately overlooked and is missing in the current text.
© The Author(s) 2018
R. Bauböck (ed.), Debating Transformations of National Citizenship,
IMISCOE Research Series,
https://doi.org/10.1007/978-3-319-92719-0_62
The updated online version of this chapter can be found at
https://doi.org/10.1007/978-3-319-92719-0_36