From MIGRANTS

to CITIZENS
 From MIGRANTS
to CITIZENS
Membership in a
Changing World

T. Alexander Aleinikoff
Douglas Klusmeyer
editors

CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE

Washington, D.C.
 Copyright © 2000
C AR NE GIE E NDOWMENT FOR I NTERNATI ONAL PEACE

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From migrants to citizens: membership in a changing world / T. Alexander Aleinikoff

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1. Citizenship. 2. Emigration and immigration law. I. Klusmeyer, Douglas B., 1957–
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 Contents

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Jessica T. Mathews
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Douglas Klusmeyer

Part One. Citizenship in Countries of Immigration

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
David A. Martin
2. Citizenship and Immigration in Australia . . . . . . . . . . . . . . 32
Gianni Zappalà and Stephen Castles
3. The Dilemmas of Canadian Citizenship Law . . . . . . . . . . . . . 82
Donald Galloway
4. Between Principles and Politics: U.S. Citizenship Policy . . . . . . 119
T. Alexander Aleinikoff

v
vi CONTENTS

Part Two. Citizenship in the Aftermath of Major

Political Transformations
5. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Kathleen Newland
6. Migration and Admittance to Citizenship in Russia . . . . . . . . 178
George Ginsburgs
7. Post-Apartheid Citizenship in South Africa . . . . . . . . . . . . . 221
Jonathan Klaaren
8. Understanding Citizenship Policy in the Baltic States. . . . . . . . 253
Lowell W. Barrington

Part Three. Dual and Supranational Citizenship:

Limits to Transnationalism
9. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
Rainer Bauböck
10. Nationality in Mexico . . . . . . . . . . . . . . . . . . . . . . . . 312
Manuel Becerra Ramírez
11. Citizenship of the European Union . . . . . . . . . . . . . . . . . 342
Marco Martiniello
Part Four. Ethnic Republics? Citizenship in Israel and Japan
12. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Aristide R. Zolberg
13. Citizenship and Membership in the Israeli Polity . . . . . . . . . . 386
Ayelet Shachar
14. Citizenship in Japan: Legal Practice and Contemporary
Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Chikako Kashiwazaki
C ONT E NT S vii

Conclusion
15. Managing Membership: New Trends in Citizenship and
Nationality Policy . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Miriam Feldblum
About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
About the Carnegie Endowment . . . . . . . . . . . . . . . . . . . . . . 515
 Foreword

STATES THAT HAVE witnessed high levels of immigration or emigration in re-

cent years are facing new, difficult questions about citizenship policies. When
and how should citizenship be extended to new immigrants? How should con-
tinuing links that immigrants increasingly maintain with their homelands be
recognized? Should dual nationality be embraced, tolerated, or discouraged?
Which rights and opportunities should be limited to citizens; which should also
be made available to immigrants? Policy makers, advocates, and scholars
around the globe are focusing ever-mounting attention on such questions.
Two years ago, the International Migration Policy Program of the Carnegie
Endowment for International Peace established the Comparative Citizenship
Project to examine the extent to which citizenship policies can and ought to aid
the integration of immigrants into receiving states. The research collected thus
far points to three general policy conclusions. First, the long-term viability of
societies in the next century is far more contingent upon solving the immigra-
tion puzzle, and particularly the immigration-integration nexus, than was ap-
parent until very recently. Second, success in solving or resolving this puzzle
demands that a nation’s political, intellectual, and financial investments in im-
migration issues reflect a more appropriate balance between policies on admis-
sion and citizenship. Third, in order to understand better such critical concepts
as “integration,” “membership,” and “citizenship,” it is essential that the
broader social context be kept in view. Citizenship issues are particularly sensi-

ix
x FOREWORD

tive because they blur the lines that have traditionally distinguished foreign and
domestic policy domains.
The goal of the Comparative Citizenship Project is to investigate citizenship
policies in multiple contexts, to clarify the central issues in the policy debates,
and to propose effective ways to address these issues. This present collection of
essays represents the first of three volumes from this project. The collection
contains a carefully developed set of case studies that analyzes policy trends in
emergent and developed liberal-democratic states. The cases were selected to
provide a wide-ranging comparative basis to identify points of divergence and
convergence in citizenship policy trends. Building upon this work, the next vol-
ume will analyze the comparative implications of these trends and general is-
sues of citizenship that cut across the individual case examples. The final
volume will propose specific, concrete policy solutions to address these issues.
Modern liberal-democratic principles provide the general normative frame-
work for this project, but both the content and the application of such principles
are always open to critical differences in interpretation. No single or universal
model of living together successfully as members of a community exists. Each
state’s nation-building mythology, history, and institutions help to define the
route it will take toward achieving the fuller integration of those within its bor-
ders. But the principles of tolerance, inclusion, and equality suggest a set of
common standards fundamental to any notion of liberal-democratic citizen-
ship.
The Ford Foundation and the Luso-American Development Foundation
have generously supported this project.

J ESSICA T. M ATHEWS
President
Carnegie Endowment for
International Peace
 Acknowledgments

THE INTERNATIONAL MIGRATION POLICY PROGRAM originally commissioned

the essays collected here for a conference held during June 1998 at Airlie House
in Warrenton, Virginia. Unless otherwise noted, the authors of the essays have
translated extracts from their original languages into English. Together with an
excerpted version of the introduction, the essays authored by Lowell W.
Barrington, Donald Galloway, Ayelet Shachar, and Gianni Zappalà and Ste-
phen Castles were published as a special symposium in Georgetown Immigra-
tion Law Journal, 13. 2 (1999). In preparing this volume, Allison Baker, Maria
Dostoinova, Marissa Hughes, and Hilary Chantal Kivitz provided valuable re-
search assistance. We would also like to express our appreciation to Yasmin
Santiago, who coordinated planning for the conference and has contributed
considerably to the overall success of this project. With great deftness and pa-
tience, Carmen Cook copyedited the entire manuscript. Finally, we are pleased
to acknowledge our debt to the Ford Foundation for its generous support of this
project from its inception. We are especially grateful to Taryn Higashi and
Mary McClymont for their support and encouragement.

D.B.K.
T.A.A.

xi
 Introduction

DOUGLAS KLUSMEYER

DURING THE PAST DECADE, citizenship has become a salient issue for policy
makers, scholars, immigrants, and the public at large. It has emerged as a
chronic source of controversy in long-running debates over access to welfare
benefits, criteria for naturalization, the legitimacy of plural nationality, and the
accommodation of multicultural diversity. One major reason for this growing
interest in citizenship matters has been the increasing scale and pace of interna-
tional migration in a world organized geopolitically around the membership
boundaries of nation-states. The citizenry of a nation-state or even of a suprana-
tional body such as the European Union is a membership association whose
collective identity presupposes drawing lines between the included and the ex-
cluded.
The realities of global migration have forced all states to rethink not only
their policies of admission, but also their allocation of rights, burdens, and ben-
efits to citizens and other residents. The admission of immigrants with cultural
heritages and historical experiences different from those of their host societies
inevitably changes the fabric of these societies and requires a complex process
of mutual adaptation. For states committed to the liberal-democratic ideal of the
rule of law, this process must honor basic principles of human rights as set forth

The author would like to express his gratitude for comments on earlier drafts of this essay to T.
Alexander Aleinikoff, Miriam Feldblum, Chikako Kashiwazaki, and Anne Rodsick.

1
2 DOUGLAS KLUSMEYER

in domestic constitutions and in international treaty instruments. No consensus

exists over how these rights are to be understood or implemented, but they
nonetheless provide the language through which differences must be negoti-
ated.
This book arose out of the Comparative Citizenship Project of the Carnegie
Endowment’s International Migration Policy Program. The overarching pur-
pose of this project is to investigate and evaluate how different citizenship poli-
cies have been used to promote social cohesion in modern liberal-democratic
states that have experienced large-scale immigration. To meet this purpose also
requires examining those policies that have (unwittingly or not) most fostered
the marginalization and exclusion of immigrant minorities within their host so-
cieties. Citizenship policy is, of course, only one factor that affects the opportu-
nities of immigrants and their successful incorporation into their host societies,
but it can be a highly significant one both as an indicator of a host society’s
commitment to facilitating inclusion and as a means of securing the status of
newcomers. Failure to define transparent and fair membership rules risks creat-
ing different (and almost by definition unequal) classes of membership, with
significant potential to undermine social cohesion.
As part of this project, the International Migration Policy Program commis-
sioned the authors of these articles to analyze trends in each country’s citizen-
ship policies, examine the special challenges to and features of these policies,
and provide a common basis for comparative evaluation. The authors of these
studies were asked to examine a common set of issues in the development of the
legal rules (judicial, legislative, or administrative) that govern citizenship pol-
icy, such as rules concerning the acquisition of citizenship, the rights of aliens,
the issue of plural citizenship-nationality, and general strategies employed to
enhance social cohesion. The essays show that any concrete understanding of
these rules must situate them within the distinct historical contexts of the partic-
ular countries addressed. Choices among citizenship rules are usually shaped
more by historical experience, existing cultural norms, and expedient political
calculations than by deduction from abstract principle or compelling reasons of
logical consistency.
The kind of comparative perspective offered here makes it possible to re-
think long-held policy assumptions, to identify policy alternatives, and to as-
sess the costs and benefits of these alternatives. Moreover, although citizenship
matters fall formally under the legal jurisdiction of individual states, the poli-
cies of one state may have significant implications for the citizenship laws and
legal status of aliens of other states—for example, with respect to plural nation-
ality. In today’s global migration system, the line between domestic and inter-
national spheres is becoming increasingly blurred.
INT R ODUC T ION 3

This volume of essays is divided into four sections with a brief separate in-
troduction of each section. The first section focuses on three so-called classic
lands of immigration: Australia, Canada, and the United States. This designa-
tion reflects, in part, the historical reality that the overwhelming majority of
their populations are immigrants or the descendents of immigrants and, in part,
the dominant national self-understandings of these countries. They have wel-
comed immigrants as a source of economic growth and demographic expan-
sion, but their histories are also replete with policies of discrimination and
restriction based on race, ethnicity, and gender. Since the end of the Second
World War, Australia and Canada have experimented most boldly with policies
that promote inclusion through the positive recognition of multicultural differ-
ences. During this same period, the United States has opened its admissions
policies to immigrants from all points of the globe, which has dramatically en-
hanced its polyethnic diversity. Nevertheless, the United States has (at least for-
mally on the federal level) always taken a laissez-faire approach to the problem
of promoting the inclusion of immigrants amid rising multicultural differences.
The second section comprises essays on three sets of “emerging” states: the
Baltic states, the Russian Federation, and South Africa. We have grouped them
together under the rubric “emerging” because they have all been undergoing
radical transformations over the past decade in a quest to develop stable liberal
democracies in new circumstances. For these states, immigration has posed a
much more complex and difficult challenge than for the classic lands of immi-
gration discussed in the first section, because the risks of fragmentation and dis-
order are more grave and immediate. In the classic lands of immigration, for
example, the issue of plural citizenship can usually be safely treated as a minor
concern that does not now directly threaten national solidarity or secu-
rity—whatever public controversies this issue may periodically incite. By con-
trast, the recent achievement of independence by the Baltic states and the
presence of a sizable Russian minority in each of them makes the potential
problem of divided loyalties and conflicting duties that holding plural citizen-
ships may raise seem much more palpable to many. All three of these studies
demonstrate not only the importance of membership questions in defining the
character of liberal-democratic orders, but also the crucial context that the
structure of a particular civil society gives to the meaning of any membership
status. Can a shared civic commitment to liberal-democratic norms provide a
basis for bridging differences of race, ethnicity, and culture? That question is a
major challenge that anyone sharing this commitment must address.
The third section focuses on Israel and Japan. This classification brings to
the fore the strong ethnic dimension of these states’ dominant national self-un-
derstandings, but the presence of this dimension is scarcely unique to these
4 DOUGLAS KLUSMEYER

states. Perceived shared bonds of ethnicity and race inform (to greater or lesser
degrees) nearly every country’s national self-understanding, and differences in
such perceptions have long been a potent source of conflict within countries as
well as across officially drawn national borders.
Israel qualifies as much as any state to be included as a classic land of immi-
gration. Its existence and development have depended upon immigration, but
immigration targeted toward a specific, ascriptively defined group of immi-
grants to forge a national homeland. Israel’s Law of Return makes this goal ex-
plicit, but it also raises troubling questions about the status of other groups in Is-
raeli society. By contrast, post–Second World War Japan has never recruited (or
permitted) immigrants to settle on a large scale. The economic dimension of the
international migration system is driven as much by the need to fill domestic la-
bor market niches as by the desire of immigrants seeking better opportunities.
The post–Second World War Japanese economy has not relied heavily on the im-
portation of foreign labor, in part, perhaps, because of its interest in preserving a
perceived national homogeneity among its people. Since the 1980s, however, a
popular belief has emerged among many Japanese that their country has been ex-
periencing immigration for the first time. This belief demonstrates how easily
past patterns of labor importation can be forgotten, because during its Imperial
period Japan did permit entrance of large numbers of Koreans as colonial mi-
grants and as conscripted foreign labor toward the end of the Second World War.
The fourth section, National and Supranational Identities, contains essays on
the European Union and Mexico. The European Union (EU) has often been
held out as the prime example of a newly emergent supranational body that
binds together a collection of member national states within an international
framework. Is the EU the harbinger of a trend toward new forms of transna-
tional membership that will supercede the importance of citizenship within par-
ticular nation-states, or is it little more than a device to reduce market barriers to
the flows of labor, trade, and capital? No one now can answer this question de-
finitively, but the recognition of a common EU citizenship illustrates how is-
sues of national membership are becoming inseparably tied to larger regional
and international contexts.
The North American Free Trade Agreement (NAFTA), entered into by Can-
ada, Mexico, and the United States, may be the first step toward a broader insti-
tutional and political integration among these states, but at this stage it is no
more than a commercial arrangement designed to liberalize the flows of trade
and capital. As a major sending country to the United States, Mexico has an un-
derstandable interest in the welfare of its emigrants there. The Mexican govern-
ment’s recent change in its nationality law to facilitate the acquisition of U.S.
INT R ODUC T ION 5

citizenship without sacrificing Mexican nationality suggests further how trans-

national linkages among such regional partners are growing.
To highlight points of comparison among these country studies, this intro-
duction will focus on two central issues in the acquisition of citizenship. As this
introduction seeks to show, however, these issues are inseparable from broader
policy concerns over citizenship and the promotion of social cohesion among
liberal-democratic states.

Acquisition of Citizenship through Birth or Descent

The essays assembled in this volume all grapple with the most fundamental
questions of citizenship: how individuals acquire it and what rights attach to it.
To answer these questions requires first stipulating the criteria that determine
eligibility for citizenship, the processes through which it is obtained, and the re-
quirements that govern its acquisition. The vast majority of individuals acquire
citizenship through three primary means: by birth on the soil of the sovereign’s
territory (the principle of jus soli), by descent according to blood kinship (the
principle of jus sanguinis), and by naturalization through formalized legal pro-
cedures. Citizenship may also be obtained through marriage, adoption, or other
specialized circumstances.
Modern states often employ some variation of all three of the primary means
to satisfy different purposes. Even those states that have adopted the principle
of jus soli in its broadest form have still recognized a need to combine it with el-
ements of jus sanguinis. The children of U.S. citizens born outside of its terri-
tory, for example, receive their parents’ citizenship by virtue of descent. Those
who acquire U.S. citizenship in this manner cannot transmit it to their children
through jus sanguinis unless they have previously established residence in the
United States. Stipulating residence as a criterion for the acquisition of citizen-
ship reflects a larger issue over the degree and substance of the connections that
should be necessary between a polity and its citizenry. The residence require-
ment is a connections test designed to prevent the transmission of citizenship
across generations to descendents who have no substantial tie with the United
States.
Australia, another traditional country of immigration, also limits the trans-
mission of citizenship by descent to children born outside its territory to those
who have at least one parent who had acquired Australian citizenship other than
by descent or who had resided in Australia for at least two years prior to regis-
tration of the child at an Australian consulate as an Australian citizen. Canadian
6 DOUGLAS KLUSMEYER

citizens can transfer their citizenship to children born outside its territory, but
where the parent has acquired citizenship in this manner the child may lose his
or her Canadian citizenship if the child fails to register with Canadian authori-
ties before the age of twenty-eight.
Not all states apply this kind of connections test. South African citizens, for
example, may transmit this status to their children born outside the Republic for
generations. There are no apparent residency requirements or cutoff provisions.
The open-ended nature of such acquisition rules may affect only a small minor-
ity of South African citizens, but these rules ask us to consider how the relation-
ship between a polity and its citizens should be understood. By contrast,
naturalized Mexican citizens may forfeit their Mexican citizenship if they re-
side outside of Mexico for more than five years.
As the studies in this volume show, the state’s choice of means for acquiring
citizenship has important consequences in promoting the inclusion or exclusion
of persons and groups within a polity. In his evocative contribution to this book,
Donald Galloway elucidates the core issues that any liberal-democratic society
must face in making citizenship policy. The most fundamental issue turns on
the question “Who belongs?” As Galloway’s discussion of Canadian citizen-
ship makes clear, there is no simple way to answer this question. He points out
that throughout the twentieth century two competing visions have driven debate
over these matters among Canadians, and among many outside of Canada. The
first, which he labels “collectivist” or “nationalist,” has emphasized the role of
citizenship as a tool for promoting social cohesion and preserving common tra-
ditions. Proponents of this vision have argued for the importance of enhancing a
distinctive shared national identity that links the citizenry together as a commu-
nity and enables citizens to participate in a common way of life. This vision
highlights a central dimension of citizenship as a means by which societies “re-
generate” themselves through the inclusion of new members, whether by birth
or migration, while maintaining connections with their historical pasts.
A second competing vision, which emphasizes equal respect for individual
dignity and the right of persons to pursue their own private ends, has deep roots
in modern Western liberal thought. This vision, as Galloway argues, has be-
come integral to conceptions of political membership where the principle of
subjecthood, based on a bond of subservient allegiance, has given way to one of
citizenship, based on a notion of sharing in sovereignty. Any principle of justice
that grounds the vesting of rights as an entitlement of individual personhood
necessarily implies a universalism of this criterion; that is, it should apply
equally to all persons irrespective of their particular membership status. But
such rights can only be effectively guaranteed and exercised within distinct, po-
litical bodies of which the individual is a recognized member.
INT R ODUC T ION 7

Galloway’s observation that questions of citizenship are always inextrica-

bly bound to larger issues of sovereignty, national identity, the framework of
political order, and individual liberties is surely correct. The salience of all
these issues to citizenship policy is abundantly evident in the ten other essays
in this symposium. Like Galloway’s, these essays demonstrate the impor-
tance of examining a state’s citizenship policies against its particular histori-
cal context rather than as a mere matter of general legal principles or
theoretical deduction.
Lowell Barrington addresses the particular challenges facing the Baltic
states. After regaining their independence, these states have had to balance a
strong interest in reconstituting their national unity around an ethnic model of
nationhood against the need as self-proclaimed liberal-democratic states to re-
spect the rights of minorities who entered during the era of Soviet annexation.
In contrast to traditional countries of immigration such as Australia, Canada,
and the United States, which have been guided by a positive valuation of immi-
gration as necessary for desired demographic and economic growth, the Baltic
states have had to adjust to the legacy of immigration during the period of So-
viet domination. The Baltic states have chosen to emphasize an ethnic under-
standing of nationhood, which assumes that shared ties of culture, ancestry, and
historical destiny are fundamental to the definition of collective identity. Their
interrupted status as independent states heightens the significance of ancestry
and historical precedent as a criterion for citizenship acquisition.
In examining the implications of an ethnic understanding of social member-
ship, however, Barrington cautions against drawing too simple an equation be-
tween an ethnic understanding of the nation and an exclusivist citizenship
policy aimed at minorities of a different ethnic character. Such a reductionist
equation obscures other important factors that shape citizenship policy, notably
the role of choice exercised by policy makers in deciding among policies. As a
case in point, Barrington highlights the different approaches toward citizenship
adopted by Lithuania and Latvia. The political elites of both countries, he ob-
serves, perceive their countries in highly ethnic terms, but Lithuania’s citizen-
ship policy has been notably more inclusive than Latvia’s. Despite their ethnic
understanding of national identity, Lithuania’s leaders have by this account dis-
played a genuine commitment to the promotion of “inter-ethnic harmony” and
to the legitimacy of minority claims to membership in the Lithuanian nation.
Lithuania took the key step toward a broadly inclusive citizenship policy just
before its independence from the Soviet Union. A 1989 citizenship law, for ex-
ample, granted automatic citizenship to all permanent residents who had been
born in Lithuania or with a parent or grandparent who had been born there. This
law, Barrington observes, was “strongly based on the principle of jus soli. . . .”
8 DOUGLAS KLUSMEYER

After regaining independence, the Lithuanian government in 1991 tightened

citizenship acquisition requirements, but it did not revoke citizenship from
those persons who had received it during the Soviet annexation.
Since regaining their independence, all three Baltic states have emphasized
to varying degrees jus sanguinis as the basis for acquiring citizenship. The Lith-
uanian Parliament, for example, in 1991 enacted a new law that rescinded the
right to automatic citizenship of all permanent residents. It restricted this right
to persons who had either been citizens before 1940 (and their descendents) or
had been lawful permanent residents from 1919 to 1940. Yet, the Parliament
did not revoke citizenship from those persons who had received it during the
annexation era. It also provided for the restoration of Lithuanian citizenship to
individuals who had been Lithuanian citizens during the annexation period but
who now resided in another state.
As Barrington notes, the danger that an emphasis on descent over place of
birth or residence could have strong exclusionary effects on minorities in the
political system has been exemplified in Latvia. After independence, the Lat-
vian government recognized citizenship only of those individuals (and their
descendents) who had held citizenship before annexation. It further refused to
enact any provisions for naturalization. As a result, most minorities have been
ineligible to vote in elections for either local or national offices.
These former soviet bloc countries seek to address issues of citizenship
within their own carefully defined borders on a national level. On a broader
level, as George Ginsburgs demonstrates, the Russian Federation as the succes-
sor to the Soviet Union has had to meet even larger challenges in developing a
common citizenship policy acceptable to all its member states. One of these
challenges, notes Ginsburgs, lies in the unique historical legacy of Soviet mem-
bership imposed from above. The Russian Federation’s policy, for example,
proceeds from the premise that, ideally, the shared citizenship of the parents
should be the decisive factor in determining the citizenship of their children.
That is, parental lineage is a more important criterion than place of birth. In ac-
cordance with international legal norms that disfavor statelessness, however,
the Russian Federation also grants citizenship to children born within its terri-
tory whose parents were citizens of other republics that once formed part of the
Soviet Union and where current member republics have declined to confer their
own citizenship.
In this way, the Russian Federation seeks to fill the gap for children denied
citizenship within member republics. By contrast, the European Union offers
no provisions to confer EU citizenship to children born within its territory who
have not acquired the citizenship of a member state. The conferral of EU citi-
INT R ODUC T ION 9

zenship depends entirely on an individual’s status as a citizen of a member

state, irrespective of differences among member states in their citizenship ac-
quisition policies.
In the case of both the Russian Federation and the European Union, their cit-
izenship acquisition policies reflect ambiguities in the past and present political
and legal relationships of member states to the polity as a whole. In both in-
stances, member states remain jealous of their sovereignty within their broader
supranational frameworks. Ginsburgs persuasively argues that preserving a
unitary federation-wide citizenship with primacy over member-state citizen-
ship is key to maintaining the institutional integrity of the Russian Federation.
He leaves open the question of whether the Russian Federation will be able to
withstand challenges from member states seeking greater control over their
own citizenship policies.
Marco Martiniello discusses similar challenges to the supranational integ-
rity of the new European Union citizenship. He points to the great irony that just
when a supranational “European citizenship” has finally been codified through
the Maastricht and Amsterdam Treaties, EU member states may now cling ever
more insistently to controlling their own national citizenship policies as one of
the few areas remaining to them to exercise their own autonomous sovereignty.
Where one might think that the recent creation of a common European currency
was a decisive step in the promotion of European unity, such a transfer of au-
thority may impel member states to attach even more significance to national
citizenship as a symbol of national sovereignty.
By contrast, federal citizenship in the U.S. has, at least since the Civil War,
had clear primacy over member-state citizenships. The postwar constitutional
amendments adopted during the Reconstruction era determined for the first
time that constitutionally protected rights were equally binding on state govern-
ments as well as on the federal government. In contrast to the EU and the Rus-
sian Federation, the fact that member states are not the loci of separate national
self-understandings considerably bolsters the primacy and unitary character of
U.S. federal citizenship.
This is not the case in the EU, where many Europeans regard their particular
national citizenships as primary, a feeling that has discouraged their exercise of
EU citizenship rights. Martiniello offers several additional explanations for the
limited practice of EU citizenship rights. The first is a lack of publicly dissemi-
nated information regarding how these rights can be exercised. The second con-
cerns delays in the effective implementation of these rights. The third is the
relative insignificance of these rights to the overwhelming majority of Euro-
pean citizens who reside within their own national states. EU citizens, for ex-
10 DOUGLAS KLUSMEYER

ample, have the right to vote and stand for elections to the European Parliament,
but this body is the weakest EU political institution, so voting may seem to in-
volve more trouble than it is worth.
The creation of a common EU citizenship “from above,” Martiniello ob-
serves, has formalized three levels of basic membership, ranked according to
different menus of civil, socioeconomic, and political rights that members pos-
sess. Citizens of EU states residing within their national state’s borders have the
fullest menu of these rights. EU citizens living in member states other than their
own are entitled to a more abbreviated menu of rights, such as the right to vote
in local and European elections but not the right to vote in the national elections
of their state of residence. Citizens of nonmember states have the fewest rights.
Long-term residents may enjoy important civil and socioeconomic rights, but
few political rights. They cannot obtain EU citizenship directly, but only
through first obtaining citizenship in a member state, subject to that state’s par-
ticular naturalization requirements.
This “triangular” structure of EU membership, Martiniello argues, may fur-
ther marginalize resident aliens, especially if the notion of a shared, singular
European cultural identity is promoted at the expense of a respect for multicul-
tural diversity. This respect should rest not simply on a commitment to funda-
mental human rights, but also on the recognition of the reality of Europe’s
deeply multicultural past and present. As Martiniello points out, however, the
issue of cultural diversity has never figured prominently on the agenda of EU
leaders and is often obscured by the problem of accommodating the
particularist national self-understandings of the member states.
Martiniello sees the best hope for forging greater unity within the EU
through the construction of citizenship “from below,” involving coalitions of
individuals with interests and institutional ties that cut across national borders.
He contends that the low voter turnout for European national elections may be
an indication of an active public resistance (rather than mere apathy) to the way
that EU citizenship has been imposed from above and its failure to address the
needs of average citizens. From this perspective, the continuing institutional
weakness of the EU Parliament as an instrument of transnational, popular polit-
ical representation appears to be a major missed opportunity to enhance a
deeper public identification with the EU as a common home through shared
participation in self-governance. The effects of this weakness on voter turnout
also underscore the importance of situating any analysis of citizenship rights
within the institutional contexts in which these rights are implemented and ex-
ercised. The right to vote does not mean much if the representative body for
which one is voting has little effective power or voice. As Martiniello argues,
individuals’ perceptions of citizenship rights are just as important as the formal
INT R ODUC T ION 11

political and socioeconomic intentions of the governments granting those

rights.
Perceptions of citizenship also figure strongly in Ayelet Shachar’s examina-
tion of the citizenship policies of Israel, a state founded on a highly ethnic con-
ception of nationhood. This conception, rooted in nineteenth-century Romantic
nationalist ideology, recognizes Israel as the homeland of the Jewish people;
but Israel must share this homeland with its Arab minorities. The Law of Return
is the centerpiece of Israeli citizenship policy. It automatically grants every
Jewish immigrant full and equal citizenship immediately upon arrival. As
Shachar explains, this law rests on a diasporic conception of Jews around the
globe as one national people, a membership bond that existed before the cre-
ation of the modern Israeli State. Israel has received a vast flow of immigrants
since the enactment of this law. From the beginning, the open-ended nature of
this invitation to Jews worldwide to resettle in Israel has sparked considerable
and recurrent debate over the question of “who is a Jew” with entitlement to cit-
izenship. Rival religious and secular understandings of Jewishness have driven
much of this debate, but shifts in the predominant source countries of Jewish
immigrants have also contributed to it.
Massive numbers of Russian Jews entered Israel from 1989 to 1993, for ex-
ample. They enjoyed an automatic entitlement to citizenship, although their ties
with Judaism and the State of Israel had hitherto been minimal. Their sheer
number and cultural foreignness injected fresh energy into the debate among
the Israeli public over who should be entitled to return.
This debate rests on the fact that the Law of Return invests a deeply
ascriptive character into the heart of Israeli citizenship policy. Such ascriptive
tendencies are especially apparent when contrasted with the government’s long
denial of citizenship to Arab refugees who had been residents of the area before
the state was formed. Shachar uses the example of Russian Jewish immigrants
to illustrate that ascriptive categories, such as “Jewishness,” are always open to
competing definitions that may fall across a broad spectrum. Giving Jewish im-
migrants a privileged entitlement of such magnitude can only reinforce the per-
ception of Arabs as no better than second-class citizens.
Another essay addressing the importance of perceptions of citizenship is that
by Jonathan Klaaren. He has produced an incisive analysis of South African citi-
zenship policy and its reception by certain population groups. From its first citi-
zenship law of 1949 to its Bantu Homelands Citizenship Act of 1970 to its
Restoration Citizenship Act of 1986, South Africa’s legislation illustrates dra-
matically how citizenship and nationality status can be manipulated to reinforce a
caste hierarchy within a putative liberal-democratic republic. The 1949 law es-
tablished the first “common” citizenship for South Africans applicable to both
12 DOUGLAS KLUSMEYER

the white minority and the black majority. As Klaaren explains, however, citizen-
ship did not automatically confer the right to vote. That right was restricted on ra-
cial grounds. The Bantu Homelands Act of 1970 introduced a distinction
between homelands citizenship, to which all blacks were assigned, and a com-
mon South African nationality. Initially, homeland citizenship and South African
citizenship remained tied, but when the South African government began grant-
ing homeland independence, those homeland citizens lost both their South Afri-
can citizenship and nationality. This tactic created gradients of membership
rights that effectively barred the black majority from the exercise of popular
sovereignty in the South African Republic. The Restoration Citizenship Act of
1986 made a partial step toward restoring citizenship to homeland blacks, but it
applied only to those who held permanent residence in South Africa.
Against this background, Klaaren devotes the bulk of his analysis to the leg-
islative history and policy implications of the South African Citizenship Act of
1995. The act restored a single, common citizenship regime for South Africans,
but it did not repeal the separate citizenship laws of the independent homelands
nor address effectively the reality of large numbers of migrants who have been
entering the country as temporary workers. Despite the stated intent to eradicate
the effects of apartheid legislation, the actual results of this act have been fairly
modest. Where one might have expected that a common ideal of citizenship
built around a shared allegiance to republican principles might provide a source
of civic unity amid great cultural and social diversity, this ideal has yet to come
to the fore in South Africa.
A strong political understanding of citizenship as a consensual bond of alle-
giance has also not yet emerged in Japan. Chikako Kashiwazaki’s essay pro-
vides one of the most thorough surveys of Japanese citizenship policy and law
available in English. As Kashiwazaki notes, Japan bases its citizenship acquisi-
tion law on a strictly applied principle of jus sanguinis, but she argues against
simple explanations that attribute the use of this principle to an ethnically nar-
row national self-understanding. She contends that a jus sanguinis system can
be as inclusive as a jus soli system, and would have little practical effect de-
pending upon a number of variables including the strictness of naturalization
rules. Like Barrington, Kashiwazaki also warns against invoking broad na-
tional character arguments that are too often grounded on popular stereotypes
and exaggerate the relative “uniqueness” of particular countries within the
global migration economy. To situate Japan’s place within this economy, she
has developed a richly comparative framework. One point of comparison rests
on sources of economic growth. In contrast to many European states after the
Second World War, Kashiwazaki points out, Japan did not import large num-
bers of foreign workers to sustain its economic growth. She reports that foreign
INT R ODUC T ION 13

residents currently compose only 1.2 percent of the Japanese population, so Ja-
pan has not had to face the problem of immigrant incorporation on nearly the
same scale as many EU states.
In explaining Japan’s reliance on a strict jus sanguinis system, Kashiwazaki
traces its introduction back to the codified nationality laws of 1899. She points
out that the policy makers were influenced by European models of citizenship
acquisition. Moreover, the jus sanguinis system, she observes, proved “com-
patible with previous legal practices, in particular the family registration sys-
tem that had been used to define the subject population.”
Like Barrington, Kashiwazaki emphasizes the important role that interna-
tional bodies and treaty instruments can play in constructively influencing do-
mestic policy. After Japan ratified the International Covenant on Civil and
Political Rights in 1979 and the United Nations Covenant relating to the Status
of Refugees in 1981, for example, the government amended important discrim-
inatory provisions in its citizenship policy that had been directed against for-
eign residents.
The issue of plural nationality has recently become a source of controversy
in the United States in response to Mexico’s 1997 amendment of its nationality
law. This controversy vividly illustrates again why citizenship, though recog-
nized as a subject of domestic jurisdiction, can implicate larger international
concerns. The amended law permits Mexicans who acquired their nationality at
birth on Mexican territory to acquire additional nationalities without forsaking
their original Mexican nationality. In his essay on Mexican nationality, Manuel
Becerra Ramírez argues that this legal change occurred in reaction to perceived
discrimination against Mexicans in the United States. Through this change, the
Mexican government sought to encourage Mexicans residing in the United
States to obtain the fullest range of political and civic rights through the acquisi-
tion of U.S. citizenship by removing the potential loss of Mexican nationality as
a deterrent to naturalizing in the United States. By this change, the Mexican
government hoped to minimize a difficult choice often faced by immigrants be-
tween severing a fundamental relationship with their homeland and taking full
advantage of the opportunities and legal protections in a new host society.
The amended nationality law rests on a carefully drawn distinction between
nationality, understood as a state membership affiliation, and citizenship, a sta-
tus that confers specific political rights such as voting in Mexican elections. In
the acquisition of Mexican nationality, Mexico applies a mixed system of jus
soli and jus sanguinis. Persons born on Mexican territory acquire Mexican na-
tionality and, as nationals, are automatically entitled to Mexican citizenship at
the age of eighteen. The conferral of Mexican nationality to a child born in
Mexico is not contingent on the nationality of the child’s parents. At the same
14 DOUGLAS KLUSMEYER

time, the child of a Mexican national, who was born in Mexico, is also automat-
ically entitled to Mexican nationality if the child is born outside of Mexican ter-
ritory. This entitlement applies irrespective of the parents’ existing location of
residence.

Acquisition of Citizenship through Naturalization

Most of the authors of these essays also address the specific laws and ideolo-
gies governing the processes of naturalization. Naturalization is not only an im-
portant mode through which citizenship is acquired, but also one of the few in
which volitional choice is involved in its acquisition both on the part of pro-
spective new citizens and on the part of states conferring it. The motives of indi-
viduals seeking to naturalize may be highly instrumental or deeply patriotic, but
whatever their reasons they are choosing to enter the most privileged form of
shared belonging that liberal-democratic polities bestow. In determining crite-
ria and procedures for naturalization, states, too, are making choices regarding
the desired character of new citizens, their terms of allegiance, and the future
shape of their populations. Because so much is at stake in such choices, natural-
ization policies are often subject to considerable controversy by affected groups
and interests.
The rules governing naturalization vary widely among states, but all recognize
these rules as important tools of inclusion and exclusion. The states with the most
inclusive policies discussed in this volume are the three so-called classic lands of
immigration: Australia, Canada, and the United States. All three have similar re-
quirements. Prospective new citizens must be lawful permanent residents for sev-
eral years prior to applying, possess good moral character (for example, have no
major criminal convictions), demonstrate an adequate knowledge of their new
country’s history and civics, and have a basic command of the language. All three
states also require an oath of loyalty. In the United States, new citizens taking the
oath must swear exclusive loyalty to the United States and explicitly renounce all
former loyalties to other sovereigns. Canada and Australia demand a much less
exclusive expression of allegiance. Their pledges do not require a renunciation of
other loyalties or a profession of sole loyalty to the country.
Israel has developed naturalization requirements substantively similar to
those of the United States, Canada, and Australia for those ineligible for citi-
zenship under the Law of Return. Israel also requires prospective citizens in
naturalizing to renounce prior citizenships, but its loyalty oath specifies swear-
ing neither primary nor exclusive allegiance to the State of Israel. On the sim-
plest level, Arabs and Jews born in Israel enjoy the same right to acquire
citizenship through jus sanguinis. All children whose parents are Israeli citi-
INT R ODUC T ION 15

zens automatically acquire it. As Shachar shows, however, the actual picture is
considerably more complicated than this straightforward rule would suggest.
The hundreds of thousands of Arabs who fled the area during the 1948 war that
followed the establishment of the Israeli State, but who did not return almost
immediately after the war ended, lost their entitlement to automatic citizenship.
Many of these individuals eventually did return during the 1950s to settle per-
manently, but they often found meeting citizenship eligibility requirements ex-
tremely difficult. Since most did not have citizenship elsewhere, they became
stateless. The Israeli government did not squarely address their plight until
1980. At that time, the government conferred citizenship retroactively on these
Arab residents and, in turn, granted automatic citizenship to their children.
Although Israel’s formal naturalization requirements are not notably more
restrictive than those of Australia, Canada, or the United States, its require-
ments stand in sharp contrast to the automatic and immediate conferral of citi-
zenship granted to Jewish immigrants under the Law of Return. Israel,
however, is hardly the only liberal-democratic state that has distinguished
among classes of immigrants in its naturalization policies. T. Alexander
Aleinikoff points out that the United States’ original citizenship law specifi-
cally restricted naturalization to whites and that the last of such racial restric-
tions was not removed until 1952. During the 1920s and the 1930s, Australia
also denied citizenship on racial grounds. After the Second World War, it still
adhered to an ethnic _model of nationhood as a member of the larger British na-
tional family.
Discriminatory citizenship policies based on racial and ethnic categories are
endemic in the histories of many Western democratic states, even in such clas-
sic lands of immigration as Australia. The essay by Gianni Zappalà and Stephen
Castles is particularly instructive in this regard. The authors examine the
post–Second World War Australian experience with immigration and natural-
ization, as Australia has moved from an exclusivist “White Australia” policy to
an active promotion of multicultural diversity. Beginning after the war, Austra-
lia launched a major and successful effort to recruit immigrants. Millions came
to settle. The government viewed the acquisition of citizenship as essential to
their integration into Australian society, but naturalization rates remained low
throughout the 1950s and 1960s. This low rate was often attributed to a lack of
loyalty, but this perception missed the depth of the issues involved. As Zappalà
and Castles observe, “there was little understanding that the complexity of the
regulations, poor English language ability, and having to renounce one’s coun-
try of birth made citizenship an unattractive option for many immigrants. . . .”
The government gradually introduced measures to reduce administrative
complexity, lower fees, and simplify procedures, but this proved insufficient to
16 DOUGLAS KLUSMEYER

boost naturalization rates significantly. By the end of the 1960s, the government
finally began to realize that discrimination against immigrants and the failure to
take their needs into account was a major deterrent that discouraged migrants
from seeking to become Australian citizens. To make newcomers feel welcome
as Australians would require a new understanding of what it meant to be Austra-
lian, an understanding that could accommodate the immigrants’ own distinct in-
terests and heritages. Toward this end, the government eliminated from its
citizenship law special privileges and exemptions for British immigrants that
had, at least symbolically, reflected Australia’s self-understanding as ethnically
British. As the government began to address deeper structural problems in the
1970s, naturalization rates rose. By 1991, Zappalà and Castles report, “70 per-
cent of eligible overseas-born residents were Australian citizens.”
Despite such achievements, government support for multicultural citizen-
ship programs has seriously eroded since the mid-1990s. The long-term conse-
quences of this decline remain unclear. Such reversals in the direction of public
policy are not uncommon among states trying to absorb larger numbers of new-
comers. But the postwar history that Zappalà and Castles so deftly analyze sug-
gests that any prolonged retreat will simply produce greater divisions.
In contrast to Australia, the United States does not actively promote immi-
grant integration as official policy. This lack of policy may be one important
reason why 6 or 7 million residents, despite their eligibility, have not elected to
naturalize. In his essay, Aleinikoff points to other reasons deterring naturaliza-
tion. He discusses the relatively few differences in rights and benefits that dis-
tinguish citizenship status from permanent resident status, the broad provision
of jus soli that does not require parents to be citizens in order for their children
to acquire citizenship, the knowledge of history and language needed to satisfy
naturalization requirements, and the exclusivity of the oath of allegiance given
in the naturalization process.
Nonetheless, Aleinikoff observes, naturalization rates have risen dramati-
cally in recent years. He attributes this rise to a mix of incentives that are pri-
marily negative. The Immigration and Naturalization Service, for example,
introduced a requirement that all permanent residents must obtain a new resi-
dent alien card but, at the same time, made it known that the financial costs of
such a card would be only slightly less than the costs charged for naturalization.
Perhaps the most powerful of these negative incentives, which appeared to pun-
ish alien residency while rewarding naturalization (however unintentionally),
included anti-immigrant campaigns and debates in the 1990s suggesting that
previously available access to significant rights and benefits might be taken
away from aliens.
INT R ODUC T ION 17

One possible lesson to draw from this story is that negative incentives, such
as expanding the differences in the rights and benefits enjoyed by citizens and
aliens, is an effective tool to promote naturalization. As Aleinikoff points out,
plausible normative arguments can be made that citizens are entitled to a
broader array of fundamental rights and benefits than are aliens. It is difficult,
however, to see how these kinds of incentives deepen any form of affective loy-
alty that new citizens 3would feel to their host polity; instead, they may cheapen
the symbolic value of citizenship as bond of consensual allegiance. Moreover,
as Aleinikoff argues, lawful members of a society who are not citizens, but are
no less active participants in and contributors to it, also have a strong claim to
that society’s benefits and protections. Aleinikoff contends that the key distinc-
tion to be drawn between the membership status of citizens and that of
long-term lawfully resident aliens should turn on political rights, that is, the
rights to hold elective office and to vote in national elections. From this per-
spective, the hallmark of liberal-democratic citizenship involves belonging to a
sovereign community whose people collectively exercise self-governance.
In contrast to the United States’ and Australia’s naturalization policy, the
Baltic states have had to adjust to the reality of immigrants admitted under So-
viet-imposed regimes. As Barrington notes, Lithuania and (to a somewhat
lesser extent) Estonia have adopted the most inclusive naturalization policies.
The naturalization requirements in Lithuania’s 1991 citizenship law stipulated
that applicants must pass a written and oral language test, have resided perma-
nently in Lithuania for ten years, demonstrate sufficient familiarity with the
Lithuanian Constitution, relinquish prior citizenships, and make a nonexclusive
loyalty declaration.
For its part, Estonia’s 1992 citizenship law made applicants eligible for nat-
uralization after two years of permanent residence (amended to five years in
1995), although the term of residence would be counted only after March 30,
1992. The law also required a test of language competence in Estonian. This
language requirement has posed a considerable barrier to prospective appli-
cants for naturalization, however, because the Estonian language is exception-
ally difficult to learn and governmental provisions for language courses have
been inadequate. As a result, naturalization rates have remained low.
Barrington contrasts these two sets of inclusive naturalization policies with
the much more restrictive policies of Latvia. After achieving independence, the
Latvian government refused to recognize or adopt a naturalization law until af-
ter the elections for the first Latvian Parliament in 1993. Latvia’s citizenship ac-
quisition policy effectively barred most non-ethnic Latvians (between 700,000
and 800,000 persons) from participating in the elections for this Parliament,
18 DOUGLAS KLUSMEYER

and, therefore, from participating in the subsequent drafting of citizenship leg-

islation. The 1993 citizenship law that this Parliament enacted reflected its
members’ intent to avoid any rapid large-scale naturalizations and, perhaps, to
encourage the exodus of non-Latvian minorities. For instance, it imposed re-
strictions on eligibility for naturalization according to age and place of birth,
and it stipulated other naturalization requirements regarding terms of residence,
language competence, and official registration that made naturalization diffi-
cult. The citizenship law proved effective as a tool of exclusion. “Of the
140,000 residents who were eligible to apply by 1998,” Barrington reports,
“only approximately 10,000 had applied, and only 7,477 had become citi-
zens. . . .”
Although Estonia’s citizenship policies have been more exclusive than Lith-
uania’s, they might have been far more so but for the influence that interna-
tional bodies were able to exercise on Estonian political leaders. Barrington
emphasizes the critical role that such organizations as the Council of Europe
played in pushing the Estonian government toward more inclusive citizenship
policies. He shows that the effectiveness of these bodies in influencing govern-
mental policies cannot rely on moral suasion alone. Instead, such influence
must include concrete incentives ranging from offers of increased trade and di-
rect financial assistance to stipulating conditions of membership in regional po-
litical organizations. His analysis demonstrates that despite the fact that
citizenship has traditionally been considered an exclusive domain of domestic
law, states may still be held accountable to international norms. As the Estonian
example makes clear, the force of international accountability may be at best
modest, but it can still provide an important check on the worst excesses of eth-
nic chauvinism.
The question of naturalization policy has also been a problem for Japan. De-
spite the fact that naturalization rates have been rising during the 1990s,
Kashiwazaki observes that Japan’s naturalization requirements have remained
strict. These requirements include the provision of extensive supporting docu-
ments by applicants and an expectation of full assimilation. Yet, even long-term
foreign residents who meet these requirements have no guaranteed right to ac-
quire Japanese citizenship. The combination of a strict jus sanguinis system
with a restrictive naturalization policy has had predictable consequences. First-
and second-generation Korean residents, Kashiwazaki reports, have largely re-
sisted acquiring Japanese citizenship out of a sense that this would betray their
national as well as cultural identity as Koreans. Their children born in Japan
have no automatic entitlement to citizenship, although they may attend Japa-
nese schools, speak fluent Japanese, and have had no substantive contact with
their Korean “homeland.” This very lack of contact, however, may now be bol-
INT R ODUC T ION 19

stering the younger generation’s willingness to acquire Japanese citizenship

through naturalization, because they are less likely to look upon it as forsaking
their own distinct cultural heritage.
In the protection of the rights of permanent resident aliens, Kashiwazaki
identifies a recent trend toward gradual expansion that is similar to the earlier
experience of many EU countries. “Throughout the 1970s,” she observes, “the
residential status of long-term resident aliens remained insecure.” Long-term
resident aliens also suffered from discrimination in their access to social ser-
vices, such as health care. In the 1980s and 1990s, however, the Japanese gov-
ernment has begun to address these problems in a serious fashion. This trend
found in both Japan and in many EU member states would seem to confirm
Aleinikoff’s model of lawful permanent settlement as the emerging standard
among liberal-democratic states in the treatment of alien rights.
Where Japan has sought to restrict immigration rigidly, Mexico has had to
deal with the reality of continuing immigration across its southern border. Mex-
ico’s naturalization requirements are similar to those of other countries that re-
ceive large numbers of immigrants. The average foreign resident seeking to
naturalize must have lived in Mexico for five years, speak the national lan-
guage, and demonstrate knowledge of the country’s history and culture. Like
the United States, Mexico also insists that naturalization applicants renounce
any additional nationality. In light of the recent amendment of its nationality
law explicitly recognizing the legitimate status of plural nationality, this renun-
ciation requirement may seem paradoxical, but it reflects the different perspec-
tives many states apply to their nationals who have settled abroad and to those
newcomers who have immigrated.

Conclusion
The final chapter, by Miriam Feldblum, takes a broader look at the compara-
tive citizenship trends highlighted across the different country and regional re-
ports. Based on the data and analyses of the previous chapters, Feldblum
examines the different ways in which states are increasingly organizing the al-
location and distribution of formal nationality access, dual nationality, natural-
ization as well as other membership rights, benefits, and obligations. As
demonstrated by each of the authors, immigrants in the countries under review
experience different “rations” of membership across policy domains, both in
terms of their legal standing and substantive claims. In fact, the country and re-
gion reports point to differentiated distributions of citizenship both within and
across polities. Feldblum argues that these patterns are significant because they
underscore the continuing efforts by states to manage the allocation of member-
20 DOUGLAS KLUSMEYER

ship rights, benefits, and obligations to immigrants. The chapter is divided into
the three sections. The first section discusses the qualified extension of access
to formal citizenship and dual nationality, while the second section focuses on
the extent to which states have differentiated immigrants’ access to member-
ship rights. Feldblum contrasts the qualifying of rights and benefits to foreign-
ers (including access to social services and nationality) with—in the area of
immigration control—the rise of claims-making and participation both for and
by immigrants in these same policy domains. Finally, Feldblum concludes that
increasing levels of governance—local, national, and beyond the national
state—are now engaged in the allocation of citizenship.
These articles demonstrate how far citizenship studies have advanced since
T. H. Marshall published his classic work Citizenship and Social Class.1 Two of
the major assumptions shaping his work have become untenable. First, Mar-
shall treated the state as a bounded polity in which the issue of admitting new
members and their eventual incorporation into their host society never arose.
Second, he could write confidently of a common culture that all members of a
polity would share without ever examining the terms of this common culture or
addressing the challenges posed by the reality of cultural diversity.
In discussing both the incorporation of newcomers into their host societies
and the issue of cultural diversity, terms such as assimilation and integration
are often used without any clear specification of their concrete meaning or of
the public policy purposes they are intended to serve. This lack of specificity is
especially problematic for two reasons. First, no agreement exists over the defi-
nition of these terms. Second, and relatedly, the meaning of these terms will in-
evitably look different from the perspective of the host society than from that of
newcomers. Moreover, significant normative questions are at issue regarding
how such terms should be understood in the context of modern liberal-demo-
cratic principles. Both assimilation and integration can too easily imply a
largely one-sided process in which newcomers adapt themselves to the struc-
tures of life and dominant culture of their host societies. It may be appropriate to
reframe the issue, not as integration or assimilation, but as creating conditions
that advance equal opportunity through which all members of a society can
choose their own avenues of participation and thereby find common ground
with other members. By this view, a central criterion for determining the alloca-
tion of rights, benefits, and burdens among members would be the degree to
which they either impede or facilitate equal participation.
The articles published here demonstrate vividly why such issues have be-
come central to citizenship policy and the difficulties that different states have

1. Republished in Marshall and Bottomore, 1992.

INT R ODUC T ION 21

experienced in grappling with them. These authors offer deeply informed and
insightful guides to the specific developments in citizenship policy, even as
they bring out the larger questions that such policies are increasingly being
forced to address.

References
Marshall, T. H., and Tom Bottomore 1992. Citizenship and Social Class. London: Pluto
Press.
 PART ONE

Citizenship in Countries
of Immigration
 CHAPTER ONE

Introduction

DAVID A. MARTIN

THE NATIONS COVERED in the next chapters make a natural grouping: three
states that traditionally identify themselves proudly as countries of immigra-
tion. Several striking similarities in the citizenship policies and practices of
Australia, Canada, and the United States emerge from the following pages. If
these policies were clear inheritances from a common British colonial past, the
overlap might be unremarkable. But many of them do not trace to earlier British
practice, and in any case the path to independence followed by the United
States, through revolutionary violence long before the others showed signs of
trying to separate even in mild ways, diverges so sharply from that of the other
two that one suspects something deeper is reflected in the coincidences. Per-
haps certain citizenship policies have simply proved to make sense, over de-
cades of practice and experience, for large, generally successful, polyethnic
nations that are, at least by the late 1990s, accustomed to accommodating large
and diverse influxes of foreigners each year. Some of the chief similarities fol-
low:

CITIZENSHIP AT BIRTH. All follow a strong form of jus soli, assuring citi-
zenship at birth to persons born in the territory, even if the parents are foreign-
ers. Canada and the United States do so whatever the status of the parents
(excepting only diplomats), while Australia, which used to be as expansive,
trimmed its rule in 1986 to recognize the child’s citizenship only if one parent is
a citizen or permanent resident. But even the 1986 reform contains a pragmatic
25
26 DAVI D A. MARTI N

bow to the realities of imperfect immigration control, for a child born in Austra-
lia to illegal migrants becomes an Australian citizen on his or her tenth birthday
if resident since birth. Australia, like its two sister immigration countries,
thereby avoids the problems associated with disaffected second- and third-gen-
eration noncitizen immigrants that have appeared in some European countries
that know not the jus soli. All three countries also recognize jus sanguinis but
join in policies designed to avoid transmitting their nationality indefinitely once
a family has lost significant connection to the society. They use different vari-
ants of requirements for periods of parental residence on national soil before the
birth, or the child’s residence before a specified age if he or she wishes to retain
citizenship, or both.

DEPORTATION AND CITIZEN CHILDREN. All three countries have wrestled

with the issue of deporting the unlawfully present parents of citizen children,
and all have decisions approving the practice, even though it means, de facto,
that the citizen children will leave with the parents. This outcome is sometimes
viewed as excessively harsh by European commentators. But the unanimity of
practice by the three immigration countries on this point suggests that such a
rule may be an inescapable concomitant of expansive jus soli rules, lest mere
fertility provide an easy loophole in normal immigration controls.

NATURALIZATION. All three countries offer naturalization on fairly easy

terms to foreign residents who want to acquire it. The list of specific require-
ments is lengthy in each country, but each winds up with strikingly similar pro-
visions, despite variations in details and waiver possibilities. Lengthy
specifications help minimize official discretion, which seems to be part of the
plan, for naturalization is encouraged and is meant to be predictably accessible
for those contemplating the choice. The basic requirements are (1) an applica-
tion; (2) a minimum age of eighteen (before that age, naturalization is generally
derivative upon naturalization of the parent); (3) prior lawful admission as a
permanent resident; (4) a stated residence period, which could be seen as a pro-
bationary stage or as a time for acculturation, ranging from two to five years; (5)
a requirement of familiarity with the new country’s language; (6) a knowledge
requirement, generally quite similar among the three, although the exact con-
tent is specified somewhat differently in the statutes: for Australia and Canada,
acquaintance with the responsibilities and privileges of citizenship, and for the
United States, knowledge of the fundamentals of U.S. history and the principles
and form of its government; and (7) an oath of allegiance. In this age that trum-
pets multiculturalism, these commonalities describe polities that still insist, in a
carefully measured way, on elements of a shared culture to be learned by aspir-
INT R ODUC T ION T O PAR T ONE 27

ing members. The elements consist primarily of language and some degree of
shared understanding about how governments operate and ought to oper-
ate—that is, in service of a sovereign citizenry. That Canada’s language re-
quirement offers two choices, English or French, reflects that country’s unique
membership challenge, but even there bilingualism has not eroded to an indif-
ference that would tolerate self-selected multilingualism on the part of new
members.
Only the United States still includes in its oath language renouncing other al-
legiances. Moreover, only the United States, perhaps reflecting its history as a
country “dedicated to a proposition,” in Abraham Lincoln’s words, requires a
specific finding of “attach[ment] to the principles of the Constitution.” In mod-
ern practice, however, attachment is not a significant hurdle for applicants.
Australia and the United States expressly require also a finding of good moral
character—which primarily serves to screen out those who have committed
crimes during their probationary period. Canada does not include such a speci-
fication, but it does disqualify from naturalization those who are under a depor-
tation order, and perhaps this latter provision serves, in practice, to bar those
with serious criminal records.

Debates Over Dual Nationality

These states have all migrated from the early twentieth-century consensus,
reflected in the 1930 Hague Convention, that was hostile to dual nationality, but
all have changed course at various times, still wrestle with the issue, and remain
far from a settled consensus on the matter. Canada is the most explicitly tolerant
of dual citizenship, requiring no renunciation of other allegiances at the time of
naturalization and not treating naturalization elsewhere as an event that triggers
loss of Canadian citizenship. But a 1994 official commission, discussed here by
Galloway, urged limiting dual nationality and expressed concern about those
who treat citizenship as a mere “insurance policy.” The United States still re-
quires renunciation by naturalizing citizens, but it is decreasingly serious about
enforcing that part of the oath. Earlier U.S. laws treating naturalization else-
where as an automatic expatriating act were greatly limited by Supreme Court
interpretations of the U.S. Constitution and eventually were amended to con-
form. Now U.S. citizenship is lost on such an occasion only if the citizen specif-
ically intends to relinquish it when acquiring another. Australian practice, as
Zappalà and Castles note, is the opposite of that of the United States. Natural-
ized Australian citizens may retain their earlier allegiances, but Australians
who naturalize elsewhere lose their original nationality. As in Canada, 1994
also produced an Australian commission report urging reforms, but in this case
28 DAVI D A. MARTI N

in the direction of greater acceptance of dual nationality. Political calculations

made the government unwilling, under two different parties, to proceed with
the recommendation. The United States has witnessed no comparable official
recommendation, but the Aleinikoff chapter gives evidence of the growing cho-
rus of commentators calling for greater acceptance of dual nationality, as well
as persistent voices of resistance. Congress has made no serious moves toward
changing the statutes in this direction. Elite opinion in each of these countries
appears somewhat distant from popular opinion, which remains more skeptical
about the risks associated with divided loyalties. Whether this divergence re-
flects a lack of enlightenment by the public in a global era or instead a failure by
elites to take seriously the ordinary citizen’s valuing of loyalty, sacrifice, and
commitment is not clear.

These debates over dual nationality may reflect a deeper insecurity or confu-
sion that is surprisingly present for each of these nations. On any world scale of
political, economic, and social achievement, these countries are spectacular
success stories. No doubt that is part of why they remain popular countries of
immigration; people want to partake of those successes. But each worries that
while people are eager to come as immigrants, they are not joining as citizens in
sufficient number—or if the numbers are high, that people are doing so for in-
strumental or selfish reasons rather than as an expression of real commitment.
This fear has been voiced in the United States, especially since amendments in
1996 greatly restricted the public assistance available to legal immigrants. As
Aleinikoff recounts, that change had the predictable effect of greatly spurring
naturalization, but some of the authors of the restriction then complained that
the naturalization backlogs grew for the wrong reasons. A similar debate oc-
curred in Canada, but, remarkably, in the more sedate judicial precincts of a
court case challenging the reservation of certain public service jobs for Cana-
dian citizens. As Galloway describes Lavoie v. Canada, two noted political the-
orists battled it out as expert witnesses over whether such a policy could be
sustained as a valid incentive to naturalize. Peter Schuck supported such an ap-
proach (and the court ultimately agreed), but Joseph Carens asked whether nat-
uralization is validly induced by such parochial considerations. The three
chapters therefore provide much food for thought on these questions: What are
the wrong reasons to naturalize? Why do such successful societies manifest this
concern? And just what are the right reasons?
To an important extent, this anxiety reflects the general success of what
Aleinikoff calls the “lawful settlement as membership” model. Each of these
three societies has chosen to treat lawful permanent residents, for nearly all pur-
INT R ODUC T ION T O PAR T ONE 29

poses, on a par with citizens. Such residents have long enjoyed ample legal
protections—probably expanded in recent times through both statutory
changes and adherence to international human rights treaties; nearly full access
to the job market (saving only some public service jobs); free mobility; and
wide social and economic opportunities. (The chapters do not deny lingering
effects of discrimination, but apparently these are types of discrimination not
perceived as easily remedied through naturalization.) In that context, many im-
migrants see little to be gained from changing citizenship. This fact may reveal
a lamentable decline in the level and importance of political debate and engage-
ment, because political rights are the main benefit denied to noncitizens. But in
any case, the dissatisfaction or concern about the quantity and quality of natu-
ralization decisions is visible throughout all three chapters.
The foundation of that social concern is this fact (and it is reflected as well in
the ongoing debates over dual nationality): a significant portion of each coun-
try’s populace hungers for citizenship to signify more than a mere alliance of
convenience. Various nouns appear in the chapters’ narratives, or in manifold
quotes from official commissions, parliamentary debates, or court decisions, to
describe the desired quality: cohesion, unity, commitment, belonging, identify-
ing with the nation, making citizenship more meaningful, “resacrilization” of
citizenship, loyalty, sacrifice, solidarity—or “mateship and a fair go,” in the
captivating idiom of the Australians. Galloway is skeptical of this hunger and
concerned that it may result in policies that override individual rights and equal
respect of persons, whereas Aleinikoff and Zappalà and Castles seem prepared
to find more merit in the impulse. Perhaps it should not be surprising that these
would crop up as concerns for multiethnic societies in a decade when other
states are coming apart at their ethnic seams. Whatever the source, many of the
participants in these societies’ debates sense, without fully articulating the rea-
sons, that the institution of citizenship contributes significantly to the glue that
helps polyethnic societies find some measure of unity.

A New Metaphor
In the meantime, inspired by the threefold modeling provided in two of the
chapters (and the multifold typologies offered in the third), I close by attempting
a similar contribution. It is nothing so ambitious as a set of models—merely a set
of metaphors that may help capture some of what these societies now seek.
Zappalà and Castles describe three ideal-typical models of incorporation of im-
migrants: differential exclusion, whereby immigrants are incorporated in special-
ized ways, for example, as guest workers in the economic life of the country, but
30 DAVI D A. MARTI N

still denied access to other arenas; assimilation, whereby immigrants are asked to
undertake a one-sided process of adaptation; and pluralism, which entails equal
rights in all spheres of society but retention of cultural diversity.
The three countries treated in this section have no real truck with the first
model—or at least they no longer do. But the other two gave rise to metaphors
that have often been used in the debate. Assimilation of course calls to mind
Zangwill’s famous melting pot, from which a single unified alloy emerges al-
though the starting materials may be highly diverse.1 This metaphor was strik-
ingly popular in the United States through the early part of the twentieth
century, but it fell out of favor in the latter half, as ethnic groups came to decry
enforced uniformity, insisted on retaining elements of their own cultures, and
won support from wide segments of society. Thus the melting pot came to be re-
placed by the pluralists’ or multiculturalists’ image, the salad bowl, whose di-
verse ingredients remain highly distinguishable.2 They each retain their own
identity. The anxieties about commitment, loyalty, or solidarity that linger in
these three multicultural countries, however, suggest the limits of that meta-
phor. The ingredients of a salad do not really cohere. All they share is the same
physical bowl and, perhaps, the same thin layer of dressing.
A third metaphor is available, the stir-fry.3 Appropriately enough, this dish is
a foreign import to U.S. shores, a seasoned mix of vegetables and meat or sea-
food typically stirred together in a wok over an open flame. The image better re-
flects the heat generated in the process of immigration and mutual adaptation.
But more important is what happens to the ingredients. They do not lose their
distinctiveness; this is no melting pot. You can always tell the broccoli from the
chicken, and even from the green peppers or the cauliflower. But the ingredi-
ents cannot remain wholly unchanged either. A well-cooked stir-fry subtly
changes the constituent parts and makes them part of a unified single dish.
Moreover, the flavor of the whole changes, incrementally, as new ingredients
are added. Adaptation is not one-sided.
The challenge for all three of the countries in this section is to make such di-
versity-with-unity work. The elusive and multidimensional concept of citizen-
ship is bound to play a key role.

1. Zangwill, 1916.
2. See D'Innocenzo and Sirefman, 1992.
3. This image was first suggested to me by a 1992 cartoon drawn by Dirk Locher of the
Chicago Tribune (reprinted in University of Maryland, 1994, p. 3). It portrays an elementary school
classroom whose blackboard announces the day's subject: “American History and Racial
Relationships.” A child stands at his desk reciting to a frowning teacher: “My father says we aren't a
melting pot anymore, we're stir fried.” The cartoon seems critical of the idea, but on reflection the
image strikes me as richer than the artist may have realized.
INT R ODUC T ION T O PAR T ONE 31

References
D’Innocenzo, Michael, and Josef P. Sirefman, eds. 1992. Immigration and Ethnicity:
American Society—“Melting Pot” or “Salad Bowl?” Westport, Conn.: Greenwood
Press.
University of Maryland. 1994. Report from the Institute for Philosophy & Public Policy,
vol. 14, number 1/2.
Zangwill, Israel. 1916. The Melting-Pot: Drama in Four Acts. New York: Arno Press.
 CHAPTER TWO

Citizenship and Immigration

in Australia

GIANNI ZAPPALÀ
STEPHEN CASTLES

If . . . copies of an Australian Citizenship Act which made sense were dis-

tributed we might all come to feel and better understand the value of our
citizenship. Better still if we could at the same time have . . . copies of a
Constitution that in its broad outline did describe the nature of our federal
polity in terms all could understand.

Sir Ninian Stephen, former governor-general of Australia, 1993

AS A NATION-STATE, Australia is a fairly recent creation. The history of modern

Australia goes back to 1788, when the first British colonists arrived. In 1901,
Australia became a self-governing entity through Federation and the adoption
of a constitution. This step, however, did not mean full independence, since
Australia remained a dominion within the British Empire and followed the eco-
nomic and foreign policy interests of the “Mother Country” without ques-
tion—even into two world wars. Nor did Federation create the Australian
citizen, since the Constitution did not mention citizenship and Australians were
to remain British subjects until 1949. Even then, despite the introduction of its
own citizenship, Australia continued to lack some of the trappings of nation-

This paper draws largely on work done for the research project “Intercultural Relations, Identity
and Citizenship: A Comparative Study of Australia, France, and Germany.” We acknowledge
funding from the Volkswagen Foundation and the Australian Research Council. We thank Colleen
Mitchell, Ellie Vasta, and Luke McNamara.

32
AUST R AL IA 33

hood: for instance, a foreign monarch is still head of state. Unlike most modern
countries, therefore, it is impossible to state precisely when the nation-state was
born (if indeed, it has been fully). Australia Day, the 26th of January, commem-
orates the arrival of the First Fleet (bearing convicts and soldiers) in Sydney
Cove, rather than an act of creating nationhood, and is referred to bitterly by In-
digenous Australians as “Invasion Day.”
Similar contradictions are to be found in the development of the Australian
people. The Aboriginal and Torres Strait Islander peoples (the “Indigenous
Australians”) were decimated, dispossessed, and marginalized by white settle-
ment:1 their numbers fell from an estimated 500,000 in 1788 to just 67,000 in
1901.2 The white settlers of the nineteenth century brought ethnic and class con-
flicts with them from Britain: the struggles between the English and the Irish af-
fected Australian politics into the twentieth century, while immigration became
an issue of class conflict, with employers wanting cheap “coolie labor,” and un-
ions demanding immigration control and wages “fit for white men.” Chinese
and other non-European immigrants encountered considerable racism. By the
time of Federation, Australians saw themselves as a new “branch of the British
race,” who would create an egalitarian society while maintaining their British
links. The White Australia Policy was considered vital for national survival.3
Until World War II, Australia continued to develop its identity as a white soci-
ety based on British culture and heritage. Yet after 1945, Australia embarked on
a mass immigration policy, designed to strengthen the nation demographically
and economically. Table 2-1 shows how Australia’s population has changed in
the past half-century.
Against the intentions of its architects, this immigration program was to
transform Australia into one of the most culturally diverse countries in the
world.4 The aim was to bring in mainly British immigrants, but the source areas
became increasingly diversified: eastern and northern Europe in the late 1940s,
southern Europe in the 1950s and 1960s, and then—with the collapse of the
White Australia Policy—Asia in the 1980s and 1990s. Table 2-2 shows how
Australia’s immigrant population has changed since 1971. While the numbers
of immigrants from the United Kingdom and Ireland have remained fairly con-
stant, some of the older European immigrant groups have declined (for exam-

1. See, for example, Reynolds, 1987.

2. See Galligan and Chesterman, 1997, pp. 45, 59. The 1901 figure should be taken with
caution, as Aborigines were not counted in the census, and the various states had differing
definitions on who should be considered an Aborigine.
3. See, for example, McQueen, 1975.
4. See Castles et al., 1992, p. 1.
AUST R AL IA 34

Table 2-1. Population of Australia, 1947–1996

Units as indicated
Overseas-born Overseas-born as
Census year Total population population percentage of total
1947 7,579,385 744,187 9.8
1954 8,986,530 1,286,466 14.3
1961 10,508,186 1,778,780 16.9
1971 12,755,638 2,579,318 20.2
1976 13,548,448 2,718,318 20.1
1981 14,576,330 3,003,834 20.6
1986 15,602,163 3,247,301 20.8
1991 16,407,045 3,689,128 22.5
1996 17,892,418 3,908,213 21.8
Source: Australian Bureau of Statistics, various years, Census of Population and
Housing-Australian Families and Households, Canberra, Australian Bureau of Statistics (on file
with authors).

ple, from Italy and Greece), while the “other Europe” category has grown. The
big increases, however, are in Asia-born and New Zealand–born immigrants.
Today, 22 percent of the Australian population is overseas-born, and a fur-
ther 20 percent are children of immigrants (the highest immigrant proportion of
any developed country except Israel).5 Thus, about 7.3 million of the 17.9 mil-
lion people living in Australia in 1996 were either immigrants or their children.
Settlers have come from more than 100 countries; Australians can have any
skin color, speak a vast range of languages, adhere to any of the world’s reli-
gions, and follow a great variety of cultural practices.
For the purpose of studying ethnicity in Australia, it is useful to separate
English-speaking background (ESB) and non-English-speaking background
(NESB) immigrants. About 2.5 million members of the Australian population
in 1996 were immigrants from NESB countries. If we add the second genera-
tion, about 4.8 million people, or a quarter of the Australian population, were of
NESB origin. Another indicator of ethnicity is language: the 1996 census
showed that nearly 3 million people spoke a language other than English at
home. The most common were Italian (376,000 speakers), Greek (270,000),
Cantonese (202,000), Arabic (178,000), Vietnamese (146,000), German
(99,000), Mandarin (92,000), Spanish (91,000), and Macedonian (71,000).6
An important factor in considering relations between different ethnic groups
is their relative size. Apart from the Italians (1.4 percent of the total population),

5. See Australian Bureau of Statistics, July 1997.

6. See Australia, Department of Immigration and Multicultural Affairs, 1997, Immigration
Update.
AUST R AL IA 35

Table 2-2. Immigrant Population of Australia by Birthplace

Thousands
Place of birth 1971 1981 1991 1996
Europe 2,197 2,233 2,300 2,217
United Kingdom and Ireland 1,088 1,133 1,175 1,124
Italy 290 276 255 238
Former Yugoslavia 130 149 161 ...
Greece 160 147 136 127
Germany 111 111 115 110
Other Europe 418 418 457 618
Asia (with Middle East) 167 372 822 1,007
New Zealand 81 177 276 291
Africa 62 90 132 147
America 56 96 147 151
Other and not stated 18 36 75 95
Total 2,591 3,005 3,751 3,908
Source: Australian Bureau of Statistics, various years, Census of Population and
Housing-Australian Families and Households, Canberra, Australian Bureau of Statistics (on file
with authors).

no first-generation NESB group makes up more than 1 percent of Australia’s

population. By contrast, in some European countries certain ethnic groups are
large enough to constitute substantial minorities, for example, the 2 million
Turks in Germany, or the million-plus people of Algerian origin in France. The
Australian people today consist of an Anglo-Australian majority and a large
number of relatively small minority groups.
These peculiarities of Australian history are significant in that they have
been influential in the formation of a model of the nation-state and of citizen-
ship different from both the Western European and the U.S. models. Unlike Eu-
ropean countries, it is difficult for Australians today to appeal to a sense of
shared ethnic heritage, since the population has such diverse origins. Until the
1960s, official policy was to base national identity on British heritage and to
deal with diversity through assimilation. Easy access to naturalization was part
of this model: the waiting period was reduced from an initial five years to just
two by 1984.7 Absorbing newcomers into the dominant Anglo-Australian cul-
ture and identity was also crucial. It was the failure of this attempt to maintain
cultural homogeneity—demonstrated through language maintenance and the
formation of ethnic communities—that led to the abandonment of assimilation
policy and the introduction of multiculturalism in the 1970s. Ethnic belonging
clearly could no longer provide an adequate basis for membership in an increas-
ingly diverse country.

7. See Australia, 1984, Australian Citizenship Amendment Act, § 11.

36 GI ANNI ZAPPALA AND STEPHEN CASTLES

But Australia cannot easily adopt the model of civic belonging developed by
other immigration countries, like the United States. Australia lacks the histori-
cal events that would symbolize its autonomy and uniqueness. There is no act of
national liberation like the American Revolution, and no document laying
down what it means to be an Australian analogous to the U.S. Constitution and
Bill of Rights. What is belonging to be based upon, if neither ethnicity nor
shared historical experience provides a core notion of “imagined community”?
Although Australia, like the United States, treats the act of naturalization of im-
migrants as a public rite of passage, few Australians could give a clear idea of
what it means to be a citizen, beyond the right to a passport and the duty to vote
(which is compulsory in federal and state elections).
Citizenship and its legal and constitutional basis, however, are issues of pub-
lic debate in Australia—perhaps more so today than at any time since 1901.
There are a number of reasons for this:
—1. The impending centenary of Federation, which many people see as an
opportunity to review the Constitution and possibly modify it to enshrine mod-
ern conceptions of citizenship;
—2. The debate about whether Australia should sever the connection with
the British monarchy and become a republic. A Constitutional Convention in
February 1998 decided on a formula for change. However, this was rejected by
a Referendum in November 1999, confirming the status quo.
—3. Uncertainty about the position of Indigenous Australians within the so-
ciety and polity. A referendum held in 1967 was a powerful assertion of the po-
litical will to bring about inclusion of Indigenous Australians, yet their
continuing social and economic marginalization, together with recent conflicts
about land rights, cast doubt on their full possession of substantive citizenship;
—4. Recent measures to subject new immigrants to waiting periods (cur-
rently of two years) for eligibility to a range of welfare benefits have under-
mined the principle of equal treatment of all legally admitted permanent
residents. As in the United States, this trend toward greater differentiation be-
tween the rights of citizens and resident noncitizens marks a major shift in pol-
icy;
—5. Current debates on national identity have again raised the issue of
whether rules on naturalization and dual citizenship should be changed to more
clearly define the meaning of citizenship.
In this paper we will examine the meaning of citizenship in Australia and
discuss some of the current tendencies toward change. We will start by looking
at the mixture of jus soli and jus sanguinis that determines formal belonging as
a citizen. In this context, we will discuss the position of Australia’s Indigenous
Australians. Then we will examine rules for naturalization, and how these have
AUST R AL IA 37

evolved in response to attempts to manage mass immigration since 1945. We

will discuss dual citizenship, a trend that is on the increase in Australia as in
many other countries. Australian practice on dual citizenship is in important re-
spects the exact opposite of the U.S. model. This topic, too, is marked by in-
tense public debate, especially with regard to the political rights of dual
citizens. We further discuss differences in rights between citizens and
noncitizens. We will review some of the current public debates on citizenship
and finally discuss models of citizenship and where Australia fits in interna-
tional comparison.

Who Are Citizens of Australia?

The present conception and practice of Australian citizenship can only be

understood against Australia’s past background and development as part of the
British Empire and then Commonwealth. Although some see the 1901 Federa-
tion of what were then colonies into the Commonwealth of Australia as the offi-
cial beginning of nationhood, the Constitution that enacted that union had very
little—if anything—to say about issues such as who is a citizen of Australia,
and what their rights as well as duties and obligations are or should be.8 One rea-
son for this reticence was that the framers associated the term “citizen” with re-
publicanism, and the status of British subject was seen as more appropriate to
the Crown’s position of center and protector of British colonies, dominions,
and possessions.9 A second reason was that the delegates at the constitutional
conventions thought that if the word citizen appeared in the Constitution, it
would create confusion about whether it referred to being a citizen of the states
or of the Commonwealth.10 Perhaps most important, the status of British subject
did not imply that its holders necessarily held the types of rights associated with
citizenship. Indigenous Australians and non-European immigrants from British
colonies (for example, India, parts of China, and the New Hebrides) were Brit-
ish subjects, but Australia’s founding fathers did not want to give them equal
rights. Leaving the definition of rights to parliamentary statutes made it easier
to discriminate against “inferior races.”11 That is why Australia has no docu-
ment stating the rights of citizens, like the U.S. Bill of Rights or the French Dec-
laration of the Rights of Man.12

8. The Constitution does make reference to citizenship of a foreign power in section 44(i). We
return to this in Dual Citizenship infra.
9. See Chesterman and Galligan, 1997, pp. 2–3; see also Galligan and Chesterman, 1997, p. 57.
10. See Galligan and Chesterman, 1997, p. 57.
11. See Galligan and Chesterman, 1997, p. 57.
12. See Galligan and Chesterman, 1997, p. 57.
38 GI ANNI ZAPPALA AND STEPHEN CASTLES

The end of World War II saw a greater desire on the part of Dominions, such
as Australia, for policies that reflected more local needs and concerns (eco-
nomic as well as political), though still within the Imperial-Commonwealth
framework.13 A 1947 Commonwealth-wide conference therefore agreed that
each Commonwealth country would enact its own legislation governing citi-
zenship but would also continue to confer an additional status of British subject.
In the same year that Britain enacted its British Nationality Act14 (which created
a separate citizenship for Britain and its colonies), Australia passed the Nation-
ality and Citizenship Act, 1948.15 So it was not until 1949 that “Australian citi-
zens” came into being, although this status was in addition to the general status
of British subject that they still held. Yet, what the difference between being an
Australian citizen, as opposed to a British subject, involved was not clear to ei-
ther the population or those who administered the act. Despite the 1948 act, citi-
zenship continued to be seen in cultural and ethnic terms (that is, British), rather
than in terms of rights and responsibilities. As Jordens argued:

This culturally normative conception of citizenship was clearly reflected

in the definition of “alien” embodied in the Act. A nation’s understanding
of itself is revealed by the categories of people it regards as foreign, alien
and “other.” From 1948 to 1987 Australia’s citizenship legislation de-
fined an alien as “a person who does not have the status of British subject
and is not an Irish citizen or a protected person.” The image of Austra-
lians enshrined in the Act, therefore, was that of an Anglo-Celtic people.16
The conception of citizenship during this period led to positive discrimina-
tion in favor of British immigrants, and obstacles against non-British immi-
grants. Non-British immigrants, for instance, were only eligible for citizenship
after having been resident in Australia for five years and two years after making
a “Declaration of Intention to Apply for Naturalization.” Furthermore, they had
to renounce any previous allegiances at public naturalization ceremonies. In
contrast, British immigrants could apply for citizenship after only one year in
Australia. Non-British immigrants, or “aliens,” had limited property rights,
only partial access to income protection, and no voting rights.17 British immi-
grants (even noncitizens) faced none of these restrictions. They could claim
age, invalid, and widows’ pensions (restricted to British subjects only);18 had

13. See, generally, Zappalà, 1994, p. 5.

14. Great Britain, 1948, British Nationality Act.
15. Australia, 1948, Nationality and Citizenship Act (later called the Australian Citizenship
Act, 1948).
16. Jordens, August 1991, p. 1.
17. Jordens, August 1991, p. 1.
18. See Jordens, 1995, p. 92.
AUST R AL IA 39

access to public housing (also restricted to British subjects);19 and had the right
to vote (even if they had not been naturalized).20 It should not be surprising,
therefore, that many British immigrants did not take up Australian citizenship,
as for all intents and purposes their rights were the same as native Australians.
Although Australia’s formal rules of citizenship had been and were based on
the principle of jus soli, behind these rules lay an ethno-blood notion of the “na-
tional family” that made Australia similar to countries whose citizenship laws
were based on jus sanguinis.21 This fact was reflected in the title of the principal
act itself, placing both “Nationality” and “Citizenship” side by side (“National-
ity” was only removed from the title in 1973). This conception of citizenship had
detrimental consequences for a nation that was embarking on one of the world’s
largest migration programs. Conceived in a period when the expectation was that
there would be ten British immigrants for every one non-British immigrant, it
may have had some justification. But as immigrants increasingly came from
non-British origins, they had to show that they “belonged” to the “national fam-
ily,” which was British. Being an Australian citizen therefore was not distinct
from being a British subject. The postwar immigration program made Australia
one of the most multiethnic states in the world. Imposing a notion of “belonging”
to some sort of preexisting British nation became increasingly tenuous.22
The changes that had occurred in Australian society since the postwar mi-
gration program began to receive serious recognition with the election of the
Australian Labor Party (ALP) government, led by Prime Minister Whitlam in
1972. This period saw the beginning of the policy of multiculturalism that
would be supported by all major political parties until 1996.23 Reflecting these
changes, several important amendments were made to the laws and, as a conse-
quence, the conceptions governing citizenship in Australia, the impact of which
was an official “shedding of the nexus between nationality and citizenship.”24
By the 1990s, despite a reticence to officially accept dual citizenship,25 the
changes to citizenship “completed a long evolution from a formal official rec-
ognition of multiculturalism to an almost nationality-neutral Act.”26 The mas-
sive non-British immigration that Australia experienced has been at the root of

19. See Jordens, 1995, pp. 64–65.

20. See Jordens, 1995, p. 52.
21. See, generally, Davidson, 1997.
22. See Davidson, 1997.
23. At the election that was held on March 2, 1996, the ALP lost government after thirteen
years in office. A new government was formed by a coalition of the two main conservative parties,
the Liberal Party and the National Party, under the prime ministership of John Howard. Throughout
this paper the terms Coalition or Coalition government are used to refer to this political grouping.
24. See Davidson, 1997, p. 88.
25. See discussion infra Dual Citizenship.
26. Davidson, 1997, p. 119.
40 GI ANNI ZAPPALA AND STEPHEN CASTLES

a “long process of legislative, administrative, and eventually cultural change.”27

Australia is shifting away from a culturally bound notion of citizenship toward
a civic one, permitting equality of rights for all Australians, irrespective of their
origins. Citizenship is based not on ethnicity or culture, but on the principle of
territoriality, that is, residence on the territory of the Australian state.

The Situation of Indigenous Australians

When did Aboriginal and Torres Strait Islander people become citizens?
The answer depends on whether one uses a purely legal definition of citizen-
ship, or whether one takes a broader definition based on T. H. Marshall’s idea of
citizenship as the status of “full membership of a community” that confers civil,
political, and social rights.28 In legal terms, Indigenous Australians were sub-
jects of the British Crown before Federation in 1901, and remained so after-
wards. They became Australian citizens in 1949 (through the Nationality and
Citizenship Act, 1948). But just as subjecthood had not conferred rights, citi-
zenship after 1949 was an “empty shell,” because Indigenous Australians con-
tinued to be excluded from most of the rights and duties of Australian citizens.29
The 1967 referendum is generally seen as the act of recognition of formal citi-
zenship rights for Indigenous Australians, although even then many forms of
legal discrimination remained. It did little, however, to achieve actual equality
of enjoyment of rights, whether civil, political, or social, for Aborigines. A
prominent Indigenous leader, Mick Dodson (formerly federal Aboriginal and
Torres Strait Islander social justice commissioner) concludes: “In practice, Ab-
original and Torres Strait Islanders did not, and still do not, exercise and enjoy
basic citizenship rights.”30
The colonization of Australia was justified by the legal doctrine of terra
nullius, according to which the land was not possessed by anyone before arrival
of the British. Indigenous rules on land use were not seen as constituting legal
tenure. Thus, the Aborigines were legally invisible. Since they did exist and re-
sisted British seizure of the land, however, the colonists waged a war of exter-
mination against them, which lasted into the twentieth century. By the time of
Federation, the remaining Aborigines were dispossessed and marginalized. The
authorities of the various colonies appointed “protectors” and set up reserva-
tions to house the “dying race.”31 Indigenous Australians were in no position to
claim their rights, even if the status of subject had conferred any on them.32 In

27. See Jordens, 1995, p. 1.

28. See, generally, Marshall, 1964, p. 65.
29. See Galligan and Chesterman, 1997, p. 58.
30. Dodson, 1997, p. 57.
31. Davidson, 1997, p. 193.
32. See Davidson, 1997, Chapter 6.
AUST R AL IA 41

fact, the Australian Constitution33 expressly excluded Aborigines from the spe-
cial race power34 that gave the Commonwealth the right to make laws for people
of other races. This power was designed to allow regulation of the situation of
Chinese, Pacific Islanders, and so on, while Aboriginal affairs were left to the
states. The Constitution also excluded Aborigines from being counted in the
census,35 because the census was mainly designed to count the number of elec-
tors in each state, and Aborigines were not supposed to vote.36
Although Aborigines had been by law (though not usually in practice) al-
lowed to vote in all states except Queensland and Western Australia, they were
denied the right to vote at the federal level through the Commonwealth Fran-
chise Act, 1902.37 This act also stripped them of the right to vote in state elec-
tions.38 This act was just one of many discriminatory measures in every area of
Australian society that made Indigenous Australians into an impoverished, op-
pressed, and excluded minority.39 As it became apparent in the early twentieth
century that Indigenous Australians were not dying out, but indeed increasing
in numbers, a new policy of assimilation was introduced. This policy involved a
range of measures designed to destroy Aboriginal culture. The cruelest practice
was that of forcibly taking away children (especially those of mixed parentage)
from Aboriginal parents.40 This continued into the 1960s, as the recent inquiry
into the “Stolen Generations” has documented.41
Becoming Australian citizens in 1949 changed little for Indigenous Austra-
lians, not even giving a general right to vote. The Commonwealth Electoral
Act, 1962,42 finally gave Indigenous Australians the right to vote,43 but unlike
other Australians, enrollment and voting were not compulsory. It was not until
1983 that the rules were changed so that Indigenous Australians had the same
voting obligations as other citizens.44 The 1967 referendum did not, as is often
stated, confer citizenship on Indigenous Australians. In fact, it simply changed
the two references to Aborigines in the Constitution, giving the Commonwealth
the right to make laws for all Indigenous Australians, and including them in fu-

33. Section 9 of the Commonwealth of Australia Constitution Act, 1900, promulgated the
Australian Constitution.
34. See Australian Constitution, 1900, ch. I, pt. 5, § 51, ¶ 26.
35. Australian Constitution, 1900, ch. VII, § 127 (repealed 1967).
36. See Galligan and Chesterman, 1997, p. 45.
37. Australia, 1902, Commonwealth Franchise Act.
38. See Rubenstein, 1995, pp. 503, 519.
39. See, for example, Markus, 1987; Reynolds, 1987; Rowley, 1970.
40. See Davidson, 1997.
41. See Human Rights and Equal Opportunities Commission, 1997.
42. Australia, 1962, Commonwealth Electoral Act.
43. See Australia, 1962, Commonwealth Electoral Act, § 2 (removing the prohibition
contained in earlier versions of the legislation).
44. See Jordens, 1995, pp. 11–12.
42 GI ANNI ZAPPALA AND STEPHEN CASTLES

ture population censuses. The referendum had enormous symbolic significance,

however: it represented a major shift in public attitudes toward Indigenous Aus-
tralians, with most people now seeing them as Australians who should have equal
rights. This change was partly a result of many years of political activity by Indig-
enous organizations and white people who supported them, leading up to a suc-
cessful campaign to mobilize public opinion before the referendum.45
Yet, formal membership for Indigenous Australians did not in itself over-
come white racism, nor the disastrous social effects of two centuries of oppres-
sion. The passage of the Racial Discrimination Act, 197546 (which was
necessary because of Australia’s ratification of the International Convention on
the Elimination of All Forms of Racial Discrimination)47 was an important
milestone because it did give an avenue for redress for some types of discrimi-
nation. Yet, even today, indicators such as labor market position, educational
attainment, health conditions, life expectancy, and political participation reveal
that Indigenous Australians are not full citizens.48 Important changes in the
1990s have made new approaches vital. The High Court’s 1992 decision in
Mabo v. Queensland49 overthrew the colonial legal doctrine of terra nullius,
which led to pressure, especially from mining and farming interests, for legisla-
tion to regulate land ownership. The result was the Native Title Act, 1993,50
which set out to define the rights of Indigenous Australians to the land, and to
establish mechanisms to implement these rights. This assertion of the rights of
Indigenous Australians is deeply threatening to many Australians, including
groups with considerable economic and political power.51

Present Rules of Citizenship Acquisition

As noted earlier, citizenship (with some minor exceptions) is not a concern
of the Constitution. For instance, a constitutional commission recommended in
1988 that section 51 of the Constitution, enumerating the Commonwealth Par-
liament’s heads of power, be modified to give the Federal Parliament power to
make laws with respect to nationality and citizenship.52 Such a separate “citi-
zenship power” would give Parliament a stronger constitutional basis for legis-
lation in this area. The key piece of federal legislation that affects citizenship in

45. See Davidson, 1997, Chapter 6.

46. Australia, 1975, Racial Discrimination Act.
47. See, generally, International Convention on the Elimination of All Forms of Racial
Discrimination, opened for signature March 7, 1966, 660 U.N.T.S. 212.
48. See Peterson and Sanders, 1998. This publication examines all these particular issues.
49. Mabo v. Queensland (no. 2) (1992) 175 C.L.R. 1.
50. See Australia, 1993, Native Title Act.
51. See Dodson, 1997, p. 58.
52. See Rubenstein, 1995, p. 506.
AUST R AL IA 43

Australia is the Australian Citizenship Act, 1948,53 which has been described by
a former governor-general of Australia as a “masterpiece of legislative incoher-
ence.”54 Although the act has undergone several amendments since 1948, the
most recent changes to the act concerning who is an Australian were made in
1986. The Citizenship Act provides for the acquisition of Australian citizenship
through four main ways: birth, adoption, descent, and by grant.

JUS SOLI. Acquisition of citizenship by birth is dealt with in section 10 of

55
the Australian Citizenship Act, 1948. In general, a person born in Australia on
or after August 20, 1986, will be an Australian citizen if (a) one of their parents
was at the time of their birth an Australian citizen or permanent resident; or (b)
they have been ordinarily resident in Australia for a ten-year period from the
time of their birth.56 The 1986 decision to limit the jus soli principle was the re-
57
sult of the case of Kioa v. West, where it had been argued that the child of the
parents who were subject to a deportation order was an Australian citizen and
was therefore entitled to natural justice.58 Even though the court did not support
this argument, the government saw fit to amend the legislation to avoid any fu-
ture challenges by illegal immigrants who had had children while in Australia.
Children born on Australian soil of illegal immigrants are therefore not Aus-
tralian citizens. But the law does allow children born in Australia on or after
August 20, 1986, to become Australian citizens on their tenth birthday, if they
did not become citizens at birth and have been resident in Australia for the ten
years since their birth.59 This still does not alter the parents’ rights either to citi-
zenship or to remain in Australia if they were or are illegal noncitizens. In gen-
eral, people born in Australia between January 26, 1949, and August 19, 1986,
are Australian citizens, while those born before January 26, 1949 (that is, those
who were British subjects), are also Australian citizens.60

53. Australian Citizenship Act, 1948 (originally called the Nationality and Citizenship Act).
Other federal acts that also relate to citizenship issues are the Migration Act, 1958; the Public
Service Act, 1922; and the Electoral Act, 1918, aspects of which are discussed below.
54. Stephen, 1993, p. 9.
55. Australian Citizenship Act, 1948.
56. See Australian Citizenship Act, 1948, § 10(2)(a)-(b).
57. Kioa v. West (1985) 159 C.L.R. 550.
58. See Rubenstein, 1995, p. 507.
59. See Australian Citizenship Act, 1948, § 10(2)(b).
60. This policy includes a person born in Australia (including territories) before January 26,
1949, who would have been an Australian citizen if the Citizenship Act had been in force at their
birth; a person born in the Territory of New Guinea before January 26, 1949; a person naturalized in
Australia before January 26, 1949; a person who before January 26, 1949, had been ordinarily
resident in Australia or the Territory of New Guinea, or partly in Australia and the Territory of New
Guinea for at least five years; a person born outside Australia and the Territory of New Guinea
before January 26, 1949, who enters Australia and whose father falls within the above rules; a
woman, who, before January 26, 1949, had been married to a person who becomes or would have
44 GI ANNI ZAPPALA AND STEPHEN CASTLES

JUS SANGUINUS. Section 10B of the act provides that people born outside
Australia are Australian citizens where the following conditions are satisfied:
(a) their name is registered at an Australian consulate within eighteen years of
their birth, and at least one of their parents was at the time of their birth an Aus-
tralian citizen who had acquired that citizenship other than by descent; or (b) at
least one of their parents was at the time of their birth an Australian citizen who
had acquired that citizenship by descent and before registration was present in
Australia for a period or periods amounting to not less than two years.61
Citizenship by adoption is possible if the adoptee has been lawfully adopted
by an Australian citizen or by two persons one of whom is an Australian citizen
and was a permanent resident in Australia at the time of adoption.62

Citizenship by Naturalization

Apart from citizenship by birth, citizenship by naturalization (or grant) is the

most important and discussed mode of citizenship acquisition in Australia. Ac-
quisition of Australian citizenship by naturalization or grant is contained in sec-
tion 13 of the Australian Citizenship Act, 1948,63 and gives the minister for
immigration discretion to grant citizenship to people who satisfy all the follow-
ing at the time they apply for citizenship: (1) they are permanent residents;64 (2)
they have reached the age of eighteen;65 (3) they understand the nature of the ap-
plication;66 (4) they have been present in Australia as a permanent resident for a
period totalling not less than one year during a period of two years immediately
preceding the date that the application was lodged;67 (5) they have been present
as a permanent resident in Australia for a period or periods to not less than two
years during a period of five years immediately preceding the date that the ap-
plication was lodged;68 (6) they are of good character;69 (7) they possess a basic

become an Australian citizen and who had entered Australia before January 26, 1949; and
illegitimate children born outside Australia in a British Commonwealth country or the Republic of
Ireland before January 26, 1949, whose mother at the time of their birth was a British subject
ordinarily resident in Australia or the Territory of New Guinea.
61. See Australian Citizenship Act, 1948, § 10B. This act excludes those who were present as
prohibited immigrants, prohibited noncitizens, illegal entrants, or those in breach of a law of a
prescribed Territory (that is, Norfolk Island or the Territory of Cocos Islands).
62. See Australian Citizenship Act, 1948, § 10A(a)-(b).
63. See Australian Citizenship Act, 1948, § 13.
64. See Australian Citizenship Act, 1948, § 13(1)(a).
65. See Australian Citizenship Act, 1948, § 13(1)(b).
66. See Australian Citizenship Act, 1948, § 13(1)(c).
67. See Australian Citizenship Act, 1948, § 13(1)(d).
68. See Australian Citizenship Act, 1948, § 13(1)(e).
69. See Australian Citizenship Act, 1948, § 13(1)(f).
AUST R AL IA 45

knowledge of English;70 and (8) they have an adequate knowledge of the re-
sponsibilities and privileges of Australian citizenship.71 Finally, the act also
states that if granted citizenship, the person would be likely to reside in Austra-
lia or maintain a close and continuing association with Australia.72

Brief Historical Overview

The procedures governing naturalization have undergone several significant

changes especially in response to the postwar migration program. The first na-
tionwide Naturalization Act was passed in 1903.73 This act deemed those people
already naturalized in the colonies as being naturalized in the Commonwealth
and those who were naturalized in the United Kingdom or had been resident in
Australia for two years were allowed to naturalize. This act continued the previ-
ous discriminatory policies of the colonies by also excluding Asians and blacks
from naturalization provisions.74 The Commonwealth Nationality Act, 1920,75
which was superseded by the Nationality and Citizenship Act, 1948,76 made a
distinction between native-born and naturalized Australians and aliens, and
was the first act to describe non-Australian citizens as “aliens.” The Nationality
and Citizenship Act, 1948, stated the main conditions that had to be met in order
for “aliens” to naturalize as Australian citizens. It is not coincidental that the
first act that created an “Australian citizenship” came into being at the same
time that Australia embarked on its massive postwar migration program that
would see the influx of millions of “aliens.” The intention was that these
“aliens” would be turned into “New Australian” citizens and assimilate to the
existing cultural norms. The Department of Immigration was, and continues to
be, responsible for administering citizenship and naturalization matters.
Although immigrants were encouraged to become Australian citizens, many
did not do so,77 which caused several government inquiries and campaigns to
encourage citizenship take-up among immigrants.78 The lack of take-up (a term

70. See Australian Citizenship Act, 1948, § 13(1)(g). This requirement does not apply to those
aged fifty years or more, or whose ability is affected by a physical or intellectual impairment.
71. See Australian Citizenship Act, 1948, § 13(1)(h). This requirement does not apply to those
aged sixty years or more, or whose understanding is affected by a physical or intellectual
impairment.
72. See Australian Citizenship Act, 1948, § 13(1)(j).
73. See Australia, 1903, Naturalization Act; see, also, Davidson, 1997, p. 60.
74. See Davidson, 1997, p. 60.
75. Australia, 1920, Commonwealth Nationality Act.
76. Australia, 1948, Nationality and Citizenship Act.
77. See Jordens, 1997, p. 181.
78. See Jordens, 1997, p. 175.
46 GI ANNI ZAPPALA AND STEPHEN CASTLES

used for encouraging immigrants to obtain citizenship) was seen primarily as

the result of a lack of loyalty on the part of immigrants, a failure to take up their
side of the “bargain.”79 There was little understanding that the complexity of the
regulations, poor English-language ability,80 and having to renounce one’s
country of birth81 made citizenship an unattractive option for many immigrants
from NESB. Furthermore, many could not understand why they had to take an
oath of allegiance to a foreign monarch in order to become “Australian” citi-
zens.82
In order to increase citizenship rates, various amendments were made to the
1948 act. In 1955, the need for the “Declaration of Intent” was removed and the
fee for naturalization certificates was reduced, then abolished in 1959.83 Despite
evidence that suggested that the requirement of renunciation of immigrants’
former nationality was a key factor in low citizenship take-up rates, in 1966 the
government incorporated the renunciation into the Oath of Allegiance to the
Queen.84 It was also in 1966 that the restriction of age, invalid, and widows’
pensions to British subjects only was removed.85 In 1967, in the context of Aus-
tralia’s involvement in the Vietnam War, conscription for aliens was intro-
duced, giving them a major responsibility of citizenship whether they wanted to
become naturalized or not.86 Yet, throughout the 1960s, only just over half of all
eligible aliens had applied for citizenship.87 Government leaders and opinion
makers were still concerned that many immigrants lacked commitment to Aus-
tralia.88
It had become obvious that low naturalization rates had perhaps less to do
with administrative complexity (although their gradual easing and simplifying
did help) and more to do with the failure of assimilationist policy. As Jordens
argued, “By the late 1960s the Government and the bureaucracy were begin-
ning to [recognize] that the reluctance of migrants to accept Australian citizen-
ship was often caused by systemic discrimination and the inability of Australian
institutions and services to respond to their needs.”89 This realization meant that
changes to the act after this period altered the terms of how citizenship was con-

79. See Jordens, 1997, p. 181.

80. See Jordens, 1997, p. 178.
81. See Jordens, 1997.
82. See Jordens, 1997, p. 174.
83. See Jordens, 1997, p. 177.
84. See Jordens, 1997, p. 179.
85. See Jordens, 1997, p. 186.
86. See Jordens, 1997, p. 175.
87. See Jordens, 1997, p. 183.
88. See Jordens, 1997, p. 181.
89. Jordens, August 1991, p. 8.
AUST R AL IA 47

ceptualized in more significant ways. Symbolic changes were also introduced.

After 1964, for example, the heading of the Australian passport was changed
from “British Subject” to “Australian” (although the words “British passport”
still appeared under the Australian coat of arms).90 Moreover, in 1969, the initial
five-year waiting period for naturalization was reduced to three, but only for
aliens who could read and write English.91 The wording of the act was also
changed to read that an Australian citizen had the “status” of a British subject,
rather than stating that an Australian citizen was a British subject.92 “Henceforth
it was sufficient to state that a person was an Australian citizen without the ad-
dition of ‘British subject.’”93 It was not until 1973, however, that substantial
changes to the 1948 act began in earnest.94
The privileged status of British immigrants was also abolished in 1973, with
both British and other immigrants required to reside in Australia for three years
before they could apply for citizenship.95 British immigrants were now also re-
quired to take the oath or affirm their allegiance to become citizens of Australia,
although it was only in 1984 that British immigrants who now came to Austra-
lia no longer had automatic voting rights.96 Further changes to the act were
made in 1984, 1986, and 1994, including a further reduction in the residence re-
quirement from three to two years, and replacing the allegiance to the British
monarch with allegiance to Australia and its people. In brief, these changes
continued to simplify and ease the process for immigrants to become citizens,
and also reflected the realization that “Australia was no longer simply Brit-
ish.”97 Indeed, some have argued that naturalization procedures in Australia are
now some of the most liberal in the world:

From a country of [jus] soli which . . . had erred in practice towards the
[jus] sanguinis, Australia became a country of [jus] soli whose rules
about naturalization were so open and policies so apt for the [globaliza-
tion] of the twenty-first century that . . . they were being proposed as
models for the rest of the world.98

90. See Davidson, 1997, p. 88.

91. See Davidson, 1997, p. 88.
92. See Davidson, 1997, p. 88.
93. Davidson, 1997, p. 88.
94. See Davidson, 1997, p. 88.
95. See Davidson, 1997, p. 88.
96. See Davidson, 1997, p. 88.
97. Davidson, 1997, p. 89.
98. Davidson, 1997, p. 87; see, also, Castles, 1992, “The Australian Model,” p. 549.
48 GI ANNI ZAPPALA AND STEPHEN CASTLES

The post-1973 changes had the desired effect in that citizenship take-up
rates increased from their low levels in the pre-1973 period.99 In 1991, 70 per-
cent of eligible overseas-born residents were Australian citizens.100 The highest
rates of naturalization of immigrants in Australia for at least ten years (more
than 95 percent) are shown by people from Greece, Lebanon, Poland, Vietnam,
and the Philippines. The lowest rates (less than 50 percent) are found among
people from the United Kingdom and New Zealand.101 Several factors are in-
volved in why different groups may have different citizenship rates, for in-
stance, length of residence and type of migration (refugees being more likely to
take up citizenship as soon as they are eligible in order not to remain stateless).
In 1996, there were 15.89 million Australian citizens living in Australia and an
estimated additional 1 million people who would be entitled to become citizens
if they so wished. In 1996–1997, the number of people granted citizenship was
108,266, with the major countries of former citizenship in that year being (in
rank order) Britain, China, New Zealand, former Yugoslavia, Vietnam, and the
Philippines.102

Settlement Policy: From Assimilation to Multiculturalism

The changing rules and practices concerning naturalization must be seen in
the context of changes in the policies of social incorporation of immigrants over
the past fifty years. The assimilationist policies in operation from the 1940s to
the 1960s embodied a concept of what it meant to be an Australian citizen quite
different from that of the later policy of multiculturalism. Yet, assimilationism
and multiculturalism did share common features: both policy makers and the
general public always expected most immigrants (whether from Britain or else-
where) to stay permanently and become citizens. Under assimilationism, how-
ever, the dominant view was that the newcomers had to give up their original
languages and cultures and embrace Anglo-Australian culture and behavioral
patterns if they were to be accepted as part of the national community. Later, in
the multicultural period, the official view (albeit one that was always contested
by some) was that immigrants had a right to maintain their languages and cul-
tures, and form ethnic communities. This practice was consistent with being
Australian, as long as there was an overriding commitment to certain core val-

99. See Davidson, 1997, p. 107.

100. See Davidson, 1997, p. 107 (citing the 1991 Census Matrix table CSC6171).
101. Australian Bureau of Statistics, 1993, p. 19.
102. Australia, Department of Immigration and Multicultural Affairs, 1998.
AUST R AL IA 49

ues and behavioral norms. Accordingly, educational and social policies con-
cerned with incorporation of immigrants differed in the two periods.103
In Australia, the tradition of government involvement in managing immigra-
tion and settlement goes back to the early colonial period. This background led
to the establishment of a specific Federal Department of Immigration dedicated
to planning and promoting mass immigration in 1945. The department re-
cruited immigrants overseas, organized travel, and set up special “on-arrival”
services, such as migrant hostels, assistance in finding employment, and basic
English courses. What developed was a two-class system of immigration in
which British migrants, and many other northern Europeans as well, were given
assisted passages, could bring their families at once, and had full labor-market
and civil rights upon arrival. Those from eastern and southern Europe were less
likely to get an assisted passage, had no automatic right to family reunion, were
frequently directed into undesirable jobs (generally in factories or construc-
tion), and were generally treated as inferior.104 But there was a third, invisible,
class: those who were not admitted at all. The White Australia Policy still kept
out all nonwhites and was applied so zealously that even the Asian wives of
Australian soldiers who had served overseas were excluded.
In these early years, cultural difference was seen as a threat to national unity.
Immigrants were expected to quickly assimilate into Australian society by liv-
ing and working among Australians, and by learning English. Special measures
for immigrants were seen as detrimental to assimilation, so newcomers re-
ceived little help in dealing with settlement difficulties, or problems of linguis-
tic or cultural difference. The Department of Immigration did help establish and
fund voluntary Good Neighbor Councils, designed to assist assimilation at the
local level. There were also New Settlers’ Leagues and annual Citizenship Con-
ventions (held from 1950 to 1970). Such bodies initially focused mainly on the
needs of British immigrants, although they also made efforts to persuade
non-British immigrants to naturalize and assimilate.105
The main mechanism of assimilation for non-British immigrants was seen in
becoming an Australian citizen, which was marked by formal ceremonies and
the swearing of an oath of allegiance. As stated at the 1957 Citizenship Conven-
tion, an application for citizenship by a NESB immigrant was “placing the seal
on his membership of our community and upon his intention to identify himself
permanently with us.”106 As Davidson points out, this “communitarian logic” of

103. See, generally, Davidson, 1997.

104. See Collins, 1997, pp. 23–24.
105. See, generally, Jakubowicz, 1989, p. 1035; Jordens, 1997.
106. Davidson, 1997, p. 169 (citing Digest of the Australian Citizenship Convention, 1957).
50 GI ANNI ZAPPALA AND STEPHEN CASTLES

belonging was based on the idea of “one people” based on British traditions for
Australia.107 As already noted, low naturalization rates were seen as problem-
atic; yet, they reflected the reality that NESB immigrants were not being eco-
nomically and socially assimilated, but rather were being incorporated into
segmented labor and housing markets. Migrant workers, both male and female,
became heavily concentrated in the expanding manufacturing industries of
Melbourne, Sydney, and Adelaide. By the 1960s, observers were speaking of a
“southern European occupational ghetto.”108 Researchers found that many im-
migrants were living in isolation and poverty, and many children were failing at
school because of lack of language courses and remedial teaching.109 In re-
sponse, a number of special services were established, including immigrant
welfare grants for community agencies, English courses for children and adults,
and the first steps toward a Telephone Interpreter Service.
By the 1970s, it was becoming clear that assimilation policy had failed to
prevent structural exclusion for many NESB immigrants, which encouraged
linguistic and cultural maintenance and the emergence of ethnic neighborhoods
with their own associations and business. Yet, political assimilation had partly
succeeded, since enough immigrants had become naturalized to constitute an
important group of voters, especially in urban-industrial areas. This contradic-
tion between failed socioeconomic and cultural assimilation and successful po-
litical assimilation was at the root of the shift to multiculturalism.
The new voters were concentrated in the traditional heartland of the Austra-
lian Labor Party (ALP). The party leaders set out to woo the “migrant vote,”
setting up Greek and Italian sections, paying attention to migrants’ educational
and welfare needs, advertising in the ethnic press, and selecting a few migrants
as candidates.110 The victory of the ALP in the 1972 election, after twenty-three
years of conservative government, was partly attributable to this policy, and led
to the official ending of assimilation policy and the introduction of multicultur-
alism. In return, this change produced a new philosophy for social policy with
special emphasis on social and educational disadvantage of immigrants.111
Apart from improving access to a range of services and benefits, the new ap-
proach included extensive consultation of ethnic communities. The ALP gov-
ernment also finally abolished the White Australia Policy. Henceforth,
Australia would have a nondiscriminatory immigration policy designed to ad-
mit three groups: workers and entrepreneurs with skill needed by industry, fam-

107. Davidson, 1997, p. 169.

108. Lever-Tracy and Quinlan, 1988, pp. 53–166.
109. See, generally, Martin, 1978.
110. See Collins, 1997, pp. 135–37.
111. See, generally, Martin, 1978, pp. 50–78, 119–20.
AUST R AL IA 51

ily members, and refugees. By the 1980s, Asia was to become the main source
area for immigrants.
When the Liberal-Country Party Coalition returned to power in 1975, Prime
Minister Fraser set out to win the support of ethnic community leaders by em-
phasizing the value of multiculturalism as a way of maintaining social cohesion
in an ethnically diverse society. The bodies set up to promote multicultural
ideas included the Australian Institute of Multicultural Affairs (AIMA) and the
Special Broadcasting Service (SBS), which was to provide multicultural televi-
sion and radio services. The Adult Migration Education Program was ex-
panded, and a Multicultural Education Program was developed with the aim of
developing consciousness of cultural diversity for members of all ethnic
groups. Multiculturalism was redefined according to an “ethnic group model”
in which Australian society was seen as consisting of a number of distinct
ethnocultural communities held together by a set of “overarching values.” Eth-
nicity was defined in primordial terms as something natural and fixed. This no-
tion of ethnicity was used as a justification for delegation of welfare functions
to ethnic organizations, which fitted the privatization program of the neoliberal
government.112
The election of an ALP government in 1983 eventually led to a radical re-
thinking of multiculturalism as way of managing ethnic difference. At first, the
Hawke government treated the notion of ethnicity with some skepticism and
seemed inclined to return to the traditional ALP focus on class-based social
welfare. In the 1986 budget, “the ALP Government abolished the [AIMA], and
cut funding for English as a Second Language teaching and for the Multicul-
tural Education Program.”113 Plans were also made to merge the SBS with the
ABC.114 But these cuts led to protests and demonstrations by migrant organiza-
tions. This ethnic mobilization threatened the ALP hold on marginal seats in
Sydney and Melbourne. In a rapid reversal, many of the measures of 1986 were
reversed in early 1987. “The new direction was signalled by the establishment
of an Office of Multicultural Affairs (‘OMA’)” and the dropping of the pro-
posed SBS-ABC merger.115
In social policy, the government moved away from services for specific eth-
nic groups. The slogan of “mainstreaming” was adopted as a principle for re-
structuring services, which implied that all government agencies should be
aware of the needs of the various groups within the population and plan their

112. See Jakubowicz, 1989; see, also, Foster and Stockley, 1988, p. 33.
113. Castles, 1992, “Australian Multiculturalism,” pp. 184, 188–89.
114. See Castles, 1992, “Australian Multiculturalism,” p. 189.
115. Castles, 1992, “Australian Multiculturalism,” p. 189.
52 GI ANNI ZAPPALA AND STEPHEN CASTLES

services so that they are accessible to everybody. All Commonwealth govern-

ment departments were required to produce annual “Access and Equity State-
ments” designed to show that their services were responsive to the needs of a
diverse population. Most state governments adopted similar measures.
The most significant statement of the ALP is a new approach to multicultur-
alism contained in the National Agenda for a Multicultural Australia that identi-
fied “three dimensions of multicultural policy” cultural identity:
—1. The right of all Australians, within carefully defined limits, to express
and share their individual cultural heritage, including their language and reli-
gion;
—2. Social justice: the right of all Australians to equality of treatment and
opportunity, and the removal of barriers of race, ethnicity, culture, religion, lan-
guage, gender, or place of birth; and
—3. Economic efficiency: the need to maintain, develop, and use effectively
the skills and talents of all Australians, regardless of background.116
In the National Agenda, multiculturalism was portrayed as a system of rights
linked to citizenship. These rights were limited by an overriding commitment to
the nation; a duty to accept the Constitution and the rule of law; and the accep-
tance of principles such as tolerance and equality, English as the national lan-
guage, and equality of the sexes. Multiculturalism was not defined as cultural
pluralism or minority rights, but as part of the cultural, social, and economic
rights of all citizens in a democratic state. The program contained in the docu-
ment was based on the recognition that some groups were disadvantaged by ed-
ucational and social factors, together with discrimination based on race,
ethnicity, and gender. The National Agenda may be seen as a shift in the con-
cept of multiculturalism away from an “ethnic group model” and toward a “citi-
zenship model.”117 Multiculturalism thus emerged as a public policy model to
manage Australia’s increased ethnic diversity. In this respect, it is different
from the way the term is used in the United States, where it is related to issues of
history and culture, and often associated with programs of affirmative action
based on race and ethnicity.
Encouraging immigrants to become citizens remained an integral part of
multicultural policy, just as it had been in the assimilationist period. But now
official discourses emphasized that it was not necessary to adopt Anglo-Austra-
lian values and cultural practices to be a citizen. This civic concept of belonging
had a number of consequences. The first was that it was still regarded as neces-
sary to encourage immigrants to become citizens, albeit for somewhat different

116. Australia, Office of Multicultural Affairs, 1989, p. vii.

117. See Castles, 1997, “Multiculturalism Citizenship,” pp. 5, 14–15.
AUST R AL IA 53

reasons. In most respects, immigrants could be full members of Australia’s

multicultural society not only without cultural assimilation, but also without
naturalization, for there was little difference in the rights of citizens and lawful
permanent residents.118 To secure the high level of “commitment to Australia”
regarded as necessary, citizenship campaigns or “Years of Citizenship” were
periodically organized (for instance in 1989 and 1994). A second consequence
was the need to define what citizenship actually meant. In the late 1980s and
early 1990s, this need gave rise to policy debates on constitutional changes to
define citizens’ rights. These debates, however, led nowhere, because of con-
servatism of both Australian politicians and the public, who were reluctant to
“tinker with the Constitution.”119 A third consequence was discussion of the
need to upgrade civics education for school students and the public at large—an
area that never had much priority in Australia.120 A major civics education pro-
gram was decided upon in the last years of the ALP government but was drasti-
cally cut back after the change in government in 1996.121 Finally, a civic notion
of citizenship implied the need to ensure equal chances of economic and social
participation, which required measures from the government to combat dis-
crimination and social disadvantage of minorities.
The period from 1987 to 1996 was marked by an institutionalization of
multiculturalism. At the federal level, OMA had a wide-ranging brief that in-
cluded monitoring bills and cabinet submissions, vetting departmental Access
and Equity Statements, and publicly promoting multicultural policies. The De-
partment of Immigration and Ethnic Affairs (DIEA) was responsible for a range
of settlement services, including the Adult Migrant Education Program (mainly
English courses); grants-in-aid to migrant welfare organizations; and the Tele-
phone Interpreter Service, which provides interpreters for all languages
throughout Australia. DIEA also funded a quasi-autonomous Bureau of Immi-
gration, Multicultural and Population Research (BIMPR). The Department of
Employment, Education and Training (DEET) ran a National Office of Over-
seas Skills Recognition. Most state governments had a similar range of multi-
cultural agencies.
Yet, major shifts away from multiculturalism occurred from the mid-1990s.
The Liberal and National Party governments elected in most states put far less
emphasis on multicultural policies. Agencies concerned with the needs of im-
migrants and ethnic communities were drastically cut. In the March 1996 fed-

118. See infra Rights and Benefits for Citizens and Noncitizens.
119. Davidson, 1997, p. 115.
120. See Davidson, 1997, Chapter 4.
121. See, generally, Davidson, 1997, Chapter 4.
54 GI ANNI ZAPPALA AND STEPHEN CASTLES

eral election, a Liberal-National Party Coalition was elected with a large

majority. Before the election, the Coalition parties had promised to retain the
social safety net but also to cut government expenditure and deregulate the la-
bor market. The August 1996 budget contained cuts to many government ser-
vices, including measures for the unemployed, health services, aged care, and
tertiary education. During the 1996 election, racism played an important role,
with several conservative candidates criticizing provision of special services
for minorities. In one Queensland electorate, the Liberal Party candidate, Pau-
line Hanson, attacked services for Aboriginal people in such an extreme way
that she was disendorsed as a candidate by her own party.122 Despite this fact,
she won the seat, with one of the biggest anti-Labor swings in the country. This
vote was widely taken as a signal that antiminority discourses were now seen as
acceptable by a large share of the population.
After the 1996 election, major cuts were quickly introduced in the immigra-
tion and multicultural area. The immigration intake was reduced, and there was
increased emphasis on skilled immigration. Fees for visas and English courses
were increased drastically.123 At the same time, many occupational English
courses were abolished. New immigrants’ waiting period for eligibility for so-
cial security benefits like unemployment support was increased from six
months to two years, which was expected to save $663 million. The BIMPR
was closed. Perhaps the most important change in political terms was the aboli-
tion of OMA, which appeared to be a clear signal that the government did not
see multicultural policy as an important area. A covert return to assimilationist
principles seemed possible.

Loss of Citizenship
The laws governing the loss and resumption of Australian citizenship are
also contained in the Australian Citizenship Act, 1948. There are five main
ways in which Australian citizenship may be lost:
—First, by the acquisition of another nationality or citizenship.124 This is
dealt with in section 17 of the act, which states that a person shall cease to be an
Australian citizen where they are eighteen years of age or more and undertake
any act or thing whose dominant purpose and effect is to acquire the nationality
or citizenship of a foreign country;

122. See Jones, 1996, p. 17.

123. See Australia, Department of Immigration and Multicultural Affairs, February 25, 1997.
124. See Australian Citizenship Act, 1948, §17(1)(a)-(b).
AUST R AL IA 55

—Second, by the renunciation of Australian citizenship.125 In this case, a

person shall cease to be an Australian citizen where they are eighteen years of
age or more and a national or citizen of a foreign country, or were born or nor-
mally resident in a foreign country and under that law are not entitled to acquire
the citizenship of that country because they are an Australian citizen, and lodge
with the minister a declaration renouncing their Australian citizenship;126
—Third, a person may lose their Australian citizenship where they are a citi-
zen of a foreign country and serve in the armed forces of that country if it is at
war with Australia;127
—Fourth, citizenship may be lost through ministerial deprivation.128 This
discretion normally relates to persons who make false or misleading statements
when applying for citizenship or those who are convicted of an offense under an
Australian or foreign law that is punishable by death, life imprisonment, or im-
prisonment for twelve months or more, before the grant of citizenship;
—Fifth, when the parent of a child less than eighteen years of age ceases to
be an Australian citizen because they have acquired another citizenship, re-
nounced their Australian citizenship, or served in the armed forces of an enemy
country, and their child is recognized by the law of that respective country as a
citizen of that country, then their child also ceases to be an Australian citizen
from that time.129 Where the minister exercises his or her discretion of depriva-
tion of citizenship under section 21, the minister may also direct that all or any
of the children of that person less than eighteen years of age also cease to be
Australian citizens.
Laws regarding loss of citizenship, especially due to acquiring the citizen-
ship of another country or dual citizenship, have been of particular concern to
Australians of immigrant origins, and in many cases their Australian-born chil-
dren. In part as a response to this pressure, in August 1995 Senator Nick Bolkus,
who was then the labor minister for immigration, announced new policy guide-
lines to facilitate the resumption of Australian citizenship that had been lost on
the acquisition of another citizenship.130 In order to resume Australian citizen-
ship, people must show that they (a) did not know they would lose their Austra-
lian citizenship or that they would have suffered significant hardship or

125. See Australian Citizenship Act, 1948, § 18(1)(a)-(b).

126. See Australian Citizenship Act, 1948, §§ 18(5A), 6(a)-(b) (describing the minister’s duty
to refuse a renunciation under certain conditions).
127. See Australian Citizenship Act, 1948, § 19.
128. See Australian Citizenship Act, 1948, § 21(1)(a)-(b).
129. See Australian Citizenship Act, 1948, § 23(1)-(2).
130. Bolkus, August 25, 1995 (stating “Each year, several hundred Australians lose their
Australian citizenship because they choose to take out another citizenship”).
56 GI ANNI ZAPPALA AND STEPHEN CASTLES

detriment had they not acquired the other citizenship; (b) have lived in Austra-
lia for a total of at least two years during their lifetime and either indicate that
they will continue to reside in Australia, or if now a resident overseas, that they
will reside in Australia within three years; and (c) have maintained a close and
continuing association with Australia.131 The broader guidelines were a recogni-
tion that many Australian citizens continue to have links with their countries of
origin for economic or cultural reasons and that dual citizenship (which in some
ways this policy allows retrospectively) is beneficial. In announcing the policy,
Senator Bolkus stated, “The new, broader guidelines allow for a wide range of
circumstances to be considered as factors which would be acceptable examples
of ‘significant hardship and detriment’ . . . [ranging] from loss of cultural heri-
tage to restrictions on access to social security benefits or difficulties associated
with frequent travel.”132
Furthermore, people who have lost their Australian citizenship can apply to
be granted Australian citizenship after twelve months from when they lost it, if
they have been present in Australia as a permanent resident for twelve months
out of the two years immediately before lodging their application for citizen-
ship.133

Dual Citizenship

Dual citizenship has been an issue of increasing debate and discussion in

Australia over the past decade. The Australian Citizenship Act, 1948, does not
explicitly recognize dual citizenship, and section 17 of the act provides for the
loss of Australian citizenship for those who take up the citizenship of another
country.134 A legal reason for this is that Australia is a signatory to the Hague
Convention,135 which is based on single citizenship. Despite this fact, it has been
estimated that in 1986 there were 3 million dual citizens in Australia,136 with the
number now probably being closer to 5 million. The majority of these dual citi-
zens fall within one of the following four categories:
—1. People not born in Australia who have applied for Australian citizen-
ship, yet have retained their previous citizenship, if the citizenship laws of their
respective country of origin allows them to do so;

131. See Bolkus, August 25, 1995

132. Bolkus, August 25, 1995
133. See Australia, Department of Immigration and Multicultural Affairs, March 11, 1996.
134. Australian Citizenship Act, 1948, § 17(1).
135. Convention on Certain Questions Relating to the Conflict of Nationality Laws, April 12,
1930, the Hague, 179 L.N.T.S. 91.
136. Davidson, 1997, p. 139.
AUST R AL IA 57

—2. People who were born in Australia who by descent (jus sanguinis) laws
are recognized as citizens by their parents’ country of birth;
—3. People born overseas of Australian parents, who are therefore Austra-
lian citizens by descent, but who may also acquire the citizenship of their coun-
try of birth if that country allows citizenship by jus soli rules;
—4. Australian citizens who have applied for the citizenship of another
country without informing the relevant authorities of their action.
It is only people in this last group who risk losing their Australian citizenship
under section 17 of the act.137 Australian citizenship law is therefore inconsis-
tent with respect to its treatment of dual citizenship. This fact was recognized in
the 1994 report of the Parliamentary Joint Standing Committee on Migration
(JSCM), which argued that present laws were discriminatory138 and recom-
mended that section 17 of the Citizenship Act be repealed and that former Aus-
tralian citizens who had lost their citizenship under section 17 have the right to
apply for its resumption.139 The JSCM Report was also significant in that it rep-
resented one of the first official views to explicitly support dual citizenship.
Upon examining the citizenship laws of other countries, it found that dual citi-
zenship was increasingly accepted, especially because of the needs of individu-
als and states in an increasingly interconnected world and the recognition that
loyalty and commitment are borne of factors other than just holding a single
passport. Elite opinion seems to be ahead of broad community support on this
issue, however, and political parties are wary of alienating the electorate by ex-
plicitly supporting dual citizenship. As a result, the response of both the former
Labor government and the current Coalition government to the JSCM recom-
mendations has been lukewarm, preferring to leave them in the “too hard bas-
ket.” The official government response to the JSCM Report stated that its
recommendations raised “policy issues which require careful consideration be-

137. People must have deliberately sought and acquired the citizenship of another country in
order to lose their Australian citizenship; if they acquire it automatically rather than by taking some
action to acquire it they do not lose their Australian citizenship. See Australian Citizenship Act,
1948, §17(1)(a)-(b).
138. Section 17 of the Australian Citizenship Act, 1948, discriminates against Australian
citizens by birth compared with those who become citizens by naturalization. While the former, in
most cases, are not allowed to acquire another citizenship, the latter may, in some cases, retain their
previous citizenship. A view has also been expressed that section 17 particularly discriminates
against Australian-born women who marry overseas. Women tend to live longer than their
husbands and are more likely to acquire their husband’s citizenship. Their rights to return home, for
instance, have in some cases been dependent on their husbands’ acquired Australian citizenship.
See Fitzsimons, January 27, 1997, p. 11.
139. See Joint Standing Committee on Migration, 1994.
58 GI ANNI ZAPPALA AND STEPHEN CASTLES

fore any legislative amendments are introduced . . . the government has decided
that they should be considered further.”140
The current Coalition government has referred the issue of dual citizenship
along with a review of the Australian Citizenship Act to an Australian Council
on Citizenship, which it announced in its 1996 budget package.141 Recent state-
ments by the minister for immigration and multicultural affairs suggest that a
greater acceptance of dual citizenship may be possible:

Increasing [globalization] is forcing us as a nation to re-examine our no-

tions of citizenship. Still fundamental are the notions of allegiance, loy-
alty and participation in a civic and legal sense. However, the issues have
become more complex. Debate is now focusing on whether loyalty needs
to be a singular concept and whether it is possible for individuals to owe
their allegiance to different countries simultaneously.142

Given the silence of the Australian Constitution with respect to citizenship,

it is ironic that most of the legal debates surrounding dual citizenship have re-
volved around the interpretation of section 44(i) of the Constitution, which pro-
vides for the disqualification of a person from being chosen or of sitting as a
senator or House of Representatives member if they are “under any acknowl-
edgment of allegiance, obedience, or adherence to a foreign power, or is a sub-
ject or a citizen or entitled to the rights or privileges of a subject or a citizen of a
foreign power.”143
In other words, intending candidates for parliamentary office cannot be eli-
gible for, or hold, dual citizenship. Section 44 of the Constitution has caused
several problems for candidates whose right to stand for Parliament was chal-
lenged under this provision, and who were generally found to be in breach of
section 44 by the High Court. For instance, in 1992 the High Court found by a
majority of five to two that two candidates in a House of Representatives

140. Commonwealth Government of Australia, 1995, p. 5.

141. See Australia, Department of Immigration and Multicultural Affairs, August 20, 1996.
142. Ruddock, January 20, 1997. Mr. Ruddock was a member of the JSCM and, within a
month of coming to power in March 1996, went to Cabinet with a proposal that the law regarding
dual citizenship was discriminatory and should be changed. His proposal was rejected, with
Cabinet arguing that allowing dual citizenship would undermine government attempts to use
national identity arguments in defense of other policies. See Middleton, March 14, 1997, p. 6.
143. Australian Constitution, 1900, ch. I, pt. 4, §44(i).
AUST R AL IA 59

by-election were ineligible because of section 44(i) and therefore a recount

could not be conducted.144
The two candidates found to be ineligible were John Charles Delacretaz and
Bill Kardamitsis.145 The former was born in Switzerland, migrated to Australia
in 1951, and lived in Australia since that time. He became a naturalized Austra-
lian in 1960. The latter was born in Greece, migrated to Australia in 1969, and
has lived in Australia since that time. Kardamitsis also became a naturalized
Australian in 1975, at which time he renounced all other allegiance. Upon be-
coming an Australian citizen, he had surrendered his Greek passport, and his
two subsequent visits to Greece were undertaken with his Australian pass-
port.146
All the High Court judges agreed that the relevant test was whether a person
had taken “all reasonable steps” to renounce the nationality of the other coun-
try. The majority found that although Delacretaz and Kardamitsis were both
naturalized Australians, they had not taken “reasonable steps” to renounce their
Swiss and Greek citizenship respectively. As one justice argued:

It is not sufficient . . . for a person holding dual citizenship to make a uni-

lateral declaration renouncing foreign citizenship when some further step
can reasonably be taken which will be effective under the relevant for-
eign law to release that person from the duty of allegiance or obedience.
So long as that duty remains under the foreign law, its enforcement—per-
haps extending to foreign military service—is a threatened impediment
to the giving of unqualified allegiance to Australia. . . . [Delacretaz and
Kardamitsis] each failed to take steps reasonably open under the relevant
laws of his native country . . . to renounce his status as a citizen of that
country and to obtain his release from the duties of allegiance and obedi-
ence imposed on citizens by the laws of that country . . . accordingly, nei-
ther . . . was capable of being chosen as a Member of the House of
Representatives.147

144. See Sykes v. Cleary (1992) 109 A.L.R. 577, available in LEXIS, Aust. Library, Ausmax
File (High Court of Australia sitting as the Court of Disputed Returns).
145. See Sykes v. Cleary (1992) 109 A.L.R. 577. The case had been brought by Mr. Sykes, a
candidate in the by-election against Phillip Cleary, arguing that the latter’s election to the seat was
void under section 44(iv) of the Constitution, which prohibits candidates or members from holding
an “office of profit under the Crown.” Mr. Sykes’s petition then also challenged the eligibility of
three other candidates under section 44(i) of the Constitution.
146. See Sykes v. Cleary (1992) 109 A.L.R. 577.
147. See Sykes v. Cleary (1992) 109 A.L.R. 577.
60 GI ANNI ZAPPALA AND STEPHEN CASTLES

Two justices dissented, arguing that both candidates had renounced their
previous nationalities when they had sworn their oath of allegiance and re-
nounced any other allegiance during their naturalization ceremonies.148 They
also argued that the test to determine whether “reasonable steps” had been
taken to renounce previous citizenships should be with respect to Australian
law rather than the law of the other country concerned.149 The renunciation of
other allegiances in the naturalization ceremony by Kardamitsis, for instance,
meant that

he had a right to have any question of his Greek citizenship or his right or
entitlement to the rights and privileges of a Greek citizen determined on
the basis that the citizenship was effectively renounced and that, only if
he reasserted it in some way, would the question be answered by refer-
ence to Greek law.150

The requirement for renunciation of all other allegiances was removed from
the Australian Citizenship Act in 1986, although it still required an oath of “true
allegiance.”151 The question therefore becomes whether “true allegiance” is sat-
isfied in cases where there is dual citizenship. The oath of allegiance was re-
placed in 1994 by a new Pledge of Commitment in which mention of previous
allegiances is virtually absent. People becoming Australian citizens must now
pledge:

From this time forward, [under God],152

I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect,
153
and whose laws I will uphold and obey.

Nevertheless, a literal reading of section 44(i) would tend to indicate that all
dual citizens are excluded whether or not the other citizenship is renounced and
this is accepted by the other country at issue. The High Court’s 1992 decision in
Sykes v. Cleary suggests that section 44(i) only disqualifies people who have

148. See Sykes v. Cleary (1992) 109 A.L.R. 577.

149. See Sykes v. Cleary (1992) 109 A.L.R. 577.
150. Sykes v. Cleary (1992) 109 A.L.R. 577.
151. Australia, 1986, Australian Citizenship Amendment Act, No. 70, § 11.
152. The use of the words “under God” is optional.
153. Australia, Department of Immigration and Multicultural Affairs 1997, How to Apply.
AUST R AL IA 61

not renounced or attempted to renounce their other citizenship. This issue also
raises the question of why a concept of “primary citizenship” to Australia
should not be sufficient, especially in cases where laws of other countries make
renunciation difficult, if not impossible. In a “nation of immigrants” such as
Australia, these laws may have the effect of excluding millions of citizens from
taking an active role in their parliamentary democracy. As Thornton argues:

Sykes v. Cleary illustrates the residual resistance to diversity in the consti-

tution of citizenship, albeit that Australia is an immigrant society, which
boasts of its racial heterogeneity and beneficent multicultural policies. It
takes no more than a small scratch to reveal the latent xenophobia be-
neath the bland surface of universalism that legal formalism [endeavors]
to occlude.154

Several reports have dealt with the issue of dual citizenship and section 44(i)
of the Constitution since the late 1970s, most recommending that section 44(i)
be deleted from the Constitution, and that disqualification provisions be placed
solely in the relevant statutory acts of Parliament.155 Most recommendations,
however, still favored retaining a provision for people to take steps to renounce
any other citizenship they might hold or be entitled to in order to avoid disquali-
fication. The most recent report of section 44 was undertaken by the House of
Representatives Standing Committee on Legal and Constitutional Affairs. The
committee, chaired by Kevin Andrews M.P., tabled a report on aspects of sec-
tion 44 of the Constitution on August 25, 1997.156 The committee made ten rec-
ommendations, the main one being that section 44(i) (prohibiting dual citizens
from parliamentary positions) be deleted and replaced with the requirement that
candidates and members of the Federal Parliament should be Australian citi-
zens, which would therefore enable an Australian citizen who may also hold an-
other citizenship to stand for Parliament. The report also recommended that
Parliament should be empowered to enact legislation to deal with disqualifica-
tion of candidates or members relating to any foreign allegiances or conflicts.
Although the provisions of section 44(i) have been rarely used, after the Sykes
v. Cleary decision up to forty sitting members of Parliament were thought likely
to be affected by the decision because they held or had the right to dual citizen-

154. Thornton, 1996, pp. 73–74.

155. See, for example, Joint Committee of Foreign Affairs and Defense, 1976; Senate Standing
Committee on Constitutional and Legal Affairs, 1981.
156. See House of Representatives Standing Committee on Legal and Constitutional Affairs,
December 18, 1998.
62 GI ANNI ZAPPALA AND STEPHEN CASTLES

ship.157 The debate over section 44(i) illustrates some of the challenges that the
postwar migration poses for Australia’s institutions of governance that were es-
tablished in an era of impervious borders. As one commentator noted:

Section 44(i) goes right to the heart of a representative democracy. . . .

Examining the operation of [s]ection 44(i) is necessary for determining
what requirements can reasonably be imposed on elected representatives
in a multicultural Australia after a century of Federation.158

Finally, it is the case that dual citizenship may pose certain practical prob-
lems for states and indeed for its citizens who are dual citizens. These arise with
respect to issues such as liability for military service, marriage, divorce and
custody of children, visas and passports, and consular assistance when travel-
ing. When dual citizens are in Australia, only their Australian citizenship is rec-
ognized, and they are required to use their Australian passport when entering or
departing Australia.
It is unlikely that the present government will move to relax restrictions on
dual citizenship, because it regards dual citizenship as contrary to its views on
national identity and commitment to Australia. This view has received some
support from academics who have also been opposed to Australia’s immigra-
tion program and policy of multiculturalism.159 In contrast are those who see the
refusal to accept dual citizenship as one of the final barriers to making Austra-
lia’s citizenship laws amongst the most liberal and democratic in the world.160

Rights and Benefits for Citizens and Noncitizens

It is difficult to differentiate clearly between the rights of citizens and

noncitizens in Australia because the rights of citizens themselves are not always
clearly and consistently defined. This problem arises because the Constitution
does not specify the rights of British subjects and hence, later, of Australian cit-
izens. Rights of citizens and noncitizens are laid down in legislation at both the

157. Australian citizens who are also British nationals would also be included, because recent
decisions by the High Court would suggest that British nationals would be regarded as subjects of a
“foreign power” in section 44(i). See House of Representatives Standing Committee on Legal and
Constitutional Affairs, December 18, 1998.
158. See House of Representatives Standing Committee on Legal and Constitutional Affairs,
December 18, 1998.
159. See, generally, Betts, 1995, p. 58.
160. See Davidson, 1997, p. 90.
AUST R AL IA 63

federal and state levels. Such important matters as the right to vote, access to
public service employment, and eligibility for jury service are not consistently
regulated throughout Australia. In addition, many significant issues are laid
down in common law through court decisions.161 As Chesterman and Galligan
argue, the “States have retained power over a range of key citizenship areas,
such as the conduct of criminal and civil trials, education, the use of land, and
the State electoral franchise.”162
Despite these ambiguities, it appears that in most legal areas the differences
between the rights of citizens and of lawful permanent residents are quite small.
Once accepted for entry as permanent settlers, immigrants enjoy a range of sub-
stantive citizenship rights that may be denied in many other countries of immi-
gration. These rights include the following (though in some cases with certain
exceptions or conditions):
—The right to enter and leave Australia (subject to obtaining a reentry per-
mit before departing);
—The right to mobility within Australia;
—The right to own land or other real estate;
—The right to take up paid employment or to establish a business (in some
cases subject to gaining recognition of overseas qualifications or membership
of professional associations);
—The right to family reunion (subject to various regulations, which also ap-
ply to citizens seeking to bring in dependents from overseas);
—The right to medical services, social benefits, and social services (in some
cases subject to a two-year waiting period for new immigrants); and
—The right to education for children of immigrants.163
In addition, all noncitizens in Australia (including permanent temporary en-
trants and even illegal entrants) enjoy a range of civil and political rights guar-
anteed to everyone by law. Although these rights do not add up to a principle of
legal equality for aliens,164 it is quite possible for permanent residents to live a
full life in Australia without ever feeling the need to become naturalized. Jean
Barbalet therefore argues that the “quality of Australian citizenship is quite
thin.”165 The major benefits for citizens compared with noncitizens are the right
(and duty) to vote, access to Public Service employment, and protection from

161. See Rubenstein, 1995, p. 514.

162. Chesterman and Galligan, 1997, p. 7.
163. See Davidson, 1997; Rubenstein, 1995; Wells, 1996, p. 45.
164. See Wells, 1996, pp. 49–50.
165. Barbalet, 1996, pp. 55, 68.
64 GI ANNI ZAPPALA AND STEPHEN CASTLES

deportation; meanwhile the additional obligations are to perform jury service

and defend Australia from attack should need arise.
Noncitizen residents in Australia may therefore be considered to have highly
developed rights of quasi-citizenship, or of what Tomas Hammar in the Euro-
pean context has called “denizenship.”166 One aspect of this is the very strong
right to naturalization after two years, which makes permanent residents appear
as citizens-in-waiting. This erosion of the differences between Australian citi-
zens and noncitizen residents goes against the intentions of the government
when mass immigration was started. Minister for Immigration Calwell intro-
duced the 1948 act by stating in Parliament that

creation of an Australian citizenship . . . in no way lessens the advantages

and privileges which British subjects who may not be Australian citizens
enjoy in Australia. British subjects, whether they are now in this country
or enter it in future, will continue to be free from the disabilities and re-
strictions that apply to aliens. They will qualify for the franchise and have
the right to become members of Parliament or to enter the public ser-
vices.167

In fact, British immigrants entering Australia today no longer have any priv-
ileges compared with other noncitizens. British immigrants, however, enjoyed
all the rights of Australian citizenship, including the right to vote, up to the 1984
amendments to the Australian Citizenship Act, 1948.168 British citizens resident
at that time did not lose their privileges, so that they continue to have virtually
all Australian citizenship rights without having been naturalized.169
We will now look briefly at some of the major areas of difference in rights
and obligations between citizens and noncitizens. The right to participate in
representative government may be seen as one of the most fundamental aspects
of citizenship. It includes the rights to vote, to stand for public office, and to
freedom of speech. As already noted, the Constitution does not regulate the
right to vote in Australia. Rather, it is set out in laws of the Commonwealth and
the states. These create not only a right of citizens to vote, but also an obliga-
tion. Those who do not vote in federal and state elections are liable to be fined.
Some citizens, however, are excluded from the right to vote: persons of un-

166. See, generally, Hammar, 1990.

167. Chesterman and Galligan, 1997, p. 4 (quoting Arthur Calwell).
168. Australia, 1984, Australian Citizenship Amendment Act, No. 129, § 33.
169. They do, however, need to get a reentry visa before leaving Australia if they wish to
return.
AUST R AL IA 65

sound mind and prisoners.170 “Therefore, Parliament has the power to decide
which citizens have the right to vote.”171 Resident noncitizens do not have the
right to vote or to stand for public office in federal and state elections.
Noncitizens, however, may have the right to vote in local government elections
in the states of Victoria, South Australia, Western Australia, and Tasmania,
where persons holding rateable land in the area can be enrolled as voters, irre-
spective of citizenship.172
The main anomaly with regard to voting rights is that pre-1984 British immi-
grants still had the right to vote at all levels without being naturalized. The exact
size of this group is unknown, but estimates of the number of non-Australian
British citizens on the electoral rolls vary from 200,000 to 1 million. This anom-
aly is due to section 93 of the Electoral Act, 1918 (Cth), which allows “persons
(other than Australian citizens) who would, if the relevant citizenship law had
continued in force, be British subjects within the meaning of that relevant citizen-
ship law and whose names were, immediately before 26 January 1984” on the
electoral roll.173 This matter has long been an issue of contention, especially with
ethnic communities, as they see it as a continued discrimination in favor of Brit-
ish noncitizens. In 1989, Irene Moss, who was then the race discrimination com-
missioner, advised Lionel Bowen, who was then the attorney-general, that
section 93 of the Electoral Act was in breach of the Racial Discrimination Act,
1975. More significantly, Moss opined that if a successful challenge to this provi-
sion by a noncitizen who was not a British subject was brought, the result would
be that all noncitizens would become eligible to vote.174 This issue has recently re-
surfaced in the context of the elections held in 1997 for the Constitutional Con-
vention to debate whether Australia should become a republic, and in the context
of a likely future referendum to decide the issue. Some groups think that the vote
of these non-Australian citizen British subjects may decide an important issue of
Australian national identity in a close election. At the end of 1997, a consortium
of people and organizations were preparing a challenge to section 93 in the High
Court, on the basis that it contravenes section 10(1) of the Racial Discrimination
Act, 1975 (Cth).175 This section states:

170. See Australia, Department of Immigration and Multicultural Affairs, March 11, 1996;
see, also, Australia, 1984, Referendum Act, No. 44, § 45.
171. Rubenstein, 1995, p. 509.
172. See Rubenstein, 1995, p. 510.
173. Australia, 1918, Electoral Act, § 93.
174. Moss, letter to Bowen, February 8, 1989.
175. The case is being brought by a Sydney plumber, Lorenzo Poletto, who is an Italian citizen
living in Australia since 1960. He is being backed by Ausflag and the Public Interest Advocacy
Center.
66 GI ANNI ZAPPALA AND STEPHEN CASTLES

If, by reason of, or of a provision of, a law of the Commonwealth or of a

State or Territory, persons of a particular race, [color] or national or eth-
nic origin do not enjoy a right that is enjoyed by persons of another race,
[color] or national or ethnic origin, or enjoy a right to a more limited ex-
tent than persons of another race, [color], or national or ethnic origin, then
notwithstanding anything in that law, persons of the first-mentioned race,
[color] or national or ethnic origin shall, by force of this section enjoy that
right to the same extent as persons of that other race, [color] or national or
ethnic origin.176
Many see the current arrangements as a clear breach of this section, as Brit-
ish subjects are the only resident noncitizens to have a right to vote. A success-
ful challenge might have seen the disenfranchisement of this group or the
widening of an important citizen right to all resident noncitizens. However, this
action was not successful.
The right to free speech is more complex. In principle it is not protected by
the Constitution (either for citizens or noncitizens). The Aliens Power of the
Constitution, section 51 (xix), gives Parliament power to enact discriminatory
laws concerning aliens.177 There is no Australian equivalent to the Fourteenth
Amendment to the U.S. Constitution, which provides equal protection to all
aliens, even, in some circumstances, to those illegally present in the United
States. Rather, equal protection in basic civil rights areas such as the right to due
legal process is the result of both statutes and common-law decisions. Common
law does appear to recognize the general principle of equality before the law.
In any case, it might seem that Australia’s ratification of the ICCPR should
give equal civil and political rights to resident noncitizens in all areas but the right
to vote and stand for public office, and the right to employment in the public ser-
vice. Yet, the recent High Court decision on the right to free communication on
political matters (one aspect of freedom of speech) has failed to confirm the exis-
tence of that right for aliens in Australia.178 The High Court justices have linked
free speech to the right to participate in representative government, which is not
available to aliens.179 This interpretation of citizenship is narrow and old-fash-
ioned; resident noncitizens are affected by decisions of government and might
therefore be thought to have a right of political expression concerning these. This
issue is too complex and ambiguous to go into further here.180

176. Australia, 1975, Racial Discrimination Act, § 10(1).

177. Australian Constitution, 1900, ch. I, pt. V, § 51(xix); see, also, Wells, 1996, p. 70.
178. See Wells, 1996, p. 59.
179. See Wells, 1996, p. 59.
180. For a detailed treatment, see Wells, 1996, pp. 67–69; see, also, Rubenstein, 1995, pp.
515–16.
AUST R AL IA 67

The Public Service Act, 1922, does not permit noncitizens to take up perma-
nent positions in the Commonwealth Public Service.181 Noncitizens may be em-
ployed on a probationary basis, provided they undertake to apply for Australian
citizenship. State rules are inconsistent, however: in Victoria, for instance, resi-
dent noncitizens can become permanent public servants.182 This limitation of
the right to work is significant, since the public service includes not only central
administration, but also policing and the judiciary. In contrast, the importance
of the exclusion is tempered by the ease and rapidity with which immigrants
can become citizens.
The Constitution lays down the right to trial by jury for serious offenses
against Commonwealth law. The composition of juries is determined by state
laws, however, which disqualify or exempt certain categories of people from
jury service. Again, inconsistency is the rule, but noncitizens are altogether ex-
cluded from jury service.183 In a country of immigration with a substantial
noncitizen population, this exclusion might be seen as inconsistent with the
principle that accused persons should be judged by a jury of their peers.
The duty of defending the nation against external attack is often seen as one
of the key defining aspects of the “community of citizens.”184 Here, too, Austra-
lia is somewhat idiosyncratic. The Defence Act, 1903 (Cth), does not exclude
noncitizens from voluntarily joining the armed forces. Nor have they been ex-
cluded from conscription at times of war. Resident noncitizens were con-
scripted during the Second World War and the Vietnam War, and this practice
was upheld by a High Court decision in 1945. All persons who have resided in
Australia more than six months and who are aged eighteen to sixty are liable for
service, unless exempted on grounds of physical or mental disability.185 Immi-
grants from hostile countries (such as Germany and Italy) were not conscripted
during the world wars, but many were interned for lengthy periods.186 The prac-
tice of conscripting noncitizens is questionable on the grounds that they were
forced to defend a nation-state in which they had no right of political represen-
tation. Indeed noncitizens in the armed forces had no clear right of reentry to
Australia after overseas service.187
An obvious area of inequality between citizens and noncitizens concerns
mobility rights: the rights to enter Australia in the first place, and to leave and

181. Australia, 1922, Public Service Act.

182. See Rubenstein, 1995, p. 514.
183. See Rubenstein, 1995, pp. 510–11.
184. See, generally, Schnapper, 1994.
185. See Australia, 1903, Defence Act, §§59, 61A(a).
186. See, generally, Bosworth and Ugolini, 1992.
187. See Rubenstein, 1995, pp. 520–22.
68 GI ANNI ZAPPALA AND STEPHEN CASTLES

return to Australia. Citizens have the right to come and go as they please,188 but
neither Australian nor international laws give aliens a right to enter Australia.
Admission is a matter of national sovereignty, and the Migration Act, 1958, re-
quires all entrants to apply for a visa before arrival.189 The only exception is for
New Zealanders due to an agreement on free movement between the two coun-
tries. Most entrants are short-term visitors—over 4.2 million overseas visitors
entered Australia in 1996–1997 for short-term purposes (mainly tourism), com-
pared with 95,100 long-term temporary immigrants, who came mainly for pur-
poses of work or study.190 Such temporary entrants are subject to a range of visa
conditions, generally restricting them to work or study in a specific place for a
specific period.191 Change of visa category from temporary to permanent is usu-
ally not permitted.
Permanent settlers enter Australia primarily through one of the two official
programs for visaed permanent entry: the Migration Program, or the Humani-
tarian Program. Australia’s immigration policy is nondiscriminatory, in that
persons from any country can apply to come, whatever their ethnic origin, sex,
color, or religion. Applicants must, however, meet adequate health standards,
be of good character, and meet skill or other requirements for particular visa
types. The Migration Program provides entry for “Family stream” and “Skill
stream” immigrants under various visa categories, together with a small num-
ber of other persons under the “Special Eligibility stream.” The Humanitarian
Program has three components. Consistent with the UN definition, refugee im-
migrants include persons outside their own countries seeking protection from
persecution. Special Humanitarian entrants seek relief from forms of discrimi-
nation amounting to a substantial violation of human rights, while the Special
Assistance Category permits entry to other overseas persons in particularly vul-
nerable situations who have close family or community links with Australia.
Total planned admissions for 1997–1998 are 80,000, of which 32,000 are in the
Family stream, 34,800 in the Skill stream, 12,000 in the Humanitarian Program,
and 1,200 other entrants with visas.192
Citizens cannot be deported from Australia, although they can under certain
circumstances be extradited to face prosecution overseas. By contrast, perma-

188. Even to this right there are exceptions. See Rubenstein, 1995, p. 512 (citing the case of the
left-wing journalist Wilfred Burchett who was denied a passport and refused reentry to Australia in
1970).
189. Australia, 1958, Migration Act, §42.
190. See Australian Bureau of Statistics, July 1997.
191. Australia, 1958, Migration Act, §41.
192. See, for example, Australia, Department of Immigration and Multicultural Affairs, 1997,
1997–98 Migration; Australia, Department of Immigration and Multicultural Affairs, 1997,
Australia's Humanitarian.
AUST R AL IA 69

nent residents can be deported for various reasons. The Migration Act, 1958,
discriminated between British subjects and aliens.193 The former could only be
deported upon conviction of serious offenses within five years of entry.194
Aliens could be deported on a wide range of grounds, including advocating vio-
lent overthrow of the government or mental illness, however long they had been
in Australia, and even if they had been naturalized.195 This discrimination was
removed in 1984. People who have been permanent residents for less than ten
years can now be deported only if convicted for an offense and sent to prison for
at least one year, and the situation is the same for British subjects as for oth-
ers.196
Restrictions in mobility rights may lead to situations where noncitizens are
denied equality before the law. This case has arisen with regard to asylum-seek-
ers in recent years. “Boat people” who have arrived from Cambodia or China
have in some cases been detained for lengthy periods (up to five years) without
conviction for any offense. Such administrative detention would not be permit-
ted for a citizen, but in 1992 the government introduced amendments to the Mi-
gration Act, 1958, to permit detention without a warrant and custody for an
indefinite period for an alien awaiting deportation. The legality of this was con-
firmed by the High Court,197 on the grounds that the purpose of the detention
was not punitive.198 This implies a restriction of aliens’ common-law right to
liberty and security of the person. Moreover, the Department of Immigration
has taken steps to curtail the access of detained aliens to legal advice, which has
led to a currently pending appeal to the United Nations Human Rights Commit-
tee by a Cambodian detainee at Port Hedland Detention Center in Western Aus-
tralia, on the grounds that prolonged detention and lack of access to the courts
and legal facilities contravene the ICCPR.199
Finally, it should be noted that the longstanding principle of equal treatment
of resident noncitizens and citizens with regard to welfare rights is currently be-
ing questioned. In 1988, an official inquiry in immigration policy recom-
mended that a range of benefits and services should only be available to
citizens. The aim was to encourage naturalization and to increase “commitment
to Australia” by differentiating more sharply between the rights of citizens and

193. Australia, 1958, Migration Act; see, also, Jordens, 1997, p. 195.
194. See Jordens, 1997, p. 195.
195. See Jordens, 1997, pp. 195–96.
196. See Godard, 1997, p. 484.
197. See Lim v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 176
C.L.R. 1.
198. See, for example, Wells, 1996, pp. 60, 70–72; Rubenstein, 1995, pp. 513–14.
199. See Wells, 1996, p. 62.
70 GI ANNI ZAPPALA AND STEPHEN CASTLES

noncitizens.200 In January 1993, the ALP government decided to deny unem-

ployment and sickness benefits to immigrants for the first six months after ar-
rival. Fees were introduced for English-language courses for adult migrants,
although some categories such as refugees were exempted. People sponsoring
their relatives as immigrants had to give a two-year “assurance of support” (that
is, promise to support their relatives if these were unemployed or in need).
Since 1996, the Liberal-National Party government has made further changes.
Fees for visas and compulsory English-language courses for new immigrants
have been sharply increased. The waiting period for most welfare benefits has
been increased to two years for new entrants.201 In addition, the Office of Multi-
cultural Affairs, which had had an important role in monitoring services for im-
migrants, was abolished.

Issues of Current Public Debate

Making Australian citizenship more meaningful has become the policy of all
the major political parties. As part of the government’s response to the JSCM
Report on citizenship laws,202 several initiatives were announced as part of a
four-year plan culminating in a Year of Australian Citizenship in 1999 to mark
the fiftieth anniversary of Australian citizenship.203 These included national citi-
zenship achievement awards; voluntary courses for migrants; citizenship pro-
motion campaigns; and redrafting the Australian Citizenship Act, 1948,
including rewriting the act in plain English, expanding the preamble to the act,
and reviewing the application process for citizenship with an aim to make it
simpler and more meaningful.204
Furthermore, in 1995, the Senate Legal and Constitutional Committee pre-
pared a report on the benefits and feasibility of establishing a series of citizen-
ship benchmarks in Australia.205 The report argued that what was needed was
(1) a clear definition of the basic rights and duties of individual citizens; (2)
identification and establishment of standards in policy areas necessary for so-
cial participation and well-being; and (3) consideration of the most effective
ways to implement rights and duties and policy standards pertaining to citizen-
ship. It went on to argue for a “fully developed, integrated system of social

200. See Committee to Advise on Australia’s Immigration Policies, 1988.

201. See Australia, Department of Immigration and Multicultural Affairs, August 13, 1997.
202. See Commonwealth Government of Australia, 1995.
203. See Bolkus, September 4, 1995.
204. See Bolkus, September 4, 1995.
205. See Australia, Senate Legal and Constitutional References Committee, 1995.
AUST R AL IA 71

benchmarks and indicators . . . [as] an important tool for public policy in the
longer term.”206 Yet, the notion of citizenship benchmarks, with its emphasis on
broadly defined rights and a strong role for government in implementing them,
has not found favor with the current government’s policy for privatization and
reducing the role of the state.
The victory of the Coalition government in March 1996 has seen the intro-
duction of several changes designed to give citizens greater benefits and advan-
tages over those enjoyed by noncitizens. The government’s first budget saw it
allocate $700,000 over three years to establish and operate an Australian Coun-
cil on Citizenship.207 The role of the council is to provide advice on reviewing
the Australian Citizenship Act, particularly:
—The meaning and value of citizenship;
—Residency, language, cultural, age, and other legal and community re-
quirements for citizenship;
—Drafting a new citizenship act and reviewing the current pledge;
—Dual and multicitizenship issues;
—The relationship of citizenship to immigration and settlement policies;
and
—How best to celebrate the fiftieth anniversary of Australian citizenship in
1999.208
Some have interpreted these guidelines as an indication of the government’s
desire to make the gaining of citizenship harder and more exclusive by extend-
ing the residency requirements and introducing more rigorous English-lan-
guage tests. Furthermore, the idea is one of making citizenship more “valuable”
by making it a prerequisite for government benefits and a condition for spon-
soring family members as immigrants.209 Any relaxation of dual citizenship reg-
ulations is also considered unlikely. The government’s agenda on citizenship
has been described by the previous minister of immigration as

anti-migrant, anti-cultural diversity . . . it would take us back to the

1960s, and the years of the White Australia Policy, when migrants who

206. Australia, Senate Legal and Constitutional References Committee, 1995, p. 15.
207. The establishment of the council was announced by the minister on August 7, 1998. It is
chaired by Sir Ninian Stephen. See Australia, Department of Immigration and Multicultural Affairs,
1998. See also Australia, Department of Immigration and Multicultural Affairs, August 20, 1996.
208. Australia, Department of Immigration and Multicultural Affairs, August 20, 1996; see,
also, Ruddock, January 20, 1997.
209. See Bolkus, February 19, 1996.
72 GI ANNI ZAPPALA AND STEPHEN CASTLES

were British subjects simply had to register as Citizens, while migrants

from anywhere else had to wait up to [fifteen] years for citizenship.210

This statement fits in with current government thinking on immigrant rights

and multiculturalism. As noted above, recent policy changes restrict the rights
of new immigrants and break with the principle of equal treatment with regard
to social rights. The most recent sign of this change is a proposal by Minister of
Immigration and Multicultural Affairs Paul Ruddock to admit parents of immi-
grants only as temporary entrants, so that they will have no access to medical
and social benefits.211 Government policies on multiculturalism and racism are
decidedly vague. Prime Minister Howard studiously avoids the theme of multi-
culturalism and has refused to dissociate himself from racist statements, espe-
cially from Queensland Independent Member of Parliament Hanson, on the
grounds that she had the right to free speech.212 The Coalition government has
effectively abandoned the previous ALP government’s measures to reshape the
relationship between ethnic difference and citizenship. Some official state-
ments indicate a desire to return to a more traditional focus on common heri-
tage, presumably based mainly on British traditions. It is not clear how this
change would include Australians of other origins.
The leader of the opposition Labor Party, Kim Beazley, has recently an-
nounced that he would reinstitute the previous Office of Multicultural Affairs
and return it to the Department of Prime Minister and Cabinet under a new
name of the Office of Multicultural Affairs and Citizenship.213 The Labor Party
policy, as it currently stands, is to link the policy of multiculturalism more
closely to national identity and citizenship, seeing the latter as a vehicle to cre-
ate unity in an ethnically diverse society.
The retreat from multiculturalism since the Coalition victory in 1996 seems
anachronistic in a society in which two out of five people are immigrants or
children of immigrants. Most recent opinion polls indicate support for the prin-
ciples of a multicultural society.214 Although it is hard to study perceptions of
national identity, some recent research does indicate a shift away from an ethnic
notion of belonging and toward a more civic notion. For instance, a study based
on the 1995 National Social Science Survey divided respondents into two main
categories: “Australian nativists,” who emphasized the importance of being

210. See Bolkus, February 19, 1996.

211. See Bolkus, February 19, 1996.
212. Lynch and Reavell, 1997, p. 44.
213. See Beazley, March 28, 1998.
214. See, generally, Jones, 1996.
AUST R AL IA 73

born in Australia, having lived most of one’s life in Australia, and being a
Christian; and people committed to “civic culture,” who emphasized the impor-
tance of respect for Australian laws and institutions, and feeling Australian.215
The study found that only about a quarter of respondents were strongly commit-
ted to nativist views, while more than half subscribed to civic ideals (many re-
spondents subscribed to both principles to some degree).216 Nativists tended to
be older and more religious, and to have lower levels of education. Supporters
of civic culture belonged to all demographic groups but were specially repre-
sented among younger and better-educated groups.217
These results bade well for the ideas of several well-known public intellectu-
als in Australia who have been emphasising the need to foster and create a na-
tional “civic identity.”218 People such as Donald Horne argue that the coming
centenary of Federation in 2001 provides an opportunity to have an explicit
statement or document of what it means to be an Australian citizen. He argues
that in an ethnically diverse society such as Australia, social cohesion can be
achieved by the state having “civic unity,” by providing a statement of the “core
values” of Australia for the next millennium that would be taught in wide-rang-
ing civics education programs. He suggests that at least five “core values” could
make up Australia’s civic compact:
—Respect for the rule of law;
—Equal rights of Australians under the law;
—The principles of a tolerant liberal democracy;
—Commitment to custodianship of the land; and
—Commitment to strengthening Australia as a fair society.219
This compact, he suggests, would be used and affirmed at oath takings in
“Citizen’s Days,” which would be for all Australians when they turned eighteen
and not just for naturalizing immigrants.220 There is an increasing recognition
that Australia’s sense of national identity can no longer be based on notions of
race and ethnicity, but built on its political institutions, values, and habits. A
policy of multiculturalism can achieve this, however, by encouraging immi-
grants to become Australian “by adoption,” while not excluding those not born
in Australia. Policy makers must therefore look more closely at the features that

215. See Jones, 1996.

216. See Jones, 1996.
217. See Jones, 1996; see, also, Betts and Rapson, 1997, p. 55.
218. See, for example, Horne, 1997; Kalantzis, May 1992–1993, p. 28.
219. Horne, 1997, pp. 263–64.
220. See Horne, 1997, pp. 262–63.
74 GI ANNI ZAPPALA AND STEPHEN CASTLES

citizenship should have in a multicultural society, or in other words, what

would multicultural citizenship entail?221
A key issue for citizenship in Australia remains the position of Indigenous
Australians. Full formal citizenship for Indigenous Australians was achieved as
recently as 1983, when their electoral participation was subjected to the same
rules as other citizens.222 As Mick Dodson has argued, however, Indigenous
Australians still do not enjoy full citizenship, since they remain politically, eco-
nomically, and culturally marginalized.223 The High Court’s 1992 decision in
Mabo v. Queensland224 appeared to represent a step forward for Indigenous
Australians, since it recognized their claim to original ownership of the land.
This recognition was provided by the Native Title Act, 1993, which allowed In-
digenous Australians, who could demonstrate a continuous attachment to the
land, to apply for recognition of ownership rights. This act, however, affected
only a minority of Indigenous Australians because most had been driven from
their ancestral land and widely dispersed during colonization. A compensation
fund was to be provided for this majority of Indigenous Australians who could
not make claims. The Land Fund and Indigenous Land Corporation (ATSIC
Amendment) Act, 1995 (Cth), established this fund to be administered by the
Indigenous Land Corporation.225
The High Court’s 1996 decision in Wik Peoples v. Queensland226 led to new
political conflicts, however, by declaring that native title could coexist with
farmers’ rights on pastoral leases. Farmers’ and miners’ representatives inter-
preted this to mean a threatening increase in the scope of land rights, although
this interpretation is disputed by Indigenous organizations. The Coalition gov-
ernment introduced a “10-Point Plan” to amend the 1993 Native Title Act.227
But this plan was strongly rejected by Indigenous Australians, who claimed that
it would deny them basic rights.228 The prime minister agreed to amend his orig-
inal proposals based on discussions with an independent senator, allowing the
bill to be passed by both houses of Parliament (July 1998).229 Although Indige-
nous groups agree that the amended plan is an improvement on the govern-
ment’s original proposals, it has nevertheless meant a diminution of their rights
with respect to the 1993 Native Title Act.230 Although Indigenous Australians

222. See discussion supra Who Are Citizens of Australia?

223. See, generally, Dodson, 1997.
224. Mabo v. Queensland (no. 2) (1992) 175 C.L.R. 1.
225. Australia, 1995, Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act.
226. Wik Peoples v. Queensland (1996) 121 A.L.R. 129.
227. Australia, 1993, Native Title Act.
228. See Aboriginal and Torres Strait Islander Commission (ATSIC), April 14, 1999
(discussing and critiquing the 10-Point Plan). ATSIC is the main representative body for
Indigenous Australians.
229. See Aboriginal and Torres Strait Islander Commission (ATSIC), April 14, 1999.
AUST R AL IA 75

make up only about 2 percent of the Australian population, the symbolic signif-
icance of this issue is enormous. There has been increasing realization in recent
years that Australian identity and citizenship needed to be reconstituted on an
inclusive basis. This required recognition of past wrongs, reconciliation with
Indigenous Australians, and measures to guarantee full membership for them.
Current trends represent a major step back to the old exclusionary notion of a
nation based on white British identity—a constellation that cannot succeed,
since it ignores the major shifts in Australian society over the past half-century.
Finally, it important to realize that debates on citizenship as full membership
of the community are becoming increasingly significant for those Australians
who find themselves marginalized by economic globalization and industrial re-
structuring. The key values put forward in debates on Australian citizenship
have always included social solidarity and equal opportunities. Since 1945, the
keys to implementing these values have been equal access to education, full
employment, and a social safety net. Current trends in Australian society in-
clude restriction of free education (especially at the tertiary level), a fairly con-
stant level of structural unemployment of 8 to 11 percent, and tendencies
toward reduction of government medical and social services. Many working
class and rural Australians no longer feel that they fully belong to society be-
cause of such changes.231 An inclusive model of citizenship needs to address
these issues, too. So far, official unwillingness to do so has left the door open
for populist racists, who blame the problems on minorities.

Conclusion

One of the authors of this paper has argued elsewhere232 that policies for in-
corporation of immigrants in highly developed countries can be classified ac-
cording to three ideal-typical models.
The first is differential exclusion, in which immigrants are incorporated into
certain areas of society (above all the labor market) but denied access to others
(such as political participation). This model applies particularly in former
“guest worker” recruiting countries like Germany, Austria, and Switzerland. In
such countries it is very hard for immigrants to become citizens, because mem-
bership of the political community is based on nationality, that is, membership
of the dominant ethnocultural group.

230. Australia, 1993, Native Title Act; see, also, Aboriginal and Torres Strait Islander
Commission, 1998, Native Title; Aboriginal and Torres Strait Islander Commission, 1998,
Howard/Harradine; Aboriginal and Torres Strait Islander Commission (ATSIC), April 14, 1999.
231. See Castles, 1992, “Australian Multiculturalism,” p. 197.
232. See Castles, 1995, “How Nation-States Respond,” p. 293; see, also, Castles and Miller,
1998, pp. 293–308.
76 GI ANNI ZAPPALA AND STEPHEN CASTLES

The second is assimilation, according to which immigrants are incorporated

into society through a one-sided process of adaptation: immigrants are expected
to give up their distinctive linguistic, cultural, or social characteristics and be-
come indistinguishable from the majority population. In return for this accul-
turation, immigrants can become full members of a community ostensibly
based on political (rather than cultural) criteria. France is the most obvious ex-
ample, although assimilation policies have existed in most immigration coun-
tries at one time or another, and continue to do so in many.
And the third is pluralism, or the acceptance of immigrant populations as
ethnic communities that remain distinguishable from the majority population
with regard to language, culture, social behavior, and associations over several
generations. Pluralism implies that immigrants should be granted equal rights
in all spheres of society without being expected to give up their diversity,
though usually with an expectation of conformity to certain key values. The
United States is the obvious example, but pluralist policies of varying strength
and characteristics may be found in Australia, Canada, New Zealand, Sweden,
the United Kingdom, and the Netherlands.
Australia, like other European settler colonies that have become mass immi-
gration countries, has evolved from an assimilationist to a pluralist model of in-
corporation. It could be argued that this is the only way to create an inclusive
national community when large parts of the population no longer share the eth-
nic origins of the founding group. Yet, substantial variations can be found
among pluralist countries, for instance with regard to the role of the state in
managing ethnocultural difference: Australian multiculturalism has involved a
far more active role of the state in social and cultural policy than is to be found
in the United States, where the tendency has been to rely on equal legal rights
and to leave social and cultural matters to private initiative.
As we have discussed, Australia has developed complex ways of defining
citizenship and managing ethnocultural difference. The failure of the Constitu-
tion to define citizenship rights has left such matters to the laws of the Com-
monwealth and the states, as well as to common law, which has resulted in a
high degree of inconsistency in many areas. The background to the silence of
the Constitution is the fact that Australia did not become fully independent in
1901, and Australians remained British subjects. Moreover, the Constitutional
vacuum with regard to citizenship rights was designed to legitimate racial dis-
crimination against Indigenous Australians and non-European immigrants. It
was not until the 1960s, in response to growing non-British immigration and the
pressure from international public opinion, that Australia’s racist definition of
belonging was officially changed.
AUST R AL IA 77

Since the 1970s, great efforts have been made to redefine the meaning of cit-
izenship in a more inclusive way. Important legal measures include the Racial
Discrimination Act, 1975;233 measures to enfranchise Indigenous Australians
and to recognize their land rights; and changes in citizenship law to encourage
easy naturalization, permit dual citizenship, and remove the privileges of Brit-
ish settlers. Major policy changes include the introduction and development of
multiculturalism, and a whole range of measures designed to improve the social
position of Indigenous Australians (albeit often with limited success). Yet,
Australian citizenship remains contradictory and incomplete in many respects,
both as a legal framework and as social membership. Moreover, current trends
appear retrogressive. Many of the reform impulses of the late 1980s and early
1990s have been abandoned—often tacitly rather than overtly. The situation is
marked by oscillation between conservative models based on nostalgia for a by-
gone age of British hegemony and neoliberal models based on the perceived
needs of Australian business as part of globalized capital. There is no clear di-
rection for Australian citizenship at present, which can only heighten the inse-
curity of immigrants, Indigenous Australians, and other minorities.

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AUST R AL IA 81

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 CHAPTER THREE

The Dilemmas of Canadian

Citizenship Law

DONALD GALLOWAY

THE SECTIONS of the Citizenship Act1 stipulating how Canadian citizenship can
be obtained and lost are deceptively simple. Their commendable clarity and
precision ensure that they have presented few problems to tax the ingenuity of
lawyers or jurists. Yet, while the rules themselves may be precise, they say little
of the social meaning and political significance of the status. Beneath the
straightforward formal rules, one finds a tangle of principles, values, and politi-
cal perspectives.
In this paper, I attempt to unearth and examine some of these underlying val-
ues, and to offer an assessment of the membership criteria and principles of re-
generation that have been adopted in Canadian law. I begin with a truncated
account of Canadian citizenship laws. Next, I discuss the role that the concept
of citizenship plays in liberal political and legal theory. Taking note of the com-
plexities that arise when borders are permeable—which permits the entry and
residence of nonmembers—the nub of my claim is that citizenship laws should
be shaped and evaluated by their effect on those who are excluded from the sta-
tus, as well as those who are included.

The author is currently a member of the Convention Refugee Determination Division of the
Immigration and Refugee Board. The views expressed in this article are the author’s alone and are
not intended to represent the views of the board. The author would like to thank Alex Aleinikoff for
his constructive comments on earlier drafts.

1. See Canada, 1985, Citizenship Act, R.S.C., ch. C-29.

82
C ANADA 83

I next examine the underlying values that have contributed to the evolution
and development of Canadian citizenship law. I focus on early naturalization
and immigration acts, and the debates that preceded the Canadian Citizenship
Act,2 which came into force in 1947. Bringing the discussion up to the present, I
note a continuing tension between nationalistic and postnationalistic as well as
collectivist and individualist conceptions of citizenship, and I highlight those
parts of the substantive law where conflicting values and principles have given
rise to interpretive dilemmas. The entrenchment of the Canadian Charter of
Rights and Freedoms3 (the “Charter”) in 1982 and recent judicial decisions that
focus on the rights of immigrants and their claims for equal treatment with citi-
zens offer a particularly rich source for examination and analysis.
Throughout the paper, I advert to recent proposals for change found in Bill
C-63, entitled An Act Respecting Canadian Citizenship, which was introduced
in Parliament by the government in December 1998. In my conclusion, I argue
that the proposals constitute a modest tilt toward a nationalistic conception of
citizenship—one that emphasizes a physical nexus to Canadian territory, and
the importance of a cohesive national community. The modesty of the proposed
legislation is illustrated by the fact that it does not adopt earlier recommenda-
tions that would have gone considerably further, particularly in restricting dual
citizenship.

Canadian Citizenship Law

Canadian citizenship law is multifunctional. It recognizes the status of citi-

zenship, defines the qualifications required for obtaining it, stipulates the
means through which the status can be lost or renounced, and, most signifi-
cantly, attaches to the status a package of rights, privileges, and burdens gener-
ally not available to others, although each part of the package may have a wider
distribution. Citizenship laws are also frequently accompanied by political pro-
grams that encourage those identified as citizens to behave in particular ways,
such as publicly celebrating their status, and even to conceive of their legal sta-
tus as an integral aspect of their identity.
Citizenship law does more than distinguish those who belong to a legal com-
munity and the terms of membership. It also has a diachronic dimension. Citi-
zenship law is the mechanism whereby a society achieves regeneration,

2. See Canada, 1970, Canadian Citizenship Act, R.S.C., ch. C-19. The Canadian Citizenship
Act was enacted in 1946 but came into force only on January 1, 1947. It is colloquially known as the
“1947 Act.” In the ensuing years, it was amended frequently and was eventually superseded by the
Citizenship Act, which came into force on February 15, 1977.
3. See England, 1982, Canada Act, ch. 11, sched. B (the “Charter”).
84 DONALD GALLOWAY

retaining its identity while its constituent members are born and die, arrive and
depart. Citizenship law provides the strands that connect the future to the past,
by identifying the characteristics of those who will be recognized as worthy of
special attention from the law.
I start with the premise that the Citizenship Act is the primary source of citi-
zenship law. This statement, however, is controversial. The 1982 entrenchment
of the Canadian Charter of Rights and Freedoms as one of the components of
the Canadian Constitution complicates the legality of the provisions of the Citi-
zenship Act, because citizenship and permanent residence—while recognized
as statuses in the Charter, with various rights being guaranteed to the holders of
each—are not defined therein. Nor does the Charter identify qualifications for
obtaining either status, which raises the question of whether there are implied
constitutional standards that must be met by a citizenship act. Is it constitution-
ally permissible to exclude classes of individuals from the status or to include
others? The entrenchment of the Charter raises the possibility that a moral con-
ception of citizenship, binding on the legislature, should be regarded as being
the fundamental source of citizenship rather than the positive law conception
found in the Citizenship Act. The absence of any constitutional definition, how-
ever, entails that the issue is left open. Three options seem available. First, and
least persuasive, one could argue that the framers of the Charter embedded
therein the definition of citizenship that existed in 1982, that which is found in
the current Citizenship Act, which came into force in 1977, and that a constitu-
tional amendment would be required to alter this definition. This option is not
very persuasive. Not only have Canadian courts expressed suspicion of the
need to rely solely on the framers’ intent, but also there is no good reason to as-
sume that the framers intended a static definition of citizenship rather than a
flexible one. The second option is that the term “citizen” should be regarded as
having a flexible definition, with the legislature being the proper body to make
decisions about its content. This option seems counterintuitive. If the legisla-
ture could redefine those who are the beneficiaries of Charter rights, one would
think that, analogously, it could also redefine “Government,” the body that is
subject to Charter obligations, and thereby immunize itself from its application.
The third option is that the term should be regarded as having a flexible defini-
tion with the judiciary as the proper body to determine its content. The sugges-
tion, however, that a body that is not accountable to the people should have the
authority to determine who is a citizen is equally problematic.4

4. Peter Hogg, a leading constitutional lawyer, opts for the second of these options but quite
ambivalently and without offering reasons for doing so. See Hogg, 1998.
C ANADA 85

The Citizenship Act recognizes three principal ways by which one may gain
the status.5 First, a person who is born in Canada is automatically a Canadian
citizen,6 unless he or she is the child of a foreign diplomat.7 This rule maintains
and modernizes the English common law of jus soli. As summarized by
Mervyn Jones,

Under the common law a person became a British subject, as a rule, by

being born within the allegiance of the Crown, and the usual source of
this allegiance was birth within His Majesty’s dominions. The common
law, as modified or amended by statutes of the Parliament of the United
Kingdom was regarded as applying in all parts of His Majesty’s domin-
ions. . . .8

Second, a strand of jus sanguinis is also recognized in the Citizenship Act, in

that a person automatically becomes a citizen by being born to a Canadian citi-
zen outside Canada.9 A qualification is attached, however: if the parent had also
gained citizenship through this provision, the child will lose the status unless,
before the age of twenty-eight, he or she applies to retain the status, registers as
a citizen, and either resides in Canada for at least a year before applying or es-
tablishes a substantial connection with Canada.10 These rules do not apply to
children adopted by a citizen outside Canada, who must be sponsored as immi-
grants if they are to gain status in Canada. Should the sponsorship be permitted,
the child will be admitted to Canada as a permanent resident and may later seek
naturalization.11 Similarly, the rules do not apply to the children of permanent
residents who are born outside Canada.
The third principal method of gaining citizenship is outlined in section 5(1)
of the Citizenship Act, which sets out the qualifications for citizenship by natu-
ralization. It provides that:

5. The Citizenship Act also allows for some exceptional ways of becoming a citizen; for
example, the Governor in Council (that is, the Federal Cabinet) has unrestricted discretion to direct
the minister to grant citizenship in cases of hardship or to reward exceptional services to Canada.
See Canada, 1985, Citizenship Act, § 5(4).
6. See Canada, 1985, Citizenship Act, § 3(1)(a).
7. See Canada, 1985, Citizenship Act, § 3(2).
8. Jones, 1956. The English common law did recognize exceptions from an early date.
Children born overseas to English subjects were recognized as subjects, and, conversely, the
children of foreign representatives born in England were not.
9. See Canada, 1985, Citizenship Act, § 3(1)(b).
10. Canada, 1985, Citizenship Act, § 8. The detailed requirements of the process are outlined in
Canada, 1993, Citizenship Regulations, SOR/93-246, § 6.
11. The law relating to adopted children is to be found in Canada, 1985, Immigration Act,
R.S.C., ch. I-2; and Canada, 1978, Immigration Regulations, SOR/78-172.
86 DONALD GALLOWAY

The Minister shall grant citizenship to any person who

(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) has been lawfully admitted to Canada for permanent residence, has
not ceased to be a permanent resident pursuant to section 24 of the Immi-
gration Act, and has, within the four years immediately preceding the
date of the application, accumulated at least three years of residence in
Canada. . . ;
(d) has an adequate knowledge of one of the official languages of Can-
ada;
(e) has an adequate knowledge of Canada and of the responsibilities
and privileges of citizenship; and
12
(f) is not under a deportation order. . . .

Section 3(1) of the Citizenship Act also stipulates that a person who meets
these requirements is a citizen only when he or she takes the oath of citizenship,
a requirement that can be waived only in the case of a minor or a person with a
mental disability.13 Moreover, section 24 of the Immigration Act, to which ref-
erence is made, provides that a person ceases to be a permanent resident when
he leaves Canada or remains outside Canada with the intention of abandoning
Canada as his place of permanent residence, and that a person who has been
outside the country for six months in a one-year period shall be deemed to have
abandoned Canada unless he proves that he did not have that intent.14 The Citi-
zenship Regulations flesh out these statutory requirements. They provide, for
example, that knowledge of Canada and of the responsibilities and rights of citi-
zens is to be tested by questions relating to such matters as the election process,
social and cultural history, political history, or physical and political geogra-
phy.15
The Citizenship Act and the Citizenship Regulations also provide for loss
and renunciation of citizenship. Section 10 of the Citizenship Act provides that
where the Governor in Council (that is, the Federal Cabinet) is satisfied that a
person has obtained citizenship “by false representation, or fraud or by know-
ingly concealing circumstances,” the person ceases to be a citizen.16 Moreover,
where a person has gained permanent resident status through such means, he or

12. Canada, 1985, Citizenship Act, § 5(1).

13. Canada, 1985, Citizenship Act, § 3(1).
14. See Canada, 1985, Immigration Act, R.S.C., § 24.
15. See Canada, 1993, Citizenship Regulations, SOR/93-246, § 15.
16. Canada, 1985, Citizenship Act, § 10.
C ANADA 87

she is deemed to have obtained citizenship also by such means. These provi-
sions have been used by the federal government in recent years, with mixed re-
sults, against individuals who have concealed alleged war crimes when
applying for permanent resident status. To find such individuals guilty of the
offenses would require proof beyond a reasonable doubt. To strip them of their
citizenship, and therefore qualify them for deportation, requires only proof on
the balance of probabilities.
While the Citizenship Act identifies the formal criteria for gaining and los-
ing citizenship, its silence on a number of issues is quite deafening. The issue,
for example, of whether a person may retain multiple nationalities is dealt with
only by implication. There is no provision in the Citizenship Act that prevents a
person from taking out citizenship in another country. Nor is there any provi-
sion to compel a naturalized Canadian to renounce his or her previous citizen-
ship.
Perhaps the most significant omission is the failure of the Citizenship Act to
identify the responsibilities and rights that attach to the status. Consequently, it
does not offer any hint on how the life of a citizen will differ from that of other
persons who may participate in the political, cultural, and social life of Canada.
Such matters are dealt with elsewhere, both in other federal statutes and in the
Constitution. Section 3 of the Charter, for example, recognizes that every citi-
zen has the right to vote in federal and provincial elections and to be qualified
for membership in the relevant legislature.17 Section 6(1) of the Charter recog-
nizes that every citizen has the right to enter, remain in, and leave Canada.18 And
section 23(1) of the Charter vests in citizens who meet certain qualifications the
right to have their children educated in one of the two official languages.19 As I
point out below, however, the equality provisions in the Charter have rendered
the status of citizenship a suspect ground for positive discrimination, and ac-
cordingly citizens and permanent residents receive equal access to social bene-
fits, such as medical care, and welfare. The rare case in which citizenship has
been used as a criterion for preferential treatment has proved problematic and
has attracted judicial attention.20
Moreover, as noted earlier, the rules of positive law do not provide much in-
sight into the social meaning of citizenship. To address this issue, I turn first to
political and legal theory and then to historical records.

17. See England, 1982, Canada Act, ch. 11, sched. B, § 3.

18. See England, 1982, Canada Act, ch. 11, sched. B, § 6(1).
19. See England, 1982, Canada Act, ch. 11, sched. B, § 23(1). Section 6(2) of the Charter
recognizes the right of every citizen and permanent resident to move and to take up residence in any
province and to pursue the gaining of a livelihood in any province.
20. See discussion below in section entitled “The Rights of Citizens and Noncitizens.”
88 DONALD GALLOWAY

Authority, Membership, and Social Regeneration

The political and social landscapes of the modern world have been shaped
by the existence of borders: imaginary lines drawn across our maps that define
the territorial span of discrete societies, and that, as much as any attribute of
physical geography, have contributed to the flourishing of their diverse cultures
and distinctive identities. Within these boundaries, autonomous legal systems
have developed, each identifying the enclosed territory as its domain and claim-
ing sovereignty over it. But the law also makes an additional claim of much
greater significance. As Joseph Raz has drawn to our attention,21 one of the
identifying characteristics of a legal system is that it makes a moral claim: it
claims to have legitimate authority over a population on whose behalf, or in
whose service, it acts.22 The problem of defining the conditions that could jus-
tify the claim to legitimacy is the central question of political theory, and a vari-
ety of conflicting accounts dominate current debates. While some, for example,
would argue that legitimacy can be gained only if the law represents the will of
the people and furthers the interest of each and all, others, such as Raz, tie it to
the ability of the legal authority to assist people to act on reasons that bind
them.23 Raz argues persuasively that the law’s claim to authority is premised on
a more basic claim: that by following the law rather than by following their own
direction, those governed by it will more likely achieve what they already have
a reason to achieve, such as a fulfilling life or meeting their moral obligations to
others. In order to make this claim persuasively, the law must, of course, be able
to show that it can provide the population with the preconditions for a more ful-
filling life or can effectively coordinate social interactions.
While these debates may define the core of political theory, they rely for
support upon the prior determination of an even more fundamental issue: no
matter how a legal system attempts to ground its claim to legitimacy, it must
first identify the set of individuals who are its subjects and distinguish them
from strangers. “Who belongs?” is the most basic question for a government
that asserts legitimacy. The concept of citizenship has become a central device
by which the law distinguishes those subject to it and served by it from strang-
ers. Thus, citizenship has come to play a vital role in the fundamental question
of politics. It is here that it gains much of its social significance.
To avoid misunderstanding, it is vital to stress that this concept of citizen-
ship does not imply that legal authorities have no obligations to strangers or that
strangers are morally irrelevant. On the contrary, acting on behalf of a popula-

21. See generally Raz, 1986.

22. The service conception of authorities, as articulated by Raz, is the view that “their role and
primary function is to serve the governed.” Raz, 1986, p. 56.
23. See Raz, 1986, pp. 53–57.
C ANADA 89

tion, legal authorities are under the moral obligation to respect the human rights
of strangers and to treat them justly and fairly. But, because the law does not as-
sume a position of authority over strangers, because it does not aim to serve
them, the substantive content of its obligations will differ from that of its obli-
gations to those who are under its claimed authority. The latter obligations will
normally be more onerous. The relationship between legal authorities and those
subject to and served by them has further dimensions, mirroring the one just
noted. First, a legal authority may determine that its ability to serve its subjects
is contingent on a willingness of the subjects to participate voluntarily and en-
thusiastically in social and political life. Accordingly, the law may provide pos-
itive incentives to its subjects to do so. It will defend such measures by
reference to the negative consequences of not providing them. But it may not
limit itself to providing encouragement. While a state may make demands on
strangers not to interfere with its attempts to create order and promote the inter-
ests of its subjects, on the subjects themselves it may impose stronger demands.
In particular, it may demand some level of commitment to the collectivity that,
in circumstances in which social disintegration is threatened, may even amount
to self-sacrifice. In brief, the need to distinguish between subject and stranger
pertains to the allocation of burdens as well as benefits and incentives.
Citizenship law does more than distinguish those who belong to a legal com-
munity and the terms of membership. It also serves as the mechanism whereby
a society achieves regeneration. This added dimension reveals a second aspect
to law’s basic claim. Not only does law claim authority over a collection of peo-
ple, but it also claims that the collectivity will be better served by acknowledg-
ing particular principles of regeneration.
Of course, both these claims may—and frequently do—meet resistance. The
debates that rage in texts of political theory spill over into real life. For a variety
of normative reasons, the law may choose to identify as its subjects a group of
people who do not self-identify as a single cohesive group. Alternatively, it
may identify as subjects a group of people who see themselves as part of a
larger social group. Furthermore, even if there is a correlation between the
law’s conception of a group as its subjects and that group’s conception of itself
as a society, there may be different conceptions of the proper principles of re-
generation.
While the law may base its claim to authority on a normative determination
that a group should identify itself in a particular way and adopt particular prin-
ciples of regeneration that will continue to shape that identity, it may face the
challenge that group identity and regeneration are matters of brute fact or non-
political negotiation. Whereas moral claims are based on balancing competing
reasons for action, determinations of identity may be conceived as being based
on a more fundamental appreciation of cohesiveness. To meet these challenges,
90 DONALD GALLOWAY

the law must show not only that it is has the ability to weigh correctly compet-
ing reasons for action, but also that it can defend the principles of community
identity that it has adopted.

Membership, Participation, and Open Borders

In the previous section, I stressed the importance of distinguishing strangers

and members, but I ignored two important dimensions of modernity—the per-
meability and flexibility of borders and the mobility of populations. If borders
were immovable and impermeable, and the law were able and willing to ex-
clude all strangers from its territorial jurisdiction, there would be little difficulty
in drawing the distinction between strangers and subjects and in allocating the
appropriate level of concern to each. These are, however, counterfactual hy-
potheses, never strictly true, but more applicable in earlier centuries where it
was only settlement or conquest that brought about the relocation of borders
and the consequent redefinition of the class of individuals subject to the law’s
authority. In these times, the expense and difficulty of arranging transportation
or communication meant that it was only the merchant, the explorer, the
scholar, the soldier, or those who had no other choice who would have the op-
portunity or resources to assume residence in another society. As a result, par-
ticular communities, as long as they could protect themselves from invasion or
conquest, were able to maintain and develop their own peculiar ethos and sense
of identity with relative ease.
In the changed circumstances of this century, the legal authorities of each
state, with varying levels of success, have come to rely on administrative ma-
chinery to control the entry and exit of people, seeking thereby to limit the size
of the community and maintain its integrity. At the same time, however, states
have also come to realize that benefits may flow from exercising a lax level of
control over the imaginary borderlines. Thus, we witness throngs of temporary
workers, businesspeople, students, refugees, long-term residents, illegal immi-
grants, and tourists entering, exiting, and reentering through the available gate-
ways. No longer is the emigrant a hapless exile or the holder of a one-way
ticket. As these groups of foreigners take residence, no matter how permanent
or temporary, the ethos and cultural coherence of a community can be trans-
formed. Newcomers form ties and relationships with subjects, which give rise
to obligations of association24 that are more concrete, demanding, and pressing
than one’s abstract duties to humanity at large. They form relations with the

24. I borrow this phrase from Ronald Dworkin who attempts to found the legitimacy of the
state on associative obligations. See Dworkin, 1986.
C ANADA 91

state. Moreover, they will likely retain familial and cultural ties with people in
their country of origin—ties that will constrain or severely qualify the opportu-
nities of immigration. Furthermore, they will form liaisons with individual im-
migrants who are in a similar position. It is no longer possible to even
approximate a hard-and-fast line between subject and stranger. Between these
two poles remain a number of different classifications. Justice will demand that
the peculiarity of each be respected. It will require that full account be paid to
the undertakings made to those who fit within these classifications, and to the
demands that are made of them. Moreover, individuals who form such ties with
a state may question the legal criteria established to identify those whom the
law is intended to serve. They may make a claim that justice requires that they,
too, be recognized as its subjects and its beneficiaries.
Thus, the presence of large numbers of foreigners within a community pres-
ents a challenge to the authority of the state. The crux of the difficulty is the
state’s ability to distinguish between, on the one hand, the population on whose
behalf it acts and, on the other hand, those others whom it has permitted to par-
ticipate in social life, to whom it owes obligations of justice but whose welfare
is not its primary concern or raison d’être.25 A defense of citizenship laws
should be based on both instrumental and noninstrumental evaluations of col-
lective and individual well-being, and on assessments of justice. Likewise, a
critical assessment of citizenship laws should be founded on an assessment of
the ways in which these various factors have been taken into consideration and
balanced. This theoretical account of citizenship clashes with the rhetorical ac-
counts of citizenship found in some of the most important Canadian political
debates, which seem to focus entirely on the interests of Canadians and of the
polity. It is to these that I now turn, after a brief methodological excursus.

Archeological Inquiries

It is worthwhile to examine the ways in which citizenship has figured rhetor-

ically in political and legal debates of earlier decades for three reasons. First, it

25. To defend its claim to legitimacy in a mobile world, a legal authority would need to develop
citizenship laws that reflect the interplay of four separate determinations: (1) the present and future
interests of the collectivity—including whether the society will be more likely to flourish if
membership is limited to those with certain characteristics or virtues; (2) whether the link between
the community and a putative member (such as birth or residence in the territory) is of such a nature
to give rise to claim in justice that the individual be recognized as a member; (3) the strength of the
interests of persons already defined as members (regarding, for example, membership for their
children or the impact of new additions); and (4) the strength of the interests of persons excluded
from membership. Full explication and application of this analysis is beyond the scope of this
paper.
92 DONALD GALLOWAY

is important to take account of a widely held and, in my opinion, sound convic-

tion that political assessments of a social institution or process must be based
not only on abstract universal principles, but also on the particular social con-
text in which the institution or process is located. This view, associated with
communitarian political theorists, is expressed aptly by Michael Walzer, who
advocates that our moral and political vocabulary should be both “thick and
thin.”26 To concretize normative abstractions, we must develop a detailed and
vibrant account of the social order in which they have been and are to be ap-
plied. The contextual accounts that I offer here are highly selective and not in-
tended to be complete. In Canada, there is a surfeit of interpretations of our past
and present, of our links with previous generations, of the glue that holds us to-
gether as a nation, and of the tensions that threaten to split us apart—and hence
a surfeit of possible contexts in which the legal status of citizenship may be lo-
cated. I offer an historical account of the processes that led to adoption of citi-
zenship as a legal status, emphasizing the rhetorical gambits that were used to
justify its introduction into the legal lexicon. It is against this historical back-
drop that I shall project both the relevant abstract ideals and the current laws, in
order to expose both subtextual subtleties and enduring anachronisms and also
to emphasize contextual factors that have influenced and continue to influence
debates about membership and justice. My aim in developing these themes is to
make the point that the never-ending multivocal Canadian conversation about
sovereignty, national identity, federalism, and national unity continues to im-
pinge heavily on any discussion of citizenship law. It would not be off the mark
to claim that these are the factors that have dominated the development of the
status of citizenship and the content of the positive laws that define it today.
A second reason to consult the historical record is to show how debates
about citizenship in Canada have relied on a variety of themes pulled from in-
consistent theoretical traditions. While most influential legislators, for exam-
ple, have defended citizenship laws by espousing a Burkean form of
conservativism that respects traditional institutions, others have tried to defend
the same laws by adhering to more liberal values that seek neutral resolutions to
political problems, based on a search for an overlapping consensus.
A third reason is to provide critical purchase on the communitarian principle
to which I referred above. I will suggest that it is inappropriate to allow the in-
terest of social cohesion, promoted by supporting social traditions and cultural
practices, to blind us to the consequences for those who seek membership or for
those who have been admitted to a community to live within it, but who have
not become institutionally recognized members. Ultimately, I am anxious to

26. See, generally, Walzer, 1994.

C ANADA 93

express a concern that, in Canada, undue political attention has been paid to
promoting Canadian sovereignty, to building a strong and unified nation, and to
generating a rich and unique heritage in which members can take pride. This fo-
cus has contributed to the undervaluation of the interests of noncitizens, and
also of some individual citizens.

The Emergence and Evolution of Canadian Citizenship

Before 1946, the Canadian Parliament had made no effort to exhaustively

define the status of Canadian citizenship, although it had made various ad hoc
forays into the field, most obviously by enacting statutes dealing with natural-
ization. By and large, it had adhered to the nationality criteria of the English
common law.27
Although the matter was never tested, Jones states confidently that, before
the enactment of the Statute of Westminster in 1931,28 the Canadian Parliament
did not have the constitutional jurisdiction to amend the law of nationality that
accorded the status of British subject to those born within the Empire. He
writes: “[N]otwithstanding the fact that many colonies acquired a substantial
degree of self-government during the late nineteenth and early twentieth centu-
ries, legislation with respect to British nationality was considered to be exclu-
sively within the province of the ‘Imperial’ Parliament.”29 Jones also notes that,
while the exclusive authority of the Imperial Parliament over matters of nation-
ality was accepted, at no time was this seen to curtail “the power of the colonies
to provide for naturalization of persons as ‘local’ British subjects, i.e., as British
subjects within the limits of the colony.”30 This power was exercised early by
the Canadian Parliament, acting under the authority of section 91 of the Consti-
tution Act, 186731 (the “Constitution Act, 1867”), which granted legislative
competence over “Naturalization and Aliens.”32
In 1914, an attempt was made to develop a cooperative scheme of natural-
ization throughout the British Empire.33 Naturalization laws were more or less

27. See Jones, 1956, p. 87.

28. See England, 1931, Statute of Westminster, 22 & 23 Geo. 5, ch. 4. Among other things, the
Statute of Westminster granted to the Canadian Parliament the power to amend or repeal any
legislation of the Imperial Parliament except the British North America Acts. It also provided that
Canadian statutes repugnant to Imperial statute would no longer be void.
29. Jones, 1956, p. 87.
30. Jones, 1956, p. 87.
31. Previously known as the British North America Act, 1867, 30 & 31 Vict., ch. 3 (England).
32. In 1868, it enacted a statute repealing all pre-Confederation legislation, and in 1881 it
enacted a statute dealing with naturalization, England, 1881, Naturalization Act, 44 Vict., ch. 13,
which mirrored the provisions of the recently enacted U.K. Act.
33. See Parry, 1957.
94 DONALD GALLOWAY

imperialized by the enactment of the British Nationality and Status of Aliens

Act34 (the “British Nationality Act”), which allowed for “imperial” rather than
merely local naturalization, with the proviso that it have effect in other Domin-
ions only if they, too, adopted a parallel measure. The Canadian Parliament ac-
quiesced in this common plan by reenacting the British Nationality Act.35
While the aim of the British government may have been to establish an em-
pire in all parts of which British subjects were free to settle, it did not succeed.
At most, it could be said that “[a]t the height of imperial development the Brit-
ish subject was . . . free so far as his personal circumstances allowed, to enter
and reside in the United Kingdom.”36 The lack of success can be attributed to the
fact that various Dominions, including Canada, did not share the same aspira-
tions and had already begun to assert their developing status as independent
countries rather than colonies.
The clearest proof that during this period of Canada’s history, authority over
the political status of Canadians was seen as a vital toehold in the climb toward
independence can be found in two contemporary statutes that legalized the sta-
tuses of “Canadian Citizen” and of “Canadian National”: the Immigration Act
of 191037 and the Canadian Nationals Act of 1921.38 The latter contained a defi-
nition of “Canadian National” based explicitly on the definition of “citizen”
found in the former. The Canadian Nationals Act served a single purpose—to
deal with the demand by the International Court of Justice that countries only be
able to nominate their own nationals for membership of that court. Without a
concept of citizen, Canada would not gain representation. Thus, we have a clear
instance of a case where the concept of citizenship is invoked not to express a
relationship between individual and the state or amongst members of a political
community, but to accord to Canada a benefit accorded to other autonomous
and independent countries.
The Immigration Act placed significant restrictions on citizenship. Canada’s
immigration laws were enacted by Parliament under the authority of the Consti-
tution Act, 1867, which provided for federal legislation on “Immigration and
Agriculture.” Soon after confederation, acting under this head of power, Parlia-
ment began to enact restrictive immigration laws, allowing it to control the
composition of the Canadian population. Immigration legislation thus acted as
a surrogate for effective citizenship legislation. In effect, the Canadian Parlia-

34. See England, 1914, British Nationality and Status of Aliens Act, 4 & 5 Geo. 5, ch. 17.
35. See England, 1914, Naturalization Act, 4 & 5 Geo. 5, ch. 44.
36. British Section of the International Commission of Jurists, 1980, British Nationality: The
Report of a Working Party, p. 1 (emphasis added).
37. See England, 1910, Immigration Act, 9 & 10 Edw., ch. 27.
38. See England, 1921, Canadian Nationals Act, 11 & 12 Geo. 5, ch. 4.
C ANADA 95

ment attempted to bypass any technical hurdles preventing it from defining its
membership by controlling access to the country. By restricting membership in
this way, it was able to create an image of itself (both to itself and to others) as
an autonomous country. The de facto power that it wielded undermined any le-
gal niceties of colonial constitutionalism.39 The Immigration Act is particularly
notable because it was the first legal instrument to introduce to this scheme the
status of Canadian citizenship. It provided that a person who was a member of
one of the listed prohibited classes could enter or remain in the country only if
he or she was also a citizen or a person with Canadian domicile.40 It defined a
citizen as: (1) a person born in Canada who had not become an alien, (2) a Brit-
ish subject domiciled in Canada, or (3) a person naturalized in Canada not hav-
ing lost domicile or become an alien.41 In this way, the definition of citizenship
derived from a system of immigration restriction. In memorable language,
Moffat Hancock noted, “It should be remembered . . . that this high-sounding
but slippery dignity of Canadian citizenship is simply a term of art among im-
migration officials, very important at the border, but having no effect upon civil
or political rights.”42
The statutory structure was somewhat peculiar because the definition of
“citizen” appears to overlap to a great extent with the category of persons with a
Canadian domicile. The immigration purposes of the statute could have been
achieved simply by establishing two categories—persons born in Canada and
persons not born in Canada who were domiciled in Canada. If there was no need
to define British subjects and domiciled naturalized persons as citizens, why
was it done? Clive Parry has justifiably commented that one sees in the statute a
parliamentary intent to assert its authority to identify individuals as citizens, but
to do so in a way that did not threaten confrontation with colonial superiors.43

39. It is ironic that Canada’s success in this regard has served as a model for the province of
Quebec to pursue a similar strategy today. Having negotiated an agreement on immigration with
Canada that allows it to select its own immigrants, while acknowledging that it lacks authority on
matters of citizenship, Quebec aims both to shape its future population and to present itself as the
ultimate authority on the identity of its population. It is unlikely, however, that Quebec’s attempts
to use immigration standards as a lever to separate itself from Canadian authority will be as
successful as the earlier parallel attempts by Canada against its colonial superior. The most
important difference between the two cases is that Quebec does not have the power to prevent
individuals from other provinces to settle in Quebec; nor does it have the authority to prevent its
immigrants, once selected, from moving to other provinces.
40. England, 1910, Immigration Act, 9 & 10 Edw., ch. 27, § 3.
41. England, 1910, Immigration Act, 9 & 10 Edw., ch. 27, § 2.
42. Hancock, 1937.
43. See Parry, 1957, p. 451. One can find other examples of such nonconfrontational
assertiveness. Consider, for example, the fact that the early Canadian naturalization statutes also
covered matters that fall clearly outside that heading, such as expatriation and the status of women
96 DONALD GALLOWAY

Further evidence of a legislative subtext relating to national sovereignty is

provided by the fact that when joining the cooperative scheme of 1914, the Ca-
nadian legislature did not merely adopt the provisions found in the section of
the British Naturalization Act. Rather, it reenacted the whole statute, including
those parts that related to broader issues of national status rather than natural-
ization, narrowly conceived. Again, this suggests that from the Canadian point
of view, it was important to at least appear to have authority over all matters re-
lating to nationality and citizenship. The most plausible explanation for pro-
moting this image is that the Canadian government considered it an effective
measure to create momentum in its attempts to gain independence from the
United Kingdom.
Whatever the case before the Statute of Westminster in 1931, in the years af-
ter that date, it became evident that enacting a citizenship law was regarded as a
way of asserting Canada’s newly gained sovereignty. It is revealing that in
1931, the secretary of state proposed a Canadian citizenship bill that bore close
resemblance to the one introduced fifteen years later.44 Although it was with-
drawn before it received third reading, this event suggests that citizenship was
regarded as a fundamental aspect of the newly granted independence.
In the debates in the House of Commons that preceded the enactment of the
1947 Canadian Citizenship Act, one can readily see that the passage of the bill
was motivated in large part by concerns that Canada begin to divest itself of the
remaining vestiges of its colonial status. One of the themes that dominated the
debates is that to be a citizen means belonging to an independent country: to be
a citizen was not to be a colonial. Thus, Secretary of State Paul Martin, in intro-
ducing the bill, noted, “It is a discreditable position in which we find ourselves
as a nation among nations of the world [today] not to be able clearly to address
one another with the full sanction of the law and for all purposes as citizens of
our own country.”45
The historical association between independence and citizenship can be
identified as a major reason for the continuing perception that citizenship laws
play a critical role in social ordering. Other important themes are also visible,
however, and they have maintained a position of prominence. First is the theme
of Canada’s international status. One can detect in the 1946 debates an almost

who marry aliens. See, for example, England, 1881, Naturalization Act, 44 Vict., ch. 13. Such
legislation suggests that in Canada the distinction between nationality and naturalization was not as
clearly drawn as Jones has asserted or that it was deliberately being rendered murky. Such sections
also suggest that it was not universally accepted that nationality was the concern solely of the
Imperial legislature.
44. Canada, 1931, 188 Debates, House of Commons 2021.
45. Canada, 1946, 249 Debates, House of Commons 503.
C ANADA 97

invisible shift from concern about the need to mark Canada’s independence to
concern about the need to establish a strong position in the international com-
munity by achieving a cohesive and loyal population. In Paul Martin’s words,

For the national unity of Canada and for the future and greatness of this
country it is felt to be of the utmost importance that all of us, new Canadi-
ans or old, have a consciousness of a common purpose and common in-
terests as Canadians; that all of us be able to say with pride and say with
meaning: “I am a Canadian citizen.”46

Themes of independence and full membership in the international regime of

states represent state interests in a formalized concept of citizenship. But the de-
velopment of Canadian citizenship also had deep implications for individuals
and their relation to their state. The shift from subject to citizen is a shift from
constitutional monarchism to liberal republicanism, implicating both gover-
nance of the state and rights held against the state.
Subjecthood, from the view of the common law, described a political status
based upon a bond of allegiance with the monarch. The relationship between
subject and monarch, as noted in Calvin’s Case, signified “the mutual bond and
obligation between the King and his subjects, whereby subjects are called his
liege subjects, because they are bound to obey and serve him; and he is called
their liege lord, because he should maintain and defend them.”47 That the rela-
tionship should be determined primarily by place of birth was regarded as a nat-
ural implication of the sovereign’s claim over the territory in question.
Moreover, it is clearly articulated in Calvin’s Case that the allegiance of the
subject is personal. It is not “owed to the crown nor to the law nor to the king-
dom, but to the person of the king.”48
The transfer of legal sovereignty from the monarch to the king or queen in
Parliament and the recognition of the political sovereignty of the people neces-
sarily redefined the relationship of the person to the state—just as it set the stage
for the struggles for universal suffrage in the first two decades of the twentieth
century. The personal allegiance a subject owed to a sovereign was replaced by
a set of common bonds with other citizens who together now constituted the
sovereign.

46. Canada, 1946, 249 Debates, House of Commons 502.

47. Calvin’s Case, 7 Co. Rep. 1, 5 (1608).
48. Dunham has noted that “the ruling in f[avor] of Calvin . . . may have checked, but it did not
prevent, the eventual comprehension of the ideas, realm, law, and king, within the term,
crown—perhaps the most consequential of all constitutional concepts.” Dunham, 1951.
98 DONALD GALLOWAY

The second aspect of the relation between citizen and state in a liberal repub-
lic is the idea of citizenship connoting rights held against the state. This theme
was emphasized by Paul Martin in the parliamentary debates of 1946. Insisting
on the connection between citizenship and civil and political rights and liber-
ties, he stated, “Under this bill we are seeking to establish clearly a basic and
definite Canadian citizenship which will be the fundamental status upon which
the rights and privileges of Canadians will depend.”49
This comment, in some important respects, was inconsistent with the prac-
tices of citizenship at the time. First, the legislation focused on the criteria of de-
termining citizenship; it neither specified any particular rights and privileges
that attached to the status, nor did it alter the election laws that granted voting
privileges to all British subjects. More significantly, at the same time that the
government was predicating one’s basic rights on one’s citizenship, it was en-
gaged in an extended legal battle to deport Japanese Canadians who would have
satisfied the criteria for citizenship based on their Canadian birth. The shameful
story has been well documented elsewhere.50 In brief, the government asked
Japanese Canadians during the war to sign repatriation forms, and those who
signed were designated as deportable. Also deportable were the wife and chil-
dren less than sixteen years of age of any person against whom an order for de-
portation had been made. These included many individuals born in Canada. As
Frank Scott points out, the voluntariness of the original signatures was open to
challenge.51 The deportations continued after the war had ended, with the gov-
ernment fighting a challenge to the validity of the relevant order-in-council to
the Judicial Committee of the Privy Council.52 It eventually succumbed to polit-
ical pressure and rescinded it. This example indicates the deep tensions imbed-
ded within the conception of citizenship that dominated Martin’s plans. The
idea of citizenship could be mobilized to strengthen the body politic by alienat-
ing those who were identified as potential risks; yet this strategy conflicted with
the idea of citizenship as designating a set of equal rights-holders.
Although Canada has transcended the need to assert its independence from
the United Kingdom, the spirit of nationalism and of patriotism that underlay
this historical process has endured and continues to influence debates about cit-

49. Canada, 1946, 249 Debates, House of Commons 503

50. See, for example, Adachi, 1976.
51. Scott notes, “It is like offering a condemned man a pistol so that he may choose swift
suicide to a public hanging. Is his death voluntary? Perhaps no one was ‘forced' to choose
repatriation, but the whole Canadian policy, the extreme racial hatred in British Columbia, the
refusal of other provinces to co-operate in resettlement . . . all this was the compulsion.” Scott,
1977.
52. Cooperative Comm. on Japanese Canadians v. Canada, A.C. 87 (1947).
C ANADA 99

izenship law. To this day, Canada’s status as an equal nation among nations, as
a country with an important role to play in global politics, is frequently repre-
sented as being dependent upon it having a strong sense of self, and a unified
population. Nevertheless, there has been widespread disagreement about the
essential characteristics of the entity that requires protection and support. The
model of Canada as a nation founded on two pillars—one English, one
French—committed to developing a single unified cultural heritage on this
footing, competes with a model of a three-pillared nation, founded by First Na-
tions as well as by the English and French. It also competes with models that
promote cultural dualism and with a liberal, multicultural model that aims to
transcend and transform the assumptions that dominated the political debates of
1867 and the notion of founding nations.53
I now turn to examine three examples to show how these varying perspec-
tives—which I will group under the labels of “nationalist” and “postnationalist”
or “multicultural”—are in play in current policy debates about citizenship
norms. The first concerns the acceptability of a person holding dual or multiple
nationalities; the second, a disagreement over the meaning of the term “resi-
dency” in the naturalization rules; the third concerns allocating preferential
treatment to citizens over permanent residents.

Dual Citizenship
In 1946, the legislature did not require its new citizens to renounce their pre-
vious citizenship. While it was thought to be important for Canadians to see
themselves as holding a common status, it was not regarded as problematic that
some Canadians also held a second nationality. The Canadian Citizenship Act,
however, did provide that citizens could lose their status by voluntarily taking
out citizenship of another country. Thirty years later, on the other hand, the Citi-
zenship Act embraced a wholly permissive stance on the issue of multiple na-
tionality. After 1977, Canadians naturalizing in another state did not lose their
Canadian citizenship, nor were persons who naturalized in Canada required to
renounce their prior citizenship. The reasons for the change are difficult to dis-
cern because the matter was not raised in the Parliamentary debates.

53. As these models compete to gain acceptance, so do different ideas of the rights and
responsibilities of citizens. Thus, the language of citizenship is used by conservatives to defend the
position that minority cultural groups should not be given special privileges or be immune from
social burdens on grounds of their cultural difference, while liberals also try to find a place for
limited cultural protection within their analysis. For a theoretical account of such a liberal view, see,
for example, Kymlicka, 1995.
100 DONALD GALLOWAY

The issue of whether it is defensible to permit a person to hold more than one
nationality has not disappeared but has reemerged in the 1990s. In 1994, the
Parliamentary Standing Committee on Citizenship and Immigration issued a
report that included three recommendations regarding dual nationality: that the
government consider the possibility of stripping of their citizenship those Cana-
dian citizens who voluntarily acquire a second citizenship; that those who hold
dual citizenship by virtue of events beyond their control, while living in Can-
ada, accord primacy to their Canadian citizenship; and that those becoming nat-
uralized be required to declare that they will accord primacy to their Canadian
citizenship over all other citizenships.54 Specifically, the report states,

The Committee finds persuasive the arguments of most of our witnesses

who expressed concerns about the current practice of allowing dual citi-
zenship. They questioned how it is possible to swear loyalty and alle-
giance to more than one country, and believe the practice diminishes the
value of our citizenship. It may also aid and abet those who view Cana-
dian citizenship primarily as a convenient commodity, useful to enhance
their international trading ability, or as an “insurance policy”, which they
may wish to use in the future, while in the meantime residing elsewhere.
Among the advantages of such a “policy” would be the guaranteed right
to retire to Canada and have access to whatever benefits are then avail-
able to residents—health care in particular—without having contributed
in taxes to the country.55

It may be naive to take the committee’s recommendations at face value.

They were published shortly before a referendum was to be held in Quebec to
determine if it should remain a part of Canada, at a time when federalists were
anxious to convince undecided voters that the consequences of an affirmative
vote would be extreme. Nevertheless, the Parliamentary Committee does ex-
press a widely held view that loyalty to the nation should not be compromised,
even when the nation is unthreatened. From this perspective, it is not sufficient
that individuals should regard themselves as members of the same community;
rather, solidarity demands undivided loyalty.
The committee’s recommendations leave open a number of basic questions.
First, it is difficult to identify any formal means by which Canadians are today

54. See Canada, 1994, Minutes of Proceedings and Evidence of the Standing Committee on
Citizenship and Immigration, p. 16.
55. Canada, 1994, Minutes of Proceedings and Evidence of the Standing Committee on
Citizenship and Immigration, p. 15.
C ANADA 101

required to show their loyalty (perhaps other than refraining from committing a
criminal offense against national interest). There is no demand that Canadians
vote, support the government or the Canadian Olympic team, sing the national
anthem on formal occasions, or treat national symbols with respect. To that ex-
tent, the liberal virtue of individual nonconformism has gained widespread sup-
port. In such a context, requiring displays of loyalty from those with two
nationalities appears oppressive. There is also the problem of determining how
one shows preference for Canada when loyalties conflict. Would it be contrary
to one’s declaration of loyalty to send money to one’s family overseas? To vote
in a foreign election for a government whose goals conflict with the goals of the
current Canadian government? In the face of such problems, it is not too sur-
prising that the citizenship bill introduced by the government in 1998 makes no
recommendations for altering Canadian dual nationality law. The Parliamen-
tary Committee’s recommendations, it would seem, have vanished—at least
temporarily.

Physical Presence in Canada

The proposed legislation takes a different tack on another issue in citizen-

ship law that has been in dispute—the residency requirement for naturalization.
As noted above, the current law requires that applicants “accumulate at least
three years of residence in Canada” within “four years immediately preceding
the date of application.”56 The question that has arisen is whether an applicant
must maintain actual physical presence in Canada for three years, or whether
the standard can be met by showing that the applicant has centralized his ordi-
nary mode of living in Canada. The issue is critical for those who have gained
permanent resident status in Canada as entrepreneurs or investors whose busi-
ness projects are transnational and who may wish to maintain their business as-
sociations in their country of origin. While they may have legitimate reasons for
continued periods of absence, they also risk being regarded as opportunists who
wish a Canadian passport as a form of insurance to protect against the economic
ramifications of political turbulence in their country of origin.
Opinions of two federal trial court judges illustrate two different reactions to
the “physical presence” question. Mr. Justice Muldoon has defended the “phys-
ical presence” interpretation on the ground that actual presence in Canada for
three years is important for acculturation: “Canadianization . . . happens by
‘rubbing elbows’ with Canadians in shopping malls, corner stores, libraries,
concert halls, auto repair shops, pubs . . . —in a word wherever one can meet

56. See discussion accompanying note 12 above.

102 DONALD GALLOWAY

and converse with Canadians—during the prescribed three years.”57 By way of

contrast, Mr. Justice Cullen has written, “The strict interpretation of the term
. . . ignores today’s reality of the global village and the frequent necessity to
work under contract with an employer outside Canada.”58
The two views reveal an important difference in attitude toward assimilation
as a prerequisite for naturalization. While Mr. Justice Muldoon’s approach does
not suggest that there is a single homogenized Canadian way of interacting, it
does suggest that Canadian ways of interacting are different from those that
happen abroad and that it is necessary for the applicant to learn these. Mr. Jus-
tice Cullen’s approach, however, suggests that the three-year period is a proba-
tionary period during which an individual may make a contribution to Canadian
society, without running afoul of Canadian law. From this perspective, the min-
imal requirements of knowledge of language, of Canada, and of the rights and
responsibilities of citizenship are more formal than substantive, a token of the
individual’s good faith, as it were. While Mr. Justice Muldoon’s interpretation
seems to be shaped by the idea that the naturalization criteria are based on a de-
termination of the state’s best interest, Mr. Justice Cullen’s interpretation is
founded on the idea that citizenship is due when a positive contribution has
been given. The validity of this latter interpretation is confirmed by the pres-
ence of other provisions in the act that allow for the minister to waive the
knowledge requirements on compassionate grounds for any applicant,59 but al-
low him or her to waive the residency requirement only in the case of a minor
who also has had the age requirement waived.60
The recent report of the Immigration Legislative Review Advisory Group
weighed in on this debate, recommending three years of physical presence in
Canada and active participation in Canadian society demonstrated by the ful-
fillment of two out of three conditions: employment, study, and community ser-
vice.61 This position, however, has not gone unchallenged. Perhaps the clearest
statement of the opposing position was made a number of years ago by Joseph
Carens. In “Membership and Morality: Admission to Citizenship in Liberal
Democratic States,”62 Carens argues that those admitted into a country to live
and work should be granted the right to naturalize “following a modest passage

57. Pourghasemi, 1993.

58. “Hasan v. Canada,” 1993, pp. 39, 41.
59. See Canada, 1985, Citizenship Act, R.S.C., ch. C-29, § 5(3)(a).
60. See Canada, 1985, Citizenship Act, R.S.C., ch. C-29, § 5(3)(b).
61. Canada, 1997, Citizenship and Immigration, Immigration Legislative Review Advisory
Group, 1997, Not Just Numbers, p. 40.
62. Carens, 1989, p. 31.
C ANADA 103

of time and some reasonable formalities.”63 He takes issue with what he calls
“discretionary models of naturalization”—that is, schemes that demand that the
resident show that they have in some way integrated into the society’s cultural
practices.64 As Carens notes,

To make claims to citizenship depend on cultural assimilation is a very

dangerous path to tread. It suggests that social membership may be de-
fined in terms of social conformity. All states in Europe and North Amer-
ica include some citizens who belong to minority groups that differ from
the majority in significant ways. To link the moral claim to citizenship to
cultural assimilation would be to suggest that these minority citizens are
not true members of society, that their moral claim to the citizenship they
possess rests on weaker foundations than the claim of citizens who share
the majority culture.65

It seems that in recent years the government has adopted an interpretation

more akin to that of Mr. Justice Muldoon. It has been seeking judicial review of
all cases in which the applicant was granted citizenship despite having spent
overseas more than 50 percent of the time required for Canadian residency.66
Moreoever, the legislation proposed by the government in 1998 adopts a simi-
lar posture. It would require physical presence in Canada for three years, al-
though it would increase the time to accumulate residence from four to five
years. In its explanatory report, the government has explained the proposal in
the following terms:

Residence is an important and meaningful condition of citizenship in that

it demonstrates an individuals attachment to Canada. It also provides an
opportunity for the applicant to become familiar with Canadian society
and to experience and discover its values, language, culture and physical
environment.67

The example of physical presence in Canada as a requirement for citizen-

ship, like the example of multiple nationality, reveals continuing tensions in the
ways in which we conceive of the individual and the state. Over the years, Can-

63. Carens, 1989, p. 31.

64. Carens, 1989, pp. 34–36.
65. Carens, 1989, p. 40.
66. A total of sixty-one cases has been documented. See Oziewicz, August 4, 1998, p. A3.
67. Canada, 1998, Citizenship and Immigration, Citizenship of Canada Act, p. 5.
104 DONALD GALLOWAY

ada has revealed an ambivalence about how loyalty and individuality should be
given expression. This ambivalence is connected closely to the issue of national
identity. Citizenship debates have gained a quality of urgency, not only because
of the seemingly ever-present threat of Quebec separating, but also because
parties to the debates express concern about protecting the essential aspects of
national identity from foreign influences, particularly those from the United
States, which might jeopardize the country’s individuality. In this context, it is
unsurprising to find that the laws that define the criteria for gaining the status of
citizenship and that identify those who may enjoy the privileges are defended
on the ground that there is an overwhelming need to promote loyalty, to pre-
serve the Canadian way of life, and to achieve unity.

The Rights of Citizens and Noncitizens

The impetus for recognition of the legal status of citizenship in Canada came
not only from those who sought to present Canada as a unified and equal nation
among nations, but also from those who, at least some of the time, sought to
place a hybrid of liberal republicanism at the heart of the Canadian Constitu-
tion, and from those who sought to ensure a universal commitment to certain
values across the country. The common sharing of common rights by citizens
has both an internal and external dynamic. Internally, it argues for equal citi-
zenship rights; externally, it suggests a basis for distinguishing citizens from
noncitizens for certain purposes. This section addresses both these issues.
In the early decades of the twentieth century, it was clear that the possession
of Canadian citizenship did not guarantee an equality of rights. Writing in 1937,
Hancock noted:

Although the Dominion possesses exclusive legislative authority over

“naturalization and aliens,” the provinces are quite competent to enact
laws which discriminate against naturalized British subjects or bear
harshly upon them. Such legislation is common in British Columbia
where special restrictions and impositions are laid upon Orientals. The
discriminations are based upon race, not nationality, so that naturalized
Chinese or Japanese are affected equally with their alien brethren.68

Despite Hancock’s confidence that racist laws do not impinge on the federal
power over naturalization and aliens, there has always been a powerful under-
current of dissent. In some cases, the court would identify a racist provincial

68. Hancock, 1937, p. 98.

C ANADA 105

law as an attempt to exercise power over “naturalization and aliens” even when
the law applied both to aliens and subjects, on the basis that its real aim was to
harm the interests of aliens and that it was using an overinclusive classification
as a ruse.69
During the period when the Canadian Constitution did not explicitly guaran-
tee political rights and freedoms, influential jurists in the Supreme Court of
Canada relied on the concept of citizenship as a device to prevent provinces
from enacting laws that burdened fundamental rights. Most prominent among
these was Mr. Justice Ivan Rand, who asserted that being a citizen meant being
able to exercise basic human rights and freedoms in all parts of the country.70 In
essence, his argument was that the federal legislature’s authority over citizen-
ship included authority over those rights that define the meaning of citizenship.
At different moments, Mr. Justice Rand identified the right to free speech and
the right of mobility as constituent elements of the status rather than incidental
benefits. Consequently, any attempt to curtail these would be an attack on the
status of citizenship and would therefore be beyond the powers of the prov-
inces.71 Thus, Mr. Justice Rand found in the concept of citizenship a device that
promised to achieve two goals simultaneously—protecting fundamental hu-
man rights and maintaining a powerful central government.
The entrenchment of the Charter rendered obsolete the need to find indirect
means to protect human rights. The nexus between individual rights and citi-
zenship has proved to be problematic, however. As noted above, the Charter
guarantees specific rights to citizens, such as the right to vote and to enter and
leave Canada.72 Yet, the Charter also includes a general equality clause, section
15(1), that applies to “every individual”:

Every individual is equal before and under the law and has the right to
equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic ori-
gin, [color], religion, sex, age or mental or physical disability.73

The mere fact that citizens are guaranteed constitutional rights appears to con-
flict with the guarantee of equality to every individual. This conflict can be
avoided if the sections that guarantee particular rights to citizens are read as re-

69. See, for example, Union Colliery Co. v. Bryden, A.C. 580 (1899).
70. See Price, 1958.
71. See, for example, Switzman v. Elbling, S.C.R. 285 (1957), and Winner v. S.M.T., S.C.R.
887 (1951). See, also, Sharpe, 1993.
72. See England, 1982, Canada Act, 1982, ch. 11, sched. B, §§ 3, 6.
73. See England, 1982, Canada Act, 1982, ch. 11, sched. B, § 15(1).
106 DONALD GALLOWAY

quiring that at least citizens enjoy these rights, while leaving open the question
whether the equality provisions require that others enjoy them, too. This option,
however, has not been pursued.74 I shall pass over it and turn to a second focus
of conflict—the situation where a legislature attempts to reserve benefits for
citizens. A clear understanding of the nature of the conflict can be gained only
from an analysis of equality jurisprudence.
In Canada, the case law relating to the equality section is dominated by sev-
eral related themes.75 It is settled that the section does not simply require that
government treat like cases alike, with unconstrained license to determine for
itself the criteria of likeness. It is also settled that the section does not commit
the government to a program of massive redistribution of resources. Instead, a
middle ground between these two extremes is considered appropriate. The gov-
erning principle is that individuals must be treated with equal concern and re-
spect; the obligation is to respect the inherent dignity of the individual, and to
avoid treatment that can be regarded as an attack on the individual’s moral per-
sonality.76
In unpacking the idea of equal concern and respect, the Canadian courts
have emphasized the need to take a “contextualized” approach to the problem,
looking beyond the formal text of the law to the way in which the law is experi-
enced by individuals and groups. A law that on its face treats people similarly
may impose more burdens on some than on others. The courts have also held
that the imposition of extra burdens on one group of individuals is not necessar-
ily contrary to the equality rights provision; a measure will be discriminatory
only if it is an attack on the individual’s moral status. This may be achieved in
one of two ways. If the burden imposed is particularly egregious, any individual
singled out to bear the burden may justifiably claim that he or she is not being
accorded sufficient respect—that they are being sacrificed for the benefit of
others.77 Moreover, where an individual belongs to a social group that is so-
cially or economically disadvantaged or politically powerless, any additional
burden imposed by the law will be identified as discriminatory on the ground

74. See discussion of Chiarelli v. Canada, S.C.R. 732 (1992), below at note 104 and
accompanying text.
75. I develop these themes elsewhere. See Galloway, 1993.
76. It is perhaps more apt to speak of a dominant principle rather than a governing principle
since this issue is extremely contentious and has attracted many influential dissenting opinions. The
leading cases are Andrews v. Law Society of British Columbia, S.C.R. 143 (1989); Miron v. Trudel,
S.C.R. 418 (1995); Egan v. Canada, S.C.R. 513 (1995); and Thibaudeau v. Canada, S.C.R. 627
(1995).
77. This point may be extrapolated from the judgment of Madam Justice Wilson in R. v.
Turpin, S.C.R. 1296 (1989). See Galloway, 1993.
C ANADA 107

that such a measure shows lack of concern for the situation of the individual
concerned.
While there still exists a middle road between formal equality and demands
for redistribution, this controversial conception of equality has been difficult to
implement in practice. Particularly difficult has been the problem of dealing
with a law neutral on its face, that will affect a disproportionate number of indi-
viduals from a disadvantaged group. Such laws have been sustained on the
somewhat specious ground that they do not reinforce their disadvantaged sta-
tus. Courts will not, in the guise of enforcing the equality provision, lightly in-
trude to dismantle structures of systemic discrimination.78
A potentially radical reading of the equality section is also undercut by inter-
pretations of section 1 of the Charter, which stipulates that the guaranteed rights
are subject “to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.”79 While this section allows govern-
ments to adopt legislation that burdens rights, courts have imposed heavy de-
mands on a government attempting to do so, because the rights identified in the
Charter are regarded as essential elements of human dignity or moral status.
Specifically, not only must the government’s objectives be pressing and sub-
stantial, but also the measures taken to achieve these objectives must be propor-
tional to the objectives and must be tailored to have minimal impairment on
individual rights.80
The leading case applying these norms to differential treatment of citizens
and aliens is the Supreme Court of Canada judgment in Andrews v. Law Society
of British Columbia,81 which invalidated a provision of a British Columbia stat-
ute that made Canadian citizenship a prerequisite to admission to the legal pro-
fession within the province. The Court determined that the denial of such
admission to a permanent resident amounted to discrimination on a ground
analogous to those listed within section 15(1) and that such discrimination
could not be justified under section 1.
Madam Justice Wilson, supported by two other justices, found that “relative
to citizens, [permanent residents] are a group lacking in political power and as

78. See, for example, Sauvé v. Canada, F.C. 857 (T.D.) (1996). This case dealt with a section
of a statute that disqualified citizens serving a sentence of two years or more in a correctional
institution from voting in elections. It was argued that the measure had a greater impact on
Aboriginals than it did on non-Aboriginals, since Aboriginals are overrepresented in prison
populations. This argument was rejected on the ground that although more Aboriginals were
affected by the measure, each was not affected more harshly than anyone else in the prison
population.
79. England, 1982, Canada Act, 1982, ch. 11, sched. B, § 1.
80. See R. v. Oakes, S.C.R. 103 (1986).
81. See Andrews v. Law Society of British Columbia, S.C.R. 143 (1989).
108 DONALD GALLOWAY

such vulnerable to having their interests overlooked and their rights to equal
concern and respect violated.”82 Citing John Stuart Mill, she stressed that “in the
absence of its natural defenders, the interests of the excluded is [sic] always in
danger of being overlooked.”83 She also adopted U.S. terminology by referring
to permanent residents as a “discrete and insular minority.”84 The denial of ac-
cess to the legal profession therefore amounted to an infringement of an equal-
ity right that discriminated on an inappropriate ground.
In a concurring opinion, Mr. Justice La Forest held that discrimination, to
fall within the meaning of section 15(1), must be based on “irrelevant personal
differences.”85 Specifically, he held that:

There is no question that citizenship may, in some circumstances, be

properly used as a defining characteristic for certain types of legitimate
government objectives. I am sensitive to the fact that citizenship is a very
special status that not only incorporates rights and duties but serves a
highly important symbolic function as a badge identifying people as
members of the Canadian polity. Nonetheless, it is, in general irrelevant
to the legitimate work of government in all but a limited number of areas.
By and large, the use in legislation of citizenship as a basis for distin-
guishing between persons . . . [harbors] the potential for undermining the
essential or underlying values of a free and democratic society that are
embodied in [section] 15. . . . It requires justification.86

Thus, after Andrews, it seems that measures that provide for differential
treatment to citizens and permanent residents are prima facie constitutionally
suspect. This conclusion is, from one perspective, a curious one. Unlike the mi-
nority religious or racial group, the class of permanent residents is a product of
the law. That is, by creating a class of permanent residents, the law itself is re-
sponsible for the class’s powerlessness. If adding to the burdens of a disadvan-
taged group is a form of discrimination, then it would seem that the creation of
the class itself must also be discriminatory.
At this point, we begin to see how equality rights destabilize the hierarchy of
recognized statuses of noncitizens, since the creation of statuses that do not
wield the same amount of political power ought to demand strong justifications

82. Andrews v. Law Society of British Columbia, S.C.R. 152 (1989).

83. Andrews v. Law Society of British Columbia, S.C.R. 152 (1989).
84. Andrews v. Law Society of British Columbia, S.C.R. 152–53 n.4 (1989) (citing United
States v. Carolene Products Co., 304 U.S. 144 (1938)).
85. Andrews v. Law Society of British Columbia, S.C.R. 193 (1989).
86. Andrews v. Law Society of British Columbia, S.C.R. 196–97 (1989).
C ANADA 109

from the government. As regards permanent residents, three solutions to this

paradox suggest themselves: (1) permanent residents should be naturalized im-
mediately on gaining the status (thereby providing them with political partici-
pation rights); (2) permanent residents should be given the same access to
political power as citizens, such as voting rights; or (3) we should admit the dis-
criminatory structure of the system, and then turn to section 1 of the Charter to
assess whether strong and pressing reasons exist for not taking one of the other
two options. Perhaps unsurprisingly, it is this last option that has gained ascen-
dancy.
When addressing the applicability of section 1 of the Charter, Madam Jus-
tice Wilson made some important remarks on the justifiability of discriminating
in favor of citizens. First, she noted that it may be desirable to have as lawyers
people who are familiar with Canadian institutions, but a citizenship require-
ment is “not carefully tailored to achieve that objective and may not even be ra-
tionally connected to it.”87 In response to the argument that citizenship
evidences a real attachment to Canada, she quotes the opinion of Madam Jus-
tice McLachlin, then of the British Columbia Court of Appeals: “While no
doubt most citizens, natural-born or otherwise, are committed to Canadian soci-
ety, Canadian citizenship does not ensure that this is the case. Conversely,
non-citizens may be deeply commited [sic] to our country.”88 In response to the
argument that lawyers perform a government function, and this service can jus-
tify a citizenship requirement, she comments,

To my mind, even if lawyers do perform a government function, I do not

think the requirement that they be citizens provides any guarantee that
they will [honorably] and conscientiously carry out their public duties.
They will carry them out, I believe, because they are good lawyers and
not because they are Canadian citizens.89

On this last point, Mr. Justice La Forest concluded that the practice of law is a
private profession, but that a “requirement of citizenship would be acceptable if
limited to Crown Attorneys or lawyers directly employed by government and,
therefore, involved in policy-making or administration, so that it could be said
that the lawyer was an architect or instrumentality of government policy. . . .”90

87. Andrews v. Law Society of British Columbia, S.C.R. 156 (1989).

88. Andrews v. Law Society of British Columbia, S.C.R. 156 (1989).
89. Andrews v. Law Society of British Columbia, S.C.R. 157 (1989).
90. Andrews v. Law Society of British Columbia, S.C.R. 203–04 (1989).
110 DONALD GALLOWAY

In summary, within the majority opinions in Andrews, one sees a high level
of skepticism about attempts to show preferential treatment to citizens, at least
when the issue is access to the legal profession. Madam Justice Wilson’s skepti-
cism seems to be the more severe. She avoids constructing a test to determine
when section 1 would justify preferential treatment toward citizens, and she
suggests that it would not even be justified in relation to governmental employ-
ment benefits. Citizenship is presented as a communal interest that will gener-
ally be insufficiently powerful to overwhelm equality rights. She does not,
however, attempt to identify or analyze the values that underpin the status. Mr.
Justice La Forest’s skepticism seems to be more tempered: while admitting that
discrimination in favor of citizens will violate equality rights, he at least ac-
knowledges some situations where this might be justifiable. His references to
government policy making suggest that he connects the status of citizenship
with high levels of loyalty toward the state.
The issues raised in Andrews have not faded. They were raised again in the
Trial Division of the Federal Court in Lavoie v. Canada,91 in which was consid-
ered the constitutionality of a statutory provision that granted preference to citi-
zens in open competitions for jobs in the public service. One of the plaintiffs
had failed to take out Canadian citizenship, though qualified to do so, because
by doing so she would automatically lose her Austrian citizenship. She stated
that she did not wish to become a “foreigner in [her] own country.”92 She was
also concerned about losing future employment opportunities in Austria.93 An-
other plaintiff, from the Netherlands, “expressed concerns regarding the possi-
ble need to return to Holland to care for her aging parents.”94
The case is an interesting one because both parties called political theorists
as expert witnesses—Peter Schuck for the government and Joseph Carens for
the plaintiffs. Mr. Justice Wetston held that the discriminating provision had
two purposes: “to enhance the meaning, value and importance of citizenship
and, secondly, to provide an incentive to naturalize.”95 In dealing with the first
of these, Mr. Justice Wetston stated that “if the differences between citizenship
and permanent resident status disappear or are rendered virtually meaningless,
then citizenship could suffer the same result.”96 In dealing with the second, he

91. See Lavoie v. Canada, F.C. 623 (T.D.) (1995).

92. See Lavoie v. Canada, F.C. 629 (T.D.) (1995).
93. See Lavoie v. Canada, F.C. 629 (T.D.) (1995).
94. See Lavoie v. Canada, F.C. 632 (T.D.) (1995).
95. See Lavoie v. Canada, F.C. 657 (T.D.) (1995).
96. See Lavoie v. Canada, F.C. 658 (T.D.) (1995).
C ANADA 111

noted that in 1991, of 711,000 permanent residents who had met the residency
qualification for citizenship, 611,000 had taken no steps to become citizens.97
When addressing the question of whether these objectives were sufficiently
pressing, Mr. Justice Wetston sided with Schuck, who had testified that there
are differences between citizens and noncitizens that are significant enough to
give special meaning, value, and importance to citizenship. He furthermore
noted that “Professor Schuck does theorize that the greater the difference be-
tween citizenship and non-citizenship the greater the value of citizenship; and
the greater the value of citizenship, the greater the incentive to naturalize.”98 Mr.
Justice Wetston also cited the fact that in Australia one of the explicit reasons
expressed by the government for limiting public service jobs to citizens was “to
enhance the significance of citizenship as a unifying factor in a multicultural
society.”99
The court thus rejected the opposing views of Joseph Carens, who had ar-
gued that “the fewer the differences between citizens and non-citizens, the
greater the value in citizenship and the greater the incentive to naturalize.”100
The nub of Carens’s position seems to be that a community that takes equality
rights seriously is more worthy than one that does not, and that membership in
such a community is a more valuable possession than membership in a discrim-
inating community. By offering incentives to people to join, the community de-
means itself. Arguably, a person who becomes a member in order to get a public
service job is not someone who is embracing citizenship as an aspect of her or
his identity. Such instrumental calculation reveals an absence of a sense of be-
longing. The person who identifies with a community when there are no
short-term incentives is more likely to feel the bond of loyalty that cohesion re-
quires.
Carens’s argument raises grave doubts about one of the assumptions under-
lying Mr. Justice Wetston’s opinion, namely that one can use citizenship law as
an effective tool for forging social cohesion or unity. To achieve this purpose,
qualifications for gaining citizenship must be carefully calibrated; they can nei-
ther be difficult nor easy to meet. If they are difficult to meet, then people will
either choose not to become citizens, or they will be unable to meet the qualifi-
cation. In either case, there will be a significant proportion of the population
who will not be part of the citizenry, which is hardly consistent with achieving a
cohesive society. If the qualifications are easy to meet, such as by birth in the

97. See Lavoie v. Canada, F.C. 659 (T.D.) (1995).

98. See Lavoie v. Canada, F.C. 659 (T.D.) (1995).
99. See Lavoie v. Canada, F.C. 661 (T.D.) (1995).
100. See Lavoie v. Canada, F.C. 660 (T.D.) (1995).
112 DONALD GALLOWAY

country, then many people will be admitted as citizens whose membership may
not promote the good of the collectivity, or who see no need to balance their
personal interests with those of the citizenry.
There is the further problem that the only device that the law can use to per-
suade individuals to become citizens is to offer incentives for doing so and to
make the status more attractive than that of the noncitizen. Use of this device,
however, will mean that many of those who become citizens will be doing so
for reasons of personal gain, rather than as an expression of social solidarity.
Conversely, if the law offers no incentive, many citizens will see no reason for
relinquishing the status of permanent resident. Aleinikoff neatly summarizes
these challenges: “We face a paradox. . . . Attempts to make citizenship matter
more by increasing distinctions between citizens and aliens are likely to pro-
duce behavior that is seen as ‘cheapening’ citizenship; while erasing distinc-
tions between citizens and aliens seems to reduce citizenship to a mere personal
affiliation.”101
Mr. Justice Wetston does not address these issues. With remarkably cursory
analysis, he identifies the statutory requirements as proportional to the breach
of the equality rights and sufficiently tailored to impair the equality rights of the
plaintiffs as little as reasonably possible, and therefore defensible under section
15.102 In doing so, he makes the briefest of references to Andrews, merely citing
a comment by Mr. Justice La Forest that preferential treatment to citizens may
be acceptable, but it requires justification.103
By virtually ignoring the discussion in the Supreme Court of Canada, Mr.
Justice Wetston may be acknowledging that since the decision in Andrews, de-
bates about the comparative importance of equality and citizenship have inten-
sified throughout society. One can find evidence of changing attitudes even
within the Supreme Court of Canada itself. Particularly noteworthy is the Su-
preme Court’s decision in Chiarelli v. Canada,104 which considered the consti-
tutionality of the deportation of a long-term resident who had not become a
citizen but who, nevertheless, had been a part of the Canadian community for
an extended period.105
Chiarelli had entered Canada in 1975, at the age of fifteen. In 1984, he pled
guilty to unlawfully uttering threats to cause injury and to possession of narcot-
ics with the purpose of trafficking, both offenses for which sentences of more

101. Aleinikoff, 1998, p. 18.

102. See Lavoie v. Canada, F.C. 623, 677–78 (T.D.) (1995).
103. See Lavoie v. Canada, F.C. 662 (T.D.) (1995).
104. Chiarelli v. Canada, S.C.R. 711 (1992).
105. Currently, Canadian law has not accepted the claims of such individuals that they be
considered de facto citizens. See “Machado v. Canada,” 1996, p. 121.
C ANADA 113

than five years could be imposed. He received a sentence of six months’ impris-
onment, which rendered him deportable. A review committee impaneled under
the Canadian Security Intelligence Service Act reported that there were reason-
able grounds to believe that Chiarelli was involved in organized crime. Accord-
ingly, the minister of Employment and Immigration issued a certificate
determining that he was a security risk. Where this has been determined, the
Immigration Act disallows the usual ground of appeal to the Immigration Ap-
peal Division on “all the circumstances of the case” that would allow for com-
passionate consideration of the deportee’s connection with Canada.106
Chiarelli challenged the process under section 7 of the Charter, which de-
clares that “everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles of
fundamental justice.”107 The Court rejected the claim. Reasoning that “the prin-
ciples of fundamental justice are to be found in the basic tenets of our legal sys-
tem,”108 it noted that the “most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in the coun-
try.”109 The Court furthermore found no violation of equality rights protected by
section 15 of the Charter: under section 6(2) of the Charter only citizens are af-
forded the right to enter, remain in, and leave Canada; thus “there is . . . no dis-
crimination contrary to [section] 15 in a deportation scheme that applies to
permanent residents, but not to citizens.”110
The Court’s ruling is troubling on several grounds. First, it is based on the
idea that issues of fundamental justice are to be resolved by consulting en-
trenched legal practice rather than considering transcendent abstract principle.
While this view pays homage to contextualization, it contains the unfortunate
suggestion that we should determine how to treat noncitizens in the future in ac-
cordance with practices that were developed during a time of nation building.
The constitutional protection of individual rights begins to take on a hollow ap-
pearance if we are bound to perpetuate practices that developed in a previous
era.
Second, it is not hard to make a persuasive argument that fundamental jus-
tice requires that an immigrant’s personal situation and the depth of his or her
connection with the community should be considered when determining indi-
vidual rights. Social membership and participation are connected concepts: by
adopting Canada as one’s home and by participating in ways of life, the individ-

106. Canada, 1985, Immigration Act, R.S.C., §§ 70(1), 70(4).

107. England, 1982, Canada Act, ch. 11, sched. B, § 7
108. Chiarelli v. Canada, S.C.R. 732 (1992).
109. Chiarelli v. Canada, S.C.R. 733 (1992).
110. Chiarelli v. Canada, S.C.R. 736 (1992).
114 DONALD GALLOWAY

ual will have become immersed in the tangled networks of meaningful relations
that define the cultural ethos. To disown such an individual is to deny his or her
contributions.
Third, section 6(2) of the Charter can be read as guaranteeing rights to citi-
zens but not exclusively. Instead of reading it as reserving the rights to enter and
remain in Canada for citizens only, it can be read as leaving open whether oth-
ers also have these rights. Finally, by upholding a distinction drawn on citizen-
ship, Chiarelli implicitly tolerates a line between long-term residents who have
chosen to naturalize and long-term residents who have not. Arguably, there are
significant differences between these groups. As was noted above, for example,
the former will have sworn an oath of loyalty and will have passed a citizenship
test, which reveals an ability to communicate in one of the official languages
and knowledge of Canadian culture. The critical question, however, is whether
these factors are sufficiently powerful to justify such a disparity in treatment.
While such differences may justify minor differences in treatment, it is ques-
tionable whether they can justify deportation of one group but not the other.
Chiarelli reveals a marked departure from the principles enunciated in An-
drews. The deep commitment to equality expressed in the latter case does not
demand that citizens and noncitizens may never be distinguished. It does not
demand, for example, that we jettison all our immigration laws and regulations,
but it does demand that we consider whether our laws treat all individuals with
equal concern and respect. Yet, long-term residents who have not become natu-
ralized but who have become part of the Canadian community may well appear
to be similarly situated with citizens, and based on their long-term contributions
to Canadian society, their removal may well be seen as a denial of equal con-
cern and respect. From this perspective, the deportation provisions of the Immi-
gration Act that permit the deportation of long-term residents111 could be said to
establish discriminatory treatment of long-term residents vis-à-vis citizens.
While I have focused on case law in these pages, it should be noted that law
reformers have also picked up the theme of equality. The report of the Parlia-
mentary Standing Committee on Citizenship and Immigration, Canadian Citi-
zenship: A Sense of Belonging, relies on a conception of equality when
mounting a critique of current citizenship laws. It identifies as discriminatory
and contrary to constitutional principles of equality, for example, the rules that
stipulate that children adopted by a citizen outside Canada must be sponsored
as immigrants, while those born outside the country automatically gain the sta-
tus. The committee recommended that children adopted overseas be granted
automatic citizenship “subject to adequate rules to avoid adoptions of conve-

111. See Canada, 1985, Immigration Act, R.S.C., § 4.

C ANADA 115

nience . . . and appropriate medical, criminal and security checks.”112 Whether it

is possible to devise such rules is questionable. Moreover, it is relatively easy to
identify reasons for discrimination against adopted children. Justification for
any differential treatment could, for example, be sought in the fact that there is a
greater chance that the children of citizens will spend their childhood becoming
acquainted with Canadian life and culture. A similar level of guarantee is un-
likely with adopted children. In the light of broad interpretations of section 1 of
the Charter, it is questionable whether this discrimination would be held to be
unconstitutional. Nevertheless, in the recently introduced bill, Bill C-63, the
government has adopted the suggestion that adopted children be granted auto-
matic citizenship, but without being subject to any medical, criminal, or secu-
rity checks.

Conclusion

I have attempted to show that throughout Canada’s history, the concept of

citizenship has not only been used as a means of identifying a community’s
membership and its principles of regeneration, but it also has played a variety of
rhetorical roles. In essence, the concept of a “citizen” has been regarded as
one-half of a dichotomy and, at different times, different dichotomies have
shaped the ambit of political debates. Thus, the citizen has been juxtaposed
with the king’s subject; with the colonial; with the resident of a province; and
more recently, with the permanent resident and others who are recognized by
our immigration laws. As political and economic conditions have changed, the
themes of political debate have also changed. The concept of citizenship has al-
ways played an important role, but it has been molded to fit each context.
I have attempted to illustrate the nature of current debates by focusing on
three distinct issues—dual citizenship, residence, and equality. In my discus-
sion of each, I have tried to reveal that two distinct philosophies are at odds: a
nationalistic or collectivist vision that emphasizes the utility of citizenship law
as a device to promote and stabilize social cohesion, and a more individualistic
approach that emphasizes the need to respect individuals as equals. One can in-
fer from the provisions of the recent Bill C-63 that national unity and identity
continue to rank highly in importance. The redefinition of those who are enti-
tled to the status of citizenship, particularly the emphasis placed on physical
presence in Canada, suggests that social cohesion and assimilation are currently
preferred concerns.

112. Parliamentary Standing Committee on Citizenship and Immigration, 1994, Canadian

Citizenship: A Sense of Belonging, p. 19.
116 DONALD GALLOWAY

I have argued that the entrenchment of the Charter has been an important
milestone. Its impact has been substantial in reducing the legal differentials be-
tween citizens and noncitizens, while also ensuring that the concept of citizen-
ship continues to play a prominent role in debates about equality. Yet, it must
also be conceded that the Charter has contributed to growing cynicism about
the government’s commitment to another idea at the heart of liberal democratic
politics—that political sovereignty lies with the people. There have emerged
undercurrents of dissatisfaction about the amount of political power transferred
to the judiciary since 1982. Here two other aspects of citizenship—popular sov-
ereignty and rights protection—seem in deep tension.
Furthermore, both these aspects of citizenship are brought under pressure by
recent government eagerness to sign multinational economic agreements such
as the North American Free Trade Agreement, or the now defunct Multilateral
Agreement on Investment. The central concern is that the government will di-
vest itself of power by adopting such agreements and thereby transfer its legal
sovereignty to nongovernmental bodies that will be immune from political
challenge. Not only is there significant doubt about the government’s ability to
enforce the parts of these agreements that aim to protect cultural integrity, but
one can also detect a deeper concern that the reins of power are being trans-
ferred to bodies that are not responsible to the citizenry. It is thus commonplace
to hear assertions that both national identity and the status of citizenship are be-
ing diluted.

References
Adachi, Ken. 1976. The Enemy that Never Was. Toronto: McClelland and Stewart.
Aleinikoff, T. Alexander. 1998. Between Principles and Politics: The Direction of U.S.
Citizenship Policy. Washington, D.C.: Carnegie Endowment for International Peace.
British Section of the International Commission of Jurists. 1980. British Nationality:
The Report of a Working Party. London: Justice.
Canada. 1998. Citizenship and Immigration, Citizenship of Canada Act. (On file with
author.)
Canada. 1997. Citizenship and Immigration, Immigration Legislative Review Advisory
Group. Not Just Numbers. (On file with author.)
Canada. 1994. Minutes of Proceedings and Evidence of the Standing Committee on Citi-
zenship and Immigration. (On file with author.)
Canada. 1993. Citizenship Regulations, SOR/93-246.
Canada. 1985. Citizenship Act, R.S.C.
Canada. 1985. Immigration Act, R.S.C.
Canada. 1978. Immigration Regulations, SOR/78-172.
Canada. 1970. Canadian Citizenship Act, R.S.C.
Canada. 1946. 249 Debates, House of Commons 503.
Canada. 1931. 188 Debates, House of Commons 2021.
C ANADA 117

Carens, Joseph H. 1989. “Membership and Morality: Admission to Citizenship in Lib-

eral Democratic States.” In Immigration and the Politics of Citizenship in Europe
and North America, ed. William Rogers Brubaker. Lanham, Md.: University Press of
America.
Dunham, William H. Jr. 1951. “Doctrines of Allegiance in Late Medieval English Law.”
New York University Law Review, no. 26.
Dworkin, Ronald. 1986. Law’s Empire. Cambridge: Harvard University Press.
England. 1982. Canada Act.
England. 1931. Statute of Westminster, 22 & 23 Geo. 5.
England. 1921. Canadian Nationals Act, 11 & 12 Geo. 5.
England. 1914. British Nationality and Status of Aliens Act, 4 & 5 Geo. 5.
England. 1914. Naturalization Act, 4 & 5 Geo. 5.
England. 1910. Immigration Act, 9 & 10 Edw.
England. 1881. Naturalization Act, 44 Vict.
England. 1867. British North America Act, 30 & 31 Vict.
Galloway, J. Donald C. 1993. “Three Models of (In)Equality.” McGill Law Journal, no.
38.
Hancock, Moffat. 1937. “Naturalization in Canada.” In The Legal Status of Aliens in Pa-
cific Countries, ed. Norman MacKenzie. Oxford: Oxford University Press.
“Hasan v. Canada.” 1993. Immigration Law Review, no. 22, 2d, p. 39.
Hogg, Peter W. 1998. Constitutional Law of Canada. 4th ed. Scarborough, Ontario:
Carswell.
Jones, J. Mervyn. 1956. British Nationality Law. Oxford: Clarendon Press.
Kymlicka, Will. 1995. Multicultural Citizenship. New York: Oxford University Press.
“Machado v. Canada.” 1996. Immigration Law Review, no. 33, 2d, p. 121.
Oziewicz, Estanislao. (August 4, 1998.) “Ottawa Fighting More Citizenship Decisions.”
Globe and Mail, p. A3.
Parliamentary Standing Committee on Citizenship and Immigration. 1994. Canadian
Citizenship: A Sense of Belonging. (On file with author.)
Parry, Clive. 1957. Nationality and Citizenship Laws of The Commonwealth and of The
Republic of Ireland. London: Stevens & Sons Ltd.
Pourghasemi, Re. 1993. Immigration Law Review, no. 19, 2d.
Price, Ronald R. 1958. “Mr. Justice Rand and the Privileges and Immunities of Canadian
Citizens.” University of Toronto Faculty Law Review, no. 16.
Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press.
Scott, Frank R. 1977. Essays on the Constitution: Aspects of Canadian Law and Politics.
Toronto: University of Toronto Press.
Sharpe, Robert J. 1993. “Citizenship, the Constitution Act, 1867, and the Charter.” In
Belonging: The Meaning and Future of Canadian Citizenship, ed. William Kaplan.
Montreal, Quebec: McGill-Queen’s University Press.
Walzer, Michael. 1994. Thick and Thin: Moral Argument at Home and Abroad. Notre
Dame: University of Notre Dame Press.

Legal Cases
Andrews v. Law Society of British Columbia, S.C.R. 143 (1989).
Calvin’s Case, 7 Co. Rep. 1, 5 (1608).
118 DONALD GALLOWAY

Cooperative Comm. on Japanese Canadians v. Canada, A.C. 87 (1947).

Chiarelli v. Canada, S.C.R. 732 (1992).
Egan v. Canada, S.C.R. 513 (1995).
Lavoie v. Canada, F.C. 623 (T.D.) (1995).
Miron v. Trudel, S.C.R. 418 (1995).
R. v. Oakes, S.C.R. 103 (1986).
R. v. Turpin, S.C.R. 1296 (1989)
Sauvé v. Canada, F.C. 857 (T.D.) (1996).
Switzman v. Elbling, S.C.R. 285 (1957).
Thibaudeau v. Canada, S.C.R. 627 (1995).
Union Colliery Co. v. Bryden, A.C. 580 (1899).
United States v. Carolene Products Co., 304 U.S. 144 (1938).
Winner v. S.M.T., S.C.R. 887 (1951).
 CHAPTER FOUR

Between Principles and Politics:

U.S. Citizenship Policy

T. ALEXANDER ALEINIKOFF

WE CONCEIVE of the world as divided into states, with each state exercising
sovereignty over a territory and a population. The population of a state consists
primarily of its “citizens.” In an increasingly mobile world, however, many per-
sons—sometimes millions—are not citizens of the state in which they reside.
Most have gained admission to the state lawfully, as settled immigrants, refu-
gees, or temporary visitors or workers; many have entered illegally, although
their continued residence may be tolerated to some degree.
In everyday life, little may separate citizens from aliens. But status has im-
portant political and affiliational implications. Citizenship is generally under-
stood to connote “full membership” in a state. Citizens are (usually) those
endowed with the political rights in the state. They are those on whose behalf
the state is understood to act; and they are those seen as owing a degree of loy-
alty and commitment to the state that is not asked of noncitizen residents. Other
benefits accompany citizenship, such as eligibility for a passport, the right to
not be deported, and the ability to seek protection by their home government
when traveling in a foreign country. In many states, moreover, social benefits
and government employment are limited to citizens.
But the advantages of citizenship should not obscure the fact that immi-
grants in many states enjoy rights and opportunities largely on equal terms with
citizens. They are permitted to work, to travel freely within the state, and to
have access to the educational and legal systems of the state, and they may be
eligible for social benefits. Their individual liberties are protected by emerging

119
120 T. ALEXANDER ALEI NI KOFF

international human rights norms and, frequently, by domestic constitutions

and legislation. These protections, as well as the day-to-day lives of settled im-
migrants, suggest an understanding of membership that goes beyond the status
of citizenship.
In the United States, discussions about citizenship have increased markedly
in recent years. Record numbers of immigrants are seeking naturalization.
Questions have been raised about birthright citizenship for the children of un-
documented aliens, naturalization standards, and dual citizenship. Moreover, in
a dramatic shift in public policy, Congress in 1996 eliminated the eligibility of
permanent resident aliens for most federal means-tested benefit programs.
This study examines current policy debates within the context of a broader
description of the nature of U.S. citizenship and perspectives on membership.
The first section focuses on the acquisition of U.S. citizenship. The central
norm of U.S. citizenship law is that citizenship accrues to all those born in the
territory of the United States. This norm of jus soli is not followed by most
countries, and it is currently under challenge by those who would deny it to
U.S.-born children of undocumented aliens. This paper recommends that this
challenge be rejected.
Citizenship may also be granted by way of naturalization. The central re-
quirements for naturalization have not altered much over the past two centuries.
But the recent dramatic increase in the number of persons seeking citizenship
has brought naturalization policies to the forefront of policy debate. Some ob-
servers have argued that standards regarding English proficiency and knowl-
edge of U.S. history and civics must be raised; others have suggested a
reconsideration of the requirement that an applicant renounce citizenship else-
where when naturalizing.
The second section considers norms regarding loss of U.S. citizenship. Rul-
ings by the Supreme Court make loss of U.S. citizenship virtually impossible
without the consent of the citizen—other than on grounds that naturalization
was wrongly obtained. A U.S. citizen taking citizenship in another country does
not automatically lose U.S. citizenship.
The interplay of U.S. rules on acquisition and loss of citizenship, combined
with similar rules in foreign states, has produced significant numbers of dual
citizens in the United States. The third section examines the causes and policy
implications of dual citizenship, taking particular note of the recent amendment
to the Mexican Constitution that permits Mexican citizens to retain Mexican
nationality despite acquisition of U.S. citizenship.
The fourth section examines differential treatment of citizens and aliens in
terms of rights held against the government, rights to participate in government,
and access to benefits and opportunities. As noted above, citizens are endowed
UNIT E D ST AT E S 121

with certain rights and privileges not extended to noncitizens. But the actual al-
location of constitutional and statutory rights and obligations is complicated,
and the relevant legal norms establish varying degrees of “membership” for cit-
izens and aliens.
The first four sections provide the basis for the discussion in the fifth section
of competing models of membership. Rejecting at the outset understandings of
membership based solely on ethnic and racial criteria, or on mere presence in
the United States, the study examines in detail three other models:
—1. Citizenship as membership adopts the view that citizenship is the pri-
mary currency of membership and that immigrants are aliens, guests, nonmem-
bers; under this perspective, limiting benefits and opportunities to citizens is
appropriate.
—2. Lawful settlement as membership represents the best description of
U.S. law and practice before the passage of the 1996 welfare legislation. While
valuing citizenship as the most complete form of membership, this model also
recognizes membership in the form of lawful residence in, participation in, and
contribution to U.S. society.
—3. Transnational membership is based on the perspective that, increas-
ingly, immigrants are and can be members of both their home countries and
their countries of settlement.
The study concludes that citizenship is a concept of considerable impor-
tance, worth valuing and preserving, but that our long constitutional and statu-
tory traditions recognizing degrees of membership for resident aliens should
not be cast aside in a desire to make citizenship “mean more.” A robust citizen-
ship, one that reinvigorates notions of allegiance and commitment, is not ulti-
mately served by social policies that diminish the status and opportunities of
immigrants. The study therefore suggests affirmation of the traditional “lawful
settlement as membership” perspective.

A number of interrelated causes have put citizenship on policy agendas

around the world. Developed states have witnessed high levels of immigration in
recent decades. U.S. immigration, for example, has reached levels not seen since
the early decades of this century. In the United States the foreign-born percentage
of the total population is nearly 10 percent—double that of 1970. In Germany,
noncitizens account for 8.5 percent of the population, and in France, for 6.3 per-
cent. Many of these immigrants came as sojourners or temporary workers but
have become settlers. In countries interested in integrating these large for-
eign-born populations, naturalization has become a focal point of social policy.
Interest in citizenship has also been sparked by the perceived challenge to
the sovereignty of nation-states from both above and below. From above, the
122 T. ALEXANDER ALEI NI KOFF

activities of international, supranational, and nongovernmental organiza-

tions—and the reach and enforcement of international law—have constrained
states in areas in which they formerly were largely unfettered. Subnational
groups, too, have demanded—and sometimes received—rights of self-gover-
nance or other attributes of autonomy. Ethnic and religious groups within coun-
tries have challenged those traditions and symbols of nation-states that they
believe contribute to their subordination.
In these circumstances, states are likely to search for overarching affiliations
and identifications that can both hold together a polyethnic society and serve as
a national rallying point for the assertion (or preservation) of state interests in
an increasingly constraining supranational sphere. The concept of citizenship,
appealing directly to the dedication of the citizen to the state, can be one such
device.
Political developments in the world have also produced serious interest in
citizenship and membership. The European Union’s Maastricht Treaty declares
the existence of “European citizenship”;1 the breakup of the Soviet Union has
focused international attention on the citizenship rules adopted by the Baltic
countries; and the Helsinki Agreement and the Dayton Accords have estab-
lished novel political structures that challenge traditional notions of sover-
eignty and membership.
These demographic, social, and political developments raise a number of
distinct issues regarding the relationship of people to a state. The first is a defi-
nitional question: Who are the citizens of a state? This question focuses atten-
tion on rules of birthright citizenship and naturalization. A second issue
concerns the rights and obligations of citizenship, and centers on the difference
that citizenship makes from the perspectives of both governments and individu-
als with or without this civic status. A third issue is normative: What is expected
of citizens—in effect, what does it take to be a “good citizen”? A fourth issue is
the degree to which questions of citizenship are linked to broader concerns of
cultural pluralism and integration in a society.
Clearly, these issues are related. The rights granted citizens, for example,
may make citizenship more or less attractive and therefore influence naturaliza-
tion rates. Or, the society’s expectations of “good citizenship” may be more or
less friendly to maintaining other loyalties and therefore may affect immi-
grants’ decisions to naturalize and the manner in which they integrate into U.S.
society. In its examination of the relationship of citizenship and membership,

1. Treaty on European Union (“Treaty of Maastricht”), Title II, Part II, Article 8. Translated in
Corbett, 1993, pp. 380, 389.
UNIT E D ST AT E S 123

this study will give primary attention to the first two questions: Who is a citi-
zen? What are the rights and obligations of citizenship?

Who are citizens of the United States?

Virtually all human beings acquire citizenship at birth, and the vast majority
of people are citizens of the country in which they were born and currently re-
side. The near-universality of these facts—which seem so natural that we rarely
think about them—is recent, correlating with the growth and development of
the nation-state.2 Birthright citizenship occurs in two ways: Under the principle
of jus soli, a person is a citizen of the territory in which he or she is born; under
the principle of jus sanguinis, citizenship is based on descent. Because most
people are born to parents who are citizens of the country in which they reside,
these two modes of citizenship acquisition usually overlap. But jus soli and jus
sanguinis represent very different understandings of the nature of citizenship
and have important implications for the integration of immigrants and their
children.
This section examines how the principle of jus soli (literally, right of the
soil) has been interpreted in U.S. law. It then considers how this principle has
been and should be applied to the acquisition of citizenship by U.S.-born chil-
dren whose parents are undocumented aliens. At the other end of the spectrum
are the children born outside the territory of the United States to parents who are
U.S. citizens. This section looks as well at how the United States has applied the
principle of jus sanguinis (or right of blood) to these limited instances. Citizen-
ship may also be acquired by naturalization, of course, and this section con-
cludes by looking at the rules governing naturalization in the United States and
at the larger policy issues informing the debate over these rules.

Jus soli, American Style

The United States has operated under the principles of both jus soli and jus
sanguinis since its founding. Although neither the Constitution nor federal
law defined birthright citizenship until after the Civil War, state and federal
authorities recognized jus soli as part of the common law inherited from Eng-
land.

2. Although the term “nation-state” is sometimes used in an ethnocultural sense, I will use the
term more in its American sense, as interchangeable with “state,” “country,” and “polity.”
124 T. ALEXANDER ALEI NI KOFF

Jus soli is sometimes criticized as an ill-fitting remnant of medieval times.3

The classic statement of the principle dates back to a 1608 opinion by Sir Ed-
ward Coke in Calvin’s Case. In U.S. law, jus soli was explicitly affirmed by
the adoption in 1868 of the Fourteenth Amendment, which states that “all per-
sons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.”
The amendment constituted an express overruling of Chief Justice Taney’s
opinion in the Dred Scott case (1857)4 that free blacks born in the United
States were not citizens. Taney’s reasoning was that the term “citizens” meant
“the people of the United States,” and that the latter term was defined histori-
cally to include only those persons deemed to be part of “the people of the
United States” at the time of the nation’s founding. Examining the historical
record, Taney concluded that persons of African descent born in the United
States had not been included in “the people of the United States” at the time of
the adoption of the Constitution, and thus free blacks born in the United States
were not citizens at birth. Taney’s analysis has been roundly rejected by
scholars;5 his conclusion was rejected by the nation with the ratification of the
Fourteenth Amendment.
Because the principle of jus soli is so fundamental to the U.S. legal tradition,
it has particular power in American culture. Its strength is evident in the 1898
decision of the Supreme Court in United States v. Wong Kim Ark.6 At issue in
the case was whether children born to Chinese immigrants in the United States
were citizens. The government argued that the children of immigrants were not
“subject to the jurisdiction” of the United States within the meaning of the
Fourteenth Amendment. It further noted that federal law at the time prohibited
Chinese immigrants from naturalizing in the United States. Nonetheless, the
Court concluded that the children were citizens, upholding “the fundamental
rule of citizenship by birth within the dominion of the United States.”7 Wong

3. See, for example, Schuck and Smith, 1985, p. 73.

4. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
5. See Kettner, 1978, pp. 307–33.
6. United States v. Wong Kim Ark, 169 U.S. 649 (1898).
7. United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898). As the Court noted in the case,
such reasoning did not apply to children born to American Indians, “standing in a peculiar relation
to the National Government, unknown to the common law.” United States v. Wong Kim Ark, 169
U.S. 681 (1898). Indeed, the Court had held fourteen years earlier that an Indian born in the United
States who left his tribe and integrated into white society did not acquire citizenship under the
Fourteenth Amendment. Elk v. Wilkins, 112 U.S. 94 (1884). Eventually Congress adopted
legislation conferring citizenship on all Indians born in the United States by the Immigration and
Nationality Act (1952) section 301(b).
UNIT E D ST AT E S 125

Kim Ark is an extraordinary decision, delivered in the same era as Plessy v. Fer-
guson (which sustained the constitutionality of Jim Crow laws) and a set of
opinions limiting the application of the Constitution to recently acquired over-
seas territories.8 Clearly the ghost of Dred Scott casts a long shadow.

The Debate over Citizenship for Children Born to Undocumented Aliens

While jus soli appears secure in the United States as a constitutional and po-
litical principle for children born to lawfully admitted permanent resident
aliens, in recent years questions have been raised regarding the principle’s ap-
plication to children of undocumented aliens. Yale professors Peter Schuck and
Rogers Smith argued in 1985 that no judicial precedent directly supported
birthright citizenship for children of undocumented aliens and that political the-
ory supported a contrary conclusion. Recognizing “the splendor of its constitu-
tional pedigree,” Schuck and Smith nonetheless suggest that “birthright
citizenship is something of a bastard concept in American ideology”:

Birthright citizenship originated as a distinctively feudal status intimately

linked to medieval notions of sovereignty, legal personality, and alle-
giance. At a conceptual level, then, it was fundamentally opposed to the
consensual assumptions that guided the political handiwork of 1776 and
1787. In a polity whose chief organizing principle was and is the liberal,
individualistic idea of consent, mere birth within a nation’s border seems
to be an anomalous, inadequate measure of expression of an individual’s
consent to its rule and a decidedly crude indicator of the nation’s consent
to the individual’s admission to political membership.9

The authors accept that the Fourteenth Amendment and the Supreme
Court’s decision in Wong Kim Ark establish birthright citizenship for children
of citizens and permanent resident aliens. But they argue that the Fourteenth
Amendment ought to be reinterpreted to incorporate a “consensualist” ap-
proach that would make birthright citizenship for children of illegal and tempo-
rary-visitor aliens “a matter of congressional choice rather than of
constitutional prescription.”10
A number of commentators have pointed out that Schuck and Smith’s con-
stitutional argument is difficult to square with the Fourteenth Amendment’s ex-

8. See Downes v. Bidwell, 182 U.S. 244 (1901); Balzac v. Porto Rico, 258 U.S. 298 (1922).
9. Shuck and Smith, 1985, pp. 2–3.
10. Shuck and Smith, 1985, p. 5.
126 T. ALEXANDER ALEI NI KOFF

press affirmation of the common-law principle of jus soli.11 Moreover, a

consensualist approach seemed to underlie Justice Taney’s opinion in Dred
Scott, and nothing could be clearer than the nation’s intent to overrule that deci-
sion by adopting the Amendment.12 At a joint hearing of two subcommittees of
the House Judiciary Committee in 1995, the Department of Justice rejected
Schuck and Smith’s constitutional reasoning, arguing that their theory “would
require repudiation of the language of the Constitution itself, the clear state-
ment of the framers’ intent, and the universal understanding of 19th and 20th
century courts.”13
If the Supreme Court were to agree with the Department of Justice that the
Constitution guarantees citizenship for the U.S.-born children of undocu-
mented aliens, Congress would be without power to enact legislation to deny
citizenship to such children. But such a ruling would not end the debate. Con-
gress could, of course, propose a constitutional amendment denying such chil-
dren citizenship and submit it to the states for ratification. Ensuing debates
would need to consider the policy arguments raised by Schuck and Smith: that
the rise of the welfare state, coupled with federal failure to effectively prevent
undocumented migration, has made full application of the jus soli principle ex-
pensive. Assessing the cost burden is difficult at present. Congressman Elton
Gallegly told the subcommittees at their joint hearings in 1995 that there are an
estimated 250,000 citizen children of undocumented aliens in Los Angeles
County alone, and that children of undocumented aliens (including both citi-
zens and noncitizens) receive an estimated $500 million annually in welfare
and health benefits.
These costs must be weighed against the benefits of jus soli. A weak justifi-
cation is the argument that the current rule provides a clear-cut or “bright line”
test, easy of application. In fact, most countries administer jus sanguinis re-
gimes; indeed, the United States follows jus sanguinis for children born to U.S.
citizens overseas. A more persuasive argument in favor of jus soli notes its
strong assimilative advantages. David Martin, professor of law at the Univer-
sity of Virginia and former Immigration and Naturalization Service (INS) gen-
eral counsel, has pointed out that, unlike European countries, the United States
has no “second generation problem” because it has no second generation aliens:
For children born here,

11. See Neuman, 1987; Martin, 1985; Carens, 1987.

12. See Neuman, 1987; and Carens, 1987.
13. “Children Born in the United States to Illegal Parents, 1995” (hereafter Hearings, 1995), p.
81. Statement of Walter Dellinger, Assistant Attorney General, Office of Legal Counsel.
UNIT E D ST AT E S 127

a secure citizenship status forms a basic foundation for the shaping of

identity and involvement in the polity. They are thereby encouraged to
embrace life here as full participants, not as half-hearted, standoffish
“guests.” Equally important, other citizens are induced to treat them as
coequal members of the polity, not as intruders who stay too long.14

Today, when some are raising concerns about the ability of a polyethnic society
to maintain unity, abandoning birthright citizenship seems a step in the wrong
direction.
Interestingly, Schuck and Smith conclude that, important as the cost analysis
is, it should not ultimately drive the decision. Rather, “the question should be
resolved in the light of broader ideals of constitutional meaning, social moral-
ity, and political community.” Their view is that “it is simply morally perverse
to reward law-breaking by conferring the valued status of citizenship.”15 A
number of witnesses at the congressional hearing made similar claims. Repre-
sentative Gallegly argued that current “law bestows citizenship on a kind of
technicality, based more on logistics and timing than on roots, community, or
legality. This is clearly inappropriate.”16 Furthermore, in a world constituted
largely by jus sanguinis states, the denial of birthright citizenship to children of
aliens cannot be persuasively characterized as a violation of fundamental hu-
man rights.
There are, however, moral arguments on the other side as well. U.S. Assis-
tant Attorney General Walter Dellinger noted in his congressional testimony
that

academics may conceive of nation-states in which citizenship would not

necessarily extend to those who lack the approval or mutual consent of
existing citizens. But the country in question is not some theoretical con-
ception, but our own country with its real existence and its real history. It
would be a grave mistake to alter the opening sentence of the Fourteenth
Amendment without sober reflection on how it came to be part of our ba-
sic constitutional charter.17

Significantly, in testimony before Congress in 1995, Schuck himself urged

Congress not to adopt legislation denying citizenship to children of undocu-

14. Martin, 1985, pp. 283–84.

15. Schuck and Smith, 1985, p. 113.
16. Hearings, 1995, p. 23. Statement of California Representative Elton Gallegly.
17. Hearings, 1995, p. 82. Statement of Walter Dellinger, Assistant Attorney General, Office
of Legal Counsel, Department of Justice.
128 T. ALEXANDER ALEI NI KOFF

mented aliens. He argued that “feckless enforcement policies” virtually guaran-

tee the existence of a large number of undocumented aliens in the United States
and that, without a birthright citizenship rule, “these illegals, their children, and
their children’s children will continue to be outsiders, mired in an inferior and
illegal status, and deprived of the capacities of self-protection and self advance-
ment.”18 For Schuck, any change in citizenship rule would be irresponsible if
not preceded by effective efforts to reduce illegal immigration.
In his testimony, Schuck briefly mentions French citizenship rules as an al-
ternative jus soli system worth considering. Under the current French system,
third-generation immigrants are attributed citizenship at birth, while sec-
ond-generation immigrants (that is, the children of persons who immigrated to
France) have the right to acquire French citizenship. In recent years, the exact
provisions of the system have been in a state of flux. Before 1993, French rules
governing the acquisition of citizenship by second-generation immigrants per-
mitted the nearly automatic acquisition of citizenship “without formality” at the
age of majority (eighteen), as long as the youth could provide proof of residence
for the preceding five years and fulfill a few other conditions, including the ab-
sence of substantive criminal convictions. A 1993 reform of the French nation-
ality code revised the system of jus soli to require that second-generation
immigrants formally apply for citizenship between the ages of sixteen and
twenty-one, in addition to showing proof of residence the preceding five years
and fulfilling other conditions. Most recently, 1998 legislation returned the jus
soli system to its pre-1993 form (with a few exceptions). It reinstituted the
semiautomatic acquisition of citizenship (“without formality”) for second-gen-
eration immigrants at majority, while retaining a procedure of declaration for
youth sixteen to eighteen years of age.19 Whatever the merits of France’s jus soli
system, it could not be adopted in the United States without a constitutional
amendment.
In sum, jus soli is the foundation of U.S. citizenship policy, and, for histori-
cal reasons of enduring importance, the principle of jus soli appears virtually
unassailable. Jus soli has significant implications for the integration of immi-
grants in U.S. society. A contrary citizenship rule in a country of high immigra-
tion tends to create “a hereditary caste of permanent aliens.”20 The assimilative
characteristics of jus soli should not be abandoned in the search for better con-
trol of U.S. borders.

18. Hearings, 1995, pp. 96, 97. Statement of Peter Schuck.

19. For a fuller account of these legal developments, see Feldblum, forthcoming.
20. Hearings, 1995, p. 109. Statement of Gerald Neuman, Professor, Columbia Law School.
UNIT E D ST AT E S 129

Jus sanguinis Rules

The United States follows jus sanguinis principles for children born to U.S.
citizens outside its territory.21 Perhaps no more than 50,000 children attain citi-
zenship in this fashion annually—a number dwarfed by the number of persons
who naturalize each year. The central policy issue in the transmission of citi-
zenship to persons born outside the United States is whether adequate contact
with U.S. traditions and culture is maintained as citizenship is passed from ex-
patriate generation to expatriate generation.
Over the past century, Congress has consistently loosened the requirements
for the transmission of citizenship jure sanguinis. In earlier days, U.S. law re-
quired that both the child and (at least one) parent reside in the United States for
a specified duration for the child to retain U.S. citizenship. Since 1978, resi-
dency requirements for children have been dropped; however, a person who at-
tains citizenship jure sanguinis cannot transmit citizenship to his or her
children born outside the United States unless he or she has established resi-
dence in the United States before the birth of the child. Despite the relative ease
with which citizenship may be transmitted overseas, little controversy has
emerged about the jus sanguinis rules.22 (The central policy concern they
raise—their contribution to dual citizenship—will be discussed below.)

Citizenship by Naturalization

The Constitution grants Congress the power to establish a “uniform Rule of

Naturalization,” and the first naturalization statute was enacted in 1790.23 His-
torically, U.S. naturalization laws have reflected U.S. views on race. The 1790
statute limited naturalization to “any alien, being a free white person.” The law
was amended in the wake of the Civil War to include persons of “African nativ-
ity, . . . and descent,” a formulation that continued to exclude Asians and others.
Chinese were not entitled to naturalize until 1943 (although children born to

21. The Supreme Court has held that such persons obtain citizenship by virtue of federal
statutes, not the Fourteenth Amendment. Rogers v. Bellei, 401 U.S. 815, 828-31 (1971).
Applicability of the Fourteenth Amendment to persons born in U.S. territories has never been fully
determined, but Congress has provided by statute that persons born in Puerto Rico, Guam, and the
Virgin Islands are citizens at birth.
22. There have been some significant legal controversies concerning the impact of earlier
gender discrimination in the jus sanguinis rules. See, for example, Wauchope v. U.S. Department of
State, 985 F.2d 1407 (9th Cir. 1993)—invalidating earlier statutory provision that allowed
transmission of citizenship by U.S. fathers but not mothers. See also Miller v. Albright, 118 S. Ct.
1428 (1998).
23. For a history, see Ueda, 1994.
130 T. ALEXANDER ALEI NI KOFF

Chinese immigrants were citizens by way of the Fourteenth Amendment). A

fully race-neutral naturalization law was not adopted until 1952.
For those not excluded by racial qualifications, the naturalization process
was fairly liberal, and it remains so today. Immigrants must establish five years
of permanent residence in the United States, demonstrate good moral character,
prove knowledge of U.S. history and civics, and be able to “read, write, and
speak words in ordinary usage in the English language.”24 (The English require-
ment is waivable for certain elderly persons who have resided in the United
States for a considerable period, and the civics and English requirements may
be waived for persons who “because of physical or developmental disability or
mental impairment” are unable to comply with them.25) Various classes of
aliens are deemed by statute not to possess “good moral character”—such as
persons convicted of committing aggravated felonies and drug and gambling
offenses, or habitual drunkards. Naturalizing citizens must take an oath that af-
firms allegiance to the U.S. Constitution and a commitment to contribute to the
national defense. Significantly, the oath also requires renunciation of allegiance
to any “foreign prince, potentate, state, or sovereignty.”26
In the 1970s and 1980s, the number of persons filing U.S. naturalization ap-
plications averaged 150,000 to 250,000 annually. While U.S. immigrants have
tended to naturalize at rates significantly higher than aliens in European coun-
tries, naturalization rates have varied considerably by national origin. Immi-
grants from Asian countries have had the highest naturalization rates;
immigrants from Mexico and Canada traditionally have had far lower rates.27
Today there is a substantial pool of persons—perhaps as many as 6 or 7 mil-
lion—who are eligible for naturalization but have chosen not to become citi-
zens. The reasons usually ascribed to low naturalization rates are several. First,
until recently, few benefits and opportunities were available to citizens for
which permanent resident aliens were not also eligible. Second, because of jus
soli, immigrants do not need to naturalize in order to provide for the U.S. citi-
zenship of their U.S.–born children. Third, some immigrants find the language
and history requirements daunting. Fourth, some immigrants are unwilling to
take the oath because it requires renunciation of other allegiances; such a renun-

24. Immigration and Nationality Act (INA) section 312(a), 8 U.S. Code section 1423(a).
25. INA section 312(b), 8 U.S. Code section 1423(b). Immigration and Naturalization Service
(INS) regulations implementing the waiver for physical or mental impairment still require the
applicant to be able to take the oath of allegiance. Federal Register 62, p. 12915.
26. INA section 337, 8 U.S. Code section 1448.
27. In the 1990s, immigrants from Asian nations have had a nationalization rate of 57.6
percent; those from North America have a rate of 32.2 percent. (The rate is based on an INS analysis
of a sample of immigrants admitted in 1977.) Immigration and Naturalization Service, 1994
Statistical Yearbook of the INS, Table 58.
UNIT E D ST AT E S 131

ciation either may be psychologically difficult or may cut off the immigrant’s
ability to travel, to own property, or to inherit in the country of origin.
The past five years have witnessed an unprecedented increase and level of
naturalization applications:28
Fiscal Year Applications
1995 959,963
1996 1,277,403
1997 1,571,797
1998 794,749
1999 720,468
This massive increase has occurred for a number of reasons. In the 1990s, the
Immigration and Naturalization Service (INS) introduced a new resident alien
card (green card) and required permanent resident aliens to replace their old
ones, informing immigrants that naturalization would cost just a few dollars
more than a new green card and suggesting they consider seeking citizenship.
Many did. More significantly, the more than 3 million aliens whose status be-
came legal under the 1986 Immigration Act began to become eligible for natu-
ralization in the mid-1990s.
The anti-immigrant rhetoric of the past few years has also helped swell ap-
plication numbers. Many immigrants see attaining citizenship as a way to pro-
tect themselves against unfriendly legislative and administrative policies.29
Citizenship also protects their access to the social safety net. This latter consid-
eration is of obvious significance in light of the 1996 welfare reform legislation,
which terminated the eligibility of permanent resident aliens for most
means-tested benefit programs. The resulting increase in filings outpaced INS
resources to adjudicate naturalization applications. By summer 1995, the pend-
ing caseload was about 800,000 and waiting times in the largest offices ex-
ceeded two years. In August 1995, the INS announced CitizenshipUSA, a
program intended to reduce the significant backlog of naturalization applica-
tions accumulating in INS field offices and return to historical processing times
of approximately six months. The program targeted those cities with the largest

28. 1994 Statistical Yearbook of the INS, Table 58; 1996 Statistical Yearbook of the INS, Table
44; End-of-Year FY 1998 Monthly Statistical Report, Naturalization Benefits; and September 1999
Monthly Statistical Report, End of FY 1999, Naturalization Benefits.
29. In the 1920s, when anti-immigrant legislation and feelings were prevalent, naturalization
rates rose sharply. In the years 1907–1910, an average of 54,679 petitions for naturalization were
filed each year. In the 1920s, despite strict quota laws limiting the number of immigrants, an
average of 188,427 petitions for naturalization were filed each year. 1994 Statistical Yearbook of
the INS, Table 45.
132 T. ALEXANDER ALEI NI KOFF

number of pending cases: Chicago, Los Angeles, Miami, New York, and San
Francisco.30 In FY1996, processing of naturalization applications more than
doubled; 1.3 million cases were adjudicated, and of those, approximately 1.04
million were granted. The approval-denial rates were roughly consistent with
earlier years.
CitizenshipUSA came under heavy fire from Congress, however. Investiga-
tive committees charged that it had been politically motivated—alleging that
the administration sped up processing to naturalize citizens in time for them to
vote in the 1996 elections—and that it had been incompetently administered.
Substantial changes were undertaken in response, as the Department of Justice
has contracted with outside firms to monitor a review of the 1996
naturalizations and to prepare a plan for a “reengineering” of the application
and adjudication process. These developments produced a backlog of pending
cases that topped 2 million by the end of 1998. Subsequent reforms have signif-
icantly reduced that number.
Concern about the integrity of INS procedures has been a recent focal point
of public attention. But a broader and deeper set of naturalization issues are in-
volved. In U.S. political culture, naturalization is more than an administrative
adjudication; it is seen as a “rite of passage.” It represents the solemn forswear-
ing of other allegiances and the taking on of a new set of important commit-
ments—to the U.S. Constitution and to the American people. Most Americans
view that which is granted—U.S. citizenship—as one of the most sought-after
and valuable statuses in the world. The expectation is that persons receiving
such a benefit should demonstrate their awareness of the significance of what
has been bestowed by giving something in return: undivided loyalty to the
United States.
Naturalization thus has a symbolic importance that may well exceed its prac-
tical significance for many naturalized citizens and may belie the relative ease
with which it may be obtained. The current debate about the naturalization pro-
cess is grounded in a concern that this symbolic value has been “cheapened,”
both in its perceived mass-production and because of the reasons persons seek
U.S. citizenship. Some claim that immigrants are naturalizing for instrumental
reasons (such as maintenance of welfare benefits) rather than for affective rea-
sons (such as love of country, patriotism).
It might be thought that the best route to “affective” naturalization is to make
very few, if any, distinctions based on citizenship.31 The reasoning would be

30. Together, these offices carried about 75 percent of the naturalization workload.
31. See “The Functionality of Citizenship,” 1997.
UNIT E D ST AT E S 133

that, if little of practical value turns on naturalization, then those seeking citi-
zenship must be doing so for reasons of loyalty and commitment, not personal
gain. But erasing all distinctions between citizens and aliens would seem to un-
dermine the concept of citizenship as a status that defines a core group of mem-
bers.
We face a paradox, then: attempts to make citizenship matter more by in-
creasing distinctions between citizens and aliens are likely to produce behavior
that is seen as “cheapening” citizenship; while erasing distinctions between cit-
izens and aliens seems to reduce citizenship to a mere personal affiliation.
Attempting to fine-tune benefit eligibility in order to produce “proper” moti-
vations for naturalization is not a wise strategy. Naturalization decisions have
always constituted a mix of affective and instrumental reasons. The decision to
naturalize in order to bring family members here, for example, may be seen as
primarily instrumental, but it may also reflect the citizen’s desire to live with his
or her family in a country he or she holds dear. The solution is to ensure that
those going through the naturalization process—for whatever reasons—meet
appropriate standards and understand and accept the commitment they make in
becoming U.S. citizens. The current naturalization oath does a fairly good job
of this. To become a U.S. citizen, a person must swear:

(1) to support the Constitution of the United States; (2) to renounce and
abjure absolutely and entirely all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty of whom or which the applicant
was before a subject or citizen; (3) to support and defend the Constitution
and the laws of the United States against all enemies, foreign and domes-
tic; (4) to bear true faith and allegiance to the same; and (5)(A) to bear
arms on behalf of the United States when required by law, or (B) to per-
form noncombatant service in the Armed Forces of the United States
when required by law, or (C) to perform work of national importance un-
der civilian direction when required by the law.32

The language is, to be sure, somewhat archaic. But the sentiment is about
right. The naturalizing citizen swears “allegiance” to the Constitution and
pledges to “bear arms” or to undertake other service in defense of the nation.
The oath is not a statement about identity or culture. It is about loyalty and, if
circumstances demand, sacrifice—two crucial elements of patriotism. These

32. INA section 337(a), 8 U.S. Code section 1448(a).

134 T. ALEXANDER ALEI NI KOFF

characteristics are not a function of what benefits citizens do or do not receive

in common with immigrants. Persons are likely to be loyal to, and to make sac-
rifices for, a nation that provides them with rights they value and that stands for
values they deem right. The favored treatment they enjoy over other residents
of the state is not likely to be a significant part of that judgment.
In sum, while benefits granted or denied immigrants may well affect deci-
sions to naturalize, the crucial issue is not how to calibrate the incentives but
rather how to foster the commitment the nation appropriately asks of naturaliz-
ing citizens. The current procedure is working: no evidence suggests that natu-
ralizing citizens as a class are any less loyal to this country than native-born
citizens. Concern over the knowledge and commitment of naturalizing citizens
might best manifest itself in publicly funded programs of civics and Eng-
lish-language education (like those provided in the early decades of this cen-
tury).33

Loss of Citizenship

Citizenship may be lost in three ways: expatriation, denaturalization, and de-

nationalization.
Expatriation means the voluntary relinquishment of citizenship, usually by
renunciation. In the early years of the Republic, it was an open question
whether a citizen could unilaterally divest himself or herself of U.S. citizenship.
Under English common law, a subject was a subject for life. (Indeed, one of the
causes of the War of 1812 was the attempt by the English to impress into the
Royal Navy English-born sailors who had become naturalized U S. citizens.)34
Congress resolved this issue in 1868 by enacting legislation declaring “the
right of expatriation . . . a natural and inherent right of all people.” The immedi-
ate motivation for the statute was British assertion of authority over naturalized
U.S. citizens in Ireland participating in anti-British activities; but the statute
was immediately understood to establish the right of U.S. citizens to shed their
citizenship. That right has not been questioned since, although Congress has re-
cently expressed displeasure at persons believed to have expatriated for tax rea-
sons. The 1996 immigration legislation provides a new exclusion ground for

33. See U.S. Commission on Immigration Reform, Becoming an American, 1997, pp. 36–45.
34. In the early years, concern was also raised about malefactors who sought to expatriate
themselves in order to avoid the reach of federal law. See, for example, Talbot v. Janson, 3 U.S. (3
Dall.) 133 (1795), involving U.S. citizens who purported to expatriate themselves in order to join in
a conflict between two foreign nations without violating U.S. law requiring citizens to remain
neutral.
UNIT E D ST AT E S 135

persons determined by the attorney general to have renounced U.S. citizenship

“for the purpose of avoiding taxation.”35
Denaturalization means the revocation of wrongfully obtained naturaliza-
tion. As discussed above, this process has received attention recently because of
allegations that, under the CitizenshipUSA program of the INS, several thou-
sand persons ineligible for naturalization because of their criminal records were
nonetheless granted citizenship. In cases of clearly wrongful naturalization, the
INS may use authority granted by Congress in 1994 to revoke naturalization ad-
ministratively. Other cases must be presented to federal district courts, for
which the Supreme Court has established fairly rigorous procedural
protections. In frequently quoted language, the Court stated that

in its consequences [denaturalization] is more serious than a taking of

one’s property, or the imposition of a fine or other penalty. For it is safe to
assert that nowhere in the world today is the right of citizenship of greater
worth to an individual than it is in this country. It would be difficult to ex-
aggerate its value and importance. By many it is regarded as the highest
hope of civilized men. Thus, citizenship could not be revoked without the
clearest sort of justification and proof.36

Judicial protection of citizenship reaches its zenith in the third form of loss
of nationality, denationalization—deprivation of citizenship because of con-
duct or legal status.37 (Both native-born and naturalized citizens are subject to
denationalization.) Congress has asserted the power to denationalize citizens
since the early years of this century. The 1907 Expatriation Act, aimed at the
problem of dual citizenship, in effect created denationalization grounds by es-
tablishing conditions under which U.S. citizens would be deemed to have expa-
triated themselves—including naturalization in a foreign state and, for
naturalized aliens, extended residence in their native countries. The act also no-
toriously provided that American women who married foreigners would lose
their U.S. citizenship (for the duration of the marriage).38

35. INA section 212(a)(10)(E), 8 U.S. Code section 1182(a)(10)(E), as added by the Illegal
Immigration Reform and Immigrant Responsibility Act (1996) section 352. Expatriation is
regulated to some degree: one must be outside the country (except in time of war). INA sections
349(a), 351(a), 8 U.S. Code section 1481(a), 1483(a).
36. Schneiderman v. United States, 320 U.S. 118, 122 (1943).
37. See generally Aleinikoff, 1986.
38. Upheld in Mackenzie v. Hare, 239 U.S. 299 (1915). The provision was repealed in 1922.
136 T. ALEXANDER ALEI NI KOFF

In 1940, the grounds for denationalization were expanded to include serving

in the armed forces of a foreign country, voting in a foreign election, holding of-
fice in a foreign government, or being convicted for desertion in time of war or
treason. Departure from the United States in time of war to avoid military ser-
vice and conviction for subversive activities were later added as grounds for de-
nationalization.
Some of these grounds for loss of citizenship were not conditioned on acqui-
sition or retention of citizenship elsewhere. They therefore raised the specter of
congressionally mandated statelessness. Over the past three decades, the Su-
preme Court, again stressing both the value of U.S. citizenship and also recog-
nizing the potential dangers of statelessness, has rendered a number of
decisions that severely limit congressional power to take away U.S. citizenship.
In a dissenting opinion that became the basis of the Court’s later restrictive ap-
proach, Chief Justice Earl Warren wrote:

Citizenship is man’s basic right for it is nothing less than the right to have
rights. Remove this priceless possession and there remains a stateless
person, disgraced and degraded in the eyes of his countrymen. He has no
lawful claim to protection from any nation, and no nation may assert
rights on his behalf. . . . This government was not established with power
to decree this fate.39

In a subsequent case, the Court also noted its concern that broad congressional
power to denationalize might be misused by current majorities to strip their op-
ponents or other disfavored groups of citizenship.40
These concerns led the Court to declare that a citizen “has a constitutional
right to remain a citizen . . . unless he voluntarily relinquishes that citizen-
ship.”41 The Court’s holdings mean that, in order to take away citizenship, the
government must demonstrate that an expatriating act is accompanied by an in-
tent to terminate U.S. citizenship. In short, the Court collapsed denationaliza-
tion into expatriation. In 1988, Congress amended the Immigration and
Nationality Act (INA) to reflect the Court’s rule, and the statute now reads that
a person shall lose U.S. nationality “by voluntarily performing [an expatriating
act] with the intention of relinquishing United States nationality.”42 This lan-
guage does not necessarily require that a person express an intention to give up

39. Perez v. Brownell, 356 U.S. 44, 64-65 (1958) (emphasis in original).
40. Afroyim v. Rusk, 387 U.S. 253, 267-68 (1967).
41. Afroyim v. Rusk, 387 U.S. 253, 267-68 (1967) (invalidating loss of citizenship for citizen
who voted in Israeli election).
42. INA section 349(a), U.S. Code 1481(a).
UNIT E D ST AT E S 137

U.S. citizenship when undertaking an expatriating act. Thus, some con-

duct—for example, attaining a high office in a foreign country—might be
deemed, under certain circumstances, to evidence such an intention whether or
not the person formally renounced U.S. citizenship. In practice, however, the
State Department has virtually stopped declaring loss of citizenship unless a
U.S. citizen has specifically declared an intention to give up citizenship.43
When contrasted with naturalization rules, the standards for denationaliza-
tion create a peculiar asymmetry: An immigrant who naturalizes in the United
States must renounce citizenship elsewhere; a U.S. citizen who naturalizes in
another country cannot have his or her U.S. citizenship removed unless he or
she expressly intends to lose it. The first rule seeks to prevent dual citizenship;
the second rule virtually guarantees dual citizenship. The rules regarding dena-
tionalization might seem overprotective, but they are constitutionally based
and, as such, may not be altered by statute or administrative regulation.

Dual Citizenship
International law and practice generally regard dual citizenship with disfa-
vor. The preamble to the Hague Convention Concerning Certain Questions Re-
lating to the Conflict of Nationality Laws (1930) represents the traditional view.
It states that “it is in the interest of the international community to secure that all
members should recognize that every person should have a nationality and
should have one nationality only.”44 Dual citizenship raises concerns for states
regarding diplomatic protection (particularly when a citizen resident in one
country travels to another country in which he or she holds citizenship), mili-
tary service, and voting rights. Beyond these more technical issues, there are
deeper questions of divided loyalty. The German Federal Constitutional Court
has stated:

43. Indeed, the Department of State indicated in 1995 that it would submit legislation that
would have made explicit renunciation before an officer of the United States the only fashion in
which citizenship could be lost. See, for example, Goldstein and Piazza, April 22, 1996.
44. The disfavor in which states traditionally hold dual nationality is also reflected in the
Council of Europe’s 1963 Convention on Reduction of Cases of Multiple Nationality and Military
Obligations in Cases of Multiple Nationality. The council found that “cases of multiple nationality
are liable to cause difficulties and . . . joint action to reduce as far as possible the number of cases of
multiple nationality . . . corresponds to the aims of the Council of Europe.” Ibid., p. 222. It should
be noted that, in a 1997 Opinion, the Parliamentary Assembly of the Council of Europe
acknowledged that the 1963 convention was ill-designed to handle the current situations facing
European nations in the area of dual nationality.
138 T. ALEXANDER ALEI NI KOFF

It is accurate to say that dual or multiple nationality is regarded, both do-

mestically and internationally, as an evil that should be avoided or elimi-
nated in the interest of states as well as in the interests of the affected
citizen. . . . States seek to achieve exclusivity of their respective national-
ities in order to set clear boundaries for their sovereignty over persons;
they want to be secure in the duty of loyalty of their citizens—which ex-
tends if necessary as far as risking one’s life—and do not want to see it
endangered by possible conflicts with a loyalty to a foreign state.45

The most serious loyalty issue arises in times of war. But today, in the post–cold
war setting, political loyalty is a more relevant concern. The fear is that a dual
citizen of countries A and B could participate in the political system of country
A with the interests of country B in mind, or could exploit dual citizenship sta-
tus for inappropriate personal gain in carrying on business or collecting govern-
ment benefits. In such cases, it might be questioned whether the citizen
possesses the identification with one state that many states seek to foster in their
citizens.
In a world nominally dedicated to the idea of assuring that every person is a
citizen of at least one but not more than one nation-state, dual citizenship is tol-
erated to a surprising degree. Without more effective cooperation among states,
the rising incidence of individuals with plural citizenship will probably con-
tinue. It remains an open question whether this trend should be welcomed as the
harbinger of a new internationally mobile world or feared as a potential threat to
the political, social, and cultural unity of modern polyethnic states.
To begin to answer that question, this section seeks to weigh the costs, bene-
fits, and consequences of this trend as well as to consider the policy options
available to deal with it. The recent change in Mexican naturalization law offers
an illustrative case to explore the complexity of the conflicting motives, percep-
tions, and national interests that affect choices in naturalization rules and that
constrain the feasible policy alternatives of individual states.
In the United States, the incidence of dual citizenship is far more widespread
than is generally recognized. Plural citizenship may arise in four situations:
—1. Birth in the United States to immigrant parents. A citizen of country A
moves to the United States and has a child. The child is a dual citizen if country
A has jus sanguinis rules that recognize the child as a citizen of country A. (Ex-
ample: a German citizen has a child in Chicago. Note that if a German citizen
marries a British citizen and they have a child in the United States, the child
may be born with three nationalities.)

45. Opinion of German Federal Constitutional Court, May 21, 1974, 254–55.
UNIT E D ST AT E S 139

—2. Birth outside the United States to one parent who is a U.S. citizen and
another who is a foreigner. A citizen of the United States marries a citizen of
country A and has a child in country A. If the U.S. citizen has maintained the
ties to the United States necessary for the transmission of citizenship jure
sanguinis, the child is a citizen of both country A and the United States. (Exam-
ple: A native-born U.S. citizen marries a British citizen and has a child in the
United Kingdom.)
—3. Naturalization with a renunciation requirement, but renunciation not
recognized by country of origin. A citizen of country A naturalizes in the United
States. Even though the U.S. naturalization oath demands renunciation of other
citizenships, country A does not deem naturalization elsewhere as expatriating
the citizen. (Example: A Canadian citizen naturalizes in the United States. The
U.S. oath requires renunciation, but Canada does not regard naturalization in
the United States as expatriating unless the person specifically notifies Cana-
dian authorities of an intent to renounce citizenship.)
—4. Naturalization, loss of citizenship, and resumption of citizenship. A cit-
izen of country A naturalizes in the United States. Country A deems the person
to have lost citizenship but provides for the resumption of citizenship. (Exam-
ple: Under Australian law, a citizen who naturalizes in the United States loses
Australian citizenship. The person can, however, subsequently apply to resume
Australian citizenship—this is not a naturalization process—without losing
U.S. citizenship unless he or she expresses the intent to do so.)46
The U.S. government does not record and has not estimated the number of
U.S. dual citizens, but the total may be quite large. Any U.S.-born child of im-
migrants in the United States is likely at birth to be a citizen of both the United
States and the parents’ country of origin. Some of the largest “sending” coun-
tries to the United States—including Mexico, the Philippines, the Dominican
Republic, Canada, and India—recognize children born to their nationals here as
citizens of their countries. The Census Bureau’s March 1996 Current Popula-
tion Survey provides data that can supply a rough estimate of the number of
children born dual nationals in the United States each year. The study reports
that 540,000 U.S.-citizen children less than one year of age were living with at
least one foreign-born parent who was not a naturalized U.S. citizen. It is rea-
sonable to assume that most of these children are dual citizens, although the

46. In the late nineteenth century, the rule was generally that a wife took the citizenship of her
husband. This rule is now almost universally rejected, the result being that individuals preserve
their own nationality after marriage, although spouses are frequently given preferential treatment
under the immigration quotas. See INA section 201(b), 8 U.S. Code section 1151. This
twentieth-century development is a major contributing factor to increases in dual citizenship, since
under jus sanguinis rules a child will obtain citizenship from each parent.
140 T. ALEXANDER ALEI NI KOFF

number is not a precise measure. It undercounts, for example, the number of

dual citizens by omitting (1) U.S.-born children whose foreign parents left the
United States within a year and (2) children of foreign-born parents who have
naturalized in the United States but who are still able to transmit the citizenship
under their home countries’ jus sanguinis rules. The number may also
overcount the number of dual nationals by including the children of for-
eign-born parents whose home countries do not permit the transmission of citi-
zenship overseas if the foreign-born child obtains another citizenship at birth
(China is the most significant example). Nonetheless, half a million is probably
an acceptable order of magnitude for the number of children who obtain dual
citizenship at birth each year in the United States. Because most countries do
not require dual citizens to elect one citizenship over the other, the status may
continue for life, and, indeed, can be passed to generations beyond.47
The rising incidence of dual citizenship is also due to the growing number of
countries that have altered their laws to permit their citizens to retain nationality
despite naturalization elsewhere. Canada adopted such a policy in 1977, as
(more recently) have Argentina, Colombia, Costa Rica, the Dominican Repub-
lic, El Salvador, France, Ireland, Israel, Italy, Panama, Switzerland, and the
United Kingdom.48 Even in states that deem naturalization in the United States
to constitute expatriation, authorities are likely to be unaware of the U.S. natu-
ralization and therefore may continue to treat naturalized individuals as citi-
zens.

Is Dual Citizenship a Problem?

Both theoretically and symbolically, dual citizenship may appear problem-

atic. A regime of nation-states arguably functions more smoothly when persons
are assigned citizenship in just one state. Unitary citizenship not only resolves
various state administrative problems but also, it might be claimed, provides for
an indivisible loyalty that states are likely to seek and value.
But the world is more complicated than this ideal allows, and a desire for ti-
diness is often in conflict with the practicalities of human life. Migration, mar-

47. Many countries require that, in order to pass on citizenship to future generations, a citizen
born outside the state territory must reside for some number of years in the state. But this residency
requirement does not prevent successive generations of dual citizens. A child born to an Australian
in the United States, for example, is a dual national. If he or she returns to Australia at some point
for two years and then moves back to the United States, then his or her children will be both
Australian and U.S. citizens.
48. This list is not all inclusive. For a more complete list, see Goldstein and Piazza, April 22,
1996, pp. 545–47.
UNIT E D ST AT E S 141

riage, and birth ensure that neither states nor their citizenries are hermetically
sealed. Indeed, dual citizenship cannot be attributed simply to the (intentional
or unintentional) actions of individuals. The existence of plural citizenships is a
function of the unwillingness of the international community to establish inter-
national norms on the acquisition and maintenance of citizenship; international
law leaves such matters to the discretion of states, and the resulting welter of
rules is wholly a product of state choices.
Although a postnational world still seems far away, it is clear that the world
is increasingly transnational. Modern communications and transportation have
brought the world to the United States’ door as never before, and many of those
coming are less willing to leave their countries of origin behind. This reluctance
characterizes business elites that seek to take advantage of commercial oppor-
tunities in more than one country as well as lower-skilled workers who seek to
improve their condition abroad but to remain connected to home communi-
ties.49 And, as already noted, “sending” countries show an increasing interest in
maintaining ties with their diaspora populations.
From one perspective, these developments represent a healthy development,
making commercial and social ties between nations deeper and stronger, open-
ing up new markets, and fostering appreciation of cultural diversity.50 Little evi-
dence exists that widespread dual citizenship in the United States has been
harmful to the national interest. While some dual citizens (and naturalized citi-
zens) have committed espionage against the United States, so have persons of
only one nationality—either native-born citizens or immigrants. Similarly,
while concerns have been voiced that dual nationals may vote the interests of
their countries of origin ahead of the interests of the United States, the same
would be possible whether or not the person officially retains the citizenship of
his or her home country.
From another perspective, there is cause for concern. The growing interest
of countries of origin in dual citizenship for their nationals may make it a differ-
ent phenomenon than it was in the past. Furthermore, with the sovereignty of
the nation-state being challenged from both within and without, the idea of citi-
zenship may take on increasing importance. Insistence on unitary citizenship
could serve as a brake on transnational developments that undermine the loy-
alty and commitment needed for the healthy functioning of a polyethnic state.
These differing perspectives can be examined in two specific contexts: (1)
recent changes in Mexican nationality law; and (2) debate regarding the reten-
tion of the renunciation requirement in the naturalization oath.

49. See Basch et al., 1994; Guarnizo, forthcoming 1998; and Graham, 1996.
50. For a discussion of postnationalism, see Basch et al., 1994.
142 T. ALEXANDER ALEI NI KOFF

Dual Nationality and Mexico

Under Mexican law, persons born in Mexico are Mexican nationals.51 As in
the United States, aliens naturalizing in Mexico must renounce other citizen-
ships. Until recently, Mexicans obtaining citizenship in a foreign country were
deemed to lose Mexican nationality, while Mexican jus sanguinis rules permit-
ted the indefinite transmission of Mexican nationality to overseas generations
(although persons born dual nationals had to elect Mexican nationality if they
sought a passport or other identification document after the age of eighteen).
These latter rules underwent dramatic change based on an amendment to the
Mexican Constitution published on March 20, 1997, and effective a year later
(see table 4-1). First, Mexicans naturalizing elsewhere will be able to maintain
Mexican nationality, a change that will affect the status of tens of thousands of
Mexicans who naturalize in the United States each year.52 Naturalized U.S. citi-
zens of Mexican origin will also be permitted to apply for reacquisition of Mex-
ican nationality. The amendment’s use of the word “nationality” is intentional
and is not coterminous with citizenship. Mexicans who retain nationality will
be able to travel anywhere on a Mexican passport, to own coastal and border
land forbidden to aliens, and to benefit from other rules regarding inheritance,
business opportunities, and property ownership that treat Mexicans more favor-
ably than non-Mexicans. Significantly, however, nationality does not, by itself,
include a right to vote in Mexican elections; this would require a separate
change in Mexican election law.
The second major change under the constitutional amendment alters jus
sanguinis rules. Mexican nationality by descent would not be transmitted be-
yond the second generation; that is, U.S.-born children of Mexican nationals
born or naturalized in Mexico would be Mexican nationals, but their children
would not. This rule is stricter than that applied by the United States, Canada, or
Australia, all of which permit transmission of citizenship beyond the second
generation provided that some degree of contact occurs with the home country.
Together, these two changes have an important impact on the citizenship of sec-
ond- and third-generation Mexicans in the United States.

51. Under Mexican law, nationality and citizenship are distinct concepts. Nationality—a
broader concept than citizenship—connotes belonging to the state; it entitles one to basic
membership rights short of political rights. Citizenship is accompanied by full political rights.
52. Significant numbers of Mexicans have obtained U.S. citizenship by naturalization in recent
years—some 39,300 (9.1 percent of total) in 1994; some 81,600 in 1995 (16.7 percent of total); and
some 255,000 in 1996 (24.4 percent of total). 1995 Statistical Yearbook of the INS, p. 145; 1996
Statistical Yearbook of the INS, pp. 138, 146. The INS routinely revises its data calculations to
make them as accurate as possible. The numbers cited here are the most recently published.
UNIT E D ST AT E S 143

Table 4-1. The 1990 Amendment to Mexico’s Citizenship System

Status of
native-born
Mexicans First generation Second generation Third generation

Before amendment
Naturalized in U.S. citizenship U.S. citizenship U.S. citizenship
United States only only only
Residing in United Mexican 1. Mexican 1. Mexican
States nationality only nationalitya nationalityb
2. U.S. citizenship 2. U.S. citizenship
After amendment
Naturalized in 1. Mexican 1. Mexican U.S. citizenship
United States nationality nationality only
2. U.S. citizenship 2. U.S. citizenship
Residing in United Mexican 1. Mexican U.S. citizenship
States nationality only nationality only
2. U.S. citizenship
a. To exercise the right to Mexican nationality, the person has to elect that status after attain-
ing the age of majority. Election must be accompanied by renunciation of U.S. citizenship. That
renunciation, however, would be effective under U.S. law only if the person intended to give up
U.S. citizenship.
b. If elected by parent (see note a).

Under the old rules, naturalization produced one citizenship (U.S.) for Mexi-
cans who naturalized and their children. Mexicans who chose to live in the
United States without naturalizing transmitted Mexican nationality to their off-
spring, who were then dual nationals at birth. If the second generation elected at
the age of majority to retain their Mexican nationality, they could transmit it to
the third generation (and so on) despite their possession of U.S. citizenship. In
short, the old rules produced the possibility of dual nationality for all subse-
quent generations, provided the first-generation parent did not naturalize. Un-
der the new rules, children born to Mexican parents in the United States,
whether or not the parents naturalize, will be dual nationals, but their children
will not acquire Mexican nationality.
The retention (or reacquisition) of Mexican nationality by naturalized U.S.
citizens may cause some Americans concern. The existence of dual nationality
implicitly raises the issue of divided loyalty, and the Mexican amendment may
be viewed as going further—as attempting to gain for Mexican nationals in the
United States access to the U.S. welfare state and influence in the political sys-
tem without the corresponding attachment to the United States that the natural-
144 T. ALEXANDER ALEI NI KOFF

ization laws are generally thought to secure. The amendment was written, at
least in part, as a response to California’s Proposition 187, which was widely
perceived in Mexico as largely anti-Mexican. The Mexican Ministry of Foreign
Relations has stated that the amendment

corresponds to the Mexican government’s interest in taking preventive

measures to strengthen migrants’ security and interests. . . . [It will]
improv[e] the protection of their rights where they reside, support . . .
fuller development of their potential in their host countries, and
improv[e] their voice and their ability to exert greater influence on the de-
cisions that the communities of which they are a part make.

This line of reasoning parallels that of other states that have recently permit-
ted their nationals to maintain their citizenship when naturalizing in the United
States. A 1994 amendment to the Dominican Constitution, clearly aimed at Do-
minicans in the United States, allows Dominicans to naturalize elsewhere with-
out losing Dominican citizenship. As Pamela Graham has noted, a “prominent
theme” in the debate over whether to amend Dominican law “involved the defi-
nition of U.S. naturalization as a practical step that did not signal any abandon-
ment of the country of origin.” She quotes a proponent of dual citizenship as
follows:

Our people here [in the United States] need to integrate themselves into
the political process of this country. It is the only manner of obtaining so-
lutions for problems and attention to the matters that harm us. Because of
this, the Dominican must understand that he is not turning his back on his
country through accepting U.S. citizenship; to the contrary he is involv-
ing himself in the rules of the game. That is absolutely legitimate. We
contribute here with funds. . . . Why ignore the benefits of becoming citi-
zens?53

In evaluating such statements, one must be attentive to what they do and do

not say. First, the claim that naturalization will aid in the protection of the rights
of U.S. residents is distinct from the promotion of Mexican (or Dominican) na-
tional interests in the U.S. political system. Thus, this motivation for the Mexi-
can amendment does not necessarily implicate the major concern regarding
dual nationality: that the dual national will pursue the interests of his or her

53. Graham, 1996, p. 166, quoting an excerpt in Viviana Hall, “La doble nacionalidad sigue
preocopando al dominicano,” El Dominicano en el Exterior 11 (June 1985).
UNIT E D ST AT E S 145

country of origin over the interests of fellow Americans. Second, instead of see-
ing such statements as signs of questionable loyalty, one might view them as
emblematic of precisely the kind of behavior that is generally praised in U.S.
politics: active involvement in interest-group politics—particularly when it is
pursued on behalf of disempowered individuals and groups.
Furthermore, the Mexican amendment was intended to serve goals beyond
securing Mexican nationals a place in the U.S. political process. It was respon-
sive also to the desires of Mexicans in the United States who want to maintain
ease of travel to and from Mexico for both social and economic reasons. As the
Foreign Ministry has stated, the amendment provides “an irrevocable guarantee
that [Mexicans] can return to their country of origin at any time . . . with the
same rights and obligations as all other Mexicans.”
Concern about dual nationality occasioned by the amendment might also be
tempered by recognition of the large number of dual nationals previously cre-
ated by Mexican jus sanguinis rules. The March 1996 Current Population Sur-
vey reported that 260,000 U.S.-citizen children of one year of age or less were
living with a Mexican national who had not been naturalized in the United
States.54 All these children presumably obtained dual citizenship at birth—like
hundreds of thousands of U.S.-born children before them. Indeed, as mentioned
above, the amendment to the Mexican Constitution might cause this number to
decrease on an annual basis because the amendment limits transmission of citi-
zenship jure sanguinis to one generation born outside Mexico.
Finally, there is nothing necessarily inconsistent in being an effective mem-
ber of the U.S. polity and maintaining commercial or sentimental ties with
one’s country of origin. The Mexican amendment removes the concern that
might keep Mexicans from naturalizing in the United States because of their
fear that naturalization would deny their affective ties to Mexico. These deep
and understandable human emotions do not necessarily get in the way of loy-
alty to the United States and successful integration into its social and political
system.
The United States could take steps to counteract the effect of changes in
other countries’ citizenship laws. It could alter the naturalization process to re-
quire persons to demonstrate that they have relinquished citizenship elsewhere
as of the date of naturalization. This requirement would, for example, make it
necessary for Canadians seeking naturalization in the United States to expatri-
ate themselves under Canadian law. Such an approach would be similar to Ger-
man administrative regulations that require naturalization applicants to
renounce citizenship under the laws of their countries of origin. The German

54. Bureau of the Census, March 1996, Current Population Survey.

146 T. ALEXANDER ALEI NI KOFF

regulations provide an exception for persons from countries that do not permit
expatriation (or make it difficult to obtain);55 but expatriation under Mexican
law is possible and not hard to accomplish.
It might be argued that such U.S. action would accomplish what has been in-
tended by the naturalization oath for almost 200 years: that naturalization result
in the possession of just one citizenship. But pursuing such a tit-for-tat ap-
proach might not be without costs. First, it could be readily evaded by foreign
states, which could permit citizens who “expatriate” to keep their passports—or
could grant certificates indicating expatriation as people naturalize and simply
return citizenship after U.S. naturalization is complete. Australia currently per-
mits “resumption” of citizenship under certain circumstances—for example,
when a person can demonstrate that he or she acquired another citizenship
(thereby losing that of Australia) in order to avoid significant hardship or detri-
ment.
Second, although a change in U.S. rules could be defended as simply return-
ing the situation to the previous status quo, such a change must be viewed as
part of a broader context of growing migration and interdependence. The
United States can attempt to turn the clock back to an ideal (but nonexistent)
past, or it can recognize a changing world and adapt to it. That world includes
the production and maintenance of complicated personal identities—for exam-
ple, that of a commercial trader operating in two countries under the North
American Free Trade Agreement, or a long-term resident unskilled worker
who, with the help of modern communications and better transportation, can
make both the United States and his or her country of origin “home.” Finally, a
U.S. rule requiring relinquishment of previously held citizenship prior to natu-
ralization would have the effect of denying citizenship to immigrants from
countries that do not permit their citizens to expatriate, making such decisions
subject to the control of the state rather than the individual.
There is a better solution than required expatriation that not only would be
more open to the complexities of human attachments but also would help sort
out some of the problems occasioned by dual citizenship. The United States
could enter into bilateral agreements with other countries that provide for the
allocation of rights and duties (such as voting, welfare benefits, military ser-
vice) based on residence or some other criterion. The United States might, for
example, conclude a treaty with the Dominican Republic whereby dual citizens

55. Exceptions exist, including (a) if the law of the country of nationality does not allow for
expatriation; (b) if renunciation is conditioned on unreasonable requirements; (c) if the applicant is
a refugee or stateless. “Naturalization Guidelines, section 5.3 (International Aspects),” in
Nationality and Statelessness.
UNIT E D ST AT E S 147

could vote only in the country in which they are residing, or whereby dual citi-
zens could choose one and only one country in which to vote. This solution
would not prevent naturalization for instrumental reasons, but it would help
ameliorate some of the perceived problems.
Some might object that this proposal is ineffective because it does little to
foster the kind of patriotic sentiment that is perhaps even more crucial today
than in the past, given the increasing polyethnism of most developed nations.
But it must be remembered that, in the U.S. case, we are primarily speaking
about a one-generation concern; because of jus soli, the second generation ac-
quires U.S. citizenship automatically and by all accounts is fully acculturated in
the U.S. community. Furthermore, while the number of dual citizens born in
this country each year is substantial, the United States has never required them
to elect one citizenship over the other.

The Renunciation Element of the U.S. Oath

The naturalization oath requires that the applicant “renounce and abjure ab-
solutely and entirely all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty of whom or which the applicant was before a subject or cit-
izen.” If one’s country of origin holds that naturalization in the United States is
not expatriating, what does it mean to swear to this oath? Suppose the natural-
ized citizen chooses to travel on a passport issued by his or her country of ori-
gin, or chooses to travel home to vote. Has the oath been violated, even if the
person’s actions are entirely legal under the law of his or her country of origin?56
One remedy for these perceived difficulties would be to delete the renuncia-
tion requirement from the oath. The result, of course, would be an open em-
brace of dual citizenship for naturalized citizens. Peter Spiro has supported
such a move:

In a world of liberal states . . . the necessity of exclusive allegiances has

largely dissipated; where peace prevails, there is no inconsistency in dual
or even multiple attachments. . . .
Maintaining additional national attachments becomes an expression of
individual identity, both a reflection of and a contributor to community
ties, and a mechanism for undertaking civic participation in that sphere;

56. And, what notice, if any, should the United States take of a naturalized citizen’s attempt to
reestablish Mexican nationality? (Under Supreme Court doctrine described above, presumably
naturalized citizens could seek to reestablish nationality in their country of prior citizenship without
loss of U.S. citizenship.)
148 T. ALEXANDER ALEI NI KOFF

and the facilitation of these virtues will . . . ultimately benefit society as

well as the individual. . . .
Now secure in its unrivaled strength, the U.S. should move fully to em-
57
brace those to whom it has otherwise opened its doors.

Deletion of the renunciation requirement would end the anomaly (mentioned

earlier) whereby persons naturalizing in the United States must renounce other
allegiances, while U.S. citizens naturalizing in other countries are under no
such obligation. This would be consistent with the more welcoming attitude to-
ward dual citizenship now developing in Europe and elsewhere,58 and it would
remove an existing disincentive to naturalization.
How strong are these arguments when weighed against the 200-year history
of the renunciation requirement? The argument that a renunciation requirement
unreasonably dissuades immigrants from naturalizing has been pressed primar-
ily by commentators in Germany, where naturalization rates have historically
been low.59 Sustaining this claim in the United States is difficult, however, be-
cause the United States has always had a relatively high naturalization rate and
is witnessing record levels today. Furthermore, because of jus soli, the impact
of the renunciation requirement is in the case of United States limited to one
generation, whereas in the case of Germany, which has no jus soli provisions, it
affects the second generation and beyond.
Thus the argument for deleting the renunciation requirement is not compel-
ling. Yet with increasing numbers of countries not considering naturalization in
the United States as grounds for removing the citizenship of their nationals, the
“renounce and abjure absolutely” language puts naturalizing citizens in a pecu-
liar position, to say the least.
Lawrence Fuchs has suggested a route out of this conundrum that neither re-
quires proof of relinquishment nor calls for simple deletion of the renunciation
mandate. He proposes an oath that recognizes the primacy but not necessarily
the exclusivity of allegiance to the United States. His oath would read:

57. Spiro, 1997, pp. 1416, 1484. Indeed, part of Spiro’s argument for abandoning the
renunciation requirement is that it is a disincentive to naturalization. See similar arguments
concerning Germany in Brubaker, 1992, pp. 77–78. See also, Hammar, 1989.
58. In 1997, the Council of Europe drafted a proposal to amend the 1963 convention on the
reduction of dual nationality that would allow children born with dual nationalities and individuals
acquiring dual nationality by marriage to retain their original nationality. Council of Europe
Parliamentary Assembly, 1997. In addition, the proposal would provide that states could not
condition the acquisition or retention of nationality on the renunciation or loss of another
nationality “where such renunciation or loss is not possible or cannot reasonably be required.”
59. See Hammar, 1989. See also, Brubaker, 1992; and Neuman, 1992.
UNIT E D ST AT E S 149

I, [name], take this solemn oath . . . freely and without mental reservation
or purpose of evasion. My allegiance is to the United States of America
above any other nation. I promise to support and honor the Constitution
and laws of my new country and their principles of liberty and justice for
all. I pledge to defend them by force of arms, noncombatant military ser-
vice, or civilian work of national importance if necessary.60

Fuchs’s proposal is consistent with a recommendation of a committee of the

Canadian Parliament in a 1994 report on citizenship. The report expressed con-
cern about dual citizenship and suggested a reconsideration of the 1977 citizen-
ship law that permitted Canadians to retain Canadian citizenship when
naturalizing in another country. It did not propose a renunciatory oath for immi-
grants seeking Canadian naturalization, recommending instead that naturaliz-
ing citizens “be required to declare as a condition of receiving their citizenship
that they will accord primacy to their Canadian citizenship over all other
citizenships.”61
Such proposals preserve the important message of the oath that naturaliza-
tion in the United States is about more than obtaining rights or benefiting from a
welfare state. Attaining citizenship signifies belonging, commitment, loyalty, a
willingness to sacrifice if called upon to do so. But it also recognizes that loy-
alty is not indivisible. As current U.S. practice shows—given the growth of
dual citizenship attributable to the numbers of children born in the United
States to alien parents—dual loyalties can exist without shaking the founda-
tions of the Republic. While some see dual citizenship as membership bigamy,
it is probably more appropriate to recognize it as the relationship that one has
with one’s family and one’s in-laws. Such relationships at times produce con-
flict and need negotiation, but one can still be a functioning member of two
families, loyal to both.
A “primacy, not exclusivity” oath would continue to serve the gatekeeping
function provided by the current renunciation requirement. Immigrants who
feel themselves unable to affirm the primacy of their allegiance to the United
States would not be able to naturalize. At the same time, such an oath would as-
sist immigrants who want to naturalize but are caught between an oath that re-
quires renunciation and laws in their home country that permit dual nationality.

60. “Citizenship 1996,” Hearings, October 22, 1996. Testimony of Lawrence Fuchs.
61. Canada, Parliament—House of Commons, Standing Committee on Citizenship and
Immigration, 1994, Canadian Citizenship, pp. 15–16. In Austria, the citizenship oath established in
1948 did not require renunciation of former citizenships, but a provision was added in 1973 that
provided for the explicit renunciation of prior citizenships.
150 T. ALEXANDER ALEI NI KOFF

Finally, it should be recognized that a growing acceptance of dual citizen-

ship is not simply the unilateral product of “sending” countries’ changes in law.
Constituencies in “receiving” countries—particularly commercial ones—have
recognized the benefits of dual citizenship for fostering binational ties. Thus, a
1994 submission by the Australian Department of Immigration and Ethnic Af-
fairs considering changes in citizenship law noted support from the business
community for dual citizenship because of the advantages of possessing a for-
eign passport (particularly within the European Union) in facilitating interna-
tional travel.

Rights and Benefits: How Citizenship Makes a Difference

In a famous essay, T. H. Marshall notes that “citizenship is a status bestowed

on those who are full members of a community.” The possessors of that status
“are equal with respect to the rights and duties with which the status is en-
dowed.”62 The concept of “equal citizenship” has, since adoption of the Four-
teenth Amendment, been a core constitutional principle.63 What are the rights
and duties equally endowed to citizens that define the status of citizen-
ship—and that are, by pertaining to citizens as citizens, by inference denied to
noncitizens? The following three sections examine this question in relation to
individual rights held against the government, the right to participate in govern-
ment, and the legality of differential treatment based on alienage.

Rights Held against the Government

The Constitution applies most of its protections to “persons,” a term gener-

ally understood to be more capacious than “citizens.” Accordingly, aliens—as
well as citizens—are guaranteed due process in criminal and civil proceedings,
benefit from the First Amendment’s protection of freedom of speech and reli-
gion, are entitled to a lawyer at a criminal trial, may assert a right against
self-incrimination, and may not be subjected to unreasonable searches and sei-
zures. These rights apply irrespective of immigration status; they protect per-
manent resident aliens, nonimmigrant visitors, asylum-seekers, and
undocumented aliens alike. The Constitution’s focus on “persons” led constitu-

62. Marshall, 1992, p. 18.

63. See Karst, 1997. I have argued elsewhere that “equal citizenship”—not color blindness—is
the true message of Justice Harlan’s celebrated dissent in Plessy v. Ferguson, 163 U.S. 537 (1896).
See Aleinikoff, 1992.
UNIT E D ST AT E S 151

tional scholar Alexander Bickel, writing in 1975, to note that “remarkably

enough . . . the concept of citizenship plays only the most minimal role in the
American constitutional scheme.”64

Rights to Participate in Government

The right to political participation is frequently identified as the core differ-
ence that citizenship makes. Aliens are not entitled to vote in state or federal
elections.65 Although it is not generally known, immigrants did vote in the
United States throughout the nineteenth century—at a time when the majority
of U.S. citizens could not vote, because of exclusions based on race and gender
(1928 was the first presidential election in which no state permitted aliens to
vote).66 The close linkage drawn today between citizenship and voting rights is
thus of fairly recent vintage. Furthermore, there are some indications that alien
voting may be regaining acceptability at the local level. Several U.S. localities
have recently made permanent resident aliens eligible to vote in local elec-
tions;67 and the European Union’s Maastricht Treaty grants citizens of member
states the right to vote in local and EU elections when they reside in any mem-
ber state.68
Although aliens have no constitutional right to participate in elections, they
do enjoy First Amendment rights. They would therefore be protected against
legislation that purported to bar their participation in political demonstrations
or other nonvoting activities. Accordingly, current proposals to prohibit immi-
grants from making campaign contributions raise difficult constitutional ques-
tions.69

64. Bickel, 1975, p. 33.

65. The Colorado Supreme Court, in a decision the U.S. Supreme Court refused to review,
found that it is clearly constitutional to deny aliens the right to vote. Skafte v. Rorex, 553 P.2d 830
(1976); appeal dismissed 430 U.S. 961 (1977). But see also, Rosberg, 1977, p. 1092.
66. See Rosberg, 1977; Raskin, 1993.
67. See, for example, Raskin, 1993 (discussing the 1992 decision of the people of Takoma
Park, Maryland, to amend the city’s charter and extend the franchise to noncitizens in local
elections).
68. Maastricht Treaty, translated in Corbett, 1993. In the fall of 1990, however, the Federal
Republic of Germany’s Federal Constitutional Court invalidated statutes of two states granting
certain resident aliens the right to vote in local elections. See Neuman, 1992, p. 260.
69. It is an interesting question whether prohibitions on campaign contributions are
constitutional. See, for example, Brown, 1997, p. 503. See also, “‘Foreign’ Campaign
Contributions and the First Amendment,” 1997.
152 T. ALEXANDER ALEI NI KOFF

The Constitution draws but one distinction between native-born and natural-
ized citizens:70 Only a native-born citizen may be president of the United States.
(This rule means, for instance, that Secretary of State Madeleine Albright, who
otherwise would be the first woman to stand fourth in the line of presidential
succession, is ineligible to serve as president.)

Differential Treatment Based on Alienage

In the nineteenth century, aliens faced a wide array of restrictions on

land-ownership, inheritance, access to occupations, and governmental employ-
ment. The Supreme Court was willing to nullify state discrimination that it at-
tributed to racial animus (chiefly against Chinese and Japanese immigrants) or
that it found to interfere with federal regulation of immigration.71 But most state
rules drawing distinctions based on alienage were upheld well into this century.
The significant shift came in the 1972 case Graham v. Richardson, which inval-
idated state laws denying immigrants welfare benefits made available to citi-
zens. In a terse discussion, the Court held that aliens constitute a “discrete and
insular” minority on whose behalf the judiciary would closely scrutinize dis-
criminatory state laws. Laws not supported by a compelling state interest and
not drawn in a precise manner would be held to run afoul of the Fourteenth
Amendment’s equal protection clause.72 After Graham v. Richardson, the
Court invalidated state laws that prohibited aliens from being civil engineers,
lawyers, and state civil servants, or barred aliens from eligibility for state
higher-education grants.73
The high-water mark of protection was reached in 1982, when the Court
struck down a Texas statute authorizing local school districts to exclude undoc-
umented alien children from public schools.74 While it recognized that undocu-
mented aliens were not a class entitled to special protection under the
Fourteenth Amendment, the Court nonetheless invalidated the Texas policy. It
found unpersuasive the state’s justifications for the statute (including the claim

70. No other significant differences in federal statutes exist except for denaturalization, which,
of course, only applies to naturalized citizens.
71. See, for example, Yick Wo v. Hopkins, 118 U.S. 356 (1886); Takahasi v. Fish and Game
Commission, 334 U.S. 410 (1948); Truax v. Raich, 239 U.S. 33 (1915).
72. Graham v. Richardson, 403 U.S. 365 (1971). The phrase “discrete and insular minority” is
a term of art for the Court, signaling groups for whom special judicial protection is appropriate. See
United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
73. Examining Board of Engineers v. Otero, 426 U.S. 572 (1976) (civil engineering); In re
Griffiths, 413 U.S. 717 (1973) (admission to the bar); Sugarman v. Dougall, 413 U.S. 634 (1973)
(state civil service); Nyquist v. Mauclet, 432 U.S. 1 (1977) (education grants).
74. Plyler v. Doe, 457 U.S. 202 (1982).
UNIT E D ST AT E S 153

that the policy would deter illegal immigration), particularly when these were
weighed against the harm imposed on the children—and ultimately on U.S. so-
ciety:

[The statute] imposes a lifetime hardship on a discrete class of children

not accountable for their disabling status. The stigma of illiteracy will
mark them for the rest of their lives. By denying these children a basic ed-
ucation, we deny them the ability to live within the structure of our civic
institutions, and foreclose any realistic possibility that they will contrib-
ute in even the smallest way to the progress of our Nation.75

Not all state laws based on alienage are impermissible, however. The jus-
tices carved out an exception to Graham v. Richardson, recognizing that “some
state functions are so bound up with the operation of a State as a governmental
entity as to permit the exclusion from those functions of all persons who have
not become part of the process of self-government.”76 The exception has been
read, rather expansively, to uphold state statutes disqualifying aliens from be-
ing teachers, police officers, and probation officers.77
The Supreme Court has been far more tolerant of federal laws that discrimi-
nate against aliens. The Court has given Congress wide berth to enact immigra-
tion regulations, upholding statutes that would be unconstitutional if applied to
citizens.78 Indeed, exercise of the immigration power constitutes one of the
chief ways in which aliens and citizens are treated differently: aliens are subject
to Congress’s deportation power; citizens are not—there is no congressional
power to exile or banish U.S. citizens. Furthermore, citizens have significant
advantages over immigrants in sponsoring immigrant relatives to the United
States. And only citizens are eligible for U.S. passports and for protection by
U.S. authorities outside the territory of the United States.
The Court’s deference to congressional exercise of the immigration power is
based on its belief that immigration regulations frequently involve foreign af-
fairs matters, an area where judicial intervention is deemed inappropriate. In
several startling opinions, the Supreme Court has declared that aliens at the bor-

75. Plyler v. Doe, 457 U.S. 223 (1982).

76. Ambach v. Norwich, 441 U.S. 68, 73 (1979); see also Sugarman v. Dougall, 413 U.S. 634
(1973).
77. Ambach v. Norwich, 441 U.S. 68, 73 (1979) (teachers); Foley v. Connelie, 435 U.S. 291
(1978) (police officers); Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (probation officers).
78. Fiallo v. Bell, 430 U.S. 737 (1977), for example, upholding law making it harder for alien
fathers to reunite with illegitimate children than alien mothers. Judicial deference is traceable to the
Court’s validation of the ignominious Chinese Exclusion laws. Chae Chan Ping v. United States,
130 U.S. 581 (1889). See Henkin, 1987, p. 853.
154 T. ALEXANDER ALEI NI KOFF

der of the United States seeking initial entry have no constitutional rights;
“whatever the procedure authorized by Congress is,” the Court wrote in a 1950
case, “it is due process as far as an alien denied entry is concerned.”79 These
cases, remnants of the attitudes of an earlier day, continue to be cited with ap-
proval by the Court.80
The Court has applied this lax standard of review not only to immigration
regulations regarding classes of entrants and grounds of exclusion and deporta-
tion, but also to federal regulations based on alienage. Thus, it has upheld fed-
eral laws that discriminate against aliens in the receipt of federal benefits and
access to the federal civil service81—even though similar laws adopted by states
would be held unconstitutional.
Despite its power to discriminate on the basis of alienage, however, Con-
gress has not done so, until recently, to any significant degree. Indeed, settled
immigrants live lives largely indistinguishable from those of most U.S. citi-
zens. Although they cannot vote and may be ineligible for some government
employment, they work, own property, have access to the courts, can be mem-
bers of most professions, and exercise most constitutional rights on the same
terms as native-born and naturalized citizens.
The 1996 welfare law sharply deviates from this general picture. The statute
draws a hard line between immigrants and citizens, disqualifying future en-
trants from eligibility. (Initially the law terminated assistance to resident aliens
already within the United States. In the budget agreement of 1997, disability
payments under Supplemental Security Income [SSI] were reinstated for these
immigrants; and in 1998 eligibility for food stamps was restored for some.) The
legislation mandates states to deny some benefits and authorizes them to with-
hold others. These latter provisions pose the serious constitutional question of
whether the federal government can authorize states to discriminate against
aliens in a manner that would be unconstitutional if adopted by the state alone.
In the view of some, the welfare law simply provides a necessary extension
of existing rules of responsibility for immigrants and their sponsors. Congress-
men Lamar Smith (R-Tex.) and E. Clay Shaw Jr. (R-Fla.) have argued that, for
many years, immigration law has barred the entry of aliens “likely to become a
public charge,” and has required some sponsors to execute affidavits of support
promising to take care of the relatives they bring to the United States should
they fall on hard times. Congressmen Smith and Shaw further note the high

79. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950); Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206 (1953).
80. Fiallo v. Bell, 430 U.S. 737 (1977); Landon v. Plasencia, 459 U.S. 2 (1982).
81. Mathews v. Diaz, 426 U.S. 67 (1976); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).
UNIT E D ST AT E S 155

level of immigrant participation in welfare programs, particularly the SSI pro-

gram (in 1996, legal immigrants constituted less than 6 percent of the popula-
tion but received more than 50 percent of SSI benefits paid to the elderly).82 In
this view, the welfare law is closely linked to Congress’s traditional exercise of
the immigration power.
From another perspective the welfare law represents a paradigm shift in this
nation’s thinking about the difference that citizenship makes. Some defended
the disqualification of immigrants in definitional terms: Congressman Frank
Riggs (R-Calif.), for example, stated that “the message that we are sending
here, and we are clearly stating to our fellow citizens, [is] that we really are go-
ing to put the rights and needs of American citizens first.”83 This bright line,
on-off switch is a dramatic shift from post–World War II era public policy un-
derstandings, which were based on a recognition that settled immigrants partic-
ipate in and contribute to their communities and the nation in ways similar to
those of U.S. citizens and therefore are entitled to equal treatment. The Su-
preme Court adopted this latter position in the Graham v. Richardson case,
where it noted its agreement with a lower court’s reasoning that the

justification of limiting expenses is particularly inappropriate and unrea-

sonable when the discriminated class consists of aliens. Aliens like citi-
zens pay taxes and may be called into the armed forces. . . . [They] may
live within a state for many years, work in the state and contribute to the
economic growth of the state.84

Models of Membership
So far this study has examined rules regarding citizenship and naturalization
and the rights and opportunities that accompany the status of citizenship. These
rules vary widely among nations of the world, and even among Western democ-
racies. The welter of rules may appear incoherent—for example, why must
aliens who naturalize in the United States renounce prior citizenship while U.S.
citizens naturalizing elsewhere are allowed to keep their U.S. citizenship? Why
does Australia have precisely the opposite rules? It is probable that the underly-
ing structure of each nation’s membership rules taps deep into its own political
and cultural traditions and historical experience.85 As the following discussion

82. Shaw and Smith (May 28, 1997), p. A19.

83. U.S. House of Representatives, Congressman Riggs speaking about H.R. 3406,
Congressional Record, 104th Cong., 1st sess., 1995, vol. 141, p. 412.
84. Congressional Record, 104th Cong., 1st sess., 1995, vol. 141, p. 376.
85. See, for example, Brubaker, 1992, pp. x–xi.
156 T. ALEXANDER ALEI NI KOFF

will demonstrate, this structure rests as much on the rejection of certain tradi-
tional principles of membership as it does on the embrace of others.
Despite a legal history of citizenship replete with racial exclusions,86 the
United States’ architecture of membership is not based on the principle of
ethnocultural unity. There is no ethnic or racial group for which the United
States has been created or sustained, and an impregnable tradition of jus soli
coupled with immigration from all over the world guarantees a polyethnic na-
tion. Although some recent literature, which has received widespread attention
in the media, has identified the United States as a “white nation” under threat
from immigration from nonwhite countries of origin, this view remains outside
the mainstream of U.S. politics. It has been repudiated by a several-hun-
dred-year history to the contrary and a deeply held political commitment to eth-
nic pluralism.
At the other end of the spectrum is the principle of membership based on
mere physical presence in the United States. Support for this principle appears
both in political and legal theories that extend the Constitution’s protections to
all persons within U.S. territory and in international human rights law. The pre-
ceding discussion makes clear that, in the U.S. legal system, presence counts
for something—the Constitution does apply to all persons within the geograph-
ical boundaries of the United States. Indeed, the fact that U.S.-born children of
undocumented aliens are U.S. citizens lends some support to the claim that the
U.S. membership model turns primarily on presence.
But the principle of citizenship also counts for something in the U.S. system.
Its significance is clearest in the distribution of political rights. The exercise of
state authority over individuals might seem like grounds for endowing them
with political rights, but it has never been argued that the right to vote should be
extended to all persons within the territory of the United States. While some
scholars have declared the coming of a postnational world,87 the U.S. model of
membership remains far from postnational.88
An appropriate U.S. model of membership cannot define full membership in
ethnocultural terms, and it must give weight to both presence and citizenship. In
this middle space are three models of membership: lawful settlement as mem-
bership, citizenship as membership, and transnational membership.

86. See Smith, 1997; and López, 1996.

87. See, for example, Appadurai, 1993.
88. And however persuasive one might find Yasemin Soysal’s account of a “postnational”
membership in Europe, it does not seem an apt description of the U.S. system. See Soysal, 1994.
UNIT E D ST AT E S 157

Lawful Settlement as Membership

Most immigrants reside in the United States in a manner that differs little
from the everyday lives of citizens. Tomas Hammar has labeled this model of
membership “denizenship,” an English concept dating back centuries under
which the monarch granted aliens the right to reside in the kingdom and to en-
joy most of the privileges of citizenship. Hammar describes denizenship as fol-
lows:

Some noncitizens . . . stand in a close relationship to the state, a relation-

ship defined by an array of rights and duties . . . that links a citizen to his
state. Some noncitizens, like citizens, have the right to enter the state’s
territory from abroad, to settle in the country, to take up work there, to re-
ceive social benefits, even, in some circumstances, to vote. Legal differ-
ences between citizens and these privileged noncitizens have tended to
diminish.89

The crucial element here is lawful settlement, which in the United States is a
creation of constitutional and statutory precedent. As noted above, the Supreme
Court has extended constitutional rights to aliens and has struck down most
state laws that discriminated on the basis of alienage. Federal statutory law enti-
tles permanent resident aliens, refugees, asylees, and other classes of aliens to
reside and work in the United States and to leave and reenter. Before the pas-
sage of the 1996 welfare law, permanent resident aliens were eligible for most
federal benefits available to citizens.
The lawful settlement model takes notice that resident aliens function in
U.S. society in a manner largely indistinguishable from citizens. They work, at-
tend houses of worship, join social organizations, attend sporting events, and
participate in their children’s schools. Many are also the parents of U.S. citi-
zens. Along with their residential ties, their contribution to the economic and
social life of the nation—in terms of both participation and tax payments—enti-
tles them to social benefits.
Lawful settlement does not, however, entail political rights. It understands
immigrants to be members in one sense, but it also recognizes that citizenship
remains the basic currency of self-government. Citizens may choose to give im-
migrants certain political rights, including the right to vote in local elections.

89. See Hammar, 1989, p. 83. Hammar is thinking particularly here of children of immigrants
in jus sanguinis countries: “Some [denizens] may have been born in the country and never lived
anywhere else; they may speak the language of the country with perfect fluency, and may perhaps
speak no other language.” Hammar, 1989, p. 84.
158 T. ALEXANDER ALEI NI KOFF

This is consistent with the model’s recognition of the close ties that settled im-
migrants develop with their communities of residence.
It is important, however, to distinguish the lawful settlement model from a
membership model based simply on presence. Status is crucial to the former,
but not the latter. Immigrants granted membership rights have a status entitling
them to work and to remain indefinitely in the United States. Thus, lawful set-
tlement describes the situation of permanent resident aliens, refugees, and
asylees, but not nonimmigrants (visitors, students, temporary workers) or
aliens granted a temporary protected status. The 1986 legislation legalizing the
status of long-term illegal immigrants is the exception that proves the rule: The
legalization programs recognized both the contributions of long-term undocu-
mented aliens and the fact that many were, for all intents and purposes, mem-
bers of U.S. society. But the programs did not extend social benefits to this
population; rather, the legislation legalized their status (permitting them to ap-
ply for permanent resident alien status a number of months later), and rights and
benefits followed from that legalized status.
The lawful settlement as membership model rests on a distinction similar to
one drawn by Rainer Bauböck between social membership in a society and po-
litical membership in a polity. These two realms of membership overlap but are
not coextensive. Bauböck argues that social membership “is acquired gradually
and mainly as a function of the length of residence.”90 By contrast, political
membership is determined more by volitional choice. In his view, if liberal
democratic polities do not confer the necessary menu of social rights to enable
all resident aliens to participate fully in civic life, they risk undermining the so-
cial foundations of democratic governance by creating a permanent subclass of
marginalized members.
A lawful settlement model might well support “statutes of limitations” on
deportation grounds. After a certain number of years of lawful residence in the
United States, an immigrant might be deemed to be so much a part of U.S. soci-
ety that his or her deportation would constitute an unduly harsh penalty. Con-
gress has never gone so far,91 but it has provided long-term residents the
opportunity for relief from deportation. In keeping with this model, permanent
resident aliens have an easier time obtaining relief than other aliens.
The lawful settlement model is consistent with jus soli or jus sanguinis. Be-
cause little, other than political rights, would separate resident aliens and citi-
zens, it could tolerate a jus sanguinis regime that produced several generations

90. Bauböck, 1994, p. 173; see also generally, pp. 172–77, 232–48.
91. It should be noted that some deportation grounds are limited to certain number of years
after entry.
UNIT E D ST AT E S 159

of aliens in the host country. The equal treatment of immigrants and citizens
would not provide an incentive to naturalize; naturalization would be, however,
available on fairly easy terms for those immigrants who wanted, for affective
reasons, to attain citizenship. Dual citizenship might well be tolerated under a
lawful settlement model, but the state would have no reason to foster it. Crucial
to the model is the contribution of residents (citizen and immigrant) to the soci-
ety. If immigrants are seen as almost full members, there is little reason to deny
membership to those who choose to naturalize but also want to maintain a prior
allegiance.
If the basis of the lawful settlement model is recognition of the social ties
and economic contributions of long-term resident aliens, then the model would
suggest skepticism toward the transmission of citizenship to generations born
outside the country. Under an ethnocultural model, citizenship jure sanguinis
outside the territory of the country is not a problem; blood, not geography, is the
motivating factor. The lawful settlement model’s focus on the social and eco-
nomic participation of residents, in contrast, raises questions about whether
overseas citizens are adequately attached not to the nation’s political philoso-
phy but to its daily life. This concern is heightened in the case of a mature wel-
fare state in which overseas citizens can return home and claim access to state
benefits simply on the basis of their citizenship. Developments in German na-
tionality law display this concern: at the same time that Germany is considering
easing naturalization requirements for long-term resident immigrants, it is re-
ducing benefits to ethnic Germans born outside its borders who, in cold war
days, were entitled to enter Germany and were eligible for significant public
support. A recent Canadian parliamentary report also notes concern that some
Canadian dual citizens view Canadian citizenship

as an “insurance policy,” which they may wish to use in the future, while
in the meantime residing elsewhere. Among the advantages of such a
“policy” would be the guaranteed right to retire in Canada and have ac-
cess to whatever benefits are then available to residents—health care in
particular—without having contributed in taxes to the country.92

Citizenship as Membership

In 1996—in a statement that underscores the predominant understanding of

membership in lawful settlement terms—Saskia Sassen could write that “when

92. Canada, Parliament—House of Commons, Standing Committee on Citizenship and

Immigration, 1994, Canadian Citizenship, p. 15.
160 T. ALEXANDER ALEI NI KOFF

it comes to social services (education, health insurance, welfare, unemploy-

ment benefits) citizenship status is of minor importance in the United States and
Western Europe.”93 But the subsequent U.S. immigration and welfare legisla-
tion of the same year requires amendment of Sassen’s declaration: citizenship
status has come to mean a great deal in terms of eligibility for social benefits.
So, too, does the significant tightening of provisions for relief from deportation
indicate movement away from lawful settlement as an adequate rendering of
membership. The United States seems to be shifting to a different model—one
that is here labeled as citizenship as membership.
Citizenship as membership identifies citizens as the core members of the na-
tion who constitute the body of people charged with exercising state power and
on whose behalf the state acts. It is, as it were, government of the citizenry, by
the citizenry, and for the citizenry. A model that starts with these premises
views noncitizens as nonmembers. Supreme Court Justice Byron White cap-
tured this image in a case upholding a state requirement that parole officers be
citizens of the United States:

The exclusion of aliens from basic governmental processes is not a defi-

ciency but a necessary consequence of a community’s process of political
self-definition. Self-government, whether direct or through representa-
tives, begins by defining the scope of the community of the governed and
thus of the governors as well; aliens are by definition outside this commu-
nity.94

Justice Hugo Black, in an important denationalization case, put it this way:

“Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the
country and the country is its citizenry.”95
These statements appear to make citizenship as membership the natural con-
sequence of the establishment of a political community. But to recognize that
citizens belong to “a cooperative affair” is not necessarily to equate citizenship
with membership. As described above, noncitizens in the United States possess
a wide array of rights protected by the United States Constitution. These are not
acts of grace and charity extended by a beneficent government of citizens. They
are written into the fundamental document establishing this political commu-
nity. One can thus talk of a constitutional community of which all persons pres-
ent in the United States are members. This does not “disprove” a citizenship as

93. Sassen, 1996.

94. Cabell v. Chavez-Salido, 454 U.S. 432, 439-40 (1982), italics added.
95. Afroyim v. Rusk, 387 U.S. 253, 268 (1967).
UNIT E D ST AT E S 161

membership model; but it does mean that such a model is not mandated simply
by the concept of citizenship.
More important, the statements by the justices are a bit hyperbolic. Resident
immigrants are not “outside the community of the governed”; they are subject
to the laws and the authority of the United States. Nor is “the country” in any
obvious way constituted only by citizens—unless one simply asserts that, by
definition, the millions of aliens in the United States are not included in the term
“the country.” Both statements do, however, represent a deeply held view that
U.S. citizenship is exceedingly valuable, that it stands for something, and that
its value is not measured simply by the number of rights granted to citizens and
denied to aliens. Citizens are, and feel themselves to be, part of a cooperative
venture. The question is what should follow from that fact—not as a matter of
definition, but as a matter of policy.
Citizenship as membership draws a sharp line between citizens and aliens,
placing aliens not just within the next concentric circle but outside the circle of
membership altogether. Aliens are guests, present at the sufferance of and un-
der the conditions established by a government ruled by and for citizens. They
are not entitled to social benefits,96 they may be ineligible for state and federal
employment, and they may be excluded from opportunities in the private
sphere that citizens want to maintain for members only. Such logic underlies
several recent legislative proposals, such as banning resident aliens from con-
tributing money to political campaigns and adopting special rules for resident
aliens seeking to purchase firearms.97
Supreme Court case law casts doubt on the complete realization of the
model. The Court has held that states may not exclude aliens from most benefit
programs and job opportunities (public and private). As noted above, however,
such restrictions do not apply to the federal government; and Congress, in the
1996 welfare legislation, made the most of its authority—not only cutting off
lawful permanent resident aliens from most means-tested federal programs but
also purportedly authorizing states to do the same.
Citizenship as membership leans toward—though it does not compel—a re-
gime of jus sanguinis. It would be sensible under this model for citizenship to
pass by descent only from other citizens. Jus soli, in contrast, allows nonmem-

96. As Justice Stevens wrote in Mathews v. Diaz, “Neither the overnight visitor, the unfriendly
agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a
colorable constitutional claim to a share in the bounty that a conscientious sovereign makes
available to its own citizens and Some of its guests.” Mathews v. Diaz, 426 U.S. 67, 80 (1976).
97. It is interesting to see the National Rifle Association (NRA) take up the rights of aliens in
opposing a legislative proposal that would have limited some legal alien's ability to purchase guns.
See, for example, Rovella (March 17, 1997), p. A9.
162 T. ALEXANDER ALEI NI KOFF

bers (even illegal nonmembers) to create new members. The state might well be
open to naturalization, perhaps even promoting it in a desire to grant rights to
those living in its territory, while maintaining citizenship as the relevant cate-
gory for rights possession.
The model views dual citizenship with disfavor. Given the core significance
of citizenship, it might well be questioned how a person could develop an ap-
propriate level of commitment and loyalty to two separate polities.

Transnational Membership
A third membership model understands the symbolic importance of citizen-
ship but also takes into account the increasingly fluid world in which we live.
The lawful settlement model focuses on the concrete experiences of settled im-
migrants; transnationalism goes one step further. It recognizes that persons
may well fully function as members of two societies: that of the country of their
(or their parents’) birth and that of their current country of residence. Without
denying the existence or relevance of borders and states, transnational member-
ship recognizes the increasing possibility of individuals being members of two
states, either as citizens of one and settled immigrants of another, or as citizens
of both.
The transnational membership model has both descriptive and normative as-
pects. Modern communications and transportation not only support migratory
flows but also make possible the retention or creation of relations with commu-
nities in countries of origin. Popular mythology aside, immigration to the
United States has never been a one-way affair; perhaps as many as a third of
those who came to the United States during the great wave of immigration in
the early decades of this century returned to their countries of origin.98 These
migratory circuits are far easier to establish and maintain today than in the past
(not only by way of jet planes and telephones but also by fax and electronic
mail). Thus, a naturalized U.S. citizen born in India can own a chain of hotels in
Pennsylvania and seek to expand to Bombay;99 a Mexican with a green card can
live in Tijuana and cross the border daily to work in San Diego; a Dominican
American can be a political leader in Washington Heights and Santo

98. Portes and Rumbaut, 1996, p. 101. The majority of immigrants entering the United States
in the 1920s considered themselves transitory sojourners whose ultimate goal was to return to their
country of origin. “Although most were to settle eventually in America, this final outcome did not
preclude their viewing the journey as temporary and instrumental.”
99. Wysocki, (May 12, 1997), p. B1.
UNIT E D ST AT E S 163

Domingo;100 a Haitian migrant in the United States is considered a member of

the “Tenth Department” of Haiti.101
The normative element of the transnational model is the claim that member-
ship in more than one state is good for individuals as well as for the two societ-
ies. It affirms important aspects of human identity by not forcing a person to
choose one set of relations over another; and it allows communities to benefit
from the cosmopolitanism fostered by connections with other parts of the
world.
The transnational membership model would adopt the lawful settlement per-
spective on access to social benefits. It would recognize that citizenship else-
where would not necessarily undermine one’s attachment to and participation
in the United States. But it would go further than the lawful settlement model by
valuing, rather than simply tolerating, close ties with the home country and dual
citizenship. It would conclude that, on balance, the benefits of multiple mem-
berships outweigh the costs (which are arguably significantly diminished in a
world largely at peace). Viewing multiple allegiances as largely non-
threatening, transnationalism would also be open to the idea of dual citizens
voting in both countries of citizenship.
Transnationalism is not postnationalism. It recognizes, as does a post-
nationalist perspective, that states are not impermeable geographic or social
units. While the transnational perspective values citizenship and notions of loy-
alty and commitment, it recognizes that human beings can, and frequently do,
maintain plural allegiances. While some may view the multiple allegiances af-
firmed by transnationalism as fundamentally inconsistent with the degree of
commitment required by citizenship, supporters of the transnational model can
reply that the vast majority of U.S. citizens achieve citizenship by birth in the
United States and thereby acquire a firm grounding in U.S. culture and history
that is likely to make their U.S. citizenship of primary significance.

Reaffirming the Lawful Settlement Model of Membership

In many countries, the nation preceded the state. In the United States it has
been the other way around: the state created the nation, and the nation is identi-
fied not by ethnic or racial background but by the status of citizenship. U.S. citi-
zens are the “We, the People” of the U.S. Constitution, and they are the
“Americans” referred to by the rest of the world. Bounded political communi-
ties need a definition of membership, and democracies need a concept of the

100. See Graham, 1996; Guarnizo, forthcoming 1998.

101. Basch et al., 1994.
164 T. ALEXANDER ALEI NI KOFF

“demos,” or the people. Citizenship can serve that function, defining the gover-
nors and those on whose behalf they govern. These theoretical premises under-
gird the significant intuitive appeal of the citizenship as membership
model—an appeal heightened by the sense of fragmentation-at-large in the
world today. The citizenship as membership model offers unifying concepts
that can call forth loyalty and allegiance—not in the name of a particular ethnic
group or religion, but in the name of a self-governing political community.
A concept of who governs, however, is not necessarily congruent with a con-
cept of membership. Nor does the identification of governors necessarily iden-
tify those on whose behalf they govern. Although citizenship as membership
has intuitive appeal, it is not the model of membership that has prevailed in the
United States for some time. As noted above, the Constitution’s protections ex-
tend significantly beyond citizens, and federal law has—until very recently—
extended most benefits and opportunities to large numbers of resident immi-
grants. Immigration law has made naturalization available on fairly easy terms,
and has provided avenues of relief from deportation for long-term resident
aliens. These attributes of U.S. law and policy display a model of membership
broader than citizenship; they seem most consistent with the lawful settlement
model.
Why is this? Why has U.S. membership policy not made more turn on the
concept of citizenship? First, the acquisition of citizenship traditionally has
been understood as part of the broader process of immigration and accultura-
tion. Naturalization is seen as a good thing—as a major step in fully joining the
U.S. polity. A membership theory broader than citizenship gives recognition to
this process of acculturation. It recognizes that resident immigrants are not
merely nonmembers; rather, they are full-members-in-training. Citizenship is
not commanded of immigrants, but it is expected of them.
Second, the United States conceives of itself as a “nation of immigrants.”
Except for the Native Americans, we all came from somewhere else. Thus we
see in the current flow of immigrants our past and our nation’s past. Immigrants
are not merely guests. They are the history and the future of the United States.
Third, notions of membership are frequently linked with notions of contribu-
tion. People who work, pay taxes, and volunteer in organizations lay a claim to
membership. In the past, the polity has responded to the implicit claim of lawful
resident immigrants for rights and opportunities in recognition of their eco-
nomic, social, and cultural contributions.
A decision to move beyond the lawful settlement understanding of member-
ship to a citizenship as membership approach would not be indefensible. But it
would be inadvisable. Quite simply, there are ways to make citizenship spe-
cial—to affirm values of loyalty and allegiance—other than by disadvantaging
UNIT E D ST AT E S 165

immigrants, particularly when such measures in fact increase demand for natu-
ralization for the very reasons deemed troubling by supporters of citizenship as
membership.
Maintaining the lawful settlement approach also argues against a transna-
tional understanding of membership. Transnationalism recognizes important
developments in modern migrations, but it is ultimately a one-generation
story.102 The fact that all children born in the United States are automatically cit-
izens begins a powerful acculturation process that usually overwhelms the in-
fluences from the home country. While many Americans (of whatever
generation) value the cultures of their ancestors’ home states, little evidence has
appeared that transnationalism—in the sense of simultaneous memberships of
equal strength in two states—is strongly felt among second and later genera-
tions in the United States. Furthermore, a transnational model of membership,
which values and affirms multiple allegiances, is likely to foster a strong politi-
cal backlash with uncertain consequences.

Conclusion

In a 1989 essay, Peter Schuck called attention to what he termed the “devalu-
ation of American citizenship.”103 Schuck noted that citizenship was easy to ob-
tain (under jus soli principles and easy-to-meet naturalization requirements)
and hard to lose (given Supreme Court doctrine on denationalization). Further-
more, the possession of the status did not make much of a difference in terms of
one’s entitlement to state and federal benefits. Recent developments—includ-
ing changes in foreign law producing a higher incidence of dual citizenship, a
perception that persons are seeking naturalization primarily for instrumental
reasons, and an alleged lowering of standards for naturalization—have re-
newed concerns about the “cheapening” of citizenship.104 Rogers Brubaker has
identified similar concerns regarding the devaluation of citizenship in France.
His quotation of a French nationalist echoes views expressed by some in the
United States today:

On the pretext of humanism . . . France has received and conferred its na-
tionality on families whose sole bond of attachment to the national com-
munity consists in pecuniary advantages. What is more, the persons

102. In states that continue to receive large numbers of immigrants over time, a “transnational”
account may be a necessary component of a full description of membership.
103. Schuck, 1989.
104. See Geyer, 1996.
166 T. ALEXANDER ALEI NI KOFF

concerned preserve their original allegiance and often take French na-
tionality as one takes the Carte Orange [the subway and bus pass used by
Parisian commuters].105

These concerns are only heightened by academic musings that we are witness-
ing the decline of the nation-state and the dawning of a postnational era.
One can attempt to “revalue” citizenship by making it matter more—for ex-
ample, by widening the differences between citizens and immigrants. The 1996
welfare legislation may be seen as such an intervention. But this strategy can be
self-defeating if it results in an increase in the number of applications for natu-
ralization. As Schuck notes, “Whether this incentive is the kind of motivation
for naturalization that proponents of a more robust citizenship have in mind is a
question that is seldom asked.”106
A better strategy would be to take the concept of citizenship seriously in an
affirmative sense, and to reinvigorate it by focusing on issues of loyalty, politi-
cal participation, and civic involvement. Citizenship has a crucial role to play in
the functioning of a polyethnic society. It signals a commitment to a larger po-
litical enterprise above and beyond ethnic, racial, gender, or other associations.
Although citizenship may be an aspect of identity, it is not fundamentally about
identity or lineage. Rather, it is about belonging—to a land, to a history, to a
polity, and to a group of fellow citizens.
If it is believed that citizenship needs to be revalued, then attention should be
given to public policies and programs that reaffirm values of commitment and
loyalty. Examples might include an expanded voluntary national service pro-
gram or mandatory national service, a national holiday for voting (or weekend
voting), renewed focus in public education on the fundamental documents of
the U.S. political system such as the Declaration of Independence, the Constitu-
tion, and the Gettysburg Address.
Concern that persons are naturalizing without an adequate knowledge of the
English language or U.S. history is rarely coupled with proposals that public
funds be spent on “citizenship education” for immigrants. Public and private
organizations sponsored such programs for new immigrants in the early de-
cades of this century. With the return of high levels of immigration and a dra-
matic increase in applications for naturalization, education programs would
benefit both immigrants (who may appropriately be seen as “citizens in train-
ing”) and U.S. society. Proposals for these sorts of programs occupy a promi-

105. Brubaker, 1992, p. 147 (quoting Jacques Toybon in Le Monde, November 5, 1986).
106. Schuck, 1997, p. 19.
UNIT E D ST AT E S 167

nent place in the 1997 final report of the U.S. Commission on Immigration
Reform.107
Some might argue that a lawful settlement model of membership contributes
to a devaluation of citizenship by effacing most distinctions between citizens
and immigrants. At a time when national communities appear particularly frag-
ile, so the argument goes, undermining citizenship could threaten the unity, and
ultimately the stability, needed for a well-functioning democracy. But this
charge would be difficult to sustain if the lawful settlement model is an accurate
picture of the membership rules that have prevailed in the United States for
some time. Extending constitutional protections to immigrants or granting
them social benefits has not materially undermined U.S. conceptions of the im-
portance of citizenship or the stability of the U.S. political system. Indeed, if the
major “threat” to citizenship today is thought to be the possibility that immi-
grants are seeking naturalization for instrumental reasons, it can be argued that
anti-immigrant rhetoric and the recent denial of benefits to immigrants—both
of which conflict with a lawful settlement model of membership—are the chief
causes behind this rise in instrumental motives.
A conception of membership that includes resident immigrants does not dis-
miss citizenship as irrelevant or outdated. It assigns the concept to a different,
but vitally important, sphere. Lawful settlement membership is based on no-
tions of contribution and participation; citizenship is based on loyalty and com-
mitment. The first resonates with values of fair treatment for similarly situated
people; the second is attuned to a more symbolic set of relationships, one with a
shared past and future. Lawful settlement is largely a social and legal status; cit-
izenship provides a sense of belonging and is frequently an important aspect of
personal identity.

The decline of the nation-state is regularly predicted. It is said that, in the

“postnational” world to come, individuals will be protected by (perhaps inter-
nationally enforced) human rights norms, and human beings will cross borders
with the same ease as goods and capital. Citizenship will become a concept as
outdated as “subjecthood”—its use recalling a transitory era between feudalism
and universalism (or at least regional supranationalism). So the prognosis goes.

107. “To help achieve full integration of newcomers, the Commission called upon federal,
state, and local governments to provide renewed leadership and resources to a program of
Americanization that requires: developing capacities to orient both newcomers and receiving
communities; educating newcomers in English language skills and our core civic values; and
revisiting the meaning and conferral of citizenship to ensure the integrity of the naturalization
process.” U.S. Commission on Immigration Reform, Becoming an American, 1997, pp. 29, 36–48.
168 T. ALEXANDER ALEI NI KOFF

This vision may well turn out to describe the world at some future date. But
in the meantime, states will continue to control their borders, adopt rules for
birthright citizenship and naturalization, and parcel out benefits and opportuni-
ties to a greater or lesser degree on the basis of citizenship. If there is an unfold-
ing medium-term trend, it appears to be one that defines membership in terms
of social contribution more than descent: sweat as well as blood. Thus, rights to
participation in the welfare state will be more closely drawn to those who have
contributed to the society from which they are now asking for assistance. There
are hints of this trend in the recent amendment to the Mexican Constitution cut-
ting off citizenship jure sanguinis after the first generation born overseas. It is
also evident in recent changes in German policies that make it easier for
long-term resident aliens to naturalize even as they afford fewer benefits to
“ethnic Germans” born outside of Germany. The 1996 U.S. immigration legis-
lation is the glaring counterexample, which ought to give U.S. policy makers
serious grounds for reconsideration.
It is unlikely that the states of the world will soon agree on one set of citizen-
ship rules—the jus soli of France and the jus sanguinis of Germany appear to be
fairly firmly set in distinct political cultures. But the understandings of mem-
bership may well be converging, and will be seen in eased naturalization stan-
dards, welfare state participation for lawfully resident immigrants, and an
increased tolerance for dual citizenship.

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172 T. ALEXANDER ALEI NI KOFF

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 PART TWO

Citizenship in the Aftermath of

Major Political Transformations
 CHAPTER FIVE

Introduction

KATHLEEN NEWLAND

THE POLITICAL transformation of a state almost invariably raises questions

about the boundaries and content of citizenship. How inclusive or exclusive is
the new or transformed state in defining who is entitled to full membership in
the polity? Are all those who thought of themselves as citizens of the previous
political entity accepted into the new one? What rights and duties give content
to the formal status of citizenship, and how are they manifested in practice?
The three chapters in this section address these questions in relation to Rus-
sia, South Africa, and the three Baltic states of Latvia, Lithuania, and Estonia.
Comparison of these three cases shows that, despite facing common dilemmas,
each transformed state deals with citizenship issues in a unique context and in
its own way. Citizenship policy is cast in the mold of historical experience and
the current political agenda.
The Baltic states have used citizenship policy as a tool to separate them-
selves from their Soviet past and reinforce their national identity. Lithuania’s
relatively small ethnic Russian population posed no particular challenge to this
project and, thus, was admitted to citizenship along with all other legal perma-
nent residents at the time of independence. In Latvia and Estonia, however, the
Russian minority was so large that it was seen as posing a mortal threat to the
restoration of a distinctively Latvian or Estonian nation-state. In response to the
perceived threat, citizenship was restricted to those who could trace their resi-
dency or descent to before the period of Soviet annexation. This, in effect, dis-
enfranchised the great majority of ethnic Russians resident in the two states.

175
176 KATHLEEN NEWLAND

Lowell Barrington recounts and analyzes the subsequent struggle to reach ac-
commodation on the issues of minority rights, democratic development, and
political representation that arose from the first basic decision on admission to
citizenship.
Left out of citizenship, what options remained to the ethnic Russian resi-
dents of Latvia and Estonia? They could either go through the deliberately slow
and difficult process of naturalization, become Russian citizens and thereby
give up the prospect of citizenship rights in their place of residence, or remain
stateless. The Baltic governments have come under considerable pressure from
international organizations to reduce statelessness by adopting more inclusive
policies. This has been an important point of leverage, as the Baltics are eager to
join European institutions. The two methods of distinguishing their European
present from their Soviet past—excluding Russians from citizenship and meet-
ing the human rights standards for membership in European institutions—thus
have come into conflict. As Barrington shows, the latter seems to be winning.
Unlike the Baltic states, post-Soviet Russia did not emerge from its political
transformation with an ethnoterritorial conception of statehood. The conten-
tious issues of citizenship were not, therefore, issues of admission (or, rather,
nonadmission) but of state succession. What state “inherited” the responsibility
for the citizens of the former USSR? The leaders of the Russian Federation de-
fined themselves into that role with a citizenship law that included not only all
legal residents of Russian territory but also, in theory, all USSR citizens who
within a defined period wished to claim Russian citizenship. Preferring the term
“continuator” to “successor state,” the Russians implied that the Russian Feder-
ation was the USSR writ small, to use George Ginsburgs’s formulation.
For the 25 million or so Russian-speakers who resided in other parts of the
Soviet Union, the breakup of the USSR brought agonizing choices: stay in suc-
cessor states where they would be a distinct and unpopular minority or return to
Russia and claim the proffered citizenship. Millions of Russians rushed back
and found that the reality of being recognized as citizens was far more complex
than the law made it sound. While the Soviet local-residency permit (propiska)
had formally been abolished, local officials commonly refused to recognize the
citizenship rights of those who did not possess one—and would issue them only
to those who could prove their citizenship. The catch-22 was tolerated—even
manipulated—by authorities who did not believe that Russia could cope with a
headlong rush to return by Russians in Central Asia and Eastern Europe.
Some observers also suspected that Russian authorities were glad to retain a
Russian population in the “near abroad” as a sort of fifth column that would
give them some leverage over events in those countries. Certainly that appeared
to be the view of many politicians in the other Soviet successor states. This sus-
PAR T T WO INT R ODUC T ION 177

picion has made the issue of dual citizenship extremely contentious and impor-
tant in the former Soviet space. What Russian legislators portrayed as a mere
insurance policy to calm the fears of Russian-speakers in a period of political
transition, the other successor states saw as a license for Russian interference in
their internal affairs. The impasse has left millions of people in a juridical
limbo, uncertain of their status and prospects. Ginsburgs explains the intrica-
cies of Russian citizenship law, which have both added to and attempted to re-
solve these uncertainties.
If Baltic citizenship issues have been defined around admission, and Russian
issues have been defined around state succession, then the political transforma-
tion of South African citizenship centered on the imperatives of rectification.
Apartheid-era citizenship policy had excluded more and more black South Af-
ricans through the creation of nominally independent “homelands” to which
blacks were assigned. Post-apartheid legislation distinguished itself by its
inclusivity, although, as in the other states considered in this section, practice
has often differed from the theoretical norm of inclusion—for example, with re-
spect to homelands residents.
The citizenship issues that remain salient in South Africa today have less to
do with drawing the boundaries of citizenship than with defining its content.
The key promise of the inclusive approach to membership in the South African
polity is equality of rights and the ability to exercise them. Civil rights, such as
access to the courts and equal treatment in the justice system, are thus more of a
test of inclusion than admission to the franchise. The number of citizenship de-
terminations that are outstanding is dwarfed by the number of South Africans
who have had no form of identity papers and have still to register for the ID
books that would allow them to claim some of the more tangible benefits of citi-
zenship. Both symbolically and concretely, the challenge for South Africa is to
educate all its citizens—not only those who might be eligible for naturaliza-
tion—in the rights, obligations, and values of citizenship in the post-apartheid
state.
All the states discussed in this section continue to struggle with the impact of
their citizenship policies on the loyalty of their residents, often an issue with re-
spect to those who hold dual or multiple citizenship. All must deal with the of-
ten glaring discrepancies between the citizenship laws on the books and the
practices of administrative officials, particularly at the local level. And all have
discovered, in some cases painfully, that an inclusive and consistent citizenship
policy is one of the keys to acceptance in the company of liberal democratic na-
tions.
 CHAPTER SIX

Migration and Admittance

to Citizenship in Russia

GEORGE GINSBURGS

RUSSIA IN THE post-Soviet era is experiencing major population movements.

For the most part, these movements involve former Soviet citizens who are try-
ing to establish their juridical and physical homeland within the framework of
state succession practice. This sorting-out exercise will duly run its course. The
people involved make up a distinct constituency whose members are afforded a
special set of privileges and priorities under the principles that apply when a
state ceases to exist and a successor state “inherits” responsibilities toward its
citizens.1
The pool of migrants also contains a sizable—and growing—assortment of
adults and their progeny whose status under Russian law and treatment at the
hands of local authorities are shaped both by their current citizenship (or lack
thereof) and by their ability and willingness to acquire Russian citizenship
through the circumstances of their birth, naturalization, or other standard means
of conscription or enlistment. This element comprises, among others, bona fide
foreigners, asylum seekers, refugees, and illegal aliens. While their numbers may
fluctuate from year to year, they can be counted upon to remain a fixture on the
Russian scene. Their position will often be crucially affected by the available op-
tions for formal enrollment in the ranks of the host country’s civic community.
This chapter concentrates on this ordinary brand of outlanders and looks at how

1. For an assessment of Russia’s performance record on the count of state succession in citizen-
ship matters, see Ginsburgs, 1998.

178
R USSIA 179

they have fared in the Sturm und Drang mode of Russia’s political culture during
the period stretching from the entry into force of the new Constitution on Decem-
ber 25, 1993, to the present with regard to either negotiating voluntary conversion
to Russian citizenship or incurring its award to a member of the family by legisla-
tive fiat (essentially on the principle of birthright).
The array of norms deployed to police Russia’s citizenship operations is
now codified in the statute on the citizenship of the Russian Soviet Federative
Socialist Republic (RSFSR) of November 28, 1991 (in effect from February 6,
1992),2 as amended on June 17, 1993, and February 6, 1995.3 The 1993 Consti-
tution of the Russian Federation adds some key pieces to the mosaic. Between
them, these two sources virtually blanket the field and convey the tenor of the
Yeltsin administration’s policy on every significant aspect of its citizenship
agenda.
Before we plunge into the thick of legal analysis, a glance at some statistical
data will convey a sense of the magnitude of the problem Russia faces. Between
February 6, 1992, and the close of 1996, 1.5 million persons acquired the citi-
zenship of the Russian Federation by request or application. In the same period,
about 40,000 persons renounced it—33,000 of them in the near abroad coun-
tries, the other fourteen successor states of the Soviet Union that many Russians
refer to as the “near abroad.” Ukraine and Belarus were responsible for 28,000
of that subtotal. Of those who received Russian citizenship, more than 800,000
lived in the near abroad and 100,000 in the far abroad. From that first group,
more than half subsequently moved to Russia. The tendency to relocate in Rus-
sia differs from country to country: about 80 percent of new “converts” decide
to emigrate from Azerbaijan, Kazakhstan, and the Central Asian republics; in
the Baltic states and Moldova, virtually all of them choose to stay. The size of
the annual increment also fluctuates, of course. In 1996 alone, for example,
490,000 individuals acquired Russian citizenship. Of the 360,000 who did so
on the territory of Russia, most were arrivals who came from the members of
the Commonwealth of Independent States (comprising all the newly independ-
ent Soviet republics except Estonia, Latvia, and Lithuania) and the Baltic states.
The remaining 130,000 originated outside the confines of the Russian Federa-
tion—115,000 in the near abroad zone and 15,000 in the far abroad area (com-
pared with 10,800 in the previous year).4

2. Vedomosti, 1992, no. 6, item 243.

3. Vedomosti, 1993, no. 29, item 1112; SZ RF, 1995, no. 5, item 496. The citizenship statute
(Art. 31) also recognizes international treaties as a source of norms for regulating citizenship mat-
ters and stipulates that “if an international treaty of the Russian Federation prescribes rules different
from those contained in the present Law, the rules of that treaty are applied.”
4. Kutafin, 1997; Zubakov, 1997; Rossiiskie vesti, March 18, 1997.
180 GEORGE GI NSBURGS

For the period from 1992 until January 1, 1998, 5.1 million people report-
edly migrated to Russia. Some 1.2 million of their number were registered as
forced resettlers and refugees5 (or, to quote another source, 1.2 million forced
resettlers, plus 150,000 refugees whose status gave them some claim to govern-
ment assistance).6 On a micro scale, for instance, the figures compiled by the
State Committee for Statistics record that 286,475 souls moved to Russia in the
first half of 1996 from the Baltic and C.I.S. countries, with the majority hailing
from Ukraine, Kazakhstan, Uzbekistan, and Tajikistan. A total of 80 percent of
the immigrants consist of people of Russian stock.7 The prognosis for the future
is that by the year 2001, the nation can expect an additional influx of 600,000
forced resettlers and refugees owing to fresh arrivals from the ex-republics of
the USSR, of which 500,000 are expected to originate from Central Asia and
Kazakhstan.8 In the bigger picture, some computations forecast that a swarm of
more than 3 million individuals will have trekked to Russia by the year 2000 as
refugees and migrants from the C.I.S. countries, the Baltic region, and far
abroad.9
At this point, the far abroad component of the sample includes, according to
the director of the Federal Migration Service, 2,300 foreigners who had man-
aged to acquire the formal status of refugees. In addition, 80,000 others of that
ilk are now classified as “legalized” refugees, namely, they are known to the au-
thorities. Afghans constitute the largest element here—approximately a third of
the total.10
By official count, 300,000 foreign workers came to Russia by invitation in
1996, mostly from Ukraine, Turkey, and China. The vast majority of such guest
workers, however, went unreported.11 Consider the following. Moscow’s Bu-

5. Kamakin, 1998.
6. Diplomaticheskii vestnik, 1997, no. 9, p. 44.
7. Rossiiskie vesti, March 18, 1997.
8. SZ RF, 1997, no. 47, item 5406. “Concerning the Federal Migration Program for
1998–2000.”
9. Churakova, January 13, 1998, VI.
10. Kamakin, 1998. By that calculation, the number of Afghan refugees in Russia would come
to about 26,600. A series of newspaper articles on the travails of the Afghan diaspora in Russia pub-
lished in 1997–1998 wrote of 100,000 to150,000 Afghan exiles on the territory of Russia, of whom
50,000 to 60,000 were concentrated in Moscow and the Moscow region. Perhaps most of the Af-
ghans located on Russian territory fit under the administrative heading of “illegal immigrants”
rather than “foreign refugees.” Grankina, December 30, 1997; Bondarenko, 1998; Alekseev, 1998.
11. Argumenty i fakty, 1997, no. 29, p. 16. Back in the first weeks of 1995, a newspaper piece
already complained that Moscow and the Moscow region harbored a community of more than
60,000 to 70,000 illegal resettlers who were not Russian citizens, that is, refugees, transients, hired
workers, their children, “gastarbeiters,” and members of the new propertied classes. A total of
6,000 foreigners and stateless persons from the far abroad were said to be living in the Moscow re-
gion. See Nikonorov, January 19, 1995.
R USSIA 181

reau for Coordinating Labor Resources, Migration and Employment of the

Population planned to issue 50,000 permits for the hiring of foreign workers.
Meanwhile, private sources claimed a further 250,000 Vietnamese,
Romanians, Turks, Belorussians, Ukrainians, and Moldavians were locally em-
ployed on construction sites and in transportation services without a license.12
In fact, even these estimates may be far too low: one sees published references
to a pool of 0.5 million to 1 million illegal labor migrants in Russia and reads
startling stories in the newspapers about “as many as a million foreign workers
in and around Moscow.”13
Finally, no one really knows how many illegal aliens have infiltrated Rus-
sia’s home space. The chief government spokesman’s guess is that there could
be as many as 700,000,14 whereas in the opinion of the International Organiza-
tion of Migration between 500,000 and 1 million illegal migrants (particularly
Afghans, Iranians, and Iraqi Kurds) are living in the Russian Federation.15 Note
that the phenomenon of Chinese trespassers is omitted from this census, and the
assessments in their case range from several hundred thousand to 2 million and
more.16 What can be expected on this front for the next few years? According to
one version, “matters are much more complicated as regards the problem of un-
controlled entry into the territory of Russia of citizens from countries with an
undeveloped economy. Just officially, the size of this category of immigrants
will amount annually to roughly 100,000 persons.”17

General Principles

With this background, we can turn our attention to Russia’s legal framework
for setting procedures that let some among this crowd of outsiders normalize
their life by incurring title to Russian citizenship.

Right to Citizenship

The 1991 statute opens with the grand pronouncement that in the Russian
Federation every person has a right to citizenship, a formula lifted from the
1948 Universal Declaration of Human Rights and imported into the Russian
constitutional repertory in April 1992 as an amendment to the 1977 charter that

12. Korovin, October 30, 1997.

13. Khorev, 1997; Bohlen, June 13, 1998, p. A3.
14. Kamakin, 1998.
15. Central Asia Monitor, 1998, no. 1, p. 24.
16. See, for example, Osenev, 1997.
17. Churakova, January 13, 1998, VI.
182 GEORGE GI NSBURGS

advertised that “every person has the right to acquire and terminate the citizen-
ship of the Russian Federation in accordance with the laws of the Russian Fed-
eration.”
The point has been made in Russian writing on this subject that, while the
humanistic impulses behind this choice of language are understandable, all the
talk about rights in this context gives people the mistaken impression that a
quality of “automatism” is forthwith meant to govern the regime of acquisition
and loss of Russian citizenship.18 In that vein, for instance, an official commen-
tator on the terms of the 1991 enactment interpreted the clause to mean that ev-
ery person who satisfied the conditions set forth in the law on citizenship for a
right to citizenship “cannot be refused the right to be a citizen of the Russian
Federation.”19 That view prompted objections that the resulting “tilt” had the
unintended effect of “downgrading the role of the other party—the Russian
state” inasmuch as it seemed to offer the competent agencies no alternative but
to grant citizenship whenever a petition was duly filed. Instead, we are told,
what the lawmakers truly had in mind all along was to consider such an applica-
tion as a bid to claim Russian citizenship that, in turn, was entitled to be treated
and decided “with maximum good will,” but without forgetting that the statute
also listed several grounds for denying a request—which plainly attested to the
fact that the apparatus was by no means bound to rubber-stamp the would-be
conversion.20
Presumably, awareness of the need to clear the air on the subject caused the
authors of the 1993 Constitution to eschew resorting to expressions like “right
to citizenship” and “right to acquire and lose citizenship” in favor of a neutral
call for citizenship to be acquired and lost in accordance with federal laws.
Rhetorical flourishes notwithstanding, anyone even slightly conversant with
local administrative reality will know that the official guardians of the nation’s
portals have continued to maintain tight control over who may join the club. In
discharging that function, they feel free to behave as a senior contracting party
motivated by its own interests and not in the least as a mechanical recorder of
the self-nominated candidate’s personal wishes.
The second paragraph of Article 1 of the Law on the Citizenship of the
RSFSR decrees that in the RSFSR no person can be deprived of his citizenship
or the right to change his citizenship, which is a stronger version of the original
injunction enshrined in the Universal Declaration of Human Rights and its vari-
ous copies in latter-day Soviet legislation. The uncompromising tone of the cur-

18. Avakian, 1994, pp. 8–9.

19. Krylov, 1992, p. 9.
20. Avakian, 1994, p. 9.
R USSIA 183

rent bar against involuntary forfeiture of citizenship is attributed to a desire to

avoid possible lapses into “subjectivism and, worse yet, arbitrariness” of the
kind that plagued the Soviet period. Today, then, both this piece of legislation
and the 1993 Constitution forbid resorting in any circumstances to such an ex-
treme sanction as robbing an individual of his Motherland.21 Consequently, we
are assured, in only one case is the termination of Russian citizenship now con-
templated otherwise than at the express initiative of the person concerned,
namely, where the state has issued a decision to revoke admission to citizenship
upon learning that the person in question had submitted false information and
documents in order to pass the test.22
Note, too, that the 1991 statute speaks of the impermissibility of any person
in the Russian Federation—not just a citizen of Russia—being stripped of his
citizenship or denied the right to change it. As a practical matter, of course, a
state is apt to be indifferent to how a foreign state treats one of its citizens or
what a foreigner does to his citizenship, even if the party happens to reside on
its territory at the time. So, not surprisingly, the authors of the 1993 Constitu-
tion opted to get rid of the verbal overkill by correcting the phrasing here to read
that “a citizen of the Russian Federation cannot be deprived of his citizenship or
the right to change it.”23

Citizenship of the Russian Federation and of the Republics in the RSFSR

The citizenship of the Russian Federation (RF) vests in persons who have
acquired RF citizenship in the manner prescribed by the 1991 statute. Under the
terms of the treaty of March 31, 1992, between the central government of the

21. Avakian, 1994, p. 10. The Constitutional Court of the Russian Federation had occasion to
rule in the Smirnov case that involuntary loss of Russian birthright citizenship was barred by law
(May 16, 1996), Rossiiskaia gazeta, May 28, 1996; SZ RF, 1996, no. 21, item 2579.
22. Sukalo, 1996, p. 27. A draft of a federal law concerning changes and supplements to the
citizenship statute is currently under consideration. Inter alia, the bill calls for additions to Article
24 of the statute designed to make it spell out “in greater detail the procedure for rescinding a deci-
sion to grant the citizenship of the Russian Federation with regard to a person who became a citizen
on the basis of deliberately false data and invalid documents. This call is prompted by the experi-
ence of daily life.” Rossiiskie vesti, March 18, 1997.
23. Proposed changes in the citizenship law would bring the language of the statute in line here
with that of the Constitution to record that a citizen of the Russian Federation cannot be deprived of
his citizenship or the right to change it. Rossiiskie vesti, March 18, 1997, and May 6, 1997. Note,
too, that the 53rd session of the UN Commission on Human Rights adopted a resolution that con-
demned depriving persons of citizenship by reason of racial, national, ethnic, or religious attributes.
“The resolution adopted at Russia’s initiative” confirmed “the important right of every person to
citizenship as an inalienable right of the human persona” and marked “the first time that at the level
of the UN deprivation of citizenship on ethnic grounds was pronounced a violation of human
rights.” Pravda, April 16, 1997, and May 14, 1997.
184 GEORGE GI NSBURGS

RF and the component republics of the Federation (which defined the scope of
their respective jurisdictional packages) and the 1993 Constitution, exclusive
power to deal with matters of citizenship in the Russian Federation was as-
signed to the federal branch. The 1991 citizenship law defines the citizenship of
the RSFSR as equal irrespective of its mode of acquisition, whereas the 1993
Constitution describes it as “uniform and equal” in every case. The sense is the
same and invites the conclusion that (1) all citizens enjoy equal rights inde-
pendently of whether they contract citizenship by birth or acquire it on some
other grounds, and (2) the citizens of the Russian Federation cannot be divided
into groups or classes that entail different sets of rights or duties. Or, to quote
the 1993 Constitution, “every citizen of the Russian Federation possesses on its
territory all the rights and freedoms and bears equal obligations as called for by
the Constitution of the Russian Federation.”
As usual, citizens alone are eligible to exercise political rights and are re-
quired to fulfill political duties. According to secondary sources, the “national
regime” standard applies to all legally present foreigners and stateless persons,
which reportedly means that they enjoy virtually all the rights and freedoms and
owe obligations on an equal footing with local citizens—except for those that
fall into the political basket. Special rules also operate for noncitizens when it
comes to opening enterprises, bank accounts, engaging in various types of pro-
duction activity, landing a job in the Russian Federation, and so on.24
The second clause of Article 2 of the 1991 statute enunciates the principle
according to which citizens of the RSFSR who permanently reside on the terri-
tory of a republic that forms part of the RSFSR are simultaneously considered
citizens of that republic. The “double citizenship” model maintains a Soviet tra-
dition in this venue, mutatis mutandis, which was and still is called upon to give
tangible expression to the sovereignty that is officially said to vest in designated
component units of the Federation. In the case of the Russian Federation today,
the exercise of this parallel right is reserved for the twenty-one republics that
are listed in the Russian Constitution as subjects of the Russian Federation.
The present arrangement produces two crops of Russian citizens: those who
permanently reside on the territory of the Russian Federation outside the con-
fines of any “national” republic of the Federation possess the citizenship of
Russia/Russian Federation; those who permanently reside on the territory of
one of the “national” republics incorporated into the Russian Federation count
as citizens of both the Federation and the home republic. The scheme is in-
tended to underscore once again the unity of the Russian Federation, with the
republics contributing to the theme by pursuing an agenda aimed at “solidifying

24. Avakian, 1994, p. 11.

R USSIA 185

the unison of federal citizenship and the citizenship of the republics.”25 Refer-
ence is made in this connection to the good example set here by the Constitution
of the Republic of Sakha (Iakutiia) in broadcasting the twin message to the ef-
fect that “the Republic of Sakha (Iakutiia) possesses its own citizenship” and “a
citizen of the Republic of Sakha (Iakutiia) is a citizen of the Russian Federa-
tion.”
What the authors of the federal legislation truly had in mind was that the citi-
zenship of the republics would, in practical terms, function as a passive append-
age to federal citizenship. Thus, the sole requirement for a citizen of the
Russian Federation to incur the citizenship of a republic is the incidental fact of
his permanent residence on the territory of the respective republic, which, in
turn, has prompted the telling pronouncement that “any attempt to impose any
other supplementary conditions for acquisition by a citizen of the Federation of
the citizenship of a republic besides permanent residence therein contravenes
the law and violates the equal rights of citizens of the Russian Federation.”26
This treatment of how the center and the republics are meant to interrelate in
citizenship matters has occasioned deep resentment in some republics where
the local authorities refuse to shut their eyes to the glaring incompatibility be-
tween the public portrayal of their fiefdoms as sovereign entities and the purely
symbolic quality of the corresponding citizenship mandate. Remember that the
1993 Constitution charges the federal branch with exercising exclusive juris-
diction over the institution of citizenship in the Russian Federation. The tenor
of the assignment connotes full authority to regulate federal citizenship as well
as prescribe general rules governing citizenship that are incumbent on the sub-
jects of the Federation. Although the republics are entitled to adopt their own
normative acts on citizenship questions and do so, the duly sanctioned proce-
dure for acquiring republic citizenship attests to how little control they were
originally supposed to exert over this vital attribute of their “sovereign” person-
ality.
The tensions generated by these contradictions between the dictates of the
doctrinal canon and the proposed mode of their implementation are vividly cap-
tured in the following comments by a Russian expert on his country’s citizen-
ship practice. The decision to equate republic citizenship with permanent
residence on its territory, he believes,

can draw objections from both the citizens and the republics. In the cir-
cumstances of a unified state space, many citizens are indifferent to

25. Krylov, 1992, pp. 10–11.

26. Krylov, 1992, pp. 10–11.
186 GEORGE GI NSBURGS

where they reside. After graduating from institutes, they live for decades
in republics located far from the center, work there as geologists, engi-
neers, etc. They have quarters for permanent residence in those republics,
although they maintain title to living space in Moscow or other populated
spots. That is why whether or not to consider them citizens of the republic
depends on what this particular citizenship affords. Besides, just as im-
portant is the issue of what they might stand to lose in the place where
they do not now permanently reside, but to which they intend to return in
time. As for the republics, the above decision may prompt objections on
their part because by reason of the wording of Art. 2 of the Law they do
not admit into the citizenship of the republic, but instead sort of receive
citizens “covertly” by approving the purchase of houses, granting resi-
dency permits, providing residential quarters, etc.27

Reviewing this corner of the Russian Federation’s constitutional scene, a

1994 survey expressed satisfaction that the constitutions of all the republics, ex-
cept Chechnia, matched the tone of the federal Constitution’s prescriptions ap-
plicable to citizenship questions.28 The Constitution of the Chechen Republic
alone called for a “uniform citizenship” without reference to the citizenship of
the Russian Federation, which would seem to indicate that what the charter
meant was the citizenship of the Chechen Republic. As a Russian observer cor-
rectly pointed out at the time, the Chechen provision went far toward validating
the assumption that “the intention here is to make use of the institution of citi-
zenship as one of the means for seceding from Russia.”29
Curiously enough, the aforementioned audit of the contents of the republics’
constitutional closet failed to pay attention to the unorthodox position taken by
Tatarstan’s authorities on the subject of the republic’s citizenship and how it was
expected to fit into the matrix of a “unified” federal citizenship. While not as “di-
vorce-minded” as their Chechen colleagues, the authors of the Tatarstan Constitu-
tion set the republic’s citizenship on a par not only with that of the Russian
Federation, but also with that of every other sovereign state, thus coming up with a
model that managed to house both concerted citizenship and dual citizenship
stricto sensu. One observer states, “Apart from the urge to acquire the trappings of
state sovereignty, a clear tendency manifests itself in this instance to carve out a
special status for the republic within the frame of the Russian Federation, marked

27. Avakian, 1994, pp. 13–14.

28. “Analiticheskii,” 1994, pp. 19–20.
29. Vasilev, 1992, p. 60.
R USSIA 187

by greater independence than the others.”30 Among the motives cited to explain
this distancing is a feeling shared by many in Tatarstan that “ethnic Tatars liv-
ing in the United States or Turkey and wishing to acquire the citizenship of their
home republic should not at all be compelled to acquire for that reason the citi-
zenship of Russia. Under the existing legislation, this is mandatory.”31
The constitutions of all the republics, with the exception of Ingushetiia and
Kalmykiia, established that the grounds and mode of acquisition and termina-
tion of the republic’s citizenship are elaborated in the republic’s law on citizen-
ship. The republic constitutions are also faulted, however, for not recording that
the republic laws on citizenship must comport with the postulates of the rele-
vant federal legislation. Recommendations were made to correct these defects
by supplementing the federal citizenship statute with suitable instructions.
Next, notice was taken of the fact that the constitutions of the individual re-
publics expressly contemplated their right to admit individuals into the citizen-
ship of the republic. Given the differences in approach to the citizenship
phenomenon as evidenced by the wording of the appropriate articles in the fed-
eral and republic charters, the possibility exists that foreigners and stateless per-
sons could acquire the citizenship of a maverick republic in circumvention of
standards required by federal law. The rights of the citizens of the Russian Fed-
eration may be infringed as a consequence. Consider, for example, how the
Constitution of the Republic of Tyva does not shrink from declaring that

the Republic of Tyva sets its own citizenship. The procedure of acquiring
citizenship is determined with due account of the demographic situation
in the Republic of Tyva and serves to maintain the stable prevalence of
the native nationality, safeguard its ethnic and cultural heritage and patri-
mony. Individuals of Tyva origin living abroad have priority rights over
other foreigners in obtaining the citizenship of the Republic of Tyva.32

30. Vasilev, 1992, p. 60.

31. Sharapov, October 16, 1992. About 1 million Tatars were estimated to be living in the far
abroad.
32. When, for instance, reports were published that the legislative chamber of the State Assem-
bly of Bashkiriia had approved at first reading the bill On the Citizenship of the Republic of
Bashkortostan, its authors were quoted as claiming that the new law would not contravene Russian
legislation. Inter alia, the draft text contemplated the concurrent operation of the citizenship of
Bashkiriia and the citizenship of the Russian Federation. Nezavisimaia gazeta, February 16, 1996.
Subsequently, however, the proposed version was severely criticized for condoning several major
deviations from the corresponding federal writ, and calls were issued to eliminate these contradic-
tions by tailoring the republic document to the federal prototype. Malikov, 1997, pp. 21–24. Note
that at the time this piece was published, the Republic of Bashkortostan still did not have a citizen-
ship statute.
188 GEORGE GI NSBURGS

Keep in mind, too, that even where the republic apparatus might decide—for
the sake of appearance, if nothing else—to go along with the notion that perma-
nent residency on the republic’s soil begets local citizenship, the competent au-
thorities at that level can still manipulate eligibility for citizenship by closely
rationing access to the residency.33
Because of persistent tremors along the fault lines that run across the Federa-
tion’s constitutional landscape, the citizenship arena remains the site of much
doctrinal controversy. First, a new layer of complexity was introduced when
Russia and Belarus concluded the Union Treaty of April 2, 1997.34 The Charter
of the Union appended thereto announced the debut of a Union citizenship with
every citizen of the Russian Federation and every citizen of the Republic of
Belarus simultaneously considered a citizen of the Union. Possession of Union
citizenship by a citizen of the Russian Federation or by a citizen of the Republic
of Belarus was not meant to detract from his rights and freedoms or exempt him
or her from discharging duties entailed by citizenship in the respective partner
state.
Union citizenship bestows on its holder, inter alia, a right to receive on the
territory of third states, where representations of the member state of which he
is a citizen do not operate, protection from the diplomatic representations or
consular institutions of the other member state on an equal footing with the lat-
ter’s citizens. Furthermore, a Union citizen permanently residing in the other
member state has the right to elect and be elected to the organs of local self-ad-
ministration on the latter’s territory. Dropped from the final edition of the cove-
nant was a companion clause featured in an earlier draft that indicated that the
citizens of the member states could, at their request, be issued a separate docu-
ment attesting to citizenship in the Union.35 The omission lends credence to the
charge of one Russian analyst, who dismissed Union citizenship as that of a
“nonstate” with no legal purpose and recommended instead the conclusion of
an agreement either on the mutual recognition of dual citizenship or equalizing
the status of citizens of the Russian Federation and the Republic of Belarus in
the two territories.
The irony behind the whole concept of citizenship in a Belarus-RF union lies
in the fact that Belarus is one of the countries most intolerant of dual citizenship

33. A newspaper story by a high official on the staff of the Office of the Procurator-General of
the Russian Federation tells of how a “real war erupted on the federal level for the repeal in several
subjects of the Federation of bans against and restrictions on entry and settlement on their territory.”
See Churilov, November 23, 1996.
34. Text in SZ RF, 1997, no. 30, item 3596; Diplomaticheskii vestnik, 1997, no. 6, pp. 30–39;
Biulleten mezhdunarodnykh dogovorov, 1997, no. 9, pp. 66–79.
35. See, for example, Rossiiskaia federatsiia, 1997, no. 8, pp. 6–9.
R USSIA 189

in the C.I.S. Its legislation contains a direct ban against it for citizens of Belarus.
And inhabitants of the country who receive, inter alia, Russian citizenship
thereby lose Belarus citizenship—with all the attendant consequences. Such a
rigid position has brought about a situation where citizens of Russia living in
Belarus exit from the citizenship of their primary Motherland. (A similar ten-
dency can be observed only in Ukraine. Of the 33,000 who drew up final papers
to leave Russian citizenship, 28,000 live in Belarus and Ukraine—but the latter
has no immediate plans to enter into a tight Union with Russia.)36 Nonetheless,
reports published at the end of October 1998 indicated that the agenda of the
November 2–3 session of the parliamentary assembly of the Union of Belarus
and Russia in Iaroslavl featured, inter alia, the “problems of citizenship” and
“electoral rights of citizens residing in Russia and Belarus.” At the session, the
deputies approved the draft text of the law “On the Citizenship of the Union,”
which envisaged “the right of citizens of the RF and Belarus not to be consid-
ered foreigners on the territory of the partner state.”37
At the opposite end of the spectrum is Chechnia, which continues to wage its
struggle to secede from Russia. Logically enough, that campaign has spilled
over into the citizenship sector. In April 1998, stories were circulating in the
mass media that the republic’s government had just instructed the competent
authorities not to issue any more passports of the federal type. How inhabitants
of Chechnia were now expected to travel outside the republic was not ex-
plained. Local passport offices did not stock any sample forms of Chechen
passports, of which only about 300 had been distributed thus far. The reason
given for deciding to dispense with so-called Moscow passports was that their
further deployment was bound to cause harm to the independence of the
Chechen Republic.38

36. Sadkovskaia, May 14, 1997. Sadkovskaia returns to the subject in her newspaper article
“Obshchee grazhdanstsvo po ustavu i v zhizni,” Rossiiskie vesti, November 27, 1997, where she
discusses the need to elaborate legislation on joint citizenship to make the Union a true political
amalgam, notes the difficulties of doing so (among the obstacles, Belarus’s aforementioned antipa-
thy to the notion of dual citizenship), and suggests that the first step toward that goal might involve
synchronizing their respective citizenship laws. In the latter connection, her sense is that Russia’s
standards are higher than Belarus’s—as witness the fact that Russia was one of the first states to rat-
ify the European Convention on Citizenship—which would then require Belarus to raise the quality
of its performance here to Russia’s level.
37. Nezavisimaia gazeta, October 29, 1998, and Olegov, November 4, 1998.
38. Nezavisimaia gazeta, April 16, 1998. Around the same time, a story appeared in the Rus-
sian press about how the president of Chechnia had allegedly applied for a visa to travel to England
and been informed by the British Embassy in Moscow that an entry visa would only be entered in
his Russian-issued foreign passport, that he could be received in England solely as the head of one
of the subjects of the Russian Federation and so the visit would have to be unofficial. The British
consular staff would neither confirm nor deny the account. Charodeev, March 4, 1998.
190 GEORGE GI NSBURGS

Bitter controversy erupted in 1997 when the federal authorities unveiled

their design for a new internal passport of the Russian Federation that no longer
contained a space in which the bearer was required to enter his or her national
identity. In liberal and pro–human rights circles, the proposed elimination of
this notorious “fifth point,” which had been a staple of Soviet practice, was
greeted as a crucial step toward eliminating a prime source of past discrimina-
tion against local minorities and upgrading Russia’s performance here to inter-
national standards.39 Even among Russians, however, some denounced the
reform as a misguided attempt to push an assimilationist line inspired, it was
charged, by the desire to promote at any cost a vision of Russia’s multiethnic
population welded into a unified communal entity.40 Joining the chorus of crit-
ics was a ragtag band of republic politicians and spokesmen for various Jewish
groups with a stake in promoting the interests of their particular constituencies,
whose membership effectively depended on the nationality index.
One of the first to raise his voice in protest was the president of Tatarstan. He
went so far as to threaten to introduce special Tatarstan passports in the republic
to protect his people’s self-image. The Parliament of Tatarstan promptly fol-
lowed suit by voting in favor of suspending the issuance of the new Russian
passports.41 The president of Ingushetiia likewise signaled his intention to fight
to retain the nationality designation in the republic’s repertory.42 The scene then
shifted to the lower house of the Russian Parliament, whose die-hard majority
seized the opportunity to vent its antigovernment mood by passing a resolution
that called for the restoration of the nationality slot in the planned passports.43 In
milder tones, the Council of the Federation soon after addressed a request to the
government urging it to take into account the wishes of the ethnic minorities to
keep the “fifth point” in the passport.44 A compromise solution that was being
discussed in the wake of these events contemplated the possibility of adding to
the future passports for citizens of republics forming part of the Russian Feder-

39. Tishkov, October 22, 1997; Sachs, September 14, 1997, p. A21; Starovoitova, 1997, p. 5.
The proponents of the revised format invoked in their legal arguments for discarding the “fifth
point” the constitutional injunction (Art. 26) against requiring anyone to designate and indicate his
nationality and the language of the European Convention on Citizenship that Russia planned to
sign, which defined citizenship as the legal relations of an individual with the state without refer-
ence to ethnic origin. See Rossiiskie vesti, November 19, 1997.
40. See, for example, Davydov, August 19, 1997; Khetagurov, December 19, 1997.
41. Chugaev, October 24, 1997. See, too, Lebedev, November 11, 1997; Morozov, November
21–28, 1997; Shaimiev (president of the Republic of Tatarstan), 1997, p. 5.
42. Sadkovskaia, October 24, 1997.
43. Chugaev, October 24, 1997.
44. Katanian, November 11, 1997.
R USSIA 191

ation extra pages to record the nationality of their owner or resorting to double
entries by duplicating the principal data and the title of the document in the offi-
cial language(s) of the respective republic, where applicable.45 In fact, shortly
thereafter it was reported that the inhabitants of the Komi Republic had cast
their ballots for a bilingual passport—simultaneously in Russian and Komi.
The leaders of the national movement considered the latest passports with en-
tries only in Russian as “illegitimate.”46
In Tatarstan, however, the nationalist fervor was not so easily appeased and,
in February 1998, the republic State Council took up the bill On the Citizenship
of the Republic of Tatarstan, which contained several provisions whose tenor
could not be reconciled with the corresponding pronouncements of the federal
Constitution or the federal citizenship statute. Inter alia, the draft text called for
introducing a passport for citizens of Tatarstan and letting denizens of the re-
public renounce Russian citizenship while retaining the citizenship of
Tatarstan. One article went so far as to proclaim that “hereditary descendants of
the population of the Republic of Tatarstan acquire the citizenship of Tatarstan
in a simplified manner.” To Russian analysts, this proclamation sounded like an
invitation to double or triple the population of the republic by enrolling citizens
who have Tatar roots but live and will continue to live elsewhere.47
At any rate, cooler heads prevailed and the document was remanded to a
commission for further study.48 Meanwhile, the federal authorities also moved
to defuse the issue by making changes in the law on certificates of registration,
the effect of which was to entitle an individual, if he so desires, to have his na-
tionality inscribed in his birth certificate upon reaching legal age. The amend-
ment was obviously meant to respond to “the fact that many republics within

45. Chugaev, October 24, 1997; Tishkov, November 4, 1997. Interestingly enough, the largest
exodus was predicted from Russian and Tatar identity once people were free to choose their own
ethnic origin and would proceed to do so without regard to the categories listed in the catalogue of
officially recognized nations that had effectively limited their options under the Soviet regime.
Dozens of new nationalities were expected to resurface, now that these restrictions no longer ap-
plied, and cut into the size of the larger ethnic stocks in whose ranks these mini-groups had been
forced to “take shelter” in the past. See, too, Postnova, June 2, 1998. In Dagestan, for instance, the
passport/nationality issue seems to have generated little public interest, although the republic min-
ister on Nationalities and Foreign Liaisons was quoted as saying that an insert would have to be de-
signed for the new passports where the bearer’s nationality would be indicated. Kisriev, December
16, 1997.
46. Borisevich, November 22, 1997.
47. Bronshtein, February 12, 1998; Mikhailin, February 21, 1998; Postnova, February 14,
1998.
48. Izvestiia, February 13, 1998; Gogolev, February 13, 1998; Shaimiev, February 14, 1998.
See, too, York, April 13, 1998, p. A9.
192 GEORGE GI NSBURGS

Russia have insisted on this right and have wanted to state nationality in some
legal documents.”49
For the time being, at least, an uneasy truce reigns on this front. A number of
Russian legal experts have expressed concern that citizenship matters, among
other items on Russia’s constitutional agenda, are being held hostage to each re-
public’s political ability to extract concessions from the center, thus resulting in
an array of ad hoc accommodations whose terms differ in concert with the pre-
vailing power balance between the respective contracting parties. A uniform
standard here would, in their opinion, serve the country’s needs better, and,
while most seem to prefer a strong federal system backed by a national brand of
citizenship, some are prepared to concede that reality might require acceptance
of a confederal version where the constituent republics would function as peer
consorts of the federal regime by running their own citizenship shop.50
The public squabbling over how the central and republic authorities are sup-
posed to interrelate under the tenets of Russia’s constitutional culture has had
the unfortunate consequence of injecting an element of uncertainty into the
treatment of various technical procedures regulating the mode of admission
into the country’s citizenship. Going by the letter of the law currently on the
books, for example, a foreigner who duly converts to the citizenship of the Rus-
sian Federation must, if he happens to be maintaining permanent residence in a
subject republic, forthwith be assigned the latter’s citizenship by virtue of that
connection alone. In principle, then, no formal mechanism of admission to re-
public citizenship enters the picture.
Circumstantial evidence suggests, however, that an arrangement that once
looked completely straightforward may since have lost that cachet and now fu-
els speculation about the way that system is really scheduled to function. Con-
sider what is at stake when the author of a leading study on the citizenship law
of the Russian Federation suddenly detours into a discussion of the need to spell
out more precisely how, upon acquisition of the citizenship of the Russian Fed-

49. “In Russia,” July 4, 1998. In the latest round of maneuvering, Tatarstan was reported to
have drafted a letter addressed to Prime Minister Primakov with a request for his assistance to settle
the festering problem of the new Russian passports. Not a single one of the 80,000 passports deliv-
ered to the republic had been issued to their intended owners so far and Tatarstan was seeking the
inclusion of supplementary pages where entries would be made in the Tatar language, including
data on the nationality of the de cujus. Soon after, the State Council of Tatarstan adopted at the sec-
ond reading the bill On the Citizenship of the Republic of Tatarstan. The proposed statute records
that Tatarstan has its own citizenship, that citizens of Tatarstan possess the citizenship of the RF,
that termination of the citizenship of Tatarstan does not entail termination of RF citizenship. We are
told that “the deputies adopted a softened formulation in regard to the document certifying the iden-
tity of a citizen of Tatarstan.” Izvestiia, October 24, 1998, and October 31, 1998.
50. See, for example, Malikov, 1997, pp. 22, 24.
R USSIA 193

eration by a foreigner or stateless person, to answer the question of republic citi-

zenship. According to him, several problems demand attention in this case:

The Law requires that, when tackling questions of citizenship which af-
fect the interests of a republic, the Commission on questions of citizen-
ship attached to the office of the President of the Russian Federation take
into account the views of competent organs of the republic (Art. 34). But
from this it does not follow that pursuant to a decision of the federal or-
gans adopted in conformity with said procedure the individual also re-
ceives the citizenship of the republic. The situation becomes even more
complicated if the republic objected altogether to the granting of Russian
citizenship.51

No hesitation is expressed, however, when talk turns to the duty of the Fed-
eration to stop every attempt by the republics to regulate citizenship traffic on
the basis solely of national affiliation, indigenous population, and so forth.
Oddly enough, that lesson is drawn from the experience of the former Soviet
Union, where the practice of certain republics that sanctioned discrimination in
such matters is cited as a “warning for Russia.”52
Why dwell on this “crisis” in Russia’s constitutional life? The reasons are
twofold: First, the crisis illustrates the tenuousness of the central regime’s con-
trol over this operation of citizenship regulations and raises valid doubts about
the extent to which the norms of the federal statute can be relied upon when
venturing into this arena. Second, any substantial erosion of the powers of the
federal apparatus on citizenship matters is likely to work to the detriment of in-
dividuals concerned with their citizenship status, because republics are sure to
pursue policies in this venue that will espouse standards less generous than
those set at the federal level.

Dual Citizenship

The initial wording of Article 3(1) of the 1991 Law on RSFSR Citizenship
decreed that “acquisition of the citizenship of the RSFSR by a foreign citizen
can occur contingent on his renunciation of his former citizenship, except
where otherwise provided by an international treaty of the RSFSR.” Some Rus-
sian scholars saw this clause as proof that their country’s law now sanctioned
dual citizenship, that is, “the possibility of acquiring . . . the citizenship of the

51. Avakian, 1994, pp. 14–15.

52. Avakian, 1994, pp. 14–15.
194 GEORGE GI NSBURGS

Russian Federation while in possession of the citizenship of another state.”53

The innovation was generally well received for effecting a significant improve-
ment compared with the old repertory that had bid to outlaw dual citizenship.
Nevertheless, the reform must be rated as much more modest in scope than the
above judgment suggests. In reality, the application of dual citizenship by the
legislation of the Russian Federation was even then meant to be strictly lim-
ited—as witnessed by the requirement that a foreigner seeking to acquire Rus-
sian citizenship first shed his former citizenship, save where its retention is
authorized by a treaty between the Russian Federation and the state of which
the would-be inductee was already a citizen.
In 1993, however, the original edition of Article 3(1) was discarded in favor
of a paragraph ordaining that “a person who is enrolled in the citizenship of the
Russian Federation is not recognized as belonging to the citizenship of another
state unless otherwise contemplated by an international treaty of the Russian
Federation.” From this statement it follows that henceforth “if someone claims
Russian citizenship, he is no longer summoned to submit a document attesting
to the absence on the claimant’s part of any other citizenship.”54 Without that
screen, then, the picture one gets is that any individual in possession of a foreign
citizenship can at present obtain Russian citizenship through, say, normal natu-
ralization procedures without having to indicate that letting him do so will in-
stantly turn him into a de facto bipatride.
The scene is awash in paradox. Upon its debut, the 1991 model was praised
by Russian analysts for validating the status of dual citizenship in Russian law,
although even a cursory glance at the script shows that its design was actually
animated by the desire to limit the incidence of dual citizenship. If complied
with, it was bound to have precisely that effect. When the legislators shifted
gears in 1993 and plainly reverted to the precedent that reigned during the So-
viet era, they left no doubt that what they had in mind was simply to ignore any
legal consequences that possession of dual citizenship might—and elsewhere

53. Lediakh, 1992, p. 29.

54. Andreev, January 15, 1994. Accordingly, Article 37(3) of the 1991 citizenship statute de-
creeing that persons acquiring the citizenship of the RSFSR and possessing the citizenship of an-
other state must append to their declaration or solicitation a document confirming the termination
of the former citizenship of the de cujus, except in certain designated cases, was now repealed.
However, local authorities do not always bother to observe the new procedure. As late as 1997, for
instance, a high official of the RF Ministry of Foreign Affairs was moved to note that in the
Krasnodar and Stavropol Krays and the Rostov and Volgograd Oblasts, according to reports from
“our embassies,” there occur “frequent refusals to draw up the necessary papers for Russian citizen-
ship in accordance with the Edict of the President of the Russian Federation (No. 2007 of 24 Octo-
ber 1994): in those places, they still demand certificates attesting to the absence of a foreign
citizenship.” Zubakov, 1997, p. 45.
R USSIA 195

generally does—entail, while simultaneously removing all barriers to its gene-

sis in the context of a bid to acquire Russian citizenship. In other words, an invi-
tation was extended to each would-be convert to Russian citizenship to feel free
to add that membership card to his foreign citizenship packet and, in the same
breath, notice was posted that this foreign citizenship would enjoy no currency
wherever Russian law claimed the right to exercise sole jurisdiction.
The statute next addressed itself to the need to regulate the dual citizenship
phenomenon in the case of traffic running in the opposite direction, coming up
with the answer that “a citizen of the RSFSR may be permitted upon his request
to possess simultaneously the citizenship of another state with whom a corre-
sponding treaty of the RSFSR exists.” The logical inference is that the absence
of a duly approved request and suitable treaty license estops a Russian citizen
from obtaining or retaining the citizenship of another state—thus presumably
aiming to nip in the bud any attempt on his part to shop around for a second af-
filiation or count on availing himself of the services of one already owned.
Before the 1993 change of heart, this bid to keep Russian nationals from get-
ting entangled in dual citizenship made sense, since in those days the Russian
regime operated with an agenda that also sought to prevent foreigners from
contracting Russian citizenship under circumstances that led them to incur dual
citizenship. After the switch to a laissez-faire outlook on dual citizenship as an
accompaniment to the acquisition of Russian citizenship by foreign nationals,
continuing to stick to the old policy of not letting Russian citizens enjoy the
same opportunity to add a foreign citizenship to their portfolio suggests a con-
scious decision to practice a double standard in this department. The new proce-
dures were calculated to facilitate the acquisition and deployment of Russian
citizenship by citizens of other states in tandem with their own, while striving to
protect Russia’s domestic monopoly from dilution by foreign brands of citizen-
ship.
From all the above, the conclusion is inescapable that at this point Russian
legislation had not yet come to grips with the problem of dual citizenship. It
sanctioned the ad hoc inception of de facto dual citizenship by refusing to ask
the kind of questions that could prevent its occurrence, but it did not explicitly
enshrine the institution of dual citizenship in the local legal canon. The federal
Constitution, however, then took a significant step in the proper direction (Arti-
cle 62) by prescribing that a citizen of the Russian Federation can have the citi-
zenship of a foreign state (dual citizenship) in accordance with federal law or an
international treaty of the Russian Federation. Not only was dual citizenship
now referred to by name, but also federal law was cited along with international
treaties as a medium for validating a Russian citizen’s right to claim title to dual
citizenship. Given that dual citizenship is always fraught with potential for
196 GEORGE GI NSBURGS

complications, the Constitution is praised for eschewing abstract endorsement

of that condition and, instead, making its legitimacy contingent on compliance
with whatever special terms might be attached to its operation in the Russian
environment by applicable law or treaty.55
A slate of proposed amendments to the citizenship statute has been crawling
through the lawmaking maze for a long time and at last seems poised to emerge.
Among other things, the draft reportedly calls for Article 3 to be recast to spell
out the principles governing acquisition of dual citizenship. The bill reportedly

establishes that a person’s belonging to a foreign citizenship poses no ob-

stacle to his application for acquisition of the citizenship of the Russian
Federation. Where a Russian simultaneously possesses the citizenship of
a foreign state and is located on its territory, he enjoys the protection and
sponsorship of the Russian Federation within the limits allowed by inter-
national law and the treaties of the Russian Federation and that country.56

Once the measure is passed, the mood of uncertainty that clings to the status of
the dual citizenship phenomenon in Russia’s legal repertory should be dis-
pelled.
Ever since Russia switched to the pro–dual citizenship track, the Russian au-
thorities have steadfastly maintained that its primary aim in doing so is to afford
the members of the Russian diaspora a sense of security that they can always
“go home” if need be. Therefore, they should not rush to repatriate, because
their Motherland is not yet in shape to receive them properly. The official story
is that the longer the influx can be postponed, the better Russia’s chances are to
recover its economic strength and marshal its domestic resources in order to
stage a suitable welcome for its returning sons and daughters. Whether or not
that tactic has had the desired effect has never been—and probably cannot
be—empirically verified. Analysts do know that masses of people have moved
to Russia from the other ex-republics of the former Soviet Union, but they can-
not tell for sure whether their numbers would have been larger or smaller if they
had not had ready access to both Russian citizenship and that of the respective
successor state. Other factors intrude to affect the process, chiefly the level of
the standard of living in the current host country compared with the conditions
in Russia. Thus, possession of dual citizenship alone cannot really be viewed as
the sole—or even the principal—element in catalyzing such decisions to reset-

55. Sadkovskaia, November 15, 1996.

56. Rossiiskie vesti, March 18, 1997. See, too Rossiiskie vesti, May 6, 1997, and Grigoreva,
September 16, 1997.
R USSIA 197

tle. One is thus left to conjecture about whether Moscow’s flirting with dual cit-
izenship practice has increased the size of the exodus from the feeder countries,
has reduced it, or has had no substantial impact on the volume of the traffic one
way or the other.
Of course, the regime claims that its policy has largely succeeded in stem-
ming the outflow and its recent move to recognize the dual citizenship mode
expressis verbis in the revised version of the citizenship statute is presumably
meant to be read as a vote of confidence in the quality of its performance here to
date. Be that as it may, critics of the scheme paint a very different picture of
what strikes them as an ostentatious display of liberal indulgence. In their con-
sidered opinion,

possession of dual citizenship by the Russian-speaking residents of the

newly independent states does not enhance the defense of their rights and
freedoms. For those in whose name the institution was launched the pro-
cedure of acquiring Russian citizenship was facilitated by every means,
but few benefits were reaped in the end. On the other hand, the generosity
of the Russian piece of legislation is actively exploited by other citizens
from the CIS countries. Here is just one example. Before the USSR fell
apart, 600 thousand Russian-speaking individuals resided in Georgia. To
this day, 170 thousand ethnic Russians and around 700 thousand Geor-
gians have relocated to Russia. So, the question comes up: should there
be retained in the law a provision of which it is very doubtful that our
compatriots in the near abroad will be able to make full use, but which al-
lows anyone to barge into our country who wishes to as long as he resides
on the territory of the former USSR.57

Also worth noting in this connection is the technical distinction that Russian
commentators insist on drawing between cases of dual citizenship stricto sensu
and occasions where a person happens to hold two passports. Dual citizenship,
as they see it, calls for the respective states to sign an agreement that specifies
the relevant details and lets the eligible individual incur new relations with both
contracting parties. At the same time, the latter determine in concert who ex-
tends what rights to the newly minted bipatride and who can demand the dis-
charge of what duties.
In instances where an individual acts on his own initiative to add a foreign
passport to the Russian document he already possesses, however, or vice versa,
the competent Russian authorities are said to assume the posture of pretending

57. Sadkovskaia, May 14, 1997.

198 GEORGE GI NSBURGS

that they have no interest in the matter. Thus, having granted such a person the
designated quota of rights, the administrative apparatus can then require that he
fulfill all the obligations he owes the state, namely, payment of taxes, military
service, compliance with the letter of Russian law, and so on. The result is a “le-
gal situation where the problem does not exist as far as the state is concerned, it
has no legal consequences. It is the private business of the dual citizen himself.”
To the question of whether, in the absence of a corresponding treaty, a “doubly
connected” individual must satisfy his civic obligations in both of the countries
with which he has opted to affiliate himself, the answer is that what he does to
perform his duties or not “is his problem along with everything which this en-
tails. The Russian state only fully recognizes the citizenship of those countries
with whom we have concluded appropriate international treaties. In all other
cases . . . we behave as though this is simply of no interest to us.”58
Since Russia’s current diplomatic inventory contains just two agreements of
the type described above (with Turkmenistan, December 23, 1993, and
Tajikistan, September 7, 1995), the bulk of its dual citizenship package must
consist of the “two passport” brand, which, if the preceding statements can be
trusted, means that the members of this constituency are largely left to their own
devices, except for how Russia chooses to treat them in their capacity as Rus-
sian citizens. The focus on the Russian citizenship half of their identity to the to-
tal exclusion of the foreign “increment” accounts, among other factors, for the
tenor of Article 3(3) of the citizenship statute, which records that “citizens of
the RSFSR who also have another citizenship cannot for that reason be re-
stricted in their rights, evade the performance of their obligations or be released
from responsibilities stemming from the citizenship of the RSFSR.” The 1993
Constitution, Article 62(2), sends virtually the same message, except to make
adherence to the prescribed protocol contingent on the possibility that federal
law or an international treaty of the Russian Federation might decree otherwise.
What incited the Russian regime to adopt such a rigid attitude toward its dual
citizenship subjects is a mystery, especially in light of the fact that the decision
to tinker with the legal script that made it easier to get dual citizenship with a
Russian ingredient was entirely its own. Equally hard to explain is why the Rus-
sian authorities refuse to apply harsher or more lenient standards here depend-
ing on whether they are called upon to deal with those who went shopping for a
second citizenship—and so have nobody to blame for their predicament but
themselves—and those who were stuck with dual citizenship as a consequence
of being trapped in a conflict of laws. Certainly, even a primitive sense of fair-
ness about punishing culpability and rewarding innocence would counsel a

58. Sadkovskaia, November 15, 1996.

R USSIA 199

more nuanced approach, instead of which the “guilty” and the “victims” are
lumped together and addressed in the same summary—and rough—manner.
Nor can one accept at face value the official claim of successful disengage-
ment from the travails of de facto dual citizenship. Putting the onus on the indi-
vidual caught in a dual citizenship squeeze works well enough in some
situations, for example, where the de cujus is faced with the prospect of being
drafted for military service or paying taxes in both countries of which he is for-
mally a citizen. Other such collision cases are not so easily dropped in the lap of
the “responsible” private party, with the contestant states calmly walking away
from the scene of the accident. In the absence of a corresponding entente, the
difficulties occasioned by disputes over citizenship attribution are quite apt to
end up poisoning relations between the states themselves on a broad range of is-
sues, especially whenever the agenda happens to feature pieces of business so
loaded with potential to ignite public controversy as split loyalties,
extraditability exemptions, and the like.
At any rate, a perfect example of the latter phenomenon recently cropped up
on Russia’s civil calendar in 1996. At stake were the circumstances surround-
ing the appointment in 1996 of B. A. Berezovskii to the post of deputy secretary
of the Security Council of Russia, although at the time he apparently held the
citizenship of both Russia and Israel.59 The pros and cons of the proceedings in
this case as well as the legality of such practice in general were thrashed out in
the local press. The incident eventually prompted the State Duma to pass a reso-
lution that directed the Ministry of Internal Affairs of the Russian Federation to
check up on any evidence of possession of dual citizenship by citizens of the
Russian Federation employed in government service, invited that similar verifi-
cation be conducted with regard to the deputies of the State Duma, and sug-
gested that the results of the investigation be reported to the State Duma by
April 1, 1997.60

59. See, for example, Rumiantsev, November 15, 1996; Agafonov, November 22, 1996.
60. Vedomosti RF, 1997, no. 7, item 293; SZ RF, 1997, no. 9, item 1030. A legal consultantship
service for the population offered by the journal Iuridicheskii vestnik subsequently discussed the is-
sue of dual citizenship and service in the state apparatus in response to a letter from a reader without
indicating what, if any, further action had so far been taken pursuant to the Duma resolution (Febru-
ary 1998, no. 3, p. 15).
A resolution of the government of the Russian Federation (No. 1003 of August 22, 1998) rati-
fied the regulation on the procedure of allowing persons possessed of dual citizenship, stateless
persons, as well as persons from among foreign citizens, emigrants, and re-emigrants, access to
state secrets. Inter alia, persons with dual citizenship, obtained in accordance with the RSFSR law
On the Citizenship of the RSFSR are given access to state secrets in the manner set for official per-
sons and citizens of the Russian Federation. The designated persons are given access to information
constituting state secrets classified as “secret” only after being checked by the organs of the federal
security service. Text in Rossiiskaia gazeta, September 4, 1998.
200 GEORGE GI NSBURGS

Note, too, that starting in 1956 the USSR signed a string of bilateral conven-
tions “to regulate the question of citizenship of persons with dual citizenship”
in concert with Yugoslavia, Hungary, Romania, Albania, Czechoslovakia, Bul-
garia, North Korea, Poland, Mongolia, and East Germany. Except for the
treaties with East Germany and Hungary, which after the collapse of commu-
nism in East-Central Europe and the Soviet Union were formally declared as no
longer in effect, the rest of these pacts has each been included in the respective
succession package and so continues to operate—at least on paper. In reality,
however, the available evidence suggests that the provisions of these agree-
ments are generally ignored—on both sides of the corresponding border. A re-
cently published account bemoaned the fact that various people in Poland were
openly purchasing foreign passports and then claiming every imaginable im-
munity on the pretext that they are citizens of other countries. Despite the valid
agreement between Poland and Russia, the Poles were doing nothing to police
the phenomenon even vis-à-vis Russia and apparently neither were their Rus-
sian counterparts. This inaction caused the commentator to ask whether per-
haps it was not about time that the Russian law-enforcement organs began to
worry more about these problems.61

Retention of RSFSR Citizenship by Persons Living Outside the RSFSR

According to Article 4 of the citizenship statute, the sojourn of a citizen of

the RSFSR outside the confines of the RSFSR does not terminate his citizen-
ship. Presumably, the law’s authors wanted to make sure that the bare fact of a
Russian citizen going abroad—no matter what the duration of his stay
there—would in no way impair his juridical ties with the Motherland, since
they conceived of citizenship as a stable legal bond between the individual and
the state that was intended to operate “independently of space.”62 Hence, its va-
lidity beyond the perimeter of the state’s territorial jurisdiction was to remain
unaffected even in the case of a decision by the person in question to settle over-
seas.
Without any designated cutoff date, this provision would seem to indicate
that an expatriate’s title to Russian citizenship is meant to be inherited from
generation to generation if the proper combination of conditions stays in place
for the effects of the jus sanguinis principle to persist. Under this set of circum-
stances, chances are good that such emigrants will acquire the citizenship of
their host country somewhere down the line and then be doomed to carry the

61. Shapovalov, February 13, 1998.

62. Krylov, 1992, p. 12.
R USSIA 201

germs of dual citizenship ad infinitum—unless, of course, they ultimately take

steps to snap the chain by winning formal release from their Russian affiliation.

Protection and Sponsorship of RSFSR Citizens Located

Outside the RSFSR
Per Article 5 of the citizenship statute, RSFSR citizens outside the confines
of the RSFSR enjoy the protection and sponsorship of the RSFSR. The state or-
gans of the RSFSR, diplomatic representations and consular institutions of the
RSFSR, and their official personnel are obliged to help ensure that RSFSR citi-
zens are guaranteed the opportunity to exercise in full the rights established by
the legislation of their host state, the international treaties of the RSFSR, and in-
ternational customs. They must also defend the rights of the RSFSR citizens
abroad and their legally protected interests and, if need be, instigate measures to
redeem the rights of RSFSR citizens that have been violated.
The aspect of this formula that is relevant to the theme of the present study
concerns, once again, the status of dual citizens and the limits of possible inter-
vention by the Russian regime on their behalf because they still qualify as Rus-
sian citizens—although, of course, the other state whose citizenship they hold is
equally justified in considering them its own. What one must remember here is
that the whole pitch of Russia’s citizenship canon on the subject of dual citizen-
ship has from the start emphasized Russia’s claim to such bipatrides and refusal
to take into account the legal consequences accruing from concurrent posses-
sion by an individual of the citizenship of another state or the latter’s title to the
person in question by virtue of that parallel connection. Hence, very little room
is left for compromise on these occasions when Moscow has made it perfectly
clear that it is not willing to distinguish between passive and active brands of
citizenship, or to take a backseat in instances where the logic of pragmatism
might recommend accepting the empirical evidence of Russia’s citizenship’s
lapse into a secondary, or dormant, role.
Obviously, this scenario creates ample opportunity to meddle in the affairs
of other states by citing the duty owed one’s citizens even when they count as
citizens of and reside on the territory of the opposite party—and particularly so
in Russia’s case because the priority assigned to Russia’s jurisdiction over the
members of this constituency is not hedged in with any reservations whatever
for the sake of accommodating the other state’s stake in the same individual. A
breakthrough on this front seemed to be forthcoming in 1999 judging by reports
that the proposed revisions in the 1991 citizenship act now wending their way
through the legislative pipeline contemplate, inter alia, that if a Russian simul-
taneously possesses the citizenship of another state and is located on its terri-
202 GEORGE GI NSBURGS

tory, he enjoys the protection and sponsorship of the Russian Federation within
the limits sanctioned by international law and in accordance with the interna-
tional treaties of the Russian Federation and that country.63 The new version
would mark a major improvement over the tone of the previous score, provided
that practice duly observes the applicable dicta of international law at the im-
plementation stage.

RSFSR Citizenship and Marriage

Russia’s citizenship legislation follows Soviet precedent by pronouncing

that the conclusion or dissolution of marriage of a citizen of the RSFSR with a
person not belonging to the citizenship of the RSFSR entails no change in citi-
zenship and that change of citizenship by one spouse does not entail change of
citizenship of the other spouse. The principles embodied in this policy are said
to be motivated by the desire to enhance the stability of the individual’s legal
bond with the state and immunize it from the effects of the vagaries of private
life. Local spokesmen likewise praise the entry for comporting with the letter
and spirit of the 1957 Convention on the Citizenship of the Married Woman
whose primary intent is to shield married women from exposure to involuntary
acquisition or loss of citizenship contingent on their marital status or changes in
the citizenship affiliation of their spouse. The convention contains an added
safeguard that calls for enabling a foreign wife to acquire the citizenship of her
husband through a special simplified mode of naturalization, with the reserva-
tion that this procedure may be circumscribed in the interests of state security or
public order. In light of the Russian citizenship statute’s underlying concern
here to abide by the standards of the convention, the law makes an arrangement
that, in fact, goes one step further than its model for expedited treatment to fa-
cilitate the conversion of either a foreign husband or a foreign wife to the citi-
zenship of his or her Russian spouse by medium of simple registration.
Ultimately, then, marriage can entail consequences for the citizenship status of
the partners, except that Russian analysts are quite right in noting that these
changes do not occur sua sponte and at least require the interested party to go to
the trouble of filling out registration forms.64

63. Rossiiskie vesti, March 18, 1997.

64. There is also, of course, the matter of “fictitious” marriages. As noted by Stepanov, 1998, p.
9: “This is always an ‘instrument’ of illegal migration. According to information furnished by state
organs, it is used mostly by persons hailing from the republics of Transcaucasia and Ukraine, who
thereby seek to transfer to Russian nationality. The state has a duty to protect itself from ‘illegal
aliens.’ Chez nous, however, nobody pays any attention to them.” He points out that failure to take
appropriate measures means that national “resources earmarked for social purposes are squandered
on a multitude of legal and illegal migrants.”
R USSIA 203

A separate clause expands the coverage by specifying that dissolution of a

marriage entails no change in the citizenship of children born of the marriage or
adopted children. In this case, too, the ostensible goal is to maintain the stability
of citizenship relations and guarantee the interests of children, except that an
extra dose of care is now provided for the sake of this constituency by sanction-
ing restoration of Russian citizenship by medium of registration for persons
whose Russian citizenship lapsed as a consequence of change in the citizenship
of their parents. Those eligible for such summary reinstatement are allotted five
years from the time they reach eighteen to file the proper papers.

Reduction of Statelessness
Under this rubric, the citizenship law records that the RSFSR encourages ac-
quisition of the citizenship of the RSFSR by stateless persons and does not im-
pede acquisition by them of another citizenship. The significance of the
problem of statelessness lies primarily in the need to ensure the true equality of
all persons, inasmuch as in many countries stateless persons are often discrimi-
nated against, as well as to defend their rights and freedoms in case conflicts
arise. Reference is made in this connection to the 1961 convention on reducing
statelessness devoted to the task of reducing the pool of individuals thus cast
adrift. Russia’s commitment to this proposition is attributable to a growing mal-
aise in official circles over the appearance on its territory of a substantial num-
ber of persons who are refugees from the countries of their permanent abode
and have de facto lost their citizenship. To deal with this phenomenon, local le-
gal experts argue in favor of elaborating legislation to define the procedure of
acquisition of the citizenship of the RSFSR by individuals suffering from this
infirmity.65 For instance, G. Stepanov cites the case of “refuseniks” who, for the
most part, hail from Iraq and Syria:

During the period when the USSR existed and good relations prevailed
with these states, their youth received higher education here. Many, after
graduating from the institutions of higher learning, continued their gradu-
ate studies, entered into matrimony with Russian citizens and, as foreign-
ers, received residence permits and continue to live here up till now.
But, over the last 10-15 years, the situation in those states changed and
the majority of Iraqis and Syrians simply fear to approach their embassies
for prolonging the duration of their passports. Their foreign passports

65. Krylov, 1992, p. 15.

204 GEORGE GI NSBURGS

have expired, they do not want to become stateless persons and claim
Russian citizenship.
The question arises: whom are we dealing with? At first blush, every-
thing looks simple—these are persons without citizenship. But, recogniz-
ing this must be preceded by certain legal procedures and receipt of a
66
corresponding document.

The same philosophy, incidentally, is shared by other members of the Com-

monwealth as witnessed by the tenor of the “recommended legislative act” con-
taining a set of “concerted principles for regulating citizenship” that was
adopted by the Commonwealth’s Inter-Parliamentary Assembly at its session
of December 29, 1992.67 The designated purpose of the proposed guidelines
was to upgrade the level of protection of human rights within the Common-
wealth, curb the occurrence of statelessness, facilitate contacts among people,
and establish and maintain friendly and good-neighbor relations with all states
that are prepared to consider them as a basis for their domestic legislation on
citizenship. On the subject of statelessness, that document echoes the theme of
offering encouragement to stateless persons to acquire citizenship (though
without repeating the second portion of the Russian equation that promises not
to impede acquisition by them of another citizenship), and it espouses the norm
that children born on the territory of one of the member states of the C.I.S. must
not become stateless persons.
Russian citizenship heeds that latter injunction by riding to the rescue where
children face the prospect of incurring statelessness, even though, as already
mentioned, it is strangely remiss in not extending a commensurate helping hand
to adults sentenced to that fate—beyond recognizing the possibility of cutting
in half the residency requirement for admission to RF citizenship in processing
applications from individuals who qualify as refugees under the terms of the
law or the international treaties of the Russian Federation or waiving all precon-
ditions where a person has received asylum on the territory of the Russian Fed-
eration. Add to the spartan fare a one-time rescue mission mounted for the
benefit of stateless persons who on the date of entry into force of the citizenship
act permanently resided on the territory of the RSFSR or other republics di-
rectly forming part of the late USSR as of September 1, 1991: the members of

66. Stepanov, 1998. The general lack of sympathy for the plight of adult apatrides on the Rus-
sian scene is reflected in Stepanov’s accompanying comments to the effect that the “refuseniks”
usually get upset that Russian law-enforcement agencies find no grounds for granting them Russian
citizenship and really have no right to do so. Instead, he says, “they should thank the Russian Feder-
ation for the fact that they are located on its territory and are not expelled.”
67. Mitskevich, 1996, pp. 75–77.
R USSIA 205

this flock were given one year from the date of entry of the citizenship statute
into force to record their wish to acquire the citizenship of the RSFSR just by
going through the process of registration. By contrast, special dispensations do
operate sine die for children faced with the threat of statelessness. For instance,
where the parents of a child have different citizenships, one of them being a citi-
zen of the Russian Federation at the time of the child’s birth and the other a citi-
zen of another country, the question of the citizenship of the child regardless of
place of birth is decided by written agreement of the parents. In the absence of a
corresponding agreement, the child acquires the citizenship of the Russian Fed-
eration if it is born on the territory of the Russian Federation or would otherwise
end up stateless.
Next, a child located on the territory of the Russian Federation both of whose
parents are unknown is considered a citizen of the Russian Federation, except
that its citizenship may change if the identity of at least one of the parents,
guardian, or trustee subsequently comes to light. Then, a child born on the terri-
tory of the Russian Federation of parents who are citizens of other states is as-
signed the citizenship of the Russian Federation if those states do not grant him
their citizenship. Finally, a child born on the territory of the Russian Federation
to stateless persons counts as a citizen of the Russian Federation.
Comparable measures are deployed to prevent children from being precipi-
tated into statelessness in various other circumstances. To cite one such exam-
ple that fits the thematic focus of this study: if a child who is not a citizen of the
Russian Federation is adopted by spouses one of whom is a Russian citizen and
the other has a different citizenship, he or she becomes a citizen of the Russian
Federation by agreement of the adopting parents. Without such an agreement,
the child becomes a citizen of the Russian Federation if he or she sojourns on
the territory of the Russian Federation or would otherwise remain or become a
stateless person.
The bottom line is a fairly comprehensive safety net designed to forestall a
child slipping into the limbo of a stateless existence. Russian law seems to feel
free to intervene unilaterally in these circumstances on behalf of a child headed
for statelessness either as a result of accidentally falling through gaps in the le-
gal fabric or by default of the parents in not taking appropriate action to spare
their progeny that hardship. The Russian government does not appear to be
bothered by the idea of pinning Russian citizenship on a child caught in that
kind of trap through the ex parte exercise of its legal powers. Where adults
stuck in such a predicament are concerned, “forcible” conversion even of state-
less individuals sounds wrong and is not practiced by the local authorities who
prefer instead to persuade the affected individual to take the right steps toward
obtaining the citizenship of Russia or perhaps some other state. Of course, as
206 GEORGE GI NSBURGS

noted above, no fast lane has as yet been installed for servicing this need in the
Russian environment—an oversight that marks a serious discrepancy between
word and deed.

Modes of Admittance to Russian Citizenship

Having described the legal framework, we can now turn to the proceedures
by which persons may acquire citizenship of the Russian Federation.

At Birth

The basic rule here postulates that a child born to parents who possess the citi-
zenship of the RSFSR is considered a citizen of the RSFSR no matter where the
birth takes place. Although Russia also applies the principle of jus soli in certain
circumstances and recognizes other grounds for assigning its citizenship to chil-
dren at birth, the jus sanguinis test is given priority on the premise that the central
role in deciding the issue is played by the common citizenship of the child’s par-
ents. If only one of the parents of the child at the time of its birth possesses the cit-
izenship of the RSFSR and the other parent is a stateless person, the child counts
as a citizen of the RSFSR regardless of place of birth. Here, too, the scale is tipped
in favor of Russian citizenship in order, reportedly, better to serve “the interests
of the child”68 and help “reduce the number of stateless persons.”69
In cases where the parents have different citizenships, one of them at the
time of the child’s birth possessing Russian citizenship and the other holding a
foreign citizenship, the question of the citizenship of the child is determined by
written agreement of the parents. “If the agreement was not duly filed in final
form and a dispute erupts, the child acquires Russian citizenship since the law
always sides with the parent who possesses the citizenship of the Russian Fed-
eration.”70 Without a corresponding agreement, the child acquires the citizen-
ship of the RSFSR if it is born on the territory of the RSFSR or would otherwise
end up stateless. Ancillary regulations (as amended in 1993) detail that where
parents with different citizenships (one of them being a Russian citizen) choose
the newborn’s citizenship, they must submit before the child turns one a copy of
the birth certificate and the written agreement that confirms their choice of citi-
zenship to the organs of internal affairs or the consular office at their place of
residence. In this context, the authorities rely on the parents’ preference. Only

68. Avakian, 1994, pp. 29–30.

69. Krylov, 1992, p. 21.
70. Krylov, 1992, p. 21.
R USSIA 207

where that fails to work do they look for relief to the norm of jus soli, if that ele-
ment is present, or the norm of jus sanguinis if it is not and the child is otherwise
bound to incur statelessness. The regime’s willingness to shift gears repeatedly
to achieve a positive outcome evinces a creditable streak of pragmatic flexibil-
ity that deserves commendation for, among other things, sparing the individuals
concerned a brush with statelessness.
The law envisages further cases where neither the will of the parents nor jus
sanguinis is a viable factor in various contingencies surrounding a child’s birth
and so designates the principle of jus soli to fill the void. Thus, a child located
on the territory of the RSFSR both of whose parents are unknown is considered
a citizen of the RSFSR, with the proviso that the attribution of Russian citizen-
ship may be reversed once the identity of at least one of the parents, guardian, or
trustee has been established. First, the foundling is registered in the organs of
registry of acts of civil status on the presumption that his parents are Russian
citizens.71 The recognition of parental rights is possible only by applying to the
organs of guardianship and trusteeship armed with an appropriate court order.
Next, a child born on the territory of the RSFSR to stateless individuals forth-
with receives Russian citizenship, a procedure that calls for a finding to that ef-
fect by the organs of the Ministry of Internal Affairs or Administration of
Internal Affairs that is attached to the personal file of one of the parents, and a
corresponding inscription is entered or stamped into the child’s birth certificate.
Finally, a child born on the territory of the RSFSR is considered a citizen of
the RSFSR if its parents are citizens of other republics that formed part of the
USSR as of September 1, 1991, or foreign states and if these republics or states
withhold their citizenship from the child. The reference to the other ex-repub-
lics of the Soviet Union (subsequently deleted from the text in favor of a general
statement concerning foreign states) allegedly reflected the RSFSR’s view of
itself as successor to the USSR. That reasoning does not extend, of course, to
the foreign states mentioned in the same breath. Thus, this provision is another
sample of Russia’s generosity toward children threatened with statelessness
that entails staking them to Russian citizenship in order to save them from that
undesirable experience. Still, as one local spokesman notes, the picture is un-
clear about whether jus soli kicks in “automatically or at the request of the par-
ents.”72

71. Krylov, 1992, p. 21. Oddly enough, Avakian, 1994, p. 31, takes the opposite view and
claims that “what is most likely the case here is that the child has been abandoned and its skin color
indicates that the parents or one of them has a foreign provenance.” The argument in favor of the
state’s intervention on the foundling’s behalf would then be predicated on the fact of abandonment
by a foreign parent or parents from which no relief can reasonably be expected.
72. Avakian, 1994, p. 31.
208 GEORGE GI NSBURGS

By Naturalization
A person who is not a citizen of the Russian Federation, has dispositive ca-
pacity, and is eighteen years of age or older can apply for admission into the cit-
izenship of the Russian Federation regardless of origin; social status; racial or
national appurtenance; gender; education; language; and rapport with religion,
political, and other convictions. The normal condition for admission into the
citizenship of the Russian Federation is permanent residence on the territory of
the Russian Federation: for a foreign citizen or stateless person, a total of five
years or three years uninterrupted immediately prior to filing the application;
for refugees recognized as such by law or treaty of the Russian Federation, the
designated terms are cut in half. The stint of residence on the territory of the
Russian Federation is considered to be continuous if the person in question
went abroad for study or medical treatment for no more than three months. The
only unusual item in the package pertains to the permanent residency require-
ment for naturalization purposes whose appearance in the 1991 citizenship stat-
ute marks its debut in Russia’s legislative canon. Even so, local sources refer to
the prescribed length of local residency as “not high.”73
The law also catalogues a number of circumstances that can facilitate admis-
sion into Russian citizenship by entitling the applicant to a reduction of the re-
spective waiting period, including the possibility of waiving the test altogether.
The following grounds are cited as warranting preferential processing of a natu-
ralization request: (1) past possession of the citizenship of the former USSR;
(2) adoption of a child who is a citizen of the RSFSR; (3) a record of high ac-
complishments in the fields of science, technology, or culture, as well as pos-
session of a profession or skill that is of interest to the RSFSR; (4) a record of
meritorious service to the peoples pooled in the RSFSR, toward the renaissance
of the RSFSR, and the attainment of universal human ideals and values; and (5)
grant of asylum on the territory of the RSFSR.
Some of the items on this list call for a closer look. The special dispensation
for people adopting Russian children is said to be prompted by the same con-
cern that is often encountered in other countries as well for the care of one’s
young, which, inter alia, means letting them be adopted by foreigners only in
exceptional cases. Encouraging such foreigners to convert to the child’s Rus-
sian citizenship on short notice is thus intended to enable them to get around
that roadblock while living up to one’s sense of responsibility toward the minor
by arranging to keep him in the fold notwithstanding the “transfer.” Next, ob-
jections have been voiced to the idea of giving easy access to local citizenship

73. Krylov, 1992, p. 25.

R USSIA 209

in order to attract a certain brand of “quality immigrant.” The United States, for
instance, is criticized for practicing an immigration policy that fuels a brain
drain in other countries, and Russia itself is portrayed as a victim of this phe-
nomenon. Now, Russia has opted to emulate the U.S. example, and the decision
to do so has not met with universal approval on the home scene.74
Finally, award of territorial asylum in Russia as a prelude to quick admission
into Russian citizenship remains a dead letter in today’s political reality. On the
one hand, the 1993 Constitution takes the trouble to advertise that “the Russian
Federation grants political asylum to foreign citizens and stateless persons in
accordance with the universally recognized norms of international law.” On the
other hand, if the chairman of the commission on questions of citizenship at-
tached to the office of the president of the Russian Federation can be believed,
as of mid-1996 that panel had received only two requests for asylum: one in-
volved a citizen of North Korea whose application was approved and who sub-
sequently moved to South Korea; no action was taken on the second petition,
which had been submitted by the former president of Azerbaijan, A.
Mutalibov.75 Many more requests for territorial asylum are filed, of course, but
they are routinely rejected at lower levels of the administrative apparatus and
never reach the upper rungs of the hierarchy for review on the merits. In a lone
departure from such stonewalling tactics, subordinate agencies did give visas to
a handful of applications from thirteen (or sixteen by another count) journalists
who by 1994 had fled to Russia from Tajikistan (out of a batch of approxi-
mately one hundred fellow exiles), but solely “by way of exception.”76 Even
Russian spokesmen now concede that “although the granting of asylum is en-
visaged by the Russian Constitution, to get it is virtually impossible.”77 Since
asylum thus remains out of reach as a practical proposition, all talk of its role in
expediting the extension of Russian citizenship to asylum seekers is moot at
this stage of the game.
Even more stringent controls may be in the offing for policing the procure-
ment of sanctuary on Russian soil. Calls have recently been heard for establish-
ing a special permanent bureau of the Commonwealth to coordinate the
struggle against and deal effectively with the scourge of drug addiction. Among
the views broached in this connection is a recommendation that “the grant of

74. Avakian, 1994, pp. 35–36.

75. See interview by Shcherbachenko, June 14, 1996, and by Shcherbina, July 11, 1996. Ac-
cording to a leading human rights activist in Moscow, “No person who has turned to the Russian au-
thorities for political asylum has been granted it since the moment Russia joined the UN
Convention on the status of refugees” in 1992. Lyubarsky, May 1996, p. 21.
76. Urigashvili, September 22, 1994, and Grankina, June 7, 1996.
77. Grankina, June 7, 1996.
210 GEORGE GI NSBURGS

political asylum be barred . . . for persons accused and wanted by law-enforce-

ment organs for illegally trafficking in drugs. . . .”78
Although the citizenship statute says nothing about using treaties to institute
a simplified mode of naturalization for the nationals of the respective signatory
parties, concerted arrangements along those lines have, in fact, been made on
two occasions that have introduced a quasi-instant regime for converting from
one designated citizenship to the other. The agreement between Russia and
Kazakhstan contemplating a “fast lane” procedure for acquisition of citizenship
by citizens of the Russian Federation arriving for permanent sojourn in the Re-
public of Kazakhstan and citizens of the Republic of Kazakhstan arriving for
permanent sojourn in the Russian Federation was concluded on January 20,
1995. A twin version, mutatis mutandis, was contracted between the Russian
Federation and the Kyrgyzstan Republic on March 28, 1996. It is safe to predict
that no comparable ententes with non-Commonwealth partners are forthcom-
ing since the tenor of these operations is tailored to the specific conditions pre-
vailing in the post-Soviet geopolitical space, chiefly the continued search for
relief from the trauma of state succession still afflicting so many subjects of the
former USSR.
Admission into citizenship is a two-way street where an individual ex-
presses a desire to acquire the citizenship of the Russian Federation and the lat-
ter responds to that request. Hence, the state cannot be indifferent to the
credentials of a candidate. It sets conditions under which an application to ob-
tain Russian citizenship will be refused, namely, where the applicant (a) calls
for use of force to change the constitutional order of the RSFSR; (b) is a mem-
ber of a party or organization whose activities are incompatible with the consti-
tutional principles of the RSFSR; or (c) has been convicted and is serving
sentence to loss of freedom for acts for which he can be charged under the laws
of the RSFSR.
Interestingly enough, the pitch of point (b) has been severely criticized on
the grounds that

this strange, to say the least, wording is obviously murky which allows
one to ascribe to it any interpretation whatever, depending on who the pe-
titioner happens to be and the mood of the Russian functionary handling
the case. Furthermore, the aforecited wording plainly contradicts para. 1
of the same Art. 19 which indicates that a person can petition for admis-
sion into the citizenship of the Russian Federation without regard, inter
alia, to his “political or other convictions.”79

78. See, for example, Gasanov, November 13, 1997.

79. Avakian, 1994, p. 36.
R USSIA 211

These negative comments must have struck a sore nerve, judging from reports
that this section of the statute is scheduled to be rephrased and in its new guise
will single out “parties and social organizations employing terrorist methods in
their activities.”80
Clause (c) also gives pause. Read literally, the pronouncement would seem
to refer to instances where a person seeking Russian citizenship is at the time he
files the corresponding application convicted and serving sentence entailing
physical detention. Certainly, much more must be at stake here. First, such per-
sons can apparently submit relevant explanations in their defense, the substance
of which must be addressed by the proper authorities, although, of course, there
is no guarantee that the claim will be upheld. Second, the competent agencies
are expected to conduct their own investigations into an applicant’s history for
possible brushes with the law that might make him undesirable as a recruit for
the national constituency. Thus, the Ministry of Internal Affairs checks the ap-
plicant to see whether or not he is wanted or has been charged. After that, the
data are forwarded to the Federal Security Service, which verifies them through
its own channels, and only then are the documents relayed to the commission on
questions of citizenship attached to the office of the president of the Russian
Federation. The materials are next examined by the commission, including
those findings that prompted the preceding instances to recommend that the pe-
tition be rejected. On occasion, the commission’s conclusions differ from those
of the departments that assist it in running this operation. After discussion at a
session of the current crop of naturalization applications, the commission sub-
mits to the president a proposal concerning each of them, which, practically
speaking, represents a draft version of the decree awaiting signature by the head
of state.81
The Russian authorities have good reason for carefully screening individu-
als wishing to acquire Russian citizenship. Remember that the citizenship law
postulates that a citizen of the RSFSR cannot be surrendered to another state
otherwise than on the basis of the law or a treaty of the RSFSR. By contrast, the
1993 Constitution takes a harder line on that score and dictates that a citizen of
the Russian Federation cannot be banished outside the confines of the Russian
Federation or surrendered to another state. The bar against involuntary exile
had already been raised to constitutional level on April 21, 1992, and was meant
to preclude any repetition of the sorry experience during the 1970s when per-
sons critical of the regime, that is, dissidents, were summarily expelled and,
more often than not, coincidentally stripped of Russian citizenship. As for
transnational rendition, the 1993 Constitution eschews any mention of circum-

80. Rossiiskie vesti, March 18, 1997.

81. Rossiiskie vesti, March 18, 1997.
212 GEORGE GI NSBURGS

stances that might warrant the extradition of a Russian citizen to a foreign state
and ends up flatly forbidding such transfer. The language of Article 3(1) of the
citizenship act is slated to be rewritten to conform with the tenor of the constitu-
tional model’s absolute injunction against the rendition of Russian citizens
abroad.82
Thorough scrutiny of a would-be citizen’s past makes extra sense where the
state is likely to get stuck with a criminal and subsequently incur considerable
expenditure of time and money in a bid either to cancel his naturalization as
having been fraudulently obtained or to prosecute him locally where the im-
puted act qualifies as a criminal offence under Russian law as well. The issue is
a live one. The chairman of the federal commission on questions of citizenship,
for example, has had occasion to cite in a press interview instances where a per-
son who had committed a crime back home tries to acquire Russian citizenship
in the knowledge that Russia does not surrender its citizens to other countries to
face criminal charges. At any rate, he quickly dismissed “such a method of
self-defence” as “naive.”83
In a second episode, the Office of the Procurator-General of Russia reached
a decision on May 16, 1996, to surrender to the Uzbek authorities the president
of the financial-industrial consortium Rusti-Rosti registered in Moscow and
former general director of the stock company Uzgosnefteprodukty, A.
Khusainov. The suspect was arrested on December 22, 1995, by order of the
General Procuracy of the Russian Federation at the behest of the Uzbek authori-
ties who accused him of abuse of official powers. Already after his arrest,
Khusainov managed to obtain Russian citizenship through the Russian Em-
bassy in Tashkent. The presidential commission on questions of citizenship
concluded that Khusainov received Russian citizenship in violation of estab-
lished procedures, but left the final decision on the matter to the Ministry of
Foreign Affairs. The procedure for surrendering Khusainov to the Uzbek au-

82. Nezavisimaia gazeta, September 16, 1997. See also Rossiiskie vesti, March 18, 1997, and
May 6, 1997. Two cases confirm the rule against the rendition of Russian citizens to foreign states:
in re Lozhkin, 1995, pp. 14–15, and in re Podshebiakin, 1995, pp. 5–6, although in the latter case the
Criminal Bench of the RF Supreme Court still mouthed the obsolete formula that a citizen of the
Russian Federation cannot be surrendered to a foreign state except on the basis of a law or interna-
tional treaty. In any event, both cases were remanded to local courts of first instance for trial.
Lozhkin’s offence (committed in Kazakhstan) was squarely covered by a corresponding provision
of the Russian Criminal Code, but in Podshebiakin’s case the lower court was instructed to deter-
mine whether an equivalent existed in the Russian Criminal Code for the offence imputed to him
under the Criminal Code of Uzbekistan.
83. Interview by Shcherbachenko, June 14, 1996.
R USSIA 213

thorities contemplates revoking his Russian citizenship; Uzbek authorities con-

test the legality of Khusainov’s acquisition of Russian citizenship.84
Proposals for still tighter policing in such matters are awaiting legislative en-
dorsement. When passed, the changes would add to the slate of grounds for
blackballing a petition for naturalization the following: forcible eviction of the
individual from the Russian Federation in the course of the three years preced-
ing submission of the application, the solicitor’s record as a repeat offender,
and so on.85 Also being discussed at the Commonwealth level in connection
with joint projects to combat the drug problem are plans for vesting a special
permanent organ of the C.I.S. to coordinate the campaign against and mount an
effective response to the spread of drug addiction with the power to block the
procurement of citizenship and right of sojourn in any member state of the
Commonwealth to all persons accused of and being sought by law-enforcement
agencies for illegally trafficking in drugs.86
The real irony here, however, is that the test whose deployment has sin-
gle-handedly managed to turn the country’s entire naturalization process into a
game of Russian roulette—I am speaking of the notorious practice of propiska
or residency permit—has no legislative mandate to play this role and no recog-
nized relation to this function. Yet, the administrative agencies responsible for
“assigning” living quarters to Russia’s inhabitants have for years wielded that
power in a totally discretionary fashion to approve or deny a person’s choice of
abode. Although repeatedly struck down by the Constitutional Court for contra-
vening the charter’s guarantees of the individual’s freedom to pick his place of
domicile and recently recast as residency registration to emphasize that it is in-
tended as a mere bookkeeping device for recording the address indicated by the
de cujus as his dwelling spot with no right of refusal to do so, propiska-registra-
tion continues to thrive in the Russian environment and remains the bureau-
cracy’s most potent weapon for controlling as it pleases access to the country’s
citizenship rolls.
The arbitrary exercise of this authority can best be judged from the tenor of
widely circulated accounts reporting how employees of the institutions per-
forming these duties have blandly informed persons entangled in their web that
“without propiska, you cannot get citizenship, and, without citizenship, you
cannot get propiska.” The prospects for breaking this vicious circle in the fore-
seeable future are bleak and the consequence is that the naturalization system so

84. Nezavisimaia gazeta, May 18, 1996.

85. Rossiiskie vesti, March 18, 1997.
86. Gasanov, November 13, 1997.
214 GEORGE GI NSBURGS

neatly outlined in the legislative canon is, in fact, in shambles and will stay that
way until the nation’s bureaucratic juggernaut is brought to heel—should that
ever happen.87 In the plus column, the legislative script’s message on this sub-
ject sounds civil enough and, if the so-called subnormative distortions were
erased, its pronouncements could afford the pool of potential customers a qual-
ity of service that would, on balance, comport with the general standards gov-
erning these matters.
A quick look at what sort of people have so far succeeded in obtaining Rus-
sian citizenship through naturalization will help round out the picture. Over-
whelmingly, the newcomers are drawn from the ranks of those who have past
nationality-citizenship ties with pre-Soviet Russia or the USSR. Until now,
bona fide foreigners were conspicuously absent from the scene, to a point
where a recent presidential decree ratifying the admission of 234 adults into the
citizenship of the Russian Federation drew special attention in Moscow’s press
for the unusual detail that sprinkled among the latest recruits were a few genu-
ine foreigners: three individuals born in Afghanistan, two born in Korea, two
born in China, and one born in Vietnam.88 The event may portend an era of
greater liberality ahead in extending Russian citizenship to alien immigrants
who aspire to gain full legal enrollment in the host community—albeit with no
assurance at all that the influx will at any time soon be allowed to swell to tidal
proportions.
Meantime, the question must be asked about how firm is an acquired deed to
Russian citizenship. The answer is that the citizenship law does allow for the re-
vocation of Russian citizenship, but only in instances where the de cujus re-
ceived it on the basis of deliberately falsified information and counterfeit
documents. The fact of committing such perjury is established in court proceed-
ings and the rescission of the naturalization decision does not exempt the of-
fender from facing legal charges. On a somewhat more positive note, the law
does not extend the sanction of repeal of the naturalization decision to the
spouse and children of the culprit who acquired the citizenship of the Russian
Federation together with him or her if it is not proved that they knew that the cit-
izenship of the Russian Federation was being obtained by illegal means. Impor-
tant, too, is the companion proviso that stipulates that reversal of the

87. Thus, a recently published article on the subject of procuratorial supervision over the im-
plementation of legislation on citizenship discusses in considerable detail the applicable procedures
and sets out what the procuratorial apparatus ought to be doing to perform this assignment, but
sheds no light whatever on anything that it has, in fact, done in this province. See, Churilov and
Vinokurov, 1998, pp. 12–18. From other sources, one gets the distinct impression that the
procuratorial branch has been singularly remiss in exercising its jurisdiction in this venue.
88. Rossiiskaia gazeta, March 7, 1998; SZ RF, 1998, no. 10, item 1189.
R USSIA 215

naturalization decision on the grounds indicated is possible during a five-year

period from the date of admission.
Incidentally, legitimate doubts have been expressed about how effective this
brand of punishment is likely to be given that where the innocent spouse retains
his or her Russian citizenship, the guilty party can after a while petition for what
amounts to preferential admission into Russian citizenship through registration
channels that are open to persons whose spouse is a citizen of the RSFSR.89

By Derivative Naturalization

An important element of any naturalization package is the treatment that lies

in store for minors upon change in the citizenship affiliation of one parent or
both parents. The cornerstone rule in Russian law under this rubric is that the
citizenship of children under fourteen years of age follows the citizenship of the
parents. The citizenship of children between the ages of fourteen and eighteen
changes contingent on their consent, which must be couched in written form
and certified by a notary. The citizenship of children does not change upon
change in the citizenship of parents deprived of parental rights nor does change
in the citizenship of the children require the consent of parents who have been
deprived of parental rights. These norms are admittedly harsh, but their deploy-
ment is justified by the need to protect the children: parents deprived of parental
rights in effect lose their children and the capacity to influence their fate.90
If both parents acquire or a sole parent acquires the citizenship of the
RSFSR, the citizenship of the children changes accordingly. For children under
the age of fourteen, the relabeling is automatic; those between the ages of four-
teen and eighteen must record their consent thereto in a written document vali-
dated by a notary. If one of the two parents who do not have Russian citizenship
acquires it, the child is granted the citizenship of the RSFSR upon request of the
parent who acquired Russian citizenship, which must be accompanied by the
other parent’s endorsement of the “vote”—again, couched in written form and
duly authenticated by a notary.
The bill to amend the citizenship statute that is currently under consideration
includes a proposal to simplify the procedure of admission into and release
from the citizenship of the Russian Federation in the case of children under
eighteen if there is a corresponding joint statement by the parents where one of
them is a Russian citizen and the other a foreign national.91

89. Avakian, 1994, p. 44.

90. Mikhaleva, 1992, p. 32.
91. Rossiiskie vesti, March 18, 1997.
216 GEORGE GI NSBURGS

Adoption raises similar problems. Thus, a child who is not a citizen of the
RSFSR, if adopted by a citizen of the RSFSR or a couple who are citizens of the
RSFSR, instantly becomes a citizen of the RSFSR. If such a child is adopted by
a couple, one spouse being a citizen of the RSFSR and the other a stateless per-
son, the child is also forthwith assigned the citizenship of the RSFSR. Finally, if
a child who is not a citizen of the RSFSR is adopted by a couple, one spouse be-
ing a citizen of the RSFSR and the other holding a different citizenship, the
child becomes a citizen of the RSFSR by agreement between the parents. With-
out such agreement, the child becomes a citizen of the RSFSR if it resides on
the territory of the RSFSR or if otherwise it would remain or become a stateless
person.

Appeal from Decisions on Citizenship of the RSFSR

Decisions by a competent organ denying registration of acquisition or termi-
nation of the citizenship of the RSFSR or possession of the citizenship of the
RSFSR can be appealed to a court within one month for review on the merits of
the ruling. Refusal to accept statements and petitions on questions of citizen-
ship, violation of the deadlines set for examining statements and petitions, as
well as other actions by official personnel of the competent organs that violate
the regime for treating cases of citizenship and the regime for executing deci-
sions on questions of citizenship of the Russian Federation may be appealed in
the prescribed manner to the respective superior official or a court. Persons per-
manently residing outside the confines of the Russian Federation file appeals
against such actions by the diplomatic representations or consular institutions
of the Russian Federation to the Moscow city court. On such occasions, the ag-
grieved individual is not challenging a decision taken on the merits of his claim
but is appealing procedural irregularities committed by the corresponding offi-
cials. Note, though, that the decisions by the president of the Russian Federa-
tion regarding petitions on questions of citizenship are final and cannot be
contested in court.
The question of which court can hear this category of cases is not addressed
in the statute. A secondary source has emphasized that it would be desirable to
clarify that issue and direct the traffic to the district or city court of general juris-
diction, or the court of a subject of the Russian Federation, or, lastly, the Su-
preme Court of the Russian Federation. The point made here is that the

common logic of procedural regulation is that where the law says “appeal
to a court”, what is being talked about is the district (city) court at the
place where the organ or official person is located. However, this logic is
R USSIA 217

frequently subject to exceptions in the legislation itself. And, in order to

be completely certain, it would be best to designate the level of court to
which disputes over citizenship shall be submitted.92

In any event, so far I have not run across any reported case of a decision by a
regular court relating to citizenship matters.

Since the applicable provisions of Russia’s citizenship law and the mode of
their implementation have been analyzed and criticized piecemeal in the course
of the preceding narrative, elaborate conclusions would serve no further pur-
pose except to rehash what has already been said. Instead, let me offer once
again an observation that has repeatedly been made throughout the study: As
written, Soviet citizenship law sounds fine in terms of the signals it sends to in-
dividuals seeking to obtain Russian citizenship papers. The trouble comes in
the implementation, where wholesale administrative mangling of the law’s pro-
nouncements has created an environment in which many of these liberal prom-
ises remain a dead letter. The treatment accorded to a person who wants to
convert to Russian citizenship bears scarcely any resemblance to the message
posted on the legislative billboard. Often, today’s performance is so bad as to
recall the abuses perpetrated in the Soviet era. Forecasting that Russia will or
will not manage to get rid of this curse—and, if yes, when—depends on
whether the person offering the judgment is an optimist or a pessimist. Where
Russia’s political and legal mores are concerned, I am afraid that I belong in the
pessimist camp.

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 CHAPTER SEVEN

Post-Apartheid Citizenship
in South Africa

JONATHAN KLAAREN

CITIZENSHIP IN SOUTH AFRICA is an unfolding story that cannot be easily sepa-

rated from other issues, as South Africans struggle to remake their political, so-
cial, and economic order in the post-apartheid era. This paper will aim at only a
small part of that story. It focuses on enactment of the first post-apartheid legisla-
tion concerning citizenship, the South African Citizenship Act 88 of 1995. My
central theme is that although the 1995 act was the first major piece of citizenship
legislation since 1949, it did not make far-reaching substantive changes to the
preexisting South African rules of citizenship—except in the significant aspect
that it made citizenship rules uniform throughout the Republic.
Of course, the passage of the 1995 citizenship act is not the only recent sig-
nificant event regarding citizenship in South Africa. Important administrative
measures were taken with respect to voting in the liberation election of 1994
and with respect to unifying the various administrative departments concerned
with immigration and citizenship. So, too, citizenship issues arose in the draft-
ing of the final Constitution.1 Citizenship has been influenced by the post-apart-

The author would like to thank Alex Aleinikoff, Raylene Keightley, and Doug Klusmeyer for
helpful comments.

1. Constitution of the Republic of South Africa Act 108 of 1996 (1996 Constitution) section 3
on citizenship provides: “(1) There is a common South African citizenship. (2) All citizens are (a)
equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the du-
ties and responsibilities of citizenship. (3) National legislation must provide for the acquisition, loss
and restoration of citizenship.”

221
222 J ONATHAN KLAAREN

heid cabinet-approved grants of amnesty to three categories of persons present

in the Republic in violation of immigration laws (mine workers, South African
Development Community citizens, and Mozambicans). It has also been shaped
by the Department of Home Affairs’ inaction in revamping the primary piece of
immigration legislation, the Aliens Control Act 96 of 1991. Even the Truth and
Reconciliation Commission process has raised citizenship issues.2
Analysis of the passage of the 1995 act—the constitutionality of which I
have explored elsewhere3—leads to exploration of the principles underlying
citizenship in the new South Africa. Before getting to that story, I will briefly
canvass the history of formal citizenship in South Africa during apartheid, the
basic structure of citizenship and permanent residence law, and current patterns
of immigration to South Africa. After a brief look at the rights of aliens in the
new South Africa, I will conclude with a discussion of the essential continuity
of the new citizenship regime with its predecessors and possible reasons for this
continuity.

A Brief History of South African Citizenship from 1949 to 1995

This section conducts a brief survey of South African citizenship law from
1949 to the passage of the 1995 act, focusing on the formal legislation rather
than the historical context.4 This period spans from the passage of the primary
piece of citizenship legislation governing during apartheid, the South African
Citizenship Act 44 of 1949, until its repeal by the 1995 South African Citizen-
ship Act. The period can itself be split into three phases with the division be-
tween the first and the second marked by the Bantu Homelands Citizenship Act
26 of 19705 and the division between the second and the third marked by the
Restoration of South African Citizenship Act 73 of 1986. This last act was pre-
ceded by former state president P.W. Botha’s 1985 statement, “The Govern-

2. Klaaren, 1998, “Truth and Reconciliation.”

3. The constitutionality of some of the major provisions of the South African Citizenship Act
of 1995 is discussed briefly in Klaaren, 1998, “Immigration.”
4. This section adopts the perspective of South African constitutional law. The term “national”
is used to refer to the international law aspect of nationality-citizenship, and “citizen” to refer to the
domestic-constitutional law aspect. For a history of formal citizenship law developments in South
Africa before 1949, see Schmidt, 1993, pars. 343–47. The historical literature on documented im-
migration to South Africa and the administration of the system of pass controls is surprisingly thin.
Peberdy, 1997, p. 2; Hindson, 1987, p. 1. The same appears to be the case for formal citizenship ad-
ministration.
5. This act was later renamed the Black States Citizenship Act and even later, in 1980, the Na-
tional States Citizenship Act.
SOUT H AFR IC A 223

ment does not regard the loss of South African citizenship to be the inevitable
result of a national state becoming independent.”6
In South Africa for the twenty years or so before 1949, there were no South
African citizens, only British subjects and Union nationals. In 1926, the South
African Parliament defined the status of a British subject for the purposes of
South African law.7 In 1927, another piece of legislation was put into place that
created a distinct South African nationality, the status of a Union national.8
Aliens were defined as persons who were not British subjects in terms of the
1926 act.9 While not all British subjects had status as Union nationals, all Union
nationals were considered by South African legislation as British subjects, and
the overlap was nearly complete.
These conditions changed with the South African Citizenship Act of 1949.
The 1949 act instituted the status of South African citizenship, essentially sub-
stituting that status for that of Union nationality.10 A British subject would
henceforth be either a South African citizen or a citizen of another Common-
wealth country or the Republic of Ireland.11 Even after the 1949 act was passed,
however, certain preferences for Commonwealth subjects remained. As ini-
tially passed, the South African Citizenship Act of 1949 contained a provision
allowing citizens of other Commonwealth countries to register and thereby ob-
tain South African citizenship.12 For instance, a Canadian citizen could become
a South African citizen by registration by fulfilling some residence and other
conditions. This registration provision was abolished a year after South Africa
declared its status as a republic in 1961.13

6. Budlender, 1985, “Common Citizenship?” Some might start this phase earlier. See Dugard,
1980.
7. British Nationality in the Union and Naturalization and Status of Aliens Act of 1926.
8. Union Nationality and Flags Act of 1927. This 1927 act replaced the earlier effort to deter-
mine British nationality on the basis of a common code with other Commonwealth states as at-
tempted in the British Nationality in the Union and Naturalization and Status of Aliens Act of 1926.
9. Union Nationality and Flags Act of 1927, section 9.
10. See, for example, South African Citizenship Act of 1949, section 38, providing that, as a
matter of interpretation, references in other legislation to Union nationality should be taken as refer-
ences to South African citizenship.
11. The act differed significantly from earlier legislation defining Union nationals by provid-
ing that a married woman did not derive her citizenship status from that of her husband. South Afri-
can Citizenship Act of 1949, sections 12–14.
12. South African Citizenship Act of 1949, section 8. See Schmidt, 1993, par. 351.
13. Commonwealth Relations Act of 1962, section 19. The declaration of republic status did
affect citizens of Botswana, Lesotho, and Swaziland. From 1963, they were no longer treated as
Union nationals and, with certain exceptions, were treated under South Africa’s alien legislation.
See Peberdy, 1997, p. 7.
224 J ONATHAN KLAAREN

The establishment of the status of South African citizenship was also the
first phase of apartheid citizenship. Citizenship was a necessary but not suffi-
cient qualification for the franchise. Race was an additional qualification for the
franchise but not for citizenship. While the status of citizenship was common,
not all citizens were equal.14
The second phase of apartheid citizenship legislation began in 1970 with the
Bantu Homelands Citizenship Act.15 Applying only to blacks, this act ensured
that every black South African was granted an additional status of citizenship
on the basis of connection to one of the designated homelands through lan-
guage, culture, or race. Initially, this status was additional to and not diminish-
ing of the common (if empty) South African citizenship.16 For instance, people
who were granted Transkeian citizenship retained their status as South African
citizens and as South African nationals.
When the homeland to which a person was linked was granted independ-
ence by means of South African legislation, however, that person lost both
South African citizenship and nationality. As Professor Dugard describes the
situation, “Prior to independence all persons linguistically or culturally con-
nected with the homeland were already citizens of the territory but nationals
of South Africa. On independence such persons became both citizens and na-
tionals of the homeland and ceased to be South African nationals.”17 For in-
stance, the Transkei was granted independence on October 26, 1976, pursuant
to the Status of Transkei Act. By this South African legislation, Transkeian
citizens ceased to be South African citizens from that time.18 Thus from the

14. That blacks did not enjoy full rights of civil and political participation such as the franchise
in the Republic led many to condemn this citizenship status as empty. “In South Africa, Blacks are
not really citizens since they do not exercise full civil and political rights in the central political pro-
cess.” Dugard, 1980, p. 22.
15. The concept of an additional status of citizenship on the basis of race had been introduced
to South African law seven years earlier in the Transkei Constitution Act of 1963. Section 7 of this
act made “every Xhosa-speaking Bantu person in the Republic” who did not belong to another
homeland (such as Ciskei) a citizen of Transkei.
16. Section 2(4) of the Bantu Homelands Citizenship Act read in part: “A citizen of a territorial
authority area [for example, a homeland] shall not be regarded as an alien in the Republic and shall, by
virtue of his citizenship of a territory forming part of the Republic, remain for all purposes a citizen of
the Republic and shall be accorded full protection according to international law by the Republic.” Of
course, blacks were placed one conceptual step away from the common South African citizenship by
enjoying that common citizenship only “by virtue of” their homeland citizenship.
17. Dugard, 1980, p. 25. Professor Dugard did not term blacks as South African citizens before
independence on account of his view that true citizenship must mean full civil and political rights.
18. Status of Transkei Act of 1976, section 6. As Dugard, 1980, p. 25, wrote, “The independ-
ence-conferring statutes carefully refrain from depriving persons of South African nationality on
grounds of race. Instead, they prescribe language and culture as the criteria for denationalization.
There can, however, be no doubt that in practice they are intended to apply to Blacks only as this ac-
cords with declared government policy. Certainly there is no known instance in which a white, col-
SOUT H AFR IC A 225

viewpoint of South African law, these people had lost their South African citi-
zenship.19
The most extreme formulation of the homelands citizenship policy was
probably made by C.P. Mulder, the minister of Bantu Administration and De-
velopment, in 1978. He stated:

If our policy is taken to its full logical conclusion as far as the black peo-
ple are concerned, there will be not one black man with South African cit-
izenship. . . . Every black man in South Africa will eventually be
accommodated in some independent new state in this honourable way
and there will no longer be a moral obligation on this Parliament to ac-
commodate these people politically.20

At the same time that South Africa was forcibly divesting many of its black
citizens of their status, it was forcing that status on a completely different group
of potential citizens, white males of an age to perform military service. From
1978, with certain conditions, persons permanently resident in the Republic for
five years automatically became citizens by naturalization.21 The purpose was
to render noncitizen male residents eligible for military service.22 The South Af-
rican Defence Force was increasingly used during the 1970s and 1980s to sup-
port the apartheid state, and its troops were deployed in both regional and
domestic military action.23
The third phase of formal citizenship under apartheid is characterized by legal
confusion but also by a growing if halting formal acceptance of the notion of a
common South African citizenship.24 Its start can be marked by the passage of the

ored, or Asian person connected with the Transkei, Bophuthatswana, or Venda has been deprived
of his nationality since the conferment of independence on these states.”
19. From 1978 (and for Bophuthatswana from its independence in 1977), provision was made
for a citizen of an independent homeland to recover South African citizenship by becoming a citi-
zen of a nonindependent homeland. See Dugard, 1980, pp. 25–26; van Wyk, 1978, p. 148.
20. House of Assembly Debates (Hansard), col. 579, February 7, 1978 (as quoted in Dugard,
1980, p. 16). As Dugard points out, it was this type of overreaching that doomed the homelands
strategy to political failure: “If Transkeian nationality had not been compulsorily extended to all
persons connected with Transkei, however remotely, it might have been possible to view
Transkeian independence as a simple achievement of statehood. But once South Africa set the de-
nationalization of all persons ethnically or culturally linked with Transkei as the price for independ-
ence, the goal of recognition became impossible.”
21. See Schmidt, 1993, par. 352. See also van Wyk, 1978.
22. South Africa, “Memorandum on the Objects of the South African Citizenship Bill, 1995”
(B23–95), par. 3.2.
23. The legal relationship between citizenship and military service was a complex one. For one
part of it, see Kelleher v. Minister of Defence, 1982 (3) SA 278 (SECL).
24. This confusion was built in and planned for in the citizenship regime. For instance, section
6 of the each of the four status acts (Status of the Transkei Act of 1976, Status of Bophuthatswana
Act of 1977, Status of Venda Act of 1979, and Status of Ciskei Act of 1981) provided for a board to
226 J ONATHAN KLAAREN

Restoration of South African Citizenship Act of 1986. The significant pieces of

legislative action during this phase were the Restoration and Extension of South
African Citizenship Act of 1993 and the 1993 interim Constitution.
South African human rights lawyers greeted with suspicion the govern-
ment’s initial moves toward a common citizenship.25 They noted that the dena-
tionalization process had affected different groups of people in different ways
and were quick to point out the gaps in the stated policy (detailed below). They
questioned the content of the offered citizenship, querying whether the right to
live and work in South Africa, the right to reside in urban areas, and the right of
access to courts were included. They were also concerned that the government
was offering merely common nationality rather than common citizenship; in
short, a passport without the vote was not acceptable.
Such fears were well founded. The Restoration of South African Citizenship
Act passed in 1986 was no more than a “half a loaf” type of statute. Recall that
prior legislation had denationalized persons with citizenship in one of the inde-
pendent homelands—Transkei, Bophuthatswana, Venda, and Ciskei (TBVC
citizens). The 1986 statute restored citizenship only to those TBVC citizens
who were permanently resident in South Africa. Thus, the bulk of the approxi-
mately 9 million people denationalized—those permanently resident in the ter-
ritory of the independent homelands—remained without South African
citizenship.26 Moreover, even those people eligible for restoration of citizenship
needed to go through a complicated administrative application procedure to en-
joy the benefits of the act. By 1992, it was estimated that less than half of the 1.8
million people who in the government’s estimate could benefit from the 1986
act would, in fact, do so.27 In the end, the 1986 act was really no more than a
“ninth of a loaf” and a small step toward a common South African citizenship.28

be established between the Republic and each of the four homelands to finally determine the citi-
zenship of people whose status was unclear. See Schmidt, 1993, par. 357. See also Dugard, 1980, p.
21, who noted, “There is much confusion in South Africa today over the policies of the South Afri-
can Government with respect to citizenship.”
25. Budlender, 1985, “Common Citizenship?” pp. 210–17. For an account of the basis for such
wariness laid during the legal struggle against the pass laws, see Abel, 1995, pp. 24–65.
26. See Dugard, 1992, p. 16.
27. Dugard, 1992, pp. 16–17; see also Budlender, 1989, p. 51.
28. The administrative manifestation of these developments in citizenship policy was the aban-
donment of the influx control system in 1986: Abolition of Influx Control Act of 1986. The influx
control system applied to Africans. At the same time as the abolition of influx control, a limited set
of controls on the movement of Indians within two provinces of the Republic, the Orange Free State
and Natal, was repealed. Dugard, 1992, p. 17. State regulation over the movement of people into the
cities was not itself abandoned, however. The government replaced the racially based influx control
system with an ostensibly nonracial policy of “orderly urbanization.” As noted below, the 1986 act
has also been criticized in that when read together with Tshwete v. Minister of Home Affairs, 1988
SOUT H AFR IC A 227

Parallel to this tentative legislative restoration of citizenship, there was

much confusion evident in the courts over the exact effects of denationaliza-
tion.29 Some of the confusion centered on a provision in the Status of Transkei
Act and the other status acts and legislative and administrative action that ap-
peared to mitigate the effects of denationalization by providing that citizens of
the independent homelands resident in the Republic would not forfeit existing
rights, privileges, or benefits on account of the status act.30 In interpreting these
internally contradictory provisions, the Appellate Division (the AD, then the
highest court in South Africa) failed to challenge the denationalization policy in
any significant way. For instance, in Tshwete v. Minister of Home Affairs, the
AD held that “the only way in which the citizens of Transkei, Bophuthatswana,
Venda, and Ciskei (‘TBVC citizens’) can claim a right of permanent residence
in South Africa, is by relying on s 12 of the Aliens Act, which provides that
aliens domiciled in South Africa do not need a permanent residence permit.”31
Read with a later provision in the 1986 restoration act, this statement, in fact,
had the effect of denying permanent residence in South Africa to TBVC citi-
zens resident there.32 While the logic of the court’s decision was murky (and
roundly criticized), the judicial support for executive-determined citizenship
policy was clear. Legislative developments in formal citizenship policy in the
homelands added to the confusion. Each of the four independent homelands
had constitutional provisions and a statutory framework governing citizenship
that constituted a formal part of the South African citizenship regime during
this period.33 Citizenship policy was thus further made uncertain by formally
separate citizenship regimes.
This legislative and judicial confusion had to be addressed by legislative de-
velopments surrounding the transition to the post-apartheid Government of Na-
tional Unity. The Restoration and Extension of South African Citizenship Act
196 of 1993 was part of a package of legislation agreed upon by the negotiating

(4) SA 586 (A), it confirmed the loss of the right of permanent residence to those TBVC citizens
resident in South Africa.
29. Budlender, 1985, “Incorporation and Exclusion,” pp. 3–9.
30. For instance, section 6(3) of the Status of Ciskei Act of 1981 provided: “No citizen of the
Ciskei resident in the Republic at the commencement of this Act shall, except as regards citizen-
ship, forfeit any existing rights, privileges or benefits by reason only of the other provisions of the
Act.”
31. Budlender, 1989, p. 50. See Tshwete v. Minister of Home Affairs, 1988 (4) SA 586 (A).
32. Budlender, 1989, pp. 53–54.
33. See sections 57 and 58, Republic of Transkei Constitution Act of 1976 (Transkei); section
80, Republic of Bophuthatswana Constitution Act of 1977 (Bophuthatswana); sections 59 and 60,
Republic of Venda Constitution Act of 1979 (Venda); section 67, Republic of Ciskei Constitution
Act of 1981; Citizenship of Transkei Act of 1976; Bophuthatswana Citizenship Act of 1978; Citi-
zenship of Venda Act of 1980; and Ciskeian Citizenship Act of 1984.
228 J ONATHAN KLAAREN

parties in the drafting of the interim Constitution. The act automatically re-
stored South African citizenship to those people who had lost their citizenship
by force of the status acts’ grants of independence to the former homelands. It
further automatically granted South African citizenship to those who would
have been South African citizens by birth or descent had the status acts not been
passed, for example the children of parents who had only TBVC citizenship
when those children were born. It also adopted the principle that all other peo-
ple who were TBVC citizens (such as those who were naturalized by the home-
lands) would have to apply for South African citizenship by naturalization.34
Finally, the citizenship provisions of the status acts were made nonapplicable to
South African citizens and those to whom citizenship had been restored or ex-
tended.
The priority accorded to the legislative provision of citizenship at this time
was driven by the need to provide an administrative structure for the participa-
tion of TBVC citizens in the April 27, 1994, elections. The Restoration and Ex-
tension of South African Citizenship Act thus took effect from January 1, 1994,
four months before the April 27 elections. Two months later, the constitutional
protection of the franchise took effect.35 The repeal of the status acts and the
reincorporation of the independent homelands would wait until the election
date itself to be effected in terms of a schedule to the interim Constitution. Thus,
the constitutional entrenchment of a common citizenship can be dated from
April 27, 1994.36
Despite the creation of a common South African citizenship, the separate citi-
zenship regimes of the former independent homelands continued to operate in
each of the formerly independent homelands. While the interim Constitution did
repeal the Bantu Homelands Citizenship Act, it left untouched legislation such as
the Citizenship of Transkei Act of 1976 (Transkei). This act and others like it
were enacted by the homelands legislatures themselves. It took the 1995 South
African Citizenship Act to formally repeal these pieces of homelands citizenship
legislation and provide for a single statutory instrument governing citizenship
across the Republic.37 The passage of this act is examined in detail below.

34. This principle was revisited during the passage of the 1995 act as discussed below.
35. Section 6 of the interim Constitution took effect from March 9, 1994. In this sense, one can
state that a common constitutional right to vote preceded a common South African citizenship.
36. Section 5(1) of the interim Constitution provided: “There shall be a South African citizen-
ship.”
37. Even after the passage of the 1995 act, there remain strong legal traces of the homelands
citizenship legislation. For instance, in Bangindawo and Others v. Head of the Nyanda Regional
Authority and Another 1998 (3) SA 262 (Tk), the court was willing to attach some meaning to the
concept of “Transkei citizenship,” despite the provision for a common citizenship in the Constitu-
tion, for the limited purpose of determining the jurisdiction of the regional authority courts. Where
SOUT H AFR IC A 229

Current Migration Patterns

South Africa is currently witnessing substantial migration across its bor-
ders.38 Noncitizens are entering the country, especially from Mozambique and
other states of the Southern African Development Community (SADC). Deter-
mining the precise number of immigrants is difficult, but it is clear that
post-apartheid South Africa has seen “a massive escalation in legal and undocu-
mented migration of workseekers to South Africa from the region.”39 Migra-
tion, in the sense of movement of people unregulated by the state, is a major
feature of the contemporary South African polity.40
The best estimates of the population of noncitizens in the country range from
500,000 to 1.5 million in a total population of 37.9 million.41 This figure repre-
sents a sizable portion of the population; but it is far less than figures thrown
around in popular and policy discourse, which have gone as high as 12 million
people.42
Reflecting both the reality and the perception of this increase, a muscular re-
sponse has been forthcoming. In 1996, a record number of repatriations were
conducted: more than 150,000 people were transported out of the country, more
than 80 percent of whom went to Mozambique. Deportation figures have
shown a dramatic escalation over the past five years.43 Perhaps most worrying
has been a rising trend of xenophobia.44 One of the most dramatic incidents oc-
curred in September 1998 when three Senegalese citizens were killed by a
crowd of unemployed people on a Johannesburg-bound commuter train as the
crowd was returning from a protest march in Pretoria.

the accused in a criminal case or all the parties in a civil case are “citizens of the Transkei,” these
courts exercise concurrent jurisdiction with magistrates’ courts.
38. One part of this migration has been a refugee flow where South Africa participates in a
continent-wide trend. See Maluwa, 1995. For a brief historical survey of immigration and migra-
tion patterns to South Africa, see South Africa, “Draft Green Paper on International Migration,”
par. 2.2. For a more complete picture of current patterns, see Peberdy, 1997, and Crush, 1997.
39. Crush, 1997, p. 30.
40. Jacobson, 1996, p. 9.
41. See Human Rights Watch, 1998, pp. 19–22. The population figure is based on the prelimi-
nary results of the first post-apartheid census conducted by the government’s Central Statistical
Services. These results are available at http://www.css.gov.za/CensRes/prelimin.htm.
42. Crush, 1997, p. 18. See also South Africa, “Draft Green Paper on International Migration,”
1997, par. 3.1.3 (noting figure of 5.1 million). The “Draft Green Paper” is a comprehensive assess-
ment of South African migration policy.
43. Crush, 1997, p. 20.
44. According to Human Rights Watch, 1998, p. 4, “In general, South Africa’s public culture
has become increasingly xenophobic, and politicians often make unsubstantiated and inflammatory
statements that the ‘deluge’ of migrants is responsible for the current crime wave, rising unemploy-
ment, or even the spread of diseases.”
230 J ONATHAN KLAAREN

Legal Provisions for Permanent Residence and Citizenship

This section aims to state briefly the current legal regime for citizenship and
permanent residence in South Africa.45 South African citizenship is granted in
three primary ways: by birth, by descent, and by naturalization.46 Under existing
statutes, citizenship by birth is limited to a child of a South African citizen or to
a child whose parents are both permanent residents.47 As implemented by the
Department of Home Affairs, however, this rule is relaxed to a significant de-
gree: if only one of the parents is a permanent resident, then the citizenship by
birth may be claimed by the child of that parent.48 Children born in South Africa
to temporary residents and to the population of undocumented persons do not
acquire citizenship at birth.
Citizenship by descent is granted to children born outside the Republic who
have at least one parent with South African citizenship, where notice of the
birth is given to South African authorities. There is no cutoff to this transmis-
sion; thus, citizens born outside of South Africa may apparently transmit citi-
zenship to their children born outside South Africa.
The citizenship system, therefore, is a mix of jus soli and jus sanguinis prin-
ciples. Although most South Africans become citizens under jus soli rules,
large numbers of persons born in South Africa do not acquire citizenship at
birth. Nonetheless, as is indicated in the legislative debates considered below, it
seems clear that there is comparatively greater weight placed on the jus soli
principle in South Africa than in many other countries.49
The bar against citizenship for a large class of people born in South Africa
makes the conditions for obtaining naturalization of particular importance.50
For people born in South Africa to parents without permanent residence, the

45. The material in this section borrows from Klaaren, 1998, “Immigration.”
46. South African Citizenship Act of 1995 (SACA), sections 2–4.
47. SACA, 1995, section 2(2). There are exceptions for children adopted by South African citi-
zens and (as lobbied for by the Black Sash, an organization of primarily white women long con-
cerned with human rights issues in South Africa) for stateless children registered in terms of the
Births and Deaths Registration Act of 1992. SACA, 1995, section 2(4). See Keightley, 1998.
48. Telephone interview on March 2, 1998, by author with Mrs. Joubert, citizenship supervi-
sor, Department of Home Affairs. Under the accepted doctrine of legitimate expectations, it ap-
pears unlikely that the Department of Home Affairs could change this practice without
parliamentary approval. See Administrator, Transvaal v. Traub 1989 (4) SA 731 (A) (a legitimate
expectation may be based on long-standing practice or an express promise).
49. See Aleinikoff, 1998, p. 7. The principle of jus soli was explicitly depended upon by the
minister of Home Affairs in order to justify the granting of South African citizenship to children
born in the Republic who have no rightful claim for the citizenship or nationality of any country.
South Africa, Debates of the Senate, col. 2607 (Thursday, September 7, 1995).
50. It is unclear what percentage of children born within South Africa to noncitizens have at
least one permanent resident parent and are thus capable of claiming citizenship.
SOUT H AFR IC A 231

only opportunity to become a citizen is through naturalization. In order to be

naturalized, a person must be over twenty-one, must be admitted for permanent
residence, must have been continuously resident for one year before applying
for naturalization, must have been ordinarily resident for at least four of the
eight years preceding the application,51 must be of good character, must intend
to continue to reside in the Republic, must be able to communicate in one of the
official languages, and must have knowledge of the responsibilities and privi-
leges of South African citizenship.52 Minors admitted to permanent residence
may be granted citizenship without satisfying these conditions upon application
by a parent.53 In the case of permanent resident aliens married to South African
citizens, the only requirement for citizenship is residence with the citizen
spouse in South Africa for two years.54 Citizenship by naturalization thus de-
pends upon prior admission for permanent residence.
Permanent residence is governed by the Aliens Control Act.55 From Decem-
ber 1, 1996,56 a permit for permanent residence (newly termed an immigration

51. In an apparent change from the previous citizenship legislation, periods of temporary resi-
dence do not count toward fulfilling the requirement of residence or ordinary residence. SACA,
1995, section 5(3)(b). Periods of stay that were in contravention of any law continue not to count.
The legislation also prohibits periods of time during which an alien has “conditionally” sojourned
from counting. It is not clear how this section should be interpreted. At first glance, it would appear
to include the employment conditions that may be imposed without any statutory limit and are often
attached to permanent residence permits for three years. See, for example, Aliens Control Act of
1991 (ACA), section 25(3). Since ACA section 25(3) apparently mandates a minimum employ-
ment condition of twelve months, the minimum naturalization period may be effectively length-
ened by a year. If an employment condition is imposed but not time-limited, then a permanent
resident would be barred indefinitely from naturalization. Giving effect to these distinctions among
varying employment conditions would probably violate the equality clause. The reasons for placing
such conditions may bear no relation to an applicant’s fitness for naturalization. A court should thus
interpret SACA, 1995, section 5(3)(b) in order to avoid such a constitutional violation.
52. SACA, 1995, section 5(1).
53. SACA, 1995, section 5(4). There is no requirement that the parents themselves be natural-
izing.
54. SACA, 1995, section 5(5).
55. Until 1986, South African immigration legislation was explicitly racial, requiring that ap-
plicants for permanent residence be “readily assimilable by the white inhabitants.” Especially from
1960, the government recruited white skilled workers, offering them permanent residence, but in
recruiting black workers continued to prohibit their time of employment from counting toward nat-
uralization. The effect of these policies was that permanent residence status was reserved for whites
and not for blacks. Indeed, although the racial clause to the assimilation requirement was removed
in 1986, the requirement itself remained until 1996. Moreover, it was administered by the all-white
Immigrants Selection Board, a body whose membership and procedures remained secret. See, for
example, Edmonds, March 29, 1996. Because the law of naturalization (as well as other legislation)
depends on permanent residence status, a strong if indirect constitutional equality claim thus exists.
See Peberdy and Crush, 1998.
56. The Aliens Control Amendment Act of 1995 came into operation on July 1, 1996, with the
exception of sections 11 and 12, which substitute the sections of the ACA dealing with the Immi-
232 J ONATHAN KLAAREN

permit) is available to an applicant who is of good character, who will be a de-

sirable inhabitant of the Republic, who is not likely to harm the welfare of the
Republic, and who does not and is not likely to pursue an occupation in which
there are already sufficient numbers of people available in the Republic.57 Other
provisions allow for (but do not mandate) immediate permanent residence
without conditions for destitute, aged, or infirm family members and for
spouses or dependent children of permanent residents and citizens.58 Normally,
applicants for permanent residence apply from outside South Africa. There are
exceptions for persons in possession of a temporary residence work permit; per-
sons who are destitute, aged, or infirm and a member of the family of a perma-
nent resident or citizen who is able and willing to support that person; and
persons who are married to, or dependent children of, permanent residents or
citizens.59
Of course, the discussion of legal doctrine must be seen in the South Afri-
can context. Three aspects of this context make the above brief exposition of
the citizenship laws on the books particularly vulnerable to reality checks.
The first is the degree to which the legal regime of the South African Citizen-
ship Act of 1995 has only recently been extended to the people previously
governed by the formerly independent homelands. As noted above, those citi-
zenship regimes differed from those of the Republic, presenting more than the
usual selection of nonenvisaged situations for the act to cover. The scope for
administrative discretion and for implementing rules differing from the terms
of the formal legislation is therefore broadened. The second is the significant
level of informal action taken outside the formal rules by administrative offi-
cials in the area of citizenship. In both this respect and the next, the Depart-
ment of Home Affairs is known to be struggling with significant problems of
corruption. The third aspect is the degree to which status as a citizen may be
less significant in practical terms, such as gaining access to banking facilities,
than possession of a formal identification status—evidenced in South Africa

grants Selection Board and permanent residence permits. These sections came into operation on
December 1, 1996.
57. ACA, section 25(4)(a). The application of this criterion of national employment availabil-
ity to an applicant’s occupation is to be made by a regional committee in respect of people intending
to reside in that region.
58. ACA, sections 25(4)(b) and 25(5). Of course, these sections would have to be interpreted to
include citizens within the meaning of the term “a person permanently and lawfully resident in the
Republic.” Section 25(6) requires that a regional committee be satisfied that a marriage was not
contracted for the purposes of evading any provision of the ACA. The administrative practice of
Home Affairs in relation to this section is to require a job offer in order for spouses to be given per-
manent residence. Personal communication to the author from Sheena Duncan of the Black Sash,
November 2, 1996.
59. ACA, section 25(9).
SOUT H AFR IC A 233

by a government-issued ID document. The number of ID documents issued by

administrative authorities dwarfs the number of formal citizenship determina-
tions on an annual basis. For instance in 1994 (an election year), 4.6 million
ID documents were issued and in 1995, 2.8 million. In contrast, citizenship
actions are measured in the thousands not millions.60 By the end of 1995, 27.6
million people were on record.61 Given that the total population is around 37.9
million, there is a large backlog of formal registration.62

The Passage of the 1995 South African Citizenship Act

This section examines aspects of the legislative history of the 1995 citizen-
ship act. The act made five main changes to South African citizenship law.63
The first was the repeal and national application of the citizenship law. Second,
the policy of tolerance with respect to dual citizenship was resurfaced but reaf-
firmed. Third, there were a series of adjustments to naturalization policy.
Fourth, the declaration of allegiance was amended. Fifth, citizenship by birth
for stateless children was introduced.
Consideration of the act in the Senate was lengthy, nearly six months, al-
though the consideration in the National Assembly was quick.64 During parlia-
mentary debate, significant modifications were made to the proposed
legislation in all these areas, except the dual nationality provisions.65 The only
opposition to the legislation came from the relatively small (and relatively
white) Democratic Party, which dissented.66

60. For instance, the number of citizenship grants by descent was 5,235 in 1995 and the number
of naturalizations, 6,153.
61. See South Africa, Department of Home Affairs, Annual Report, 1995.
62. See the preliminary results of the first post-apartheid census conducted by Central Statisti-
cal Services. These results are available at http://www.css.gov.za/CensRes/prelimn.htm.
63. Questions of the act’s provisions relating to resumption of citizenship status are not treated
here.
64. South Africa, Debates of the Senate, col. 2606 (Thursday, September 7, 1995). Senator C.
R. Redcliffe of the National Party hopefully saw in this period an emerging norm: “We should resist
any attempt at bulldozing legislation through portfolio committees and therefore through Parlia-
ment.” South Africa, Debates of the Senate, col. 2610 (Thursday, September 7, 1995).
65. This paper does not consider the extent to which these parliamentary passages may influ-
ence the interpretation of the statutes. In a preconstitutional era, Geoff Budlender has argued with
respect to the citizenship policy area that legal interpretation should take into account parliamentary
speeches. See Budlender, 1989. While there are strong hints of change, preconstitutional South Af-
rican law did not allow reference to parliamentary speeches as an aid to statutory interpretation. See
S v. Makwanyane, 1995 (3) SA 391 (CC), pars. 12–15.
66. The Democratic Party (which counts Helen Suzman as one of its members) had 3 of 90 rep-
resentatives in the Senate and 7 of 400 representatives in the National Assembly.
234 J ONATHAN KLAAREN

One Common Citizenship

The primary impetus for the South African Citizenship Act of 1995 was the
need to repeal the various homelands legal regimes governing citizenship and to
create a unified national citizenship regime.67 This purpose was mentioned by the
minister of Home Affairs, Dr. Buthelezi of the Inkatha Freedom Party (IFP), in
his introduction and reflected in the speeches of some of the party representa-
tives.68 In terms of the transitional provision of the interim Constitution, the citi-
zenship laws of the Republic as well as of the four “independent” homelands
(Transkei, Bophuthatswana, Venda, and Ciskei) remained valid.69 Upon unifica-
tion of the Republic, the need for amending legislation administered by and struc-
turing the Department of Home Affairs was a priority matter. A number of bills,
including what became the 1995 citizenship act, were passed in a single session.70
Repealing the homelands citizenship acts, the 1995 citizenship act extended to
the entire country legislative provisions for a single citizenship regime.
Creation of a single citizenship regime was a huge step toward eradicating
the results of apartheid citizenship policies and aligning citizenship in terms of
South Africa’s new Constitution.71 Indeed, Parliament went further in this re-
gard than Home Affairs’ proposed legislation, amending the 1993 restoration
law that had required naturalized citizens in the homelands to naturalize in or-
der to get South African citizenship.72 In Parliament, the proposed continuation
of the 1993 act was seen to be discriminating unconstitutionally against the cat-
egory of TBVC citizens. The 1995 law as enacted makes automatic the acquisi-

67. The act repealed in whole or in part twenty-five pieces of legislation.

68. South Africa, Debates of the National Assembly, cols. 4315, 4320 (Thursday, September
14, 1995). In terms of the constitutional provisions for a Government of National Unity, minority
parties such as the IFP had several ministries, including the Ministry of Home Affairs.
69. Section 229 of the interim Constitution.
70. Beyond the 1995 citizenship act, three other important pieces of rationalizing legislation
within the province of the Department of Home Affairs were also passed in 1995: the Aliens Con-
trol Amendment Act of 1995, the Identification Amendment Act of 1995, and the Home Affairs
Laws Rationalisation Act of 1995.
71. It was claimed that this 1995 legislation was needed to fulfill the requirement in the interim
Constitution that there be national legislation regulating citizenship. Constitution of the Republic of
South Africa, Act 200 of 1993 (interim Constitution), section 5(2). The prior existing legislation,
however, probably already satisfied that requirement. In any case, the 1995 act certainly satisfies
the similar requirement in section 3(3) of the 1996 Constitution (which took effect in most part on
February 4, 1997).
72. As originally conceived by the Department of Home Affairs, people with citizenship status
granted by the independent homelands were not to be automatically granted South African citizen-
ship. In the bill as submitted to Parliament, people who were not South African citizens but had be-
come citizens of the TBVC states had to apply for South African citizenship by naturalization. This
provision followed what had previously been the case in the Restoration and Extension of South
African Citizenship Act of 1993.
SOUT H AFR IC A 235

tion of South African citizenship by those persons who acquired homelands

citizenship by naturalization. The minister of Home Affairs noted this change
from his original proposal in the following terms: “A word of caution needs,
however, to be expressed. All naturalised South African citizens who have ob-
tained a certificate of naturalisation by means of fraud, false representations, or
concealment of a material fact, can in terms of measure proposed in the Bill, be
deprived of their South African citizenship.”73
Anti-apartheid policy was also reflected in the deletion of the provision
granting automatic citizenship to whites residing for five years in South Africa,
a section intended to increase the pool of persons liable for military service.
Other constitutionalizing features included rejection of a department-proposed
rule that naturalized citizens living abroad for more than seven years would lose
their citizenship (subject to a system of ministerial exemptions), adoption of
citizenship for stateless children born in the Republic, and the inclusion of a
section explicitly affirming judicial review of ministerial decisions in terms of
the 1995 act.74

Dual Citizenship Policy

Traditionally, dual nationality has been tolerated in South Africa. Dual na-
tionality resulted when permanent resident aliens had South African children,
when citizens of different countries married, or often when persons naturalized,
because South African citizenship law contained no renunciation requirement.
Indeed, the principle of dual nationality is deeply rooted in the historical emer-
gence of the status of South African citizenship in the period from the 1920s to
the 1940s. This tolerance has not been complete, however. In terms of the
pre-1995 legislation, South African citizens naturalizing elsewhere were liable
to losing their South African citizenship by ministerial order. In terms of the
1995 act, this loss of citizenship rule became automatic, subject to application
to the minister of Home Affairs for exemption from deprivation prior to the ac-
quisition of the other citizenship.75 Most of the persons who benefited from dual

73. South Africa, Debates of the Senate, col. 2609 (Thursday, September 7, 1995).
74. SACA, 1995, sections 2(4) (stateless children) and 25 (judicial review).
75. SACA, 1995, section 6. Citizens by birth or descent who have already lost their citizenship
may apply directly to the minister for its resumption with the intent of permanently residing in
South Africa. Citizens by naturalization in a similar situation may apply for resumption only after
succeeding in an application for a permanent residence permit. SACA, 1995, section 13(3). The
harsher treatment meted out to noncitizens who were formerly citizens by naturalization as opposed
to citizens by birth or descent in SACA, 1995, section 11(3) and section 13(3) could be argued to be
an apparent violation of the rights of citizens because it subjects one class of citizens to a stricter po-
tential sanction.
236 J ONATHAN KLAAREN

nationality were whites. Until 1986, only such persons were eligible for perma-
nent residence, which is a major cause of dual nationality through having chil-
dren or as a precondition to naturalization. Since the 1990s, members of the
liberation movement who, in exile, attained citizenship and attachments else-
where have also joined the visible ranks of dual citizens. As reflected in the par-
liamentary debates, this latter feature may explain the continued tolerance of
dual nationality.
Most of the debate over dual citizenship took place within the context of de-
privation of citizenship. Under pre-1995 law, some provisions for loss of citi-
zenship applied to dual citizens as well as to other South African citizens. South
African citizenship would be lost upon acquiring another citizenship or becom-
ing a prohibited immigrant.76 Citizens by naturalization or registration (a proce-
dure for acquisition of citizenship largely used for British subjects) would cease
to be citizens upon seven years of residence outside the country. Such citizens
could also be deprived of their status upon proof of fraudulent naturalization or
registration. With procedural safeguards, the minister also had the power to or-
der deprivation of citizenship upon a variety of grounds, including conviction
for treason (for all citizens) or conviction for a crime carrying with it a sentence
of a year’s imprisonment (for citizens by naturalization or registration within
five years of the grant of their citizenship). Furthermore, the acquisition of an-
other citizenship if done by voluntary act was grounds for deprivation of South
African citizenship.
Dual nationals would also lose citizenship upon serving in the armed forces
of their other country while it was at war with South Africa. Dual nationals
(only) could voluntarily lose their South African citizenship by making a decla-
ration of renunciation. Law further provided that the minister had the power to
deprive a dual citizen of South African citizenship if he or she made use of the
citizenship of the other country.77 Most dramatically, the minister had the power
to deprive dual nationals of South African citizenship “if he is satisfied that it is
in the public interest that such citizen shall cease to be a South African citi-
zen.”78
The 1995 act changed the provisions specifically regarding dual nationals in
two respects. First, deprivation of citizenship on grounds of being sentenced to
imprisonment for a year for a crime in any country, provided that the offence
would be similarly punished in South Africa, is now applicable only to dual na-

76. See, generally, South African Citizenship Act of 1949, sections 15–22.
77. South Africa, Debates of the National Assembly, col. 4316 (Thursday, September 14,
1995).
78. South African Citizenship Act of 1949, section 19 bis(b).
SOUT H AFR IC A 237

tionals (rather than to all citizens by naturalization) and may be triggered by im-
prisonment at any time rather than only within five years of the date of
naturalization. This first change passed without comment. The second change
was more significant. Treating the grounds for depriving dual nationals of citi-
zenship because of use of the other citizenship, the 1995 act innovated by refer-
ring to two specific situations—voting in one’s other country of nationality or
using a passport issued by that country—which indicated use of a second na-
tionality.79 The resultant fear was that the government was becoming less dis-
posed toward dual citizenship. In his speech introducing the South African
Citizenship Act of 1995, the minister of Home Affairs referred to this expres-
sion of fear by holders of dual citizenship. Dr. Buthelezi responded as follows:

Although the Government is appreciative of the fact that there are strong
arguments for and against the principle of dual citizenship, it has no in-
tention to legislate against dual citizenship. I am certain that the majority
of South African citizens who also hold the citizenship of another country
are as loyal and respectful to the Republic and its Constitution as our own

79. SACA, 1995, section 9(1) provides: “The Minister may by order deprive a South African
citizen of his or her South African citizenship if he or she also has the citizenship or nationality of
another country, and has at any time made use of the franchise or the passport facilities of that coun-
try or performed such other voluntary act which, to the satisfaction of the Minister, indicates that
such citizen has made use of the citizenship or nationality of that other country.” This statutory pro-
vision must be seen together with prior and subsequent administrative practice, particularly in rela-
tion to passport use. The number of people actually deprived of citizenship is very low. In 1995, 533
persons voluntarily renounced their citizenship. Three naturalized citizens were deprived of their
citizenship by order of the minister, and ten such citizens lost their citizenship by virtue of pro-
longed residence outside South Africa. No dual citizens were deprived of citizenship in terms of
section 9. It is not clear if the three persons deprived of citizenship were subject to the order by the
minister on the grounds of fraud in naturalization, or, if they were dual citizens, for crimes resulting
in a sentence of not less than twelve months, or upon the minister’s satisfaction of what is in the
public interest. The grounds of fraud in naturalization appear most likely. South Africa, Department
of Home Affairs, Annual Report, 1995, p. 12.
Before 1995, the minister of Home Affairs had a practice of writing letters of consent for use of
foreign passports. After the 1995 act, the previously existing administrative procedure for granting
exemptions for passport use was continued. See South Africa, Department of Home Affairs, Pass-
port Control Instruction (PCI) No. 93 of 1995 requiring use of a South African passport by citizens
departing from South Africa. The previous understanding that the writ of Home Affairs extended
only to departure from and arrival to the Republic—based on an argument against extraterritorial
application—was contested by the department, however. In 1997, the administrative procedure by
which dual citizens could be granted written permission to use the passports of their other countries
was added at this level of primary legislation but was stated to apply globally. PCI No. 93 of 1995
suggested that the requirement of the use of the South African passport (and by extension the prohi-
bition on the use of the foreign passport) extends only to departure from South Africa. The 1997 act
is explicit, however, that the exemption from prohibition extends only to the entrance and leaving
of the other country of which the dual citizen holds a passport.
238 J ONATHAN KLAAREN

citizens who hold no other citizenship. The Bill consequently contains no

proposals that deviate from the present legal tolerance of dual citizenship.
At present the Minister has the power to deprive someone with dual citi-
zenship of his or her South African citizenship if he or she makes use of
the citizenship of the other country. The Bill contains a similar proposal,
but it deviates from the present provisions in the sense that the use of the
other country’s franchise or passport facilities is being introduced as a
particular example of making use of another country’s citizenship. At
present, dual citizenship is allowed to enable people to make use of the
other country’s passport facilities in meritorious cases, if those concerned
apply in writing beforehand, and we will continue with this practice—on
stricter terms, however—once this Bill becomes law.80

The speech, while probably written by the departmental legal adviser (and
nearly word for word the same as the one delivered in the Senate), is vintage Dr.
Buthelezi—managing to speak on both sides of a difficult issue.
The debate over the dual citizenship issue was scattered to the point of con-
fusion. Indeed, Senator Mnisi of the liberal Democratic Party (DP) took the po-
sition that the legislation did not address the question of dual citizenship
because it did not clearly distinguish between citizenship and nationality.81 The
contributions also reflected considerable dissension on the point within the par-
ties themselves. Mr. Sikakane of the African National Congress (ANC) alluded
to “debate and disagreement” within his party’s study group on migration. His
endorsement of the concept was based on the notion that “it would serve no
good purpose at this point in time to argue for the abandonment of dual citizen-
ship. In fact, it will be destructive to our needs.”82 He then explored the underly-
ing issue of loyalty, stating, “Now, the question arose: should we shoot down
the Bill just because of the provision concerning dual citizenship? How does
one measure loyalty? Where does loyalty begin and end? Our memories should
not fail us, but we should remember what our own people have done. . . .”83 This
understanding of loyalty contrasted sharply with the understanding of the repre-
sentative of the Afrikaner-based Freedom Front (FF) in the National Assembly:

80. South Africa, Debates of the National Assembly, col. 4316 (Thursday, September 14,
1995).
81. South Africa, Debates of the Senate, col. 2614 (Thursday, September 7, 1995).
82. South Africa, Debates of the National Assembly, col. 4319 (Thursday, September 14,
1995).
83. South Africa, Debates of the National Assembly, col. 4319 (Thursday, September 14,
1995).
SOUT H AFR IC A 239

We welcome the provision . . . which places strict restrictions on the ex-

ercising of dual citizenship. A person who in any way makes use of a sec-
ond citizenship, places his South African citizenship in jeopardy, and the
Minister is authorised to deprive him of it. We welcome this because we
believe that a person cannot serve two masters. He cannot have two loyal-
ties towards two different countries.84

The leader of the Senate Committee ended the debate in that House with a
statement of the rationale for tolerating dual citizenship. According to Dr.
Cwele, the ANC’s view was that

the legislation as it stands tolerates dual citizenship, but it has some re-
strictions so as to prevent abuse. It is our view that dual citizenship must
only be tolerated to the extent that it does not undermine the loyalty of an
individual to this country, to the Constitution or to the sovereignty of our
nation.85

Dr. Cwele went on to note the practical realities, focusing on English-speaking

whites86 and exiles.87 At the time of the referendum among whites on continuing
the direction of reform, English-speaking whites who were permanent residents
of South Africa were even encouraged to become citizens and were “promised
that they would always retain their original country’s citizenship.”88 Moreover,
the ANC’s representative went on to note that blacks in exile had the same ex-
periences: “Some of the people involved in the liberation movement, because
of their suffering of being away from their country, acquired the citizenship of

84. South Africa, Debates of the National Assembly, col. 4322 (Thursday, September 14, 1995)
(Mr. W. A. Botha).
85. South Africa, Debates of the Senate, col. 2619 (Thursday, September 7, 1995).
86. The reality of a number of whites with dual citizenship figured significantly in the debate.
Indeed, Dr. Buthelezi defended dual citizenship at the end of the National Assembly debate in the
following terms: “Many people may not realise that it could completely destabilise our country if it
was revoked suddenly, especially if I take into cognisance the fact that almost a million Eng-
lish-speaking South Africans in this country have that dual citizenship. In this stage of transition
through which we are going as a country, I can imagine that if we were to revoke the dual citizen-
ship, a lot of people would run away from our country. That would not be in the interests of our
country.” Debates of the National Assembly, cols. 4324–25 (Thursday, September 14, 1995).
87. The representative for the Inkatha Freedom Party in the Senate felt that the provisions for
applying for permission to use the citizenship of another country meant that “members of Parlia-
ment can rest at ease. If they need to use a foreign passport to get to a country for which they have no
time to apply for a visa, all they do is apply for permission to the department, to the Minister or to
somebody delegated to give them that approval.” Debates of the Senate, col. 2618 (Thursday, Sep-
tember 7, 1995) (Senator R. Rabinowitz).
88. South Africa, Debates of the Senate, col. 2620 (Thursday, September 7, 1995).
240 J ONATHAN KLAAREN

sympathetic adopted countries. Some of them even used the franchise in these
countries. These are the practical realities.”89 Dr. Cwele said “more important”
these people had properties in one or both of the counties. If one did away with
dual citizenship, what would happen to these properties?
In addition to this general defense of the toleration of dual citizenship, Dr.
Cwele addressed the specifics of the cases of passport use and the franchise.
Deprivation of citizenship on the grounds of use of franchise was justified be-
cause “it is a restrictive mechanism preventing people from undermining the
sovereignty of our country, and because we find that some individuals may vote
in all the countries, thereby influencing the world political order in different na-
tions and in that manner undermining the sovereignty of the state.”90 Depriva-
tion of citizenship on the grounds of abuse of passport facilities was justified
because “if a person has multiple nationality, then in cases of conflict the ques-
tion arises as to who will actually protect that individual. What will happen
when the countries of one’s dual nationality have conflict?”91
Ms. Smuts of the Democratic Party would have allowed deprivation of dual
citizenship on grounds of fraud or fighting against South Africa but not other-
wise. With regard to the introduction of deprivation on grounds of use of a pass-
port, she charged that the Department of Home Affairs was being turned into “a
kind of department of un-South African activities, especially when we, ie South
Africa, have allowed permanent residents the franchise here.”92 Her approach
was a rights-based one and she made the most of it, claiming that it was only her
party that cared about fundamental rights. Her pleas, however, proved unsuc-
cessful, as the legislation was enacted with the broader grounds for loss of
South African citizenship.
It is worth noting that the citizenship policies of neighboring countries (ar-
guably extremely relevant to the policy debate) figured in the discussion hardly
at all.93 The laws of the Customs Union states, Botswana, Lesotho, and Swazi-
land, as well as Mozambique and Zimbabwe, in particular would bear examina-
tion.94 Most of southern Africa has been reported to have a prohibition on dual
citizenship.95

89. South Africa, Debates of the Senate, col. 2620 (Thursday, September 7, 1995).
90. South Africa, Debates of the Senate, col. 2620 (Thursday, September 7, 1995).
91. South Africa, Debates of the Senate, cols. 2620–21 (Thursday, September 7, 1995).
92. South Africa, Debates of the National Assembly, col. 4322 (Thursday, September 14,
1995).
93. According to Senator Mnisi, “We should also have looked into the legislation of the South-
ern African states which will be affected by this piece of legislation.” See South Africa, Debates of
the Senate, col. 2614 (Thursday, September 7, 1995).
94. See Centre for Sociopolitical Analysis, 1996 (covering the United States, the United King-
dom, Canada, Namibia, Swaziland, Zimbabwe, and Kenya; not investigating dual citizenship).
95. See Cheater and Gaidzanwa, 1996, p. 197.
SOUT H AFR IC A 241

Combined with the topic of the next section, naturalization, South Africa ex-
hibits its own peculiar statutory asymmetry, one different from that of the
United States. In the United States, “an immigrant who naturalizes in the
United States must renounce citizenship elsewhere; a U.S. citizen who natural-
izes in another country cannot have his or her U.S. citizenship removed unless
he or she expressly intends to lose it.”96 In South Africa, the naturalizing citizen
has no need to renounce his citizenship elsewhere, but once naturalized is in po-
tential danger of losing South African citizenship if he or she uses the foreign
citizenship in any way.

Naturalization

The 1995 act effected four major changes in the naturalization policy of the
previous regime. First, the act took away automatic acquisition of citizenship
upon five years’ residence. As mentioned above, this acquisition had previ-
ously been provided for by section 11A of the act of 1949, a section intro-
duced in 1978. The deletion of this apartheid provision was an uncontrover-
sial issue.97
Second, the act repealed the prior law that persons who had gained TBVC
citizenship by naturalization could attain South African citizenship only by way
of naturalization. This change was consistent with the major purpose of the leg-
islation to provide a single citizenship law for South Africa. The minister of
Home Affairs had initially supported the status quo ante, but accepted the
change with a word of caution that naturalized citizens who obtained that status
by fraud could be deprived of their citizenship.98
The third change to the naturalization regime was a significant reduction of
the minister’s discretion in terms of the grant of naturalization. As introduced,
the legislation continued to provide for the minister’s discretion, in special
cases, to waive two of the four years required for naturalization and to waive the
language requirement in the case of former citizens. The Senate Committee de-
leted both clauses. According to Senator Lamani of the ANC:

Furthermore, I am pleased to say that sections 6 and 7 have been repealed

[by our committee], because they contained a lot of problems. The Minis-

96. See Aleinikoff, 1998, p. 22.

97. According to Mrs. I. Mars, “We are also very pleased to find that section 2 of the existing
South African Citizenship Act has been omitted, as we will hopefully never again have the need for
compulsory military service.” South Africa, Debates of the National Assembly, col. 4320 (Thurs-
day, September 14, 1995).
98. South Africa, Debates of the Senate, cols. 2608–09 (Thursday, September 7, 1995).
242 J ONATHAN KLAAREN

ter was given discretionary powers in granting a certificate of naturalisa-

tion. In section 7, for example, the Minister was even given powers to
waive some of the requirements for an applicant, if such applicant satis-
fied the Minister that he or she had previously been in South Africa. How
can one allow a Minister to waive these requirements? Does that not lead
to corruption? I am pleased that we got rid of that section.99

In response, the minister cited the administrative justice clause of the Con-
stitution and noted the constitutional entrenchment of judicial review.100 But
these references did not satisfy the opponents of ministerial discretion. Senator
Lamani, for example, commented, “We do not expect people who do not even
know that they have a right of appeal, to go to the Constitution and read the
paragraph that gives them such a right.”101 It was further suggested that the ex-
isting right to appeal directly to the minister be supplemented by an independ-
ent appeal structure within the department. The Inkatha Freedom Party (led by
Dr. Buthelezi, the minister of Home Affairs) thought such an innovation unnec-
essary; but the Democratic Party (which was the sole party to dissent from the
legislation) stated as one of its reasons for not supporting the legislation the fact
that it did not include “independent administrative review procedures and struc-
tures . . . to give real content” to the constitutional right to administrative jus-
tice.102 The appeals structure was not adopted.
The lack of provision for the minister’s discretion proved short-lived, how-
ever, as the 1997 act authorized the minister to grant a certificate of naturaliza-
tion in exceptional circumstances where the residential periods had not been
fulfilled.103 Indeed, the entire period of residence may apparently be waived. A
modest check on discretion remains: the minister must table in Parliament in
the first fourteen days of each year the names of people granted naturalization
together with reasons.
Finally, the 1995 act took away provision for the denationalization of natu-
ralized citizens by virtue of extended residence outside the country. This
change was made by the Senate Committee. The version as introduced by the
Department of Home Affairs had proposed that naturalized citizens living

99. South Africa, Debates of the Senate, col. 2612 (Thursday, September 7, 1995).
100. South Africa, Debates of the Senate, col. 2609 (Thursday, September 7, 1995).
101. South Africa, Debates of the Senate, col. 2613 (Thursday, September 7, 1995). Senator
Lamani was discussing a similar provision.
102. South Africa, Debates of the Senate, col. 2617 (Thursday, September 7, 1995) (Senator R.
Rabinowitz); South Africa, Debates of the National Assembly, col. 4323 (Thursday, September 14,
1995) (Ms. Smuts).
103. Section 4 of the South African Citizenship Amendment Act 1997.
SOUT H AFR IC A 243

abroad for not less than seven years would lose their citizenship.104 This issue,
too, sparked little debate. The reason for the change was apparently the argu-
ment that naturalized citizens should not be treated differently from other citi-
zens.105

Citizenship Oaths and Education

The purest symbolic expression of citizenship in the laws of a country per-
haps comes with oaths or declarations of allegiance. The South African Citizen-
ship Act of 1949 provided a short oath of allegiance. It stated simply: “I, A. B.,
do hereby declare on oath that I will be faithful to the Republic of South Africa,
observe its laws, promote all that which will advance it and oppose all that may
harm it. So Help Me God.”106 Naturalizing citizens over the age of fourteen were
required to make this oath.107
As introduced, the 1995 act proposed a much more extensive declaration of
allegiance “to fit the occasion and to bring the duties, rights and privileges of a
South African citizen into better perspective.”108 This declaration was in the fol-
lowing form:

I, _____________ (A. B.), do hereby solemnly declare that I will be faith-

ful to the Republic of South Africa, and I hereby undertake to carry out
my duties as a South African citizen to the best of my abilities.
I especially commit myself to:
—obeying the laws of my country;
—exercising the franchise to ensure that my country’s affairs rest in
good hands;
—defending my country;
—paying such taxes as may be levied;

104. South Africa, Parliament, “Memorandum on the Objects of the South African Citizenship
Bill, 1995” (B23–95), par. 4.1(v).
105. As Senator R. Rabinowitz said, “There was general agreement that, provided that the cri-
teria for granting citizenship were not unnecessarily lenient and flexible, once individuals had citi-
zenship there should be no distinction between them and other South Africans.” South Africa,
Debates of the Senate, col. 2616 (Thursday, September 7, 1995).
106. South African Citizenship Act of 1949, First Schedule (repealed).
107. Persons objecting on religious grounds to the taking of an oath were permitted to make a
corresponding solemn affirmation. South African Citizenship Act of 1949, section 10(11) (re-
pealed).
108. South Africa, Parliament, “Memorandum on the Objects of the South African Citizenship
Bill, 1995” (B23–95), par. 9.
244 J ONATHAN KLAAREN

—assisting in the preservation of the natural beauty of my country and

to conserving its soil;
—developing my physical, intellectual and social capacities so that I
shall be an asset to my country and its people;
—being tolerant towards my fellow citizens and to fostering good re-
lations.
I also declare that I am fully aware of my rights and privileges as a citi-
zen of South Africa, and I commit myself to exercising those rights and
privileges in such a manner that it will promote the common weal in my
country, and oppose all that may harm my country and my fellow citi-
zens.

The Senate Committee formulated a simpler oath, to be sworn by naturaliz-

ing citizens over the age of eighteen: “I __________(A. B.), do hereby sol-
emnly declare that I will be loyal to the Republic of South Africa, promote all
that will advance it and oppose all that may harm it, uphold and respect its Con-
stitution and commit myself to the furtherance of the ideals and principles con-
tained therein.”
This revised oath’s reference to the “ideals and principles” of the Constitu-
tion provides a contrast with the more positivist, rule-of-law tone of the first
proposed oath. Significantly, neither the 1949 oath nor the oaths considered in
1995 require the renunciation of prior citizenships, which clearly leaves open
the possibility of dual nationality for naturalizing citizens—at least so long as
maintaining the other citizenship is not inconsistent with the “loyalty” due
South Africa under the oath.
Under past and existing practice, citizenship is not conferred in a special cer-
emony.109 Some speakers in the parliamentary debates suggested that such a cer-
emony would be an appropriate way to express the significance of acquiring
South African citizenship. One representative stated that “if we follow the
American example and celebrate the acquisition of South African citizenship,
we will actually be enhancing it and making people proud of being South Afri-
can citizens.”110 The Freedom Front welcomed “the declaration of allegiance
which every new citizen must make and [trusted] that this will always be and re-

109. At present, the entire naturalization process may be conducted through the post. Upon ap-
proval of an application for a certificate of naturalization, a blank Declaration of Allegiance is
posted to the applicant with a letter requesting the applicant to sign the declaration (in the presence
of two witnesses) and to return the signed declaration to the Department of Home Affairs. Upon re-
ceipt of the declaration, a certificate of citizenship is issued and forwarded to the applicant.
110. South Africa, Debates of the National Assembly, col. 4320 (Thursday, September 14,
1995) (Mrs. I. Mars).
SOUT H AFR IC A 245

main a dignified and solemn occasion.”111 This suggestion was specifically wel-
comed by Dr. Buthelezi, who stated that the department was looking into the
possibility of a citizenship ceremony.112
Parliament also plugged for the value of citizenship by considering closely
the Department of Home Affairs’ proposed provision regarding instructing nat-
uralizing citizens in the responsibilities and privileges of South African citizen-
ship. The Senate Select Committee on Health, Welfare and Population
Development and Home Affairs, the parliamentary committee dealing with the
proposed legislation, extended the legislative sanction for citizenship education
from people naturalizing to citizens as well.113 The impetus for this change de-
rived from a belief in the importance of rights-based citizenship education. As
Mrs. I. Mars put it: “The subject of dissemination of information to our previ-
ously deprived community is a very, very important one. We must let our citi-
zens know what their rights are, and what their obligations to the State as
citizens are.”114 The chairperson of the Senate Committee supported this provi-
sion by noting that

because the majority of us were not previously regarded as full citizens

we were sometimes given bad or empty citizenship. It may also be impor-
tant to empower the Minister further to inform all persons or categories of
persons. We are talking about Blacks who may not know of the privileges
or the responsibilities of being a South African citizen.115

For the Freedom Front, this push to citizenship education for all South Africans
was the “most important change now being made.”116

111. South Africa, Debates of the Senate, col. 2612 (Thursday, September 7, 1995) (Senator J.
R. De Ville).
112. South Africa, Debates of the Senate, col. 2621 (Thursday, September 7, 1995).
113. The committee added subsection (a) to SACA, 1995, section 21, which now provides:
“Instruction in responsibilities and privileges of South African citizenship. The Minister may in re-
spect of— (a) South African citizens, make such arrangements as he or she deems fit; or (b) appli-
cants for certificates of naturalisation, establish such facilities as may appear necessary or
desirable—to enable such citizens or applicants to receive instruction in the responsibilities and
privileges of South African citizenship.”
114. South Africa, Debates of the National Assembly, col. 4320 (Thursday, September 14,
1995).
115. South Africa, Debates of the Senate, col. 2619 (Thursday, September 7, 1995) (Dr. S. C.
Cwele).
116. South Africa, Debates of the Senate, col. 2612 (Thursday, September 7, 1995) (Senator J.
R. De Ville).
246 J ONATHAN KLAAREN

Stateless Children

A significant change from the previous citizenship regime was the provision
of South African citizenship to the stateless children. Although it had not been
in the legislation as introduced, the minister justified this provision with ex-
plicit reference to the principle of jus soli:

In many countries of the world, the ius soli principle in terms of which a
birth in a particular country automatically leads to the nationality or citi-
zenship of that country is applied. I am satisfied that the proposals con-
tained in clause 2 are sound and that they provide much more legal
certainty and equitability than the present provisions regarding citizen-
ship by birth.117

While it was not a topic of debate, the recognition of the principle of citizenship
by birth appeared to be supported by other representatives as well.118

The Rights of Citizens and Aliens

What significant difference is made by the status of citizenship in South Af-

rica? The Bill of Rights of the 1996 Constitution provides that almost all rights
benefit all persons within South Africa, whether they are citizens or aliens.
Save for the rights to trade, occupation, and profession, citizenship, some parts
of movement and residence, and political rights, the 1996 Constitution guaran-
tees its rights to “everyone” rather than “every citizen.” For instance, section
29(1)(a) states: “Everyone has the right to a basic education, including adult ba-
sic education.” Of course such rights may be limited, but the starting point of
the Bill of Rights at least is one where aliens enjoy nearly the same constitu-
tional rights as citizens.
Dealing with the specific distinction between permanent residents and citi-
zens, the Constitutional Court has also affirmed a near equality of rights to em-
ployment. The Constitutional Court applied the equality provisions of the
interim Constitution to non–South African citizens and struck down a Depart-

117. South Africa, Debates of the Senate, cols. 2607–08 (Thursday, September 7, 1995).
118. South Africa, Debates of the Senate, col. 2612 (Thursday, September 7, 1995) (Senator N.
E. Lamani) and cols. 2616–17 (Senator R. Rabinowitz) (noting that such numbers were extremely
limited).
SOUT H AFR IC A 247

ment of Education regulation prohibiting foreign citizens from being perma-

nently employed as teachers in state schools.119
Nonetheless, many acts of Parliament restrict the rights of aliens by compar-
ison with citizens. Many of these laws restrict aliens from holding office in vari-
ous statutory bodies.120 Other statutes restrict aliens from important welfare
rights such as old-age pensions and social assistance grants.121 Other restrictions
occur at the level of regulation. For instance, the Gauteng Department of Edu-
cation requires that “illegal aliens” who are parents of children applying for ad-
mission to public school must show evidence that they have applied to the
Department of Home Affairs to legalize their stay in the country.122 Finally, in
1998, the electoral act that had governed the April 27, 1994, election was re-
placed with a new act providing for voter registration of South African citizens
only and not of permanent residents (as had previously been the case).123

Conclusion
One might have thought that South Africa’s radical transformation—from
apartheid state to human rights state—would have produced a radical transfor-
mation in its citizenship law. But this was not the case. The basic principles of
South African citizenship were reaffirmed in the first post-apartheid citizenship
law. There were some minor changes in jus soli rules and naturalization rules
and some tinkering with—but essential continuation of—the policy of tolera-
tion of dual nationality. Outside of the citizenship laws, the rights of aliens are
undergoing some legislative and executive erosion but have nonetheless dem-
onstrated judicial support. The chief thrust of the recent citizenship laws has
been the unification of the country through the repeal of homelands laws and
the extension of citizenship to all those who lost citizenship or would have been
citizens without apartheid laws as well as to those naturalized in the homelands.
As with deleting the provision for automatic citizenship after five years of resi-
dence, the focus is on ridding South Africa of the vestiges of apartheid.
Following the establishment of a newly nonracial democracy, one might
have thought that a strong sense of citizenship would be seen as necessary in or-

119. Larbi-Odam and Others v. The Member of the Executive Council for Education
(North-West Province) and Another, 1998 (1) SA 745 (CC). See Klaaren, 1998, “Non-Citizens.”
120. See, for example, Medical Schemes Act of 1967, section 6(1)(c).
121. Aged Persons Act of 1967, section 12(1)(b)(i); Social Assistance Act of 1992, section
3(c).
122. Gauteng Province, 1998, p. 4.
123. Electoral Act of 1998, section 8(2) (replacing Electoral Act of 1993).
248 J ONATHAN KLAAREN

der to bring together those previously divided. Such a strong sense of citizen-
ship might well have rejected dual loyalties, tightened up the access
requirements, and even more strongly distinguished between citizens and
aliens. While there are undoubted pressures in those directions of closure, one
cannot conclude that such is the case based on an examination of the 1995 citi-
zenship act. Like its predecessors, the new South African citizenship is one that
remains fairly open.
One can speculate about three themes of South African history that might
help account for the continuity of this fairly open membership regime. First, but
paradoxically given its racism, South Africa has never been a place of firm and
set boundaries. In the mines and the factories, the formal designation of citizen-
ship mattered less than did the enforcement patterns of the pass laws.
Noncitizens are not nonmembers; they are less-than-full members. The
post-apartheid amnesties approved by President Mandela’s cabinet to three cat-
egories of people present in South Africa without lawful status (mine workers,
SADC citizens, and Mozambican refugees) accord with this theme of perme-
able legal distinctions as do the fairly easy naturalization policies of the South
African citizenship regime.
Second, there is an important narrative that South Africans are united in their
diversity. Radical cultural divisions among citizens make some of the divisions
between citizens and noncitizens pale in significance. Given racism and the ar-
bitrariness of the Southern African borders, linkages between citizens and
noncitizens have in cases been greater than those between citizens.124 This case
was particularly true during the period of formal homelands citizenship when
large parts of those populations resided outside their putative homelands. It re-
mains the case with the populations of Botswana, Lesotho, and Swaziland as
well as perhaps with other neighboring countries.
Third, there is something significant about a national coming-of-demo-
cratic-age in an era where the dominant institution is no longer a parliament re-
sponsive to an electorate but a court interpreting a justiciable bill of rights. The
important conceptual framework built during the struggle against apartheid cit-
izenship may not have been the franchise itself but rather the right to vote as
part of a package of human rights. Such a focus on individual rights may lead to
a more open membership regime.
The 1995 South African Citizenship Act has the flavor of a conclusive chap-
ter in South Africa’s development of citizenship, unifying the post-apartheid

124. For an application of W. Kymlicka’s Multicultural Citizenship: A Liberal Theory of Mi-

nority Rights (1995) argument to South Africa, see Sacks, 1997. For a brief discussion of women’s
citizenship, see Meintjes, 1997; see also Cheater and Gaidzanwa, 1996.
SOUT H AFR IC A 249

nation at the level of individuals’ legal status. While more citizenship chapters
will be written, the story’s focus may now be shifting to the rights of aliens.

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252 J ONATHAN KLAAREN

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 CHAPTER EIGHT

Understanding Citizenship
Policy in the Baltic States

LOWELL W. BARRINGTON

WHETHER CITIZENSHIP should be limited or whether all permanent residents

should be granted citizenship has been an important question in the post-Com-
munist, newly independent Baltic states. The amendments to the Latvian citi-
zenship law passed in June 1998, the opposition’s successful bid to force a
national referendum on the issue, the attention paid to the referendum outside
Latvia, and the vote of the population in favor of upholding the inclusive
amendments have once again demonstrated that the issue of citizenship remains
at the center of ethnic, regional, and international relations in the Baltic states.
This fact should not be surprising. As much as any decision made by the gov-
ernment of a newly independent state, citizenship inclusiveness influences the
lives of a state’s residents and, potentially, stability in the region. This article
lays out and attempts to explain the citizenship choices made by the govern-
ments of three post-Communist states where the citizenship debate has been es-
pecially lively: Estonia, Latvia, and Lithuania.
Citizenship policy development has not received the attention of other de-
velopments in the post-Communist world, such as economic turmoil in Russia
or NATO expansion. Yet citizenship affects voting, occupation, and residence,
and it increases tensions between those who receive it and those who do not.
The exclusion from citizenship of minority groups in one state can affect the ac-
tions of other states because of the heterogeneous populations of central Europe
and Eurasia. Groups such as the Organization for Security and Cooperation in
Europe (OSCE) and the European Union (EU) continue to monitor events sur-

253
254 LOWELL W. BARRI NGTON

rounding citizenship precisely because of their potential to bring violence, ac-

tions outside the normal political arena, increased tensions between states, and
further territorial division.1
The goal of this article is to go beyond a description of the policies and ex-
plain the factors driving the inclusiveness of the policies. While an overview of
the inclusiveness of the policies is provided, the central question is: what fac-
tors led the governments of the Baltic states to develop a more inclusive or more
exclusive citizenship policy? To help answer this question, the development of
the citizenship policies in Estonia, Latvia, and Lithuania is explored by break-
ing the broader question down into four specific puzzles generated by these
cases: (1) Why was the citizenship policy of Lithuania more inclusive than the
policies of Estonia and Latvia? (2) Why was the citizenship policy in Estonia
more inclusive than the citizenship policy in Latvia? (3) Why were the citizen-
ship policies of both Estonia and Latvia more inclusive than they might have
been? (4) Why is the citizenship policy in Latvia more inclusive today than it
was only five years ago? Examining these questions will produce a better un-
derstanding of the citizenship policies in these cases, as well as an idea about
the forces—internal and external—that can affect citizenship policy decisions
in other states.

Citizenship and Its Importance

First, it is necessary to discuss in some detail how citizenship is treated in

this article. Citizenship is crucial to understanding “the state” and politics
within it. All states set citizenship guidelines, which differentiate among the
population living within a state. Citizenship sets the boundaries for “full mem-
bership” in the political community.2 The percentage of residents that is granted
citizenship affects perceptions of the state by those inside and outside its bor-
ders.
Despite its importance—or perhaps because of it—there is little agreement
on the meaning of citizenship. Richard Norman states that political theorists of-
ten discuss citizenship as a bundle of political, civil, and social rights.3 Ray-
mond Plant attempts to justify an idea of citizenship that includes social
(welfare) rights as well as political rights.4 Some see citizenship as defined by
passive rights, while others think that the citizen “experiences citizenship as

1. Before 1995, OSCE was known as the Conference on Security and Cooperation in Europe
(CSCE). Thus, in this article either “OSCE” or “CSCE” will be used, depending on the year at issue.
2. Walzer, 1983.
3. Norman, 1992.
4. Plant, 1992.
B AL T IC ST AT E S 255

practice (active participation in the determination, protection, and promotion of

the common good).”5 This practice of citizenship is related to another idea
about being a citizen: duty. Citizenship has even been defined as the perfor-
mance of these duties, as a “good citizen.”
This idea of bringing rights and duties directly into the definition has gener-
ated much of the complexity and confusion in the political theory literature on
citizenship. It leads to a blurring of citizenship with memberships that carry
some of the same rights. William Safran states that citizenship carries with it
certain rights, but because noncitizens also have certain rights, the distinction
between citizen and noncitizen can be less than clear-cut if one bases the defini-
tion on rights alone.6 Distinctions based on rights have even been made between
citizenship and “full citizenship.”7 In addition, rights for people most would
agree to call citizens can vary from country to country and time to time. There-
fore, selecting a fixed set of rights and duties to use as the basis of a definition is
problematic at best, impossible at worst.
By coming up with a definition of citizenship that does not depend on certain
rights, we are not restricted from discussing rights. But we should be able to
separate the rights of citizenship from the formal membership guidelines. As
Norman states, “We need to know what it is about citizenship that gives rise to
these kinds of rights.”8 What “it is” is that citizenship is a special kind of mem-
bership. It is official membership in the state. The idea that the individual is
connected to the state on an equal basis with other citizens “gives rise” to the
rights and duties many have associated with citizenship. Thus, citizenship is de-
fined as follows: it is the highest form of official membership in the state
granted to the general public, its boundaries are set by a government represent-
ing the state, and it implies a certain equality among members. Citizenship pol-
icy is the set of official rules and de facto procedures that affect this official
membership. Thus, this article concerns who is, and who can be, in the body of
citizens.

Citizenship and Political Rights

Separating the definition of citizenship from the rights and duties connected
to it does not imply that they are unimportant. In fact, it is the difference in du-
ties and rights between citizens and noncitizens in a given state that makes citi-

5. Peled, 1992.
6. Safran, 1997.
7. Bendix, 1964.
8. Norman, 1992, p. 36.
256 LOWELL W. BARRI NGTON

zenship such a potent issue. While the goal of this article is to provide an
understanding of admission into citizenship, it is necessary to discuss the conse-
quences of this membership as well in order to understand why inclusion mat-
ters.
Residents in newly independent states know that noncitizens are unlikely to
receive all the rights granted to citizens. Often in democracies only citizens may
fully participate politically. Noncitizens are denied the opportunity to run for
office, form parties, or even vote. In Estonia, an important right, the right to
vote in national elections, had a major impact on the 1992 presidential and par-
liamentary elections. September 20, 1992, marked Estonia’s first national elec-
tions since the restoration of independence. The impact of disfranchisement
before these “founding elections” was severe.9 How can noncitizens feel loyalty
to a new state when one of its first actions is to deny the vote to those who had it
before independence?10 The lack of political rights for noncitizens alienated
even those non-Estonians who participated in the Estonian independence
movement.11 Beyond the psychological effect, the makeup of the electorate had
a direct political effect. Despite the large Russian population in Estonia and
twenty-three Russian representatives in the old Supreme Soviet, no Russian
representatives were elected to the new Riigikogu (National Assembly), reduc-
ing the likelihood that the Parliament would represent the interests of Rus-
sian-speakers.12 Noncitizens in Estonia were also prohibited from holding
national or local political office and joining political parties.13 In subsequent lo-
cal elections, the former ethnic Russian leader of the Narva City Council was
barred from running for office.14 Thus, while noncitizens were allowed to vote
in local elections, their choices were limited.
Other basic rights in Estonia differ between citizens and noncitizens. While
“all persons legally present in Estonia shall have the right to freedom of move-
ment and choice of abode,” and everyone “shall have the right to leave Esto-
nia,” only citizens are protected from deportation and extradition.15 Citizens

9. Stepan, 1994. For an overview of the negative reaction from Europe to the elections, see
“Council of Europe,” 1992.
10. All residents of the Estonian SSR had voting rights as late as the March 1990 republic-level
elections.
11. Stepan, 1994, p. 138.
12. “Russian Envoy,” January 27, 1993, p. 64.
13. Bungs et al., December 18, 1992, p. 39. Interestingly, noncitizens are allowed to form
“non-profit associations and leagues.” See Estonian Constitution, (last modified September 15,
1998), Article 48.
14. For more information on the local elections, see “Local Government,” October 14–17,
1993.
15. Estonian Constitution, (last modified September 15, 1998), Articles 36–38.
B AL T IC ST AT E S 257

also cannot be prevented from settling in Estonia (a right also granted to all eth-
nic Estonians regardless of citizenship), although the Estonian Constitution
leaves open the possibility that noncitizen residents who leave could be denied
the opportunity to resettle in the country.16
In Latvia, political opportunities for noncitizens are even more restricted
than in Estonia. Noncitizens cannot vote, even in local elections. Those without
citizenship have been prohibited from holding state office, from serving as
judges or barristers, and from taking part in diplomatic and consular service.17
While citizens are protected from extradition, noncitizens do not share such
protection. In addition, only a citizen has the right to “freely choose his/her resi-
dence in any part of Latvia’s territory” and to “freely leave Latvia and to freely
return to Latvia.”18 Finally, although “all people have the right to form public
organizations and participate in their activities,” only citizens can establish po-
litical parties.19
In Lithuania, noncitizens also face a significant restriction of rights. As in
Latvia, they cannot vote in local or national elections, or hold political office or
serve as police officers.20 Like both other states, they are not protected from ex-
tradition in the way that citizens are.21 Unlike Lithuanian citizens, noncitizens
are also not guaranteed in the Lithuanian Constitution the right to choose their
place of residence freely, the right to return to Lithuania, and the right to form
“societies, political parties, and associations.”22 The law On Public Organiza-
tions specifically prohibits noncitizens from forming or joining public organi-
zations.23
When those denied citizenship tend to coincide with ethnic identity, the ex-
cluded ethnic group’s ability to protect itself through the political system is se-

16. Estonian Constitution, (last modified September 15, 1998), Article 36.
17. These differences are laid out in On the Rights and Responsibilities of Citizens and People,
1991, Latvia; On Judicial Power, 1992, Latvia; On the Bar, 1993, Latvia; and On the Republic of
Latvia Diplomatic and Consular Service, 1993, Latvia. These laws are cited in Tsilevich and
Ruchkovsky, 1994.
18. On the issues of extradition, location of residence, and right of return, see Latvia, 1991, The
Rights and Obligations of a Citizen and a Person, Articles 6, 10.
19. On the issues of political party and public organization formation, see Latvia, 1991, The
Rights and Obligations of a Citizen and a Person, Article 31.
20. See Lithuania, 1991, On the Legal Status of Foreigners in the Republic of Lithuania, Arti-
cle 9; Lithuania, 1994, On Elections to Local Government Councils, Article 2; Lithuania, 1990,
Law on Police, Article 5.
21. See Lithuanian Constitution, (last modified September 15, 1998), Article 32.
22. See Lithuanian Constitution, (last modified September 15, 1998), Articles 32, 35.
23. See Lithuania, 1995, On Public Organisations, Articles 4, 8. The 1996 law On Associations
declares that association members can be noncitizens, but it also states that the associations can
limit membership of noncitizens in their statutes. See Lithuania, 1996, On Associations, Article 4.1.
258 LOWELL W. BARRI NGTON

verely limited. In democratic theory, the “intensity” of minorities is often

discussed as a way that minorities can be protected in systems based on major-
ity rule.24 It is argued that a minority will have more at stake on a given issue that
affects it, while the majority will be less committed. In this situation, the intense
minority can break apart the less intense majority.25 This argument rests on two
large assumptions. First, it is assumed that the majority will be passive.26 In a
climate of ethnonationalism where the survival of the nation is perceived to be
at stake, however, the majority will not be passive. Second, it is assumed that
the members of the minority have access to the political system.27 With political
rights attached to citizenship, membership in the citizenry is essential for mak-
ing claims on the political system.

Citizenship and Social Rights and Benefits

Citizenship also brings a greater assurance of social rights. George

Ginsburgs states that “full-fledged citizenship affords the most reliable surety
of enjoyment of the ensemble of social rights practiced in a particular commu-
nity. . . .”28 This “surety” comes from the political rights that citizens enjoy, al-
lowing them to pressure the system for protection. It also comes from a belief
that, given their special membership status, citizens deserve special protection
from the state that noncitizens do not deserve.
In Latvia, noncitizens have been prohibited from owning land and other nat-
ural resources, from purchasing housing from the state, and in some cases from
purchasing privatized cooperative apartments.29 In addition, noncitizens have
received fewer privatization vouchers and a smaller pension.30 Noncitizens in
Latvia continue to complain that their housing and social benefits have been re-

24. See, for example, Dahl, 1956 (discussion of the power of minorities in the U.S. political
system).
25. See Dahl, 1956, pp. 90–123.
26. See Dahl, 1956, p. 133.
27. See Dahl, 1956, p. 137. “A central guiding thread of American constitutional development
has been the evolution of a political system in which all the active and legitimate groups in the pop-
ulation can make themselves heard at some crucial stage in the process of decision.”
28. Ginsburgs, 1990, pp. 3, 14.
29. See On the Rights and Responsibilities of Citizens and People, 1991, Latvia; On State and
Municipal Assistance in Solving the Problem of Housing, 1993, Latvia; and On Privatization of
Cooperative Apartments, 1991, Latvia; in Tsilevich and Ruchkovsky, 1994. According to Tsilevich
and Ruchkovsky, 1994, Article 7 of On Privatization of Cooperative Apartments states that those
residing in Latvia for more than sixteen years are entitled to buy privatized apartments regardless of
citizenship, yet some municipalities have restricted this right only to citizens.
30. See On Privatization Certificates, 1992, Latvia; and On Interim Rules of State-Paid Social
Security Benefits, 1993, Latvia; in Tsilevich and Ruchkovsky, 1994.
B AL T IC ST AT E S 259

duced because of their “second class status.”31 In Estonia, everyone has the
right, according to the Estonian Constitution, to health care.32 But it leaves open
the possibility that other laws could restrict certain benefits. Only citizens, for
example, are absolutely guaranteed by the Constitution “state assistance in the
cases of old age, inability to work, loss of provider and need” and the right “to
freely choose his or her field of activity, profession and place of work.”33 In
Lithuania, the Constitution grants only to citizens the guarantee of free higher
education for those who show “suitable academic progress.”34 In addition, only
citizens may own land, and only citizens are guaranteed by the Constitution
“old age and disability pension.”35 Yet other laws state that noncitizen perma-
nent residents also enjoy such rights.36 This is not the case with land ownership,
which is restricted only to citizens.37 Noncitizens also cannot be founding mem-
bers of cooperatives, although they can be members.38
While people in the West tend to focus on the political rights granted to citi-
zens, these social rights and benefits may be even more important. Given the
chaotic environment in the former Communist world, the lack of access to
housing, work, or welfare benefits is an even greater worry than it would be in
the less chaotic West. In the period immediately after independence, this worry
was fueled by rumors about impending action against noncitizens in Estonia
and Latvia. Reports in the Russian press in 1993, for example, discussed the
possible expulsion of some Russians from their apartments in Estonia.39 These
concerns continue today. Gennady Kotov, cochairman of the Latvian Human
Rights Committee, claims that there are sixty-nine differences in political, so-
cial, and economic rights between citizens and noncitizens, making Latvia “an
apartheid state.”40
Thus, much of the emotion that comes from debates over citizenship is due
to the importance of the social rights of citizens and the uncertainty of such
rights for noncitizens. This uncertainty over what the final difference between
rights of citizens and noncitizens will look like makes the issue of citizenship

31. See “Western Press,” April 9, 1998.

32. Estonian Constitution (last modified September 15, 1998), Article 28.
33. Estonian Constitution (last modified September 15, 1998), Articles 28–29.
34. See Lithuanian Constitution (last modified September 15, 1998), Article 41(3).
35. See Lithuanian Constitution (last modified September 15, 1998), Articles 47(1), 52.
36. See Lithuania, 1991, On the Legal Status of Foreigners in the Republic of Lithuania, Arti-
cle 18 (stating that permanent residents have the same “rights to social security as citizens”). Article
22 states that such residents also share citizen rights to education.
37. See Lithuania, 1994, Law on Land, Article 3.
38. See Lithuania, 1993, Cooperative Law, Articles 3, 4.
39. See “Otnosheniya,” June 24, 1993, p. 1.
40. See Stephens, September 21, 1998, p. A1.
260 LOWELL W. BARRI NGTON

more contentious than if these rights were completely clear from the start. Par-
ticularly in the newly independent states of the former Soviet Union, therefore,
it has been very unsettling not to receive citizenship.

Citizenship Policies and Citizenship Laws

So far, citizenship has been discussed both in terms of the specific citizen-
ship law and with a more vague reference to citizenship “policy.” The latter is
the focus of this article, although the former is obviously included in the policy.
Why focus on citizenship policy rather than on citizenship law? Limiting the
examination to official laws can miss important dimensions of the comprehen-
sive citizenship policy. In the area of citizenship, differences between policy
and official law could include the refusal to pass qualified applicants during the
testing stage of naturalization as well as related issues such as the treatment of
those denied citizenship, or access to language training for those seeking natu-
ralization. A 1995 U.S. Department of State report, for example, criticizes the
behavior of the Latvian Citizenship and Immigration Department for arbitrary
behavior regarding noncitizen residency status.41
Exclusion from citizenship clearly matters, but what is an exclusive citizen-
ship policy? What is an inclusive one? In fact, it is somewhat misleading to im-
ply that citizenship laws can be thought of in such dichotomous terms. All
citizenship laws exclude by their nature. By defining citizens, a government is
defining noncitizens. Where naturalization is allowed, citizenship laws contain
guidelines for naturalization (how foreigners become citizens) that make it im-
possible for simply anyone to enter a country and claim citizenship. In addition,
a provision called “automatic replenishment determines whether or not one can
be born into citizenship.”42
While all citizenship laws set boundaries, the requirements for crossing
these citizenship boundaries differ from country to country. Therefore, it is pos-
sible to describe one country’s citizenship policy as more—or even much
more—exclusive than another’s. A law that requires ten years of residency for
naturalization, for example, is more exclusive than one that requires only five.
In the case of “replenishment,” laws that do not guarantee citizenship to those
born in the country are more exclusive than those that do.
In addition to setting policy on naturalization and replenishment, governments
of newly independent states face a decision that rulers of existing states do not.
They must decide who makes up the initial base of citizens to which birth and nat-

41. See Zwadiuk, March 6, 1996.

42. Brubaker, “Citizenship Struggles,” 1992, pp. 269, 277.
B AL T IC ST AT E S 261

uralization add. A law that creates a base from 60 percent of the permanent resi-
dents is more exclusive than one that allows all existing permanent residents to
become citizens. Because of the unique situation of creating a base of citizens and
the number of people affected, the guidelines for initial, “automatic” citizenship
are by far the most important part of the citizenship policy in newly independent
states. Here, provisions for automatic citizenship are weighted most heavily in
discussing the inclusiveness of a citizenship policy.43

Citizenship Policies in the Baltic States

Most of the states that emerged from the collapse of the Soviet Union chose
the “zero option” for citizenship, by which all permanent residents were
granted citizenship without naturalization. In Lithuania, separate designations
were made for those who could trace their own or their parents’ citizenship
back to the period before incorporation into the Soviet Union (1940) and those
who came during the Soviet period.44 Yet this latter group was not excluded
from citizenship but, rather, was required simply to apply for citizenship with-
out a formal naturalization process.45 In Estonia and Latvia, however, those who
came during the Soviet period—mostly Russian-speaking and, of these, mostly
ethnic Russians—were excluded from simple registration. They were required
to naturalize, in the case of Estonia, and barred completely from citizenship in
the case of Latvia until a citizenship law was finally passed in 1994.46 Even
then, strict limits were placed on naturalization.47 In June 1998 the Latvian gov-
ernment enacted a reform to make citizenship automatic for children born on
their territory after independence. Similarly, the Estonian parliament in Decem-
ber 1998 passed an amendment making children under the age of 15 who were
born in postindependence Estonia and do not have citizenship of another coun-
try eligible for citizenship through application rather than through the full natu-
ralization process.

43. One could envision ideal types of inclusive and exclusive citizenship policies in newly in-
dependent states. In the inclusive policy, all permanent residents would receive citizenship without
naturalization. Later arrivals would have minimum naturalization requirements (for example, one
year of residency plus an oath of loyalty). Children born in the country would be citizens regardless
of the status of their parents. In the ideal exclusive policy, automatic citizenship would be severely
restricted and favor a certain group over others. Naturalization would not be allowed. Children born
in the country would not necessarily be citizens. While none of the three states examined in this
chapter perfectly fit either of these ideal types, the imaginary types provide a useful benchmark for
comparing the citizenship policies.
44. See Girard, 1998.
45. See Girard, 1998.
46. See Barrington, 1995, pp. 731, 735–39.
47. See the discussion infra on the development of the Latvian citizenship law.
262 LOWELL W. BARRI NGTON

Space does not permit me to provide all the details of the citizenship policies
of the Baltic states. The summary of the inclusiveness of the policies follows.

Citizenship Policy in Lithuania

Of the three states, Lithuania developed the most inclusive citizenship pol-
icy by far, in terms of both its official provisions, particularly in the crucial area
of automatic citizenship, and its effect on the population of the state. Nearly all
permanent residents were able to become citizens without residency and lan-
guage requirements. As a result of the Lithuanian policy, roughly 95 percent of
the adult population of Lithuania in 1994 had acquired Lithuanian citizenship.
The Supreme Soviet of the Lithuanian Republic passed a law on citizenship
that went into effect on November 3, 1989. Since Lithuania was still part of the
Soviet Union, the citizenship guidelines were technically for the Lithuanian So-
viet Socialist Republic (LiSSR). The Lithuanian law began by stating that all
persons who had been citizens before June 15, 1940, and all their descendants
living in Lithuania were automatically citizens.48
In addition, however, the law contained two provisions that broadened the
base of initial citizens. First, all permanent residents born in Lithuania or those
who could show that one of their parents or grandparents was born there were
also granted automatic citizenship, provided they did not have citizenship from
another country.49 Second, those residing on the territory who did not meet the
other criteria could still become automatic citizens by signing, within two
years, a loyalty declaration stating that they would support the Lithuanian Con-
stitution and the laws of the LiSSR as well as “respect its state sovereignty and
territorial integrity.”50 Thus, the Lithuanian law was based strongly on the prin-
ciple of jus soli (law of the soil). Naturalization was possible by showing a
knowledge of the Lithuanian language, being a permanent resident for the pre-
vious ten years, possessing a permanent source of income, promising to obey
and showing a knowledge of the Lithuanian Constitution, and signing a loyalty
statement similar to that of automatic citizens but also stating a respect for Lith-
uania’s state “language, culture, customs, and traditions.”51

48. See Lithuania, 1989, O grazhdanstve Litovskoi SSR, Article 1.

49. See Lithuania, 1989, O grazhdanstve Litovskoi SSR, Article 1.
50. See Girnius, 1991, p. 21; Brubaker, “Citizenship Struggles,” 1992, p. 281; and Lithuania,
1989, O grazhdanstve Litovskoi SSR, Article 1.
51. Brubaker, “Citizenship Struggles,” 1992, p. 280; Lithuania, 1989, O grazhdanstve
Litovskoi SSR, Article 17.
B AL T IC ST AT E S 263

While the naturalization demands were not easy, the requirements for auto-
matic citizenship were quite inclusive. Nearly everyone was eligible for citi-
zenship under these guidelines. Out of a population of more than 3.3 million,
only about 350,000 permanent residents did not receive citizenship before the
two-year period expired; the failure to acquire citizenship by these people,
however, appears to be due more to choice or ignorance than to any kind of le-
gal or de facto exclusion.52
With the end of the two-year period and with independence a reality, a new
citizenship law was put in place. On December 5, 1991, the 1989 citizenship
law was replaced by a new law passed by the Sajudis-controlled Parliament.53
This law generally eliminated the possibility of automatic citizenship for cur-
rent permanent residents. As The Economist described it, Lithuania had “at first
magnanimously granted citizenship to all permanent residents who asked for
it—but the offer expired in November 1991.”54 This view is not completely ac-
curate. Those who were citizens of Lithuania before 1940—as well as their
children and grandchildren—were still granted citizenship without naturaliza-
tion, as long as they had not taken citizenship of another state.55 For the pur-
poses of this part of the law, “another state” did not include the Soviet Union;
rather, this provision was targeted at those who left Lithuania, went abroad, and
took citizenship of their new state of residence.56 In addition to those who had
been pre-1940 citizens, those who were permanent residents of Lithuania from
January 9, 1919, to June 15, 1940, and their children and grandchildren, would
receive citizenship without naturalization if they were currently permanent res-
idents and had not taken citizenship of another state.57
Elements of jus sanguinis (law of blood descent) could be found in the new
law. For those who had taken citizenship of another state, Article 18 of the 1991
law stated that Lithuanian citizenship could be restored to “persons of Lithua-
nian descent who were citizens of the Lithuanian Republic and who left Lithua-
nia in the period between 15 June 1940 and 11 March 1990 and now live in
other states.”58 A law passed on December 10, 1991 (five days after the new citi-
zenship law) included amended wording to this article. The new wording in-

52. But see Ginsburgs, 1993, pp. 233, 238 (claiming that administrative problems may have
kept this number from being even lower).
53. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi.
54. “Citizenship; One of Us,” July 31, 1993, p. 45.
55. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi, Article 1.
56. This follows logically from the idea of post-Soviet Lithuania as a “restored” state, and the
establishment of Soviet citizenship for Lithuanian residents as an invalid act of an illegal regime.
57. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi, Article 1.
58. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi, Article 18.
264 LOWELL W. BARRI NGTON

cluded the phrase “as well as their children who, being born in another state,
have not acquired citizenship of that state.”59 This change made it easier for
children of émigrés abroad to become Lithuanian citizens. In addition, those of
Lithuanian descent who were not citizens could implement their right to citi-
zenship by renouncing “citizenship of another state, and moving to Lithuania
for permanent residence, as well as taking the oath to the Republic of Lithua-
nia.”60 This ethnic-based right to citizenship had not existed in the 1989 law.61
The 1991 citizenship law also stipulated that dual citizenship was not al-
lowed. The exception would be in the case of an international treaty on the
topic. As outlined in Article 36 of the law, international treaties take precedence
over the 1991 law.62 While the citizenship law did not make specific reference
to the Soviet Union, a resolution passed five days later made it clear that obtain-
ing Lithuanian citizenship meant that citizenship of the Soviet Union was con-
sidered invalid for that person by the Lithuanian government.63
Naturalization requirements in the 1991 law were similar to those in the law
passed in 1989. As outlined in Article 12 of the law, naturalization required
passing a written and spoken test in Lithuanian, permanent residence in Lithua-
nia for ten years, employment or a constant legal source of income from within
Lithuania, knowledge of the Lithuanian Constitution, and renunciation of prior
citizenship.64 New citizens also had to take an oath similar to the one in the 1989
law. One difference in the naturalization articles in the two laws was a line in-
serted at the end of Article 12 in the 1991 law. After the naturalization require-
ments, the article concluded, “Persons meeting the conditions specified in this
Article shall be granted citizenship of the Republic of Lithuania taking into
consideration the interests of the Republic of Lithuania.”65 This statement
seemed to open the door for the refusal of naturalization even for those who met
the requirements, although there have been no significant concerns expressed
about such denial of naturalization for qualified applicants taking place in prac-
tice. The citizenship oath again included a pledge to protect the “territorial in-
tegrity of the state” and to “respect the state language, culture and customs of
Lithuania.” Differences from the 1989 law’s oath included the requirement to

59. Lithuania, 1991, O deistvii dokumentov o grazhdanstve Litovskoi Respubliki i vnecenii

dopolnenia v zakon o grazhdanstve, Ekho Litvi.
60. Lithuania, 1991, Law on Citizenship, Articles 17, 18.
61. See Lithuania, 1989, O grazhdanstve Litovskoi SSR, Article 22.
62. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi, Article 36.
63. See Lithuania, 1991, On the Procedure for Implementing the Republic of Lithuania Law on
Citizenship, Resolution of the Lithuanian Supreme Council.
64. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi, Article 12.
65. See Lithuania, 1991, Zakon o grazhdanstve Litovskoi Respubliki, Ekho Litvi, Article 12
(emphasis added).
B AL T IC ST AT E S 265

pledges in the 1991 law’s oath to be “loyal to the Republic of Lithuania,” to

“defend the independence of Lithuania,” and to “strengthen the democratic
Lithuanian state.”66
Over the next five years, the 1991 law was heavily amended. In November
1992, the Lithuanian Supreme Council simplified the procedures for granting
citizenship to children and grandchildren of ethnic Lithuanians living outside of
Lithuania.67 A second set of amendments to the 1991 law was passed in July
1993. The revisions included new guidelines for demonstrating past Lithuanian
citizenship.68 In December 1993, another amendment affecting the émigré com-
munity was passed. The amendment overturned provisions in the 1991 citizen-
ship law by waiving both the requirement to have not taken citizenship of
another state, outlined in Article 1, to receive automatic citizenship and the
need to renounce citizenship of that state to receive restored citizenship.69 This
change paved the way for émigrés who met the qualifications to hold citizen-
ship of Lithuania and of their country of residence.70
In October 1995, several additional amendments were added to the law. One
of these equated adopted children with natural children under the rules for chil-
dren acquiring (or losing) citizenship based on the citizenship status of their
parents.71 Another modified the rules for naturalization to allow those sixty-five
or older and those with certain disabilities, such as blindness and deafness, to
naturalize without taking a language test or exam on provisions of the Constitu-
tion.72 This modification was important for older residents who had not under-
stood the need to apply for automatic citizenship during the period from 1989 to
1991. Yet another change at this time involved children of émigré citizens. It al-
lowed these children to claim citizenship, even if they had taken citizenship of

66. For English-language versions of the oaths, see Lithuania, 1989, Law on Citizenship, Arti-
cle 17; and Lithuania, 1991, Law on Citizenship, Article 15.
67. See “Supreme Soviet,” November 20, 1992, p. 59. The amendments passed in November
1992 also included the provision that children, one of whose parents is a Lithuanian citizen and the
other of whom is stateless, can become Lithuanian citizens by application of the citizen-parent. See
Lithuania, 1996, Law on Citizenship, Article 25.
68. See Lithuania, 1996, Law on Citizenship, Article 28.
69. Lithuania, 1991, Law on Citizenship, Article 18 (concerning the restoration of Lithuanian
citizenship, requiring the applicant to give up citizenship of his state of residence to have his Lithua-
nian citizenship restored). In addition, according to paragraph 3 of Article 18—even after the new
wording added on December 10, 1991—the émigrés’ children who had acquired citizenship of an-
other state were not eligible for automatic restoration. See Article 18(3).
70. The qualifications, however, were important. Those of Lithuanian ethnic background fared
best. Those without such background but who had been citizens could get their citizenship back
without naturalization only if they had not given up their Lithuanian citizenship.
71. See Lithuania, 1996, Law on Citizenship, Article 24.
72. See Lithuania, 1996, Law on Citizenship, Article 12.
266 LOWELL W. BARRI NGTON

another state, provided that they had not renounced Lithuanian citizenship.73
The October 1995 changes also included a clearer definition for Lithuanian eth-
nic identity. A person could claim Lithuanian origin if at least one of his parents
or grandparents was ethnically Lithuanian, and if he considered himself Lithua-
nian as a result. The final change in the law during this period went into effect in
February 1996. It extended the right to claim Lithuanian citizenship for an in-
definite period to children of pre-1940 citizens living in other states who had
not repatriated.74

Citizenship in Latvia

The Latvian citizenship policy was far less inclusive than the Lithuanian
one, and the least inclusive of the three Baltic policies. Latvia did not even
adopt an official law after independence, but simply restored the citizenship of
those who had it before the Soviet period and their descendants.75 Except for
this resolution restoring citizenship to pre-1940 citizens, the Latvian govern-
ment did all it could to put off adopting an official law. First, Supreme Council
Chairman Anatolijs Gorbunovs proposed a referendum to solve the issue.76
Then, Latvian officials argued that the official citizenship law, passed either by
Parliament or by referendum, could come only after the reestablishment of the
Saeima (Parliament) as a replacement for the existing Supreme Council. Under
this argument, naturalization could not be allowed in practice, as the naturaliza-
tion rules in the 1991 resolution had been established by the Supreme Council, a
body of the Soviet occupation period. Latvian Foreign Minister Georgs
Andrejevs, in a letter to CSCE High Commissioner on National Minorities Max
van der Stoel, argued, “[T]he current Latvia Supreme Council is a transitional
parliament and has no legal mandate under the restored 1922 Latvia Constitution
to change the body of Latvia citizenship through naturalization or other means.”77
Why naturalization provisions from this body should be deemed illegitimate as
distinct from restoration of pre–World War II citizenship or even the declaration

73. See Lithuania, 1996, Law on Citizenship, Article 1. Interestingly, this right was not ex-
tended to grandchildren, who could still claim automatic citizenship only if they had not acquired
citizenship of another state.
74. See Lithuania, 1996, Law on Citizenship, Article 17.
75. See Latvia, 1991, On the Renewal of Republic of Latvia Citizens’ Rights and Fundamental
Principles of Naturalization, Resolution of the Republic of Latvia Supreme Council. The Supreme
Council also passed amendments to this resolution on November 27, 1991, that restored citizenship
to émigrés even if they maintain the citizenship of their country of residence. This resolution thus
allowed dual citizenship for émigrés, while prohibiting it for most citizens. See Staprans, 1991, p. 2.
76. See “Gorbunovs,” March 23, 1992.
77. Andrejevs, letter to van der Stoel, April 18, 1993.
B AL T IC ST AT E S 267

of independence was never discussed.78 Regardless of the explanation for the de-
lay, the lack of a citizenship law before the Saeima elections, combined with the
lack of voting rights for noncitizens, ensured that most non-Latvians would not
be able to vote for the Saeima in June 1993. The eventual citizenship law that
the Saeima would produce was, as a result, more exclusive than if these people
had been able to elect representatives to the new assembly. Thus, while Latvia
lacked an official citizenship law, it had a citizenship policy.
Few in the Russian community could become citizens until the official law
was passed. Since most Latvian politicians did not object to the Russians’ lack
of citizenship, there was little incentive for the Latvians to establish official citi-
zenship guidelines, until Europe made it clear that to receive Council of Europe
membership Latvia must change its “lawless policy” and adopt a citizenship
law.79 Up to the time of the new law, 700,000 to 800,000 residents of Latvia
were shut out of the citizenship process with no chance at automatic citizenship
and doubts about whether they would ever be allowed to naturalize. Thus, while
the lack of an official law on citizenship was not a purely jus sanguinis policy,80
the effect was similar to that of a law that banned most of the non-Latvians from
becoming citizens.
The citizenship law that was finally passed went through many versions,
with much of the controversy surrounding the issue of naturalization quotas
(which would limit the number of naturalized citizens each year regardless of
the number of qualified applicants). Residency requirements were also argued
over, although the length of time required was less important than the issue of
from what date the residency period would be counted, since so many of the res-
idents had been in Latvia more than a decade. Five parties in the Saeima pro-

78. When I asked this question of Inese Birznece, a member of Latvia’s Way and one of the
drafters of the Saeima ruling coalition’s draft citizenship law versions, she responded that the natu-
ralization provisions in the 1991 Supreme Council resolution were not binding on the Saeima, but
something like restoring citizenship was acceptable for the Supreme Council to do because techni-
cally the restored citizens were citizens the entire time of the Soviet period; the Soviet government
had just failed to recognize this. Birznece, interview, May 10, 1994. It is clear, however, that this ar-
gument was applied to citizenship because of the highly controversial nature of nearly all proposals
on the issue and because the lack of a law with binding naturalization features had the same effect as
a highly exclusive law. According to Latvian American political scientist Neils Muiznieks, the lack
of a formal citizenship law was part of a strategy by nationalists who originally argued that expand-
ing citizenship would take place after pre-WWII citizenship was restored. These politicians knew,
however, that expanding citizenship would be too controversial to happen any time soon after the
October 1991 resolution.
79. For a more detailed discussion of the effect of Council of Europe pressure, see “Lack of
Citizenship Law,” February 1, 1994, p. 69; Girnius, August 26, 1994, pp. 29–33; and the discussion
of European action infra.
80. A portion of those who could trace citizenship back to the interwar period were not ethnic
Latvians.
268 LOWELL W. BARRI NGTON

duced draft proposals of the law for the first reading; three of these were given
to standing committees on September 23, 1993, for review.81 The two versions
not sent to the committees were the two most inclusive proposals.
The draft law that emerged from the bargaining and amendment included
quotas and strict naturalization requirements. The 0.1 percent quota provision
remained in the final version of the draft law and became part of the basis for the
presidential rejection of the bill and his demand for a reconsideration.82 The
president also demanded, at the request of Western officials, clearer deadlines
for the review of naturalization applications.83 Parliament could have simply
passed the law again and the president, according to the Latvian Constitution,
would have been forced to sign it. Instead, the president got his wishes. The re-
vised (and final) version contained a schedule for naturalization, the so-called
window policy.84 There were no fixed quotas limiting the number of applica-
tions that could be accepted among those who qualified according to the appli-
cation schedule. The president signed the bill into law.
The absence of quotas did not mean, however, that naturalization would be
easy. According to the guidelines of the law,85 applicants for naturalization must
be registered;86 must have lived in Latvia for five years counted from no earlier
than May 4, 1990, unless they came after July 1, 1992, in which case the five
years begins with the issuance of a permanent residence permit; must have a
“command of the Latvian language”;87 must have a legal source of income;
must take a loyalty oath to Latvia; and must know the national anthem and his-

81. See Birznece, interview, May 10, 1994.

82. This provision meant that as a result of the naturalization process, the body of citizens
could only be expanded by 0.1 percent per year. In the version of the law passed at the first reading,
the quota was to be determined annually, “taking into consideration the demographic and economic
situation in the country, in order to ensure the development of Latvia as a single nation-state.” Lat-
via, 1993, Citizenship Law.
83. See Boulton, July 23, 1994, p. 2.
84. According to Article 14 of this final version, the application review was to be based on the
age and place of birth of the applicant. Starting in 1996, applications from those born in Latvia who
are sixteen to twenty years old will be considered; in 1997, those born in Latvia who are up to
twenty-five years old may apply; in 1998, those born in Latvia who are up to thirty years old may
apply; in 1999, those who are forty or younger and born in Latvia will be considered; in 2000, all
those born in Latvia may apply; in 2001, those born outside Latvia but who came to Latvia as mi-
nors may apply; in 2002, those who were born outside Latvia but entered the country up to the age
of thirty may apply; and in 2003, all others may apply. This last group of applicants, however, will
have preference given to those who have lived in Latvia the longest. See Latvia, 1994, Law on Citi-
zenship, Article 14.
85. See Latvia, 1994, Law on Citizenship, Article 12.
86. This detail became an issue when many Russians claimed that they were unfairly denied
registration, making them ineligible for naturalization.
87. Latvia, 1994, Law on Citizenship, Articles 19–21 (describing procedures for testing for
command of the Latvian language).
B AL T IC ST AT E S 269

tory of Latvia as well as the basic principles of the Latvian Constitution and the
constitutional law Rights and Obligations of a Citizen and a Person.
Because of the controversial nature of the citizenship law, there was a gen-
eral understanding by Latvian politicians that the issue needed to be taken off
the table for a while. In other words, despite the international community’s de-
sire for greater inclusiveness, the prospects for significant changes in the law in
the period immediately after its adoption were remote. While amendments to
the law were passed in March 1995, these were minor changes having little ef-
fect on the vast majority of the noncitizens.88 This reluctance to make alterations
in the law began to change in 1997 and, in particular, during 1998. In February
1998, the Parliament voted on, but rejected, an amendment to grant citizenship
to postindependence children of noncitizens.89 But in March 1998, police dis-
persed, with batons drawn, a demonstration by Russian-speaking pensioners.90
Russia immediately linked this incident to the citizenship issue and portrayed it
as an example of human rights violations in Latvia, something it has claimed re-
peatedly since the restoration of Latvian independence.91 In early April 1998, an
antipersonnel mine exploded outside the Russian Embassy in Riga.92 This event
followed a march by several Latvian SS veterans, in which a number of senior
Latvian army officers participated.93 In response to these various events, Russia
threatened economic retaliation against Latvia, including the reduction of the
export of Russian crude oil from the Latvian port of Ventspils.94 These incidents
further weakened Latvia’s case for EU membership, after the EU passed it over
for the next wave of expansion of the organization.95
In late April 1998, the Latvian government began to move forward with
changes to the citizenship policy supported by European officials and the Lat-
vian president.96 The road to passage was not easy, however, as Fatherland and
Freedom–LNNK, a party in the ruling coalition, initially announced its opposi-

88. For a text of the changes, see Naturalization Board of the Republic of Latvia, 1997, On Nat-
uralization in Latvia, pp. 62–63 (section describing the “Amendments to the Law on Citizenship”).
89. See “Latvian Lawmakers,” February 13, 1998.
90. See Goble, March 9, 1998.
91. It should be noted that the human rights violation charge has been rejected by nearly all in-
ternational observers. A U.S. State Department report in 1997 supported the position that Latvia is
not a country with significant human rights abuses. Its main criticism was the occasionally exces-
sive use of force against prisoners by the police and Latvian Interior Ministry. See U.S. Department
of State, Bureau of Democracy, Human Rights, and Labor, Latvia Report on Human Rights Prac-
tices for 1997 (January 30, 1998).
92. See “Latvia Reels,” April 7, 1998.
93. See “Latvia Reels,” April 7, 1998.
94. See “Latvia Urges Russia,” April 21, 1998.
95. See “Latvia Reels,” April 7, 1998.
96. The government announced its decision on April 21.
270 LOWELL W. BARRI NGTON

tion to any changes to the law. A working group, established by the government
parties, hit several snags over the issue of the naturalization “window” policy.97
Finally, the amendments were agreed to, and they were passed by the Parlia-
ment on June 22, 1998. The amendments eliminated the naturalization schedule
(the window policy) and allowed children born to noncitizens in Latvia since
the restoration of independence to claim automatic citizenship.98
The nationalists in Parliament immediately moved to force a national vote
on the issue. A week after the vote in Parliament, thirty-six deputies, including
all nineteen of the Fatherland and Freedom–LNNK Party, forced the president
to delay implementation of the law.99 A petition drive was organized, and well
more than the required number of signatures was obtained, leading to a vote on
October 3, 1998. The results of the referendum, in which the amendments were
supported by just over 53 percent of those voting,100 may still not close the door
on the citizenship issue. Further inclusive changes are not out of the question,
especially if naturalization numbers remain as low as they have been.
Once the Latvian government finally moved toward a citizenship law in
1994 that would allow at least limited naturalization, it also discussed the need
for a new body to oversee the naturalization process. This discussion was due in
great part to concerns about the Citizenship and Immigration Department, a
body accused by many in Latvia and Europe of doing what it could to discour-
age non-Latvians from integrating into Latvian politics and society. As a result,
the Latvian Naturalization Board was created by a decree of the Cabinet of
Ministers on October 18, 1994.101 The Naturalization Board was given the task
of educating the population about naturalization, reviewing applications for cit-
izenship, and administering the naturalization tests. It has also overseen and
employed research on the attitudes of noncitizens and their potential for natu-
ralization.
The Naturalization Board has tried to make the process of naturalization as
accommodating as possible by, among other things, producing books and pam-
phlets on the testing process that include sample questions. As a result, more
than 90 percent of those who have taken the naturalization tests have passed

97. See “Latvian Working Group,” April 15, 1998.

98. See Johnson, 1998.
99. See Johnson, 1998.
100. See “Latvian Vote,” October 6, 1998, p. 3.
101. In a not-too-subtle comment on the Citizenship and Immigration Department, a publica-
tion of the Naturalization Board stated that training of Naturalization Board officials was a priority,
because “in the state there were no employees who would be competent in dealing with citizenship
and naturalization.” See Naturalization Board of the Republic of Latvia, 1997, On Naturalization in
Latvia, p. 13.
B AL T IC ST AT E S 271

them.102 Significantly fewer people than had been anticipated, however, have
applied for naturalization. Of the more than 33,000 sixteen- to twenty-year-olds
eligible for naturalization, only 560 applied.103 Of the 140,000 residents who
were eligible to apply by 1998, only approximately 10,000 had applied, and
only 7,477 had become citizens by March 31, 1998.104 In addition, fewer than 50
percent of the applicants were ethnic Russians, while nearly one-quarter of
them were Lithuanians and Estonians.105 The bulk of those applicants who were
not Lithuanian or Estonian were married to citizens, making naturalization
slightly easier for them.106 While these numbers helped justify the need for the
inclusive amendments passed in the summer of 1998, they have also created
problems for the Naturalization Board. Its budget has come under attack, and it
has been forced to turn to funding from Europe for some of its projects.107

Citizenship in Estonia

The citizenship policy of Estonia fell between Lithuania and Latvia in terms
of inclusiveness. Yet Estonia’s law was much more exclusive than Lithuania’s,
because automatic citizenship was not extended to the majority of ethnic Rus-
sians in the country, and special privileges were given to descendants of ethnic
Estonians. The policy was more inclusive than Latvia’s “lawless policy” of
1991 to 1994, and also more inclusive than the Latvian policy based on the law
of 1994. Unlike Latvia, Estonia did not restrict those eligible for naturalization.
Otherwise, the naturalization requirements were similar.
Like their counterparts in Lithuania, Estonian politicians considered a re-
public citizenship law during the Soviet period. Unlike Lithuania, Estonia did
not pass such a law until after the restoration of independence. Less than a
month after the failed Soviet coup solidified Baltic independence, the Estonian

102. See Karklins, 1997.

103. See Karklins, 1997. The reasons for the lack of interest in Latvian citizenship include the
negative atmosphere surrounding the perceived treatment of non-Latvians, the limited knowledge
of Latvian, ability to travel to countries such as Russia and Ukraine without paying for a visa, and
the desire to avoid service in the military.
104. See Latvia, 1998, Republic of Latvia Naturalization Board, Information about Accep-
tance and Review of Naturalization Applications, by June 30, 1998.
105. See Latvia, 1998, Republic of Latvia Naturalization Board, Naturalization Process in
Latvia: 1995, 1996, 1997, 1998, Main Indices (by June 30, 1998).
106. See, generally, Latvia, 1998, Republic of Latvia Naturalization Board, Information about
Acceptance and Review of Naturalization Applications (by June 30, 1998); and Latvia, 1998, Re-
public of Latvia Naturalization Board, Naturalization Process in Latvia: 1995, 1996, 1997, 1998,
Main Indices (by June 30, 1998).
107. The book On Naturalization in Latvia, for example, was published with the financial sup-
port of the Swedish Helsinki Committee for Human Rights.
272 LOWELL W. BARRI NGTON

special commission on citizenship submitted a draft law to the Supreme Coun-

cil. Like the law that had emerged in Lithuania, this first draft law was quite in-
clusive regarding the initial base of citizens.
According to this proposal, the initial population of citizens would come
from two groups. Those who were citizens before June 16, 1940, and their de-
scendants would be granted automatic citizenship; those who were permanent
residents on the date that the “transition period to full independence” began
could apply for citizenship and have two of the naturalization requirements
waived, competence in the Estonian language and ten years of residency.108 Nat-
uralization would be possible for others by fulfilling the requirements above as
well as taking an oath of loyalty.109 The draft law would have eliminated the au-
tomatic citizenship of spouses but would have allowed mothers to pass on citi-
zenship as well as fathers.110 While the naturalization requirements of the draft
law were difficult, the possible waivers in the areas of language and residency
requirements meant that the draft of the law was quite inclusive, a “variation on
the ‘zero option.’”111 Most of the non-Estonian population would have had an
opportunity to become citizens with little difficulty.
With its inclusive provisions, this version of the citizenship law was very
controversial. It was amended on the floor of the Supreme Council to such an
extent that the special committee on citizenship removed it from consideration.
Only a week after submitting the first proposal, the citizenship committee an-
nounced that a new draft law would be submitted. This second version called
for automatic citizenship only for pre-1940 citizens and their descendants. All
others had to be naturalized, and the waivers in the first draft for the language
test and ten-year residency requirement were eliminated.112
Exclusive guidelines for citizenship became law on February 26, 1992, after
the adoption of the Supreme Council resolution On the Application of the Law
on Citizenship.113 This resolution differed from both of the two previous drafts.
It essentially reinstated the 1938 citizenship law, creating the base of
postindependence citizens from those who were citizens before the Soviet pe-
riod and their descendants.114 Dual citizenship with Russia was denied. Natural-
ization residency requirements in the final version, however, were more

108. See Kionka, 1991.

109. See Kionka, 1991.
110. The interwar law had allowed only fathers to pass citizenship to descendants.
111. See Kionka, 1991, p. 24.
112. See Kionka, 1991, p. 25.
113. See Estonia, 1992, “On the Application of the Law on Citizenship,” Resolution of the Es-
tonian Supreme Council.
114. See Estonia, 1993, Law on Citizenship; and Estonia, 1992, “On the Application of the
Law on Citizenship,” Resolution of the Estonian Supreme Council.
B AL T IC ST AT E S 273

inclusive than the second draft law. Those ineligible for automatic citizenship
could apply for citizenship after two years of permanent residency.115 Qualified
applicants would be granted citizenship one year after application.116 The catch
for applicants was that the two years of residency would be counted only after
March 30, 1990.117 Thus, someone not given automatic citizenship could, at the
earliest, become a citizen on March 30, 1993. Until that date, even those who
had lived their entire lives in Estonia but could not trace their roots to interwar
Estonia remained noncitizens.
The language requirements for naturalization were unclear in the law, and it
appeared initially that there would be room for discretion of local government
officials. Language guidelines were clarified by a law that went into effect on
February 25, 1993.118 Nonetheless, learning Estonian was not easy, given the
vast differences between Russian and Estonian and the lack of Estonian school-
ing for would-be applicants.119
The law did contain two provisions that granted automatic citizenship to a
broader base. First, Article 7 of the law stated that those of Estonian ethnic de-
scent could be naturalized without meeting the language and residency require-
ments.120 While this provision made it easier for some people to become
citizens, it could be seen as not especially inclusive, since it gave preferential
treatment based on ethnic identity. Second, the so-called special merits clause
in Article 7 of the law allowed simplified procedures for residents who “pro-
vide particularly valuable service to the national defense of the Republic of Es-
tonia or who are widely known for their talents, knowledge or work.”121
Despite concern over the special merits provision, it remained, and it was
used by the Estonian government to stack the deck in local elections. Ethnic
Russian politicians that Estonian leaders believed to be most supportive of
Tallinn were given citizenship for special merits and, thus, allowed to run in lo-
cal elections; those who had opposed Tallinn in the past were denied such citi-
zenship.122 While the total number of people affected by this part of the policy
was small, the use of the clause was significant given the importance of local
political elites in organizing Russian opposition to policies in Tallinn.

115. See Brubaker, “Citizenship Struggles,” 1992, p. 282.

116. See “Russkiye Pribaltiki,” January 3, 1992, p. 3.
117. See Brubaker, “Citizenship Struggles,” 1992, p. 282.
118. See Estonia, 1993, On Estonian Language Requirements for Applicants for Citizenship.
119. The schooling problem remains an issue today. See discussion infra on language training.
120. See Estonia, 1938, Law on Citizenship, Article 7(1).
121. See Estonia, 1993, Law on Citizenship, Article 7(2).
122. See, generally, Laitin, 1993.
274 LOWELL W. BARRI NGTON

The citizenship law was amended in 1993, nudging the policy in a more in-
clusive direction. First, several amendments were adopted in February 1993.
The most important for the inclusiveness of the law was the provision that any-
one who registered for citizenship before the elections of the Congress of Esto-
nia after independence would have the residence and language requirements for
naturalization waived.123 This position had been supported by the Congress of
Estonia, since these people had demonstrated their loyalty to an independent
Estonian nation-state by applying for citizenship well before independence was
guaranteed. Another amendment, passed in March 1993, reinstated one of the
original draft law provisions: the passage of citizenship through the maternal
side as well as the paternal side for those with roots to pre-1940 citizens.124
While these provisions did not add significantly to those who could receive au-
tomatic citizenship, they were steps toward inclusiveness.
Yet, the law was exclusive enough that around three-quarters of the non-Es-
tonians were unable to receive automatic citizenship,125 and no Russians were
elected to the new Parliament when elections were held. A Helsinki Watch re-
port claimed the citizenship law was discriminatory because “it allows in prin-
ciple a certain group of people to become citizens, but qualifies their citizenship
entitlements by putting them on ‘second-class’ footing with ‘real’ Estonian citi-
zens with respect to the most important political and economic events in the
near future.”126 The tone set by the law, as well as by a June 1992 national refer-
endum in which broadening the electorate was rejected, and the resulting per-
ceptions of exclusion by noncitizens were probably more important than the
provisions themselves.127
Those noncitizens who learned the basic Estonian required of citizens and
who wanted to naturalize were eligible to apply in 1992. As mentioned above,
differences between Estonian and Russian, and the lack of mass schooling for
those wanting to learn Estonian, made this difficult. In addition, the general
temper of the citizenship debate made mass application for naturalization un-
likely. By late July 1993, nearly 12,500 people were new citizens of Estonia,
adding to the base already established.128 Of these people, nearly two-thirds had

123. See Estonia, 1993, Law on Amendments to the Republic of Estonia Supreme Council
Resolution “On the Application of the Law on Citizenship.” The Congress of Estonia was a repre-
sentative body elected by citizens of interwar Estonia and their descendants that acted as an alterna-
tive to the Estonian Supreme Soviet from the late 1980s until the election of the Riigikogu.
124. See Estonia, 1993, Law on Amendments to the Law on Citizenship.
125. See Kelam, June 30, 1993.
126. “New Citizenship Laws,” April 15, 1992, p. 3.
127. See “‘Draconian’ Law,” March 6, 1992, p. 71.
128. See Estonia, Ministry of Foreign Affairs of the Republic of Estonia, Estonian Citizenship
Statistics as of July 26, 1993 (no date, on file with author).
B AL T IC ST AT E S 275

become citizens because of their ethnic Estonian background; more than

one-quarter became citizens because of their registration before the Congress of
Estonia elections.129 Fewer than 700 gained citizenship through naturalization,
roughly the same number that received it for “special merits.”130 Figures in
March 1994 showed a slight improvement in naturalization, perhaps because of
the changes in the language guidelines. Still, of the roughly 29,000 new citi-
zens, fewer than one-eighth had been naturalized by meeting the language and
residency requirements in the citizenship law; yet almost 13,000 had become
citizens because of their ethnic identity.131
On January 19, 1995, the Riigikogu passed a new version of the citizenship
law. With the president’s signature, the law went into effect on April 1, 1995.
This law brought together provisions from a collection of laws including the ex-
isting citizenship law and the Estonian Constitution. Among other things, the
new law changed the residency requirement from two years to five years.132
This new period of residency, however, applied only to those who entered Esto-
nia after the law was put in place; it did not affect the permanent residents al-
ready in Estonia.133 The law also clearly spelled out the provisions of the
citizenship policy and the Constitution that applicants need to know to become
naturalized. Important for the role of the citizenship policy in affecting identity,
dual citizenship was still not allowed, except for ethnic Estonians who are al-
ready citizens of another country.134
Shortly before the new law passed the Parliament, the Estonian government
also announced that it was ending the practice of granting citizenship “on gen-
eral grounds.”135 Interior Minister Kaido Kama told reporters that “the morato-
rium did not concern ethnic Estonians and the republic’s permanent residents
who registered prior to the country’s independence.”136 The government justi-
fied the change by stating that members of the Citizenship and Migration De-
partment had allegedly sold passports illegally.137 The Citizenship and
Migration Department blamed applicants, stating that many had forged docu-
ments.138 Some Russians in Estonia, however, argued that the purpose of the

129. See Estonia, Ministry of Foreign Affairs of the Republic of Estonia, Estonian Citizenship
Statistics as of July 26, 1993 (no date, on file with author).
130. See Estonia, Ministry of Foreign Affairs of the Republic of Estonia, “Estonian Citizen-
ship Statistics as of July 26, 1993” (no date, on file with author).
131. See “Over 16,000,” March 23, 1994, p. 67.
132. See “Estonia Passes,” January 20, 1995.
133. See “New Estonian Citizenship,” February 2, 1995.
134. See “Estonia Passes,” January 20, 1995.
135. See “Estonia Suspends,” January 5, 1995.
136. See “Estonia Suspends,” January 5, 1995.
137. “Estonia Suspends,” January 5, 1995.
138. See “Many Have Passport Wrongfully,” January 20–26, 1995, p. 3.
276 LOWELL W. BARRI NGTON

change was to limit the number of non-ethnic Estonians qualified to vote in the
March 1995 national elections.
The Estonian citizenship law has been left alone for the most part since
1995. As in Latvia, however, discussion in 1997 and 1998 emerged about the
need to amend the law. Since Estonia did not have the “window” naturalization
policy adopted in Latvia, the focus was on granting citizenship to children born
to noncitizens after the restoration of independence. This amendment has the
support of Europe and of many scholars who study the issue of statelessness
and international law.139 It was first submitted to Parliament in December 1997,
and enacted a year hence.
Slowing naturalization figures created the need for the new amendment.
While the rate passage of the naturalizations tests has been quite high (more
than 90 percent for the test on the Constitution and citizenship law and more
than 80 percent for the language test), the number of applicants has declined
over the past several years. After nearly 23,000 people were naturalized in
1996, just over 8,000 became citizens through naturalization in 1997.140 In early
1998, still fewer than 100,000 people had been naturalized since the 1992 citi-
zenship law had been adopted.141 Another concern the government has had to
consider when contemplating inclusive changes is the large number of Estonian
residents who have taken Russian citizenship. According to official Estonian
government statistics, more than 120,000 such people have become citizens of
other countries, and the vast majority of these have taken on Russian Federation
citizenship.142 This situation raises the stakes in the Estonian-Russian relation-
ship, and it gives Russia a more solid position under international law to express
concern about the fate of Russians in Estonia.
While not part of the citizenship law, the issue of language training can cer-
tainly be considered a part of the citizenship policy. Since knowledge of the Es-
tonian language is a requirement for naturalization, access to language training
affects the prospects for the integration of noncitizens. On this point, Estonia
has been criticized by Russians in the country and by European officials. One of
the concerns has been the cost of such language instruction. The programs that
did exist were not free, creating problems in particular for pensioners.143 There

139. See, for example, Girard, 1998.

140. See “Estonian Government Seeks,” January 5, 1998.
141. See “Citizenship Statistics: An Update as of March, 1998,” March 19, 1998.
142. See “Citizenship Statistics: An Update as of July, 1997,” July 8, 1997.
143. In my discussions with several noncitizen pensioners in Tallinn, the issue of costs was a
central theme. Not only did these retirees have to pay for the language training, but they also had to
B AL T IC ST AT E S 277

have also been concerns about the quality and even the availability of language
training in the country. While several million dollars had been spent by the Es-
tonian government from 1993 to 1997 on the teaching of Estonian to non-Esto-
nians, even Estonian government officials question how good the language
training was.144 Finally, Estonian is a very difficult language, and one with few
similarities to Russian.
In late 1998, the Estonian government launched a program, funded and coor-
dinated by the European Union and the United Nations Development Program,
to improve the language abilities of the noncitizens, in the hopes of increasing
the number of naturalized citizens and improving noncitizen social integra-
tion.145 State language courses were to be organized, and the program was to pay
for half of the expenses of study for noncitizens who pass the state language ex-
amination. It may take a while, however, for the program to have an effect. In
October 1998, the government announced that half of the fifty positions for of-
ficial language teachers in Estonia were vacant.146

The Crucial Factors Influencing Inclusiveness

In this article, four variables that had the greatest effect on the development
of the citizenship policies in the Baltic states are emphasized. There are, of
course, other factors as well, but none of the others are as necessary to under-
standing the variation in inclusiveness as these four. Three of the four crucial
variables are understandings about the nation and the state. The other central
factor is the role of international organizations, especially the Organization for
Security and Cooperation in Europe (OSCE), the Council of Europe, and (par-
ticularly recently) the European Union, in pushing citizenship policy inclusive-
ness. These four variables will be used to solve the four puzzles laid out in the
introduction: (1) Why was the citizenship policy of Lithuania more inclusive
than the policies of Estonia and Latvia? (2) Why was the citizenship policy in
Estonia more inclusive than the citizenship policy in Latvia? (3) Why were the
citizenship policies of both Estonia and Latvia more inclusive than they might
have been? (4) Why is the citizenship policy in Latvia more inclusive today
than it was only five years ago?

pay to apply for naturalization. Most felt that, given their age and income, it was not worth it to try
to learn the language and naturalize.
144. See “Linguistic Environment,” September 20–26, 1998 (comments by Andra
Veindemann, Minister without Portfolio in Charge of Inter-Ethnic Relations).
145. See “EU and UNDP,” October 11–17, 1998.
146. See “New Official Language Teachers,” September 20–26, 1998.
278 LOWELL W. BARRI NGTON

Understandings, Perceptions, and Policy Making

Much of the next section deals with understandings and perceptions. The
reader may already be thinking, “Understood and perceived by whom?” Since
citizenship policy is a policy, it is necessary to look at the perceptions of the
members of the political elite making the decisions. One cannot completely ex-
clude the masses (since presumably the elites are taking mass attitudes into ac-
count, and referendums may be used to solve controversial issues—something
that happened in Estonia and, most recently, in Latvia). In general, however,
members of the legislature and the executive are making the final decisions.
The political elite is not a unitary actor; there will be competing ideas about the
nation and the state within the group of people vying for political power in a
newly independent state. It may have mattered, for example, that Lithuania’s
citizenship law was put in place before Sajudis swept to power in republic-level
elections. Yet, there was a surprising degree of consensus about the ideas re-
lated to the nation and the state, even among politicians at different ends of the
political spectrum. A solid case can be made that elites in the newly independ-
ent states are generally starting with an ethnic definition of the nation. Whether
this will change over time is another question, but, in the short run, the Soviet
legacy will continue to have a significant impact. The word for nation (natsiya
in Russian) is understood by Russians (and to my knowledge other nationalities
in the former Soviet Union as well) to mean a large, ethnically defined nation.
Likewise, “Estonian” means “ethnic Estonian” to Estonians and Russians.

Understandings about the Nature of the Nation and the State

The first two variables crucial to citizenship policy inclusiveness in the Bal-
tic states are two understandings about the nation and the state: whether the na-
tion is ethnically or politically defined and whether the new state is seen as a
nation-state or a multinational state. While these can be thought of as two sepa-
rate variables, the understandings of the nation and the state must be examined
together, since only a specific combination of answers can make citizenship ex-
clusion possible (see below). Citizenship defines members of a state. Yet, since
the eighteenth century, the ideas of state and nation have become intertwined.
Thus, it is likely that defining official membership in the state would be affected
not only by ideas about the state but also by ideas about the nation.

UNDERSTANDINGS ABOUT THE NATION. Rogers Brubaker argues that

conceptions of national identity affect the formation of inclusive or exclusive
citizenship policies.147 In his work on Germany and France, Brubaker contends

147. See, generally, Brubaker, Citizenship and Nationhood, 1992.

B AL T IC ST AT E S 279

that “differing definitions of citizenship have been shaped by and sustained by

distinctive and deeply rooted understandings of nationhood.”148 He argues that
the more exclusive nature of the German law is mainly due to a definition of the
German nation based on descent. In France, however, a political definition of
nationhood (based on territory as well as allegiance to the French state) led to a
more inclusive law. Thus, the key is whether the nation is defined ethnically or
political-territorially.
This explanation for these two cases is instructive. It is, however, inadequate
to explain the citizenship outcomes in the Baltic states because of the general
lack of variation in this explanatory variable. In Lithuania, like Latvia and Esto-
nia, the nation is defined in ethnic terms, which would imply, following
Brubaker’s logic, that all three of the Baltic states should have exclusive citi-
zenship policies. Instead, the Lithuanian policy was more inclusive than the
others’ policies, particularly in the most crucial element, automatic citizenship.
In Latvia and Estonia, there is little doubt among the elite that the nation is
based on ethnic identity. Showing this tendency, the secretary general and press
secretary of the Fatherland Party in Estonia, which was ruling at the time, stated
in 1993 that the Estonian policies were not discriminatory, asking how 1 mil-
lion people could discriminate against 150 million.149 Further evidence of the
ethnically defined nation comes from Peet Kask, who served on the special citi-
zenship committee that drafted the versions of the citizenship law. He stated,
“An ethnic Swede living in Finland is called a ‘Swedish-speaking Finn.’ It
would be normal if we could use the term ‘Russian-speaking Estonians’ but we
are still far from that.”150 All the politicians and academics with whom I spoke in
Latvia divided the population into “Latvians” and “non-Latvians,” with
non-Latvians being those who were not ethnically Latvian.
In Lithuania, the relatively inclusive citizenship policy was not due to a civic
idea of the nation. Generally, as with their neighbors to the north, Lithuanians
define their nation in ethnic terms. As Erika Umbrasaite, a reporter for Europos
Lietuvis, said, “There is no real desire to develop ‘Lithuanian’ into a civic con-
cept. Poles are not seen as Lithuanian even if they have citizenship. They are
Poles with Lithuanian citizenship.”151

UNDERSTANDINGS ABOUT THE STATE. Alfred Stepan points out the sec-
ond perception related to the idea of the type of nation and state that could affect
treatment of ethnic minorities: whether or not the newly independent state is

148. See, generally, Brubaker, Citizenship and Nationhood, 1992, pp. x–xi.
149. See Rull and Aleksius, interview, July 7, 1993.
150. Kask, letter to Barrington, August 11, 1993.
151. Umbrasaite, interview, May 4, 1994.
280 LOWELL W. BARRI NGTON

152
seen as a nation-state or as a multinational state. He claims that the identifi-
cation of Estonia as a nation-state led directly to a policy of excluding those
who were not ethnically Estonian from obtaining automatic citizenship. Indeed,
the sentiment of the state as a nation-state and therefore that the Russian popu-
lation should not be privileged as it was in the past has been an important factor
in Estonia. Some government officials in Estonia also hoped that making the
Russians feel that they did not belong would force many of them to leave. As
Ole Kvarno, CSCE mission leader in Narva, Estonia, put it, “It is becoming
more and more clear that the basis of the problem is not actually integration or
assimilation, but that a lot of Estonian politicians simply want the Russians
out.”153
Many statements point to the understanding of Estonia as a nation-state. The
post-Soviet Estonian Constitution opens with, “Unwavering in their faith and
with an unswerving will to safeguard and develop a state which is based on the
inextinguishable right of the Estonian people[154] to national self-determination
. . . which shall guarantee the preservation of the Estonian nation and its culture
throughout the ages. . . .”155 As a member of the Estonian Institute for Human
Rights described, “Certainly Estonia as a country is the only homeland for Esto-
nians, we do not have any other country where we should feel [at] home.”156 So-
ciologist Aksel Kirch added that Estonians see Estonia as a nation-state, while
Russians there see it as a multinational state.157 In the clearest support of the ef-
fect of this understanding, Kask stated that the final version of the citizenship
law “did reflect the attitude ‘Estonia for Estonians,’” although the rhetoric has
sometimes been different.158
In Latvia, the understanding of the state as the nation-state for ethnic Latvi-
ans is strongly held by members of the Latvian political elite. The policy impli-
cations range from ideas that the Russians need to develop a sense of loyalty to
the Latvian state to the idea that they should “return” to Russia. As Viestur
Karnups, creator of the LNNK Party version of the draft citizenship law, stated,

The question really is what to do with the colonists. No one outside Lat-
via, especially in the West, wants to admit that there are 700,000 colonists

152. See Stepan, 1994.

153. Kvarno, interview, July 11, 1993.
154. Note that the statement is not “people of Estonia.” This shows a different emphasis in Es-
tonia from that seen in, for example, Ukraine.
155. See Estonian Constitution (last modified September 15, 1998), Preamble.
156. Estonian Institute for Human Rights, letter to Barrington (no date, on file with author).
157. See Kirch, interview, May 30, 1996.
158. Kask, letter to Barrington, August 11, 1993.
B AL T IC ST AT E S 281

in Latvia. . . . Our recipe for this is to encourage voluntary repatriation to

the country where they came from or their ethnic homeland. We will do
everything we can to encourage this.159

Bringing together the ideas of Latvia as a nation-state, exclusive citizenship

provisions, and their intended consequences, Karnups added that the popula-
tion of Latvia should be at least 75 percent ethnic Latvians because “Latvia is an
ethnic nation-state. That’s why it’s called ‘Latvia’ and not ‘Russia.’ . . . There’s
no other Latvian nation-state. This is the only one we’ve got.”160
In Lithuania, the idea of the state as a nation-state exists but was not a central
issue for those shaping citizenship policy. Rather, a much greater emphasis was
placed on interethnic harmony. In 1994, Severinas Vaitiekus, vice-director of
the government’s Department of Nationalities, stated, “In our blood we have no
such idea of ‘Lithuania for Lithuanians.’ Our history taught people to live to-
gether in a multicultural society.”161 Irenijus Cerkasovas, who was head of the
Special Commission on the Questions of Citizenship at the time, added, “Lithu-
ania . . . comprises not only Lithuanians, but Polish, Russian and Jewish people
live there, and there are certain laws which protect their rights as national mi-
norities.”162 This idea is also indicated by the way Lithuanians, in writing on the
history of Lithuania, seem to stress the multinational character of the territory to
a greater extent than similar works by Estonians or Latvians.163 Even the na-
tional anthem stresses Lithuania as a homeland but does not mention for whom.
The last line reads, “May the love of Lithuania brightly burn in our hearts. For
the sake of this land, let unity blossom.”164
One should not assume from these statements that Lithuania was seen as a
multinational state in the way that a state such as Ukraine was by much of its po-
litical elite. One can certainly say that Lithuania was seen by most of the politi-
cal elite as a nation-state. This tendency to lean toward the nation-state idea has
combined with an ethnic idea of the nation to produce some of the provisions of
the policy allowing easier acquisition of citizenship for ethnic Lithuanians.
What makes Lithuania different from its Baltic neighbors in this regard, how-
ever, is a willingness not to emphasize the idea of the state as, above all, the
homeland of ethnic Lithuanians.

159. Karnups, interview, May 11, 1994.

160. Karnups, interview, May 11, 1994.
161. Vaitiekus, interview, May 4, 1994.
162. Cerkasovas, interview, April 29, 1994.
163. See, for example, Center of National Researchers of Lithuania, 1992; and Media and Pub-
lic Relations Department of the Seimas, Lithuania, 1994.
164. Media and Public Relations Department of the Seimas, Lithuania, 1994, p. 3.
282 LOWELL W. BARRI NGTON

* * *
The understandings of the nation and state must be considered together.
While they can be thought of as separate variables, it is the intersection of the
two that is important for policies such as citizenship. In order to lead to exclu-
sive citizenship policies, the understanding of the nation as an ethnic one and
the understanding of the state as a nation-state must both be present. If either the
state is seen as a multinational state or the nation is defined in political-territo-
rial terms, inclusive policies would result. Thus, if the state is considered a mul-
tinational state, an ethnic definition of the nation would not lead to an exclusive
policy: the recognition of the multinational character of the state by the major-
ity national group would lead those of a minority ethnic nation within the state
to acquire “official membership.” Likewise, if a new state is seen as a na-
tion-state but has a political-territorial definition of nationhood, the resulting
citizenship policy would be inclusive. Because the nation is defined by political
membership, permanent residents in the state at the time of independence, re-
gardless of ethnic identity, would receive citizenship easily.
Thus, although state and nation are different things, the combination of a
state seen as the national homeland and an ethnic definition of the nation is a
necessary step for exclusive citizenship requirements. Both Stepan and
Brubaker are correct in pointing out the importance of these perceptions about
the nation and the state. Each author alone, however, does not tell a complete
story. By not making clear that his argument applies only to ethnically defined
nations, for example, Stepan’s point about the nation-state and exclusion is less
persuasive than it might have been. In combination, the ethnic nation under-
standing and nation-state understanding lead to the perception of the state as an
ethnic-nation-state. As such, official membership in the state is likely to be dif-
ficult for ethnic minorities to obtain.

Perceptions of “Threat” to the Nation

While the particular intersection of the views about the nation and the state
made exclusion in the Baltic states possible, perceptions of the threat posed by
including members of the ethnic minority as citizens in Estonia and Latvia both
triggered exclusion and affected the degree of exclusion that was seen. Thus,
the next crucial factor is a perception related to the ethnic minority: whether or
not the minority poses a threat to the cultural survival of the dominant nation. In
Brubaker’s article on the Soviet successor states, he examines the idea of a per-
ceived threat to the survival of the nation as an explanatory variable.165 The per-

165. See Brubaker, Citizenship and Nationhood, 1992, pp. 274, 285.
B AL T IC ST AT E S 283

ception that the cultural survival of the nation is threatened makes it easier to
justify protecting the nation in any way possible, including limiting the rights of
the minority that is perceived to be a threat. Immigration into the republics of
Latvia and Estonia during the Soviet period significantly reduced the percent-
age of the native population of the republic, feeding such perceptions.
Given the size of the minorities and the relatively constant level of ethnic
Lithuanians as a percentage of the population, there was little discussion in
Lithuania of threats to “survival.”166 The lack of a sense of threat was the major
factor that pushed the Lithuanian policy in a more inclusive direction than the
Estonian and Latvian ones. As Rimantas Markauskas, a member of Parliament
and of the Committee on Human and Citizens’ Rights and Nationality Affairs
in 1996, stated, Lithuanians never had the kind of “fear” that was present in Es-
tonia and Latvia.167 Another member of this committee, as well as a member of
the President’s Special Commission on Citizenship, Valdas Petrauskas, stated
that Lithuania had the “best demographic situation” of the three Baltic states,
reducing the sense of threat posed by the ethnic Russians.168 In 1994, Vilius
Kavaliauskas, press secretary for the Lithuanian Seimas (Parliament), argued,
“The situation is different than in Estonia and Latvia policies. There is no threat
to the majority from the minority here. When you are not threatened as a nation,
you can afford to be democratic.”169
In Estonia, there was a much greater sense of urgency by the political elite to
protect the cultural integrity of the nation. These feelings, and the consequences
for citizenship, are shown by statements from the Congress of Estonia, an alter-
native Parliament in Estonia mentioned earlier. One resolution of the Congress
stated:

Subsequent to its annexation of the Republic of Estonia, the Soviet Union

organized extensive immigration by its citizens into Estonia. As a result
of this, non-citizens form over one-third of the population of Estonia,
which is now threatening the preservation of the native population of Es-
tonia and the security and unity of the entire Estonian nation. . . . Before

166. While the percentage of the titular populations in Estonia and Latvia dropped signifi-
cantly during the Soviet period, the percentage of the population of the Lithuanian SSR that was
ethnically Lithuanian remained near 80 percent from 1945 to 1991.
167. See Markauskas, interview, June 11, 1996. He also stated, in response to my question
about the timing of initial citizenship law, that even if the law had first been adopted under the
Sajudis government, it would have been very inclusive because of the lack of a perception of threat.
168. See Petrauskas, interview, June 12, 1996. Like Markauskas, Petrauskas thought that even
if the 1991 law had been the first citizenship law (since 1939) in Lithuania, it would have been very
inclusive.
169. Kavaliauskas, interview, May 2, 1994.
284 LOWELL W. BARRI NGTON

the elections to the Riigikogu, the body of citizens can only be extended
by persons who are of Estonian ethnic origin or who applied for Republic
of Estonia citizenship before the elections to the Congress of Estonia.170

An official statement of the Estonian government in 1997 made the link be-
tween the citizenship law and the ideas of the nation, state, and cultural survival
even more clearly:

Estonia is the only home for the Estonian people and therefore, Estonia’s
people, language, and culture must be preserved and developed here. Our
citizenship law is based on that premise. The spirit of national cultural
traditions and their preservation is the basis for our laws regarding for-
eign residents, our language, and the education of our younger genera-
tion.171

Here, the differences between Lithuania and Estonia cannot be overempha-

sized. As Brubaker states, “The national movement in Lithuania sought to re-
store the Lithuanian state, not to save the Lithuanian nation.”172 In Estonia,
however, nationalists felt independence was more than regaining sovereignty;
it was a matter of cultural survival.173
Nowhere in the former Soviet Union was the idea of a threat to the survival
of the ethnic nation more a part of political conversation than in Latvia. The ma-
jor reason for the feeling of threat was the change in population percentages in
the Latvian Republic during the Soviet period. The percentage of ethnic Latvi-
ans in Latvia dropped from 77 percent in 1939 to a low of 52 percent in the late
1980s.174 Since that time, the percentage of Latvians has increased, as Russian
immigration to Latvia has virtually stopped and Russian emigration from the
state has increased.175 At the time the citizenship law was passed, the percentage
had climbed to more than 54 percent, according to estimates of the State Statis-
tics Committee, and ethnic Latvians made up 56.5 percent of Latvia’s popula-

170. Congress of Estonia, 1992, “Congress of Estonia Position on the Immigrants from the
Former USSR Residing in the Republic of Estonia” (emphasis added).
171. Veering, January 16, 1999.
172. Brubaker, Citizenship and Nationhood, 1992, p. 285.
173. Brubaker, Citizenship and Nationhood, 1992, p. 285.
174. See Smith, 1996.
175. In 1991, for example, immigration of Russians from the rest of the USSR into Latvia was
less than 10,000, while out-migration of Russians from Latvia to the USSR was more than 20,000.
See Kirch et al., 1993, Table 10. According to the Population Information Site of Latvia, from 1991
to 1995, 30,842 immigrants entered Latvia and 145,810 emigrants left the country. See “Population
Information Site of Latvia,” March 3, 1999.
B AL T IC ST AT E S 285

tion in 1998.176 This change is a noticeable increase from the low point a decade
earlier.
Yet, despite the out-migration and increasing percentage of “natives,” the
belief in “national extinction” played an important role in the citizenship de-
bate. As Gvido Zemrido, the chief justice of the Latvian Supreme Court, put it
in a speech at the University of Michigan in 1993, “It is clear that Latvians want
to regain their national identity and that they are trying to preserve that identity
against what they consider foreign intruders.”177 Elmars Vebers adds:

The Latvians are worried about the survival of the nation, a nation which
has been systematically emaciated throughout this century. The public
consciousness of the Latvians is very sensitive, reacting to everything
that could possibly harm the demographic interests of the nation. The
feeling of ethnic vulnerability affects the whole political climate, and po-
litical parties and other organizations of a political nature are becoming
more radical on the demographic question.178

While views about the threat to the nation were significant for the development
of the initial postindependence laws in both Estonia and Latvia, concerns about
threats to the cultural survival of the nation have waned in the past few years.
Independence has been restored, and the political system has been under the
control of the majority groups for more than seven years. Education policies,
language laws, and other state programs to protect the culture have been put in
place. The native populations have slowly but steadily increased as a percent-
age of the population.
The change in thinking about such a threat is reflected in the Estonian gov-
ernment’s Basic Goals for 1997 and 1998, which presents seventeen objec-
tives.179 While the Basic Goals document discusses the connection between the
citizenship law and protecting the national culture, the order of the goals is tell-
ing. Of the seventeen, the goal to “provide conditions for preservation and de-
velopment of the Estonian language, culture, and nation” is fourteenth on the
list. This item is only one position ahead of “assist non-Estonians with integra-
tion into Estonian society” (number 15), and well down the list from “do every-
thing in our power to be in the first wave of nations admitted into the European
Union (EU)” (number 2), and “improve political and economic relations with

176. See Central Intelligence Agency, March 3, 1999.

177. Zemrido, February 4, 1993.
178. Vebers, 1993.
179. See Veering, January 16, 1999.
286 LOWELL W. BARRI NGTON

Russia” (number 4).180 Clearly, only a few years earlier, protecting Estonian cul-
ture would have been much higher on the list. The shift in thought about the
prospects for national cultural survival, along with the pressure from interna-
tional organizations discussed below, is a key reason why the citizenship policy
amendments were passed in Latvia—and upheld by the referendum—and why
similar changes will likely be made in Estonia as well.

Answering Questions 1 and 2

In answering the question of why the citizenship policy of Lithuania was
more inclusive than those of Estonia and Latvia, the understandings related to
the nation and the state are crucial. In Lithuania, there was an understanding of
an ethnic nation and of the state as a nation-state. But, this conception was not
emphasized as it was in Estonia and Latvia, and—more important—there was
little sense of threat to the nation from the inclusion of ethnic minorities as citi-
zens. In Latvia and Estonia, however, the understandings of an ethnic nation
and nation-state were reinforced by feelings of threat to the cultural survival of
the nation.
As for the difference between Estonia and Latvia, the perception of threat is
again important. While talk of threats to “national survival” appeared in both
states, this talk was central to the citizenship discussions in Latvia in a way that
was unmatched in Estonia. This focus is likely due to the difference in the per-
centage of the majority ethnic groups in the populations of both states. As men-
tioned above, while Latvians were quickly approaching less than 50 percent of
the population of Latvia by the late 1980s, Estonians still composed well over
60 percent of the population of Estonia. This fact meant that it was at least pos-
sible to consider naturalization provisions in Estonia, while in Latvia they were
put off as long as possible. What ended the possibility of continued delay in Lat-
via in 1994 is the subject of the next section.

Answering Questions 3 and 4: The Role of International Organizations

As central as the “understanding and perception” variables are to explaining
variation in inclusiveness, the role of international organizations was what kept
the policies in Latvia and Estonia from being as exclusive as the understanding
and perception variables would predict. The role of international organizations
interested in interethnic peace, in particular the Council of Europe, CSCE (now
OSCE), and the EU, is often overlooked by those trying to explain the absence

180. See Veering, January 16, 1999.

B AL T IC ST AT E S 287

of ethnic conflict in the Baltic states. Yet it is increasingly apparent that under-
standing events and policies related to ethnic relations within a state requires
one to look to external factors, such as international organizations, as well. The
development of citizenship policy in the Baltic region is no exception.
International organizations from human rights groups such as Helsinki
Watch to the European Union have monitored citizenship legislation in the
post-Communist states. Not all groups have had an equal impact on the even-
tual policies, however. Examination of the development of the citizenship poli-
cies in the Baltic states indicates that there are two considerations when
analyzing the impact of international organizations: the expressed interest of
the international organizations in the given state’s citizenship policies and the
willingness of the government of that state to listen to these organizations.
If the international community is not interested in the formation of citizen-
ship policies, it will obviously not have an effect. If interested, it must have
something to offer the state’s leaders. One thing European organizations can of-
fer is acceptance of the newly independent as a part of Europe. If the govern-
ment of a newly independent state has a strong desire for its state to “join
Europe” (be accepted into European organizations, increase trade with Euro-
pean states, or even simply be considered a “European” state), it is much more
likely that the government will consider European criticism of its citizenship
policy. Of course, if European organizations can offer financial aid or military
protection, the incentive to listen is even stronger. In both Estonia and Latvia,
the presence and activity of such international organizations guided the policies
back in a more inclusive direction, both during the drafting of the laws and dur-
ing the amending of the laws in the years after their implementation.

INTERNATIONAL ORGANIZATIONS IN ESTONIA. At least three inclusive

changes in the Estonian citizenship policy, as well as the pending amendment
on children born since independence, were greatly influenced by the actions of
the European representatives who saw problems with the existing citizenship
law. First, the provisions for naturalization were originally very open to inter-
pretation, especially regarding the language test. A CSCE report in September
1992 stated, “Commission staffers got the impression that procedures for ob-
taining citizenship, if not entirely clear in statute, may be even less clearly ap-
plied in practice.”181 Better-defined guidelines for the language test and
assurances that local officials would not arbitrarily deny citizenship to qualified
applicants were needed, according to the CSCE representatives. Second, an-

181. Commission on Security and Cooperation in Europe, 1992.

288 LOWELL W. BARRI NGTON

other CSCE report called for easier naturalization for elderly and disabled ap-
plicants.182
Just two months after the publication of the CSCE report Russians in Esto-
nia, the prime minister of Estonia announced that no arbitrariness on language
tests would be permissible.183 This announcement was followed by the law On
Estonian Language Requirements for Applicants for Citizenship, which set
clearer language requirements.184 This law also authorized the government to
set policy on simplified provisions for the elderly. A government order two
months later did just that, waiving fees for elderly and invalid applicants as well
as easing the test requirements. In 1993, Ole Kvarno, CSCE mission leader in
Narva, said that these changes appeared as a result of the specific demands of
CSCE.185
Third, the March 1993 amendment on maternal descent was added “to bring
Estonia’s citizenship law in line with the constitution and European standards
and to facilitate Estonia’s admission to the Council of Europe.”186 The change
“was made under pressure from the Council of Europe, which Estonia hopes to
join. . . .”187
Finally, the change in the citizenship law being discussed in late 1998 to give
automatic citizenship to all children born in the country since 1991 has been of
great interest to OSCE, the EU, and NATO.188 While Estonia has not acted as
quickly on the amendment as Latvia did, Europe has made a strong case for its
eventual adoption. When the president made the amendment his top priority for
the session of Parliament that began in the fall of 1998, “strong recommenda-
tions” from Europe likely played a central role.189

INTERNATIONAL ORGANIZATIONS IN LATVIA. Europe was slow to put

pressure on the Latvians to develop an official citizenship law immediately af-
ter independence. As Russia and Russians in Latvia increased their complaints,
pressure from Europe increased. This pressure eventually forced Latvia to

182. See Conference on Security and Cooperation in Europe, 1992.

183. See “Prime Minister Forbids,” November 5, 1992, p. 71.
184. See Estonia, 1993, On Estonian Language Requirements for Applicants for Citizenship.
185. See Kvarno, interview, July 11, 1993.
186. “Estonia Amends,” March 24, 1993.
187. “Constitution Watch: Estonia,” 1993.
188. In the case of OSCE, see Organization for Security and Cooperation in Europe, 1998. The
interest of NATO is indicated by Estonian President Lennart Meri’s mention of the proposed
changes to the citizenship law in a speech before the North Atlantic Council on November 4, 1998.
See Meri, 1998.
189. See “Opposition Rejects,” September 18, 1998; and “Law Must Change,” September 16,
1998.
B AL T IC ST AT E S 289

adopt an official citizenship law. European organizations were very active in

monitoring the development of the official of law, compelling the ruling coali-
tion to remove the vague reference to quotas and the reference to Latvia as a
“single-nation state” from the draft passed at the law’s first reading.190
When the president returned the draft of the citizenship law that was finally
passed by the Saeima for further consideration, he did so because of strong
pressure from Europe for changes in the law, again especially over the quota is-
sue. His statement to the Saeima urged legislators to “take into account the rec-
ommendations of the Conference on Security and Cooperation in Europe and
the Council of Europe.”191 Prime Minister Valdis Birkkavs added, “We shall not
allow this law to bar our way to Europe, the only place where Latvia can sur-
vive.”192
The CSCE recommendations had come mainly from CSCE High Commis-
sioner on National Minorities Max van der Stoel. Pointing out that most
noncitizens would like to become Latvian citizens, van der Stoel criticized, in a
letter to the Latvian foreign minister, the possibility of the prevention of any
naturalization given the combination of the Saeima having the power to set the
annual quota and that the quotas were to “ensure the development of Latvia as a
single-nation state.”193 He warned, “If the overwhelming majority of non-Latvi-
ans in your country is denied the right to become citizens, and consequently the
right to be involved in key decisions concerning their own interests, the charac-
ter of the democratic system in Latvia might even be put into question.”194 He
also made specific recommendations about a way to replace the quota system
by allowing naturalization in stages based on the length of time that one had
lived in Latvia.195
In addition to CSCE, suggestions from the Council of Europe played an im-
portant role in the formation, and especially the final version, of the Latvian cit-
izenship law. In early 1992, Latvian officials had expressed optimism over their
likely induction into the Council of Europe.196 Soon, however, it became clear

190. See van der Stoel, letter to Andrejevs, December 10, 1993. The letter makes numerous
suggestions that were later adopted, and it contains strong criticism of the “single-nation state”
phrase.
191. “Saeima to Review,” July 1, 1994, p. 60.
192. “President, Government to Review,” June 28, 1994, p. 71.
193. See van der Stoel, letter to Andrejevs, December 10, 1993.
194. See van der Stoel, letter to Andrejevs, December 10, 1993.
195. See van der Stoel, letter to Andrejevs, December 10, 1993.
196. Some of this optimism was likely due to the comments of Council of Europe Secre-
tary-General Catherine Lalumiére, during a February 18, 1992, trip to Riga. Radio Riga reported
that Lalumiére had said that Latvia had “made much progress toward democratization, implemen-
tation of human rights, and economic reforms.” See “Lalumiére in Latvia,” February 19, 1992.
290 LOWELL W. BARRI NGTON

that the unresolved citizenship issue would keep Latvia out of the organiza-
tion.197 The Council of Europe had made clear that an acceptable citizenship law
was a condition of Latvian membership.198 As a result of the more tangible ben-
efit of pleasing the Council of Europe, the Latvian government was even more
willing to incorporate Council of Europe recommendations than suggestions
from CSCE. The ruling coalition sent the first reading version to the Council of
Europe for suggestions, and experts from the Council of Europe made trips to
Riga to discuss their specific objections to the draft law.
After the first reading, a Council of Europe report argued against certain
provisions in the Latvian law and made specific recommendations.199 As
with CSCE criticism, the strongest objections were raised over the natural-
ization provisions. Referring often to “European standards,” the Council of
Europe report criticized the vagueness of the provisions; the fact that most
of the noncitizens would not know when they would even be eligible for nat-
uralization; and, like van der Stoel, the idea that naturalization should take
into account Latvia’s struggle to be a “single-nation state.”200 The report
pointed out that in Eastern Europe “‘nation’ is more commonly understood
as the ethnic group which forms the dominant group within the state.”201
Thus, the Council of Europe members stated that the single-nation state idea
“augurs badly for non-Latvian ethnic elements and their continued presence
within the state” and that the Latvian law implies that the state “belongs” to
ethnic Latvians.202 They suggested removing the reference to a single-nation
state and setting up a naturalization system based on the age of the applicant
rather than leaving the decision about quotas to the Latvian Saeima.203 In ad-
dition, they supported a reduction of the residency requirement from ten
years to five years and stated that language tests must be uniform and consis-
tently applied.204
The changes from the first to second reading versions were nearly word for
word the European suggestions. But during second-reading amending, the 0.1
percent quota idea was again added under pressure from nationalists in the

197. See Barne, July 9–15, 1993, p. 5.

198. This point was made to me by several Latvian government officials during interviews in
1994 in Riga, Latvia.
199. Specific recommendations can be found in Council of Europe, January 24, 1994.
200. See Council of Europe, January 24, 1994, p. 4.
201. See Council of Europe, January 24, 1994, p. 5.
202. See Council of Europe, January 24, 1994, p. 5.
203. See Council of Europe, January 24, 1994, p. 6.
204. See Council of Europe, January 24, 1994, p. 7 (residency requirement), p. 8 (language
tests).
B AL T IC ST AT E S 291

Saeima who threatened a referendum if they did not get their way.205 Thus, the
0.1 percent quota became part of the third reading version. Representatives of
the Council of Europe and the CSCE mission in Latvia then turned to the presi-
dent. As with the changes from the first to second drafts, European suggestions
were the driving force behind the president sending the law back to the Parlia-
ment for further consideration and the changes in the law that followed. The Eu-
ropean suggestions were reincorporated into the final version of the law.206
Latvia was rewarded for implementing the changes suggested by Europe, as
an August 1994 Council of Europe mission to Riga recommended Latvia’s ac-
ceptance into the Council of Europe. Fredrich Vogel, mission member, stated
that the newly refined citizenship law complied with Council of Europe stan-
dards.207 Visiting Riga in January 1995, Council of Europe Parliamentary As-
sembly President Miguel Angel Martinez stated that Latvia would become a
member of the Council of Europe in February. He pointed to Latvia’s willing-
ness to compromise on the citizenship law as the key factor in its acceptance.208
But Europe continued to push Latvia for a more inclusive policy, even after
the 1994 law was passed, especially after the events of the spring of 1998. For
the first time, the European Union moved to the forefront of European involve-
ment. Since Latvia was not a member of the EU—but strongly sought such
membership—the organization arguably had more influence over the process
in 1998 than either OSCE or the Council of Europe. Several European officials
stated that the events of March and April had hurt Latvia’s EU membership
prospects, and that the EU remained highly interested in a resolution to the dis-
agreements over the status of noncitizens in the country.209 The EU also urged
Latvia to pursue dialogue with Russia to reduce tensions. After these statements

205. Such a referendum is allowed under Latvian law if supporters get 10 percent of the regis-
tered voters to support it, something most politicians felt would be a formality. The ease with which
signatures were collected to force the 1998 referendum indicates that they were probably correct.
206. Perhaps the best evidence of the impact of European suggestions comes from the Latvian
Naturalization Board’s publication, On Naturalization in Latvia. The sections “Co-Operation with
the International and Organizations and Foreign State and Social Institutions” and “The Latvian
Citizenship Law and its Incorporation of International Recommendations” describe the role of nu-
merous Western groups in the citizenship process. The sections especially highlight the efforts of
OSCE and the Council of Europe and the way in which their recommendations were brought into
the law. See Naturalization Board of the Republic of Latvia, 1997, pp. 18–19, 64–67.
207. See “Visiting Experts,” August 9, 1994, p. 59.
208. See Birzulis, January 20–26, 1995, p. 4.
209. See, for example, “Dini,” April 8, 1998 (statements of the Italian foreign minister).
Among other things, Foreign Minister Dini stated, “Events like those of recent days distance Latvia
further from the process of preliminary membership,” and “I would stress that a necessary condi-
tion admission into the European Union is the presence of . . . established democratic institutions
and especially full respect of the rights of ethnic minorities.”
292 LOWELL W. BARRI NGTON

and behind-the-scenes pressure, by the end of April the Latvian government’s

ruling coalition had announced its intention to move ahead on the Euro-
pean-supported amendments. The European reaction to these comments was
positive.210
Once the amendments to the citizenship law were passed in June, the West
attempted to indicate its support for the amendments in the face of the October
referendum, while hoping not to appear as if it was trying to strong-arm Latvian
voters. The European Commission quickly stated its support for the amend-
ments; Latvian Radio carried statements by the Italian undersecretary of state,
who emphasized that supporting the amendments would be a step toward EU
membership; the Swedish foreign minister warned of “international conse-
quences” if the amendments were overturned; the U.S. ambassador to NATO
linked the amendments to NATO membership for Latvia; and even the outgo-
ing U.S. ambassador to Latvia indicated that failure to uphold the amendments
would lead to a questioning of Latvia’s desire to integrate into the remaining
European organizations in which it is not a member.211 Max van der Stoel vis-
ited Latvia in August, pushing the link between European integration and the
amendments.
The line between suggesting and pressuring is sometimes a fine one, and this
was certainly the case with Western comments during the months leading up to
the vote. The Latvian president, a strong supporter of the amendments, at one
point even warned van der Stoel to temper his comments, and he criticized the
OSCE for its at times “over-exaggerated advisory methods” as well as express-
ing concerns more generally over “pressure from the international commu-
nity.”212 Nonetheless, the referendum passed. The results were praised by
European officials as a “step towards Latvia’s integration into Europe.”213

Conclusion
Citizenship is one of the most important policy decisions for newly inde-
pendent states—it is an essential step in state building. In all three Baltic states,
there are significant differences in political rights, and social and economic

211. See “Italy Urges,” September 16, 1998; “US Envoy Reiterates,” September 11, 1998;
“US Envoy to NATO,” September 3, 1998; “OSCE Commissioner,” August 26, 1998.
212. The president’s statements were discussed in a LETA news agency report. See “Latvian
President Warns,” August 24, 1998. Similar negative comments about European pressure were
heard during debate in the Parliament on the amendments.
213. See “Latvian Vote,” October 6, 1998, p. 3 (comment from Austria’s foreign minister,
writing on behalf of the EU). Ironically, an Estonian Foreign Ministry press release also welcomed
the vote, even though Estonia had yet to pass a similar amendment on children born since the resto-
ration of independence.
B AL T IC ST AT E S 293

rights and benefits, between citizens and noncitizens. In Estonia, noncitizens

can vote in local elections, provided they are permanent residents. In Latvia and
Lithuania, however, there is no such local election voting right, and in none of
the Baltic states can noncitizens vote in national elections or hold public office.
Social and economic rights and benefits are restricted to similar degrees across
all three states. In some cases, laws state that permanent residents enjoy equal
benefits to citizens. But even on these issues, the constitutions leave open the
possibility of future restrictions.
Despite the importance of citizenship in shaping rights and benefits, we
know surprisingly little about the reasons for variation in citizenship policies
across states. The main argument of the most impressive work to date on the
causes of citizenship variation, for example, cannot be used to account the dif-
ference among the policies of the three Baltic states.213 As this article describes,
there is no simple answer to the puzzle of citizenship inclusiveness. The answer
to the central question of citizenship inclusiveness involves understandings,
perceptions, and external actors.
Breaking down the question of citizenship inclusion in the Baltic states into
four answerable puzzles helps. When approached in this way, it becomes clear
that understandings and perceptions about the nation, the state, and threats to
national survival made exclusion likely in Estonia and Latvia but much less
likely in Lithuania. In addition, international organizations worked with the
governments as laws were drafted and pushed already-existing laws in a more
inclusive direction. They kept the policies in Estonia and Latvia from being as
exclusive as they were headed to being in the early stages. And they “encour-
aged” Latvia to adopt an official law with naturalization requirements but with-
out quotas, which led to a more inclusive policy than the “lawless” one between
1991 and 1994.
The difference between the citizenship policy of Lithuania and its neighbors
to the north highlights the need to treat these countries individually. They are
more than a single entity called “the Baltic states.” They are often lumped to-
gether because they share many similarities,214 and indeed this common history
is important for dismissing certain explanations about the development of citi-

213. See, generally, Brubaker, Citizenship and Nationhood, 1992.

214. All three republics were brought into the Soviet Union in 1940 as a result of the
Molotov-Ribbentrop pact, the native populations of all three had strong national identities before
the Soviet period, and each had been an independent state during the interwar period. They took
turns leading the drive for independence from the Soviet Union (although Latvia often lagged be-
hind the other two because of the presence of the large Russian minority), and all three refused to
join the Commonwealth of Independent States. Finally, the national movements in all three states
considered the post-Soviet period a time of restoration rather than creation of independence. See,
generally, Brubaker, “Citizenship Struggles,” 1992.
294 LOWELL W. BARRI NGTON

zenship policies in the region. While Velo Pettai, for example, discusses the im-
portance of the interwar period as a reference point for laws and even
constitutions, the idea of the Baltic states as “restored states” does not explain
the exclusiveness of the citizenship policies in Latvia and Estonia.215 If this con-
dition were the cause of exclusive policies, the Lithuanian policy should have
been as exclusive as the others—which it was not—and there should have been
no significant differences in exclusion between Estonia and Latvia—which
there were. Although the common events and characteristics cannot explain the
policy differences, this article has outlined factors that can help one to under-
stand the disparity between the inclusive, automatic citizenship policies in Lith-
uania and the more exclusive approaches taken by Estonia and Latvia.
While citizenship policy is shaped by issues of identity, the choices made by
elites in this policy area are precisely that: choices. The incorporation of the
Baltic states in the Soviet Union gave elites in post-Soviet Estonia and Latvia a
way to justify exclusion, but this exclusion did not necessarily have to occur.
Both the Lithuanian policy and the changes in the Estonian and Latvian policies
over time demonstrate this fact. Citizenship policy is not only a domestic issue.
The choices of elites can be affected by international pressure, especially from
international organizations of which the state in question is a member or, even
more, seeks to join. As a result, citizenship policy in the Baltic states—as well
as other parts of the world—is likely to continue to evolve as new elites come to
power, new international organizations become drawn into the issue, and new
choices are made.

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300 LOWELL W. BARRI NGTON

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 PART THREE

Dual and Supranational

Citizenship: Limits to
Transnationalism
 CHAPTER NINE

Introduction

RAINER BAUB_CK

THE CASE STUDIES explored in the two following chapters deal with very dif-
ferent phenomena. The Mexican study documents a major policy shift in a tra-
ditional “sending country” toward a toleration, or even encouragement, of dual
nationality among its emigrants. The European Union study examines a slowly
emerging supranational form of citizenship among a regional confederation of
states. What the Mexican citizenship reform and citizenship of the European
Union still have in common is that they illustrate how the traditional conception
of citizenship as a singular membership in a sovereign national polity is gradu-
ally eroding under the impact of geographical mobility and regional integra-
tion. Yet, at the same time, both cases also show how legislators and policy
makers attempt to curb this transnational dynamic by linking access to citizen-
ship in problematic ways to national membership. The Mexican reform does
this by distinguishing between Mexicans by birth who may become dual na-
tionals and Mexicans by naturalization who are not allowed to hold another citi-
zenship. The European Union does this by leaving it to its individual member
states to define the requirements for naturalization and thereby also for admis-
sion to the common citizenship of the Union.
The amendment of the Mexican Constitution of March 20, 1997, and the law
on nationality that came into effect one year later allows Mexicans by birth to
retain their original nationality when they naturalize abroad. Those who had
lost their Mexican nationality when they became U.S. citizens may regain it
within five years. The large number of potential beneficiaries of this reform has

305
306 RAI NER BAUB_CK

aroused considerable concern among conservatives in the United States. They

warn that Mexican Americans possessing dual nationality might use their fran-
chise to promote Mexican rather than U.S. interests. The irony is that the reform
really brings Mexican citizenship policies closer to the U.S. model.
First, it establishes the same combination of straightforward jus soli for
those born in the national territory and jus sanguinis transmission of citizenship
outside the country (whereas the previous law had followed the French model
of granting those born to foreigners in Mexico only an option to citizenship at
the age of majority). This combination attributes citizenship both to the off-
spring of immigrants in the country and of emigrants abroad and makes thus for
the most inclusive allocation of citizenship in states that are simultaneously
sending and receiving countries. (One should not forget that Mexico is also one
of the most important destinations of migration from Central and South Amer-
ica.) It is this combination that inevitably generates dual citizenship at birth.
Second, whereas the previous law had allowed for an unlimited passing on
of Mexican citizenship abroad, Mexico has now also adopted the U.S. policy of
limiting an automatic acquisition of citizenship jure sanguinis to the first gener-
ation born abroad. The reform will thus create an option for dual citizenship
among immigrants while removing automatic inclusion for their grandchildren.
As dual ties will be certainly strongest among first-generation emigrants and
their children, this change is reasonable if citizenship ought to reflect effective
links to a country.
Third, since a 1967 Supreme Court decision, the United States no longer
considers citizens who naturalize abroad as having expatriated themselves, and
Mexico has simply adopted a similar rule. If the U.S. laws contribute thus to the
proliferation of dual citizenship both at birth and at naturalization, it seems
hardly fair to accuse another country of doing the same.
One might object that there is no symmetry here, because there are many
more Mexicans living north of the Rio Grande than there are U.S. citizens in
Mexico. Between these two states, however, fears of the other’s power to en-
croach on national interests and sovereignty have certainly been greater on the
Mexican side. One could say that Mexican policies have been driven by a dual
historical trauma of losing territory and population to its wealthy northern
neighbor. The new citizenship legislation can be interpreted as a shift in empha-
sis from the first to the second trauma. In Mexico, foreign owners of land have
to renounce claims to diplomatic protection by their country of citizenship and
must, in fact, apply for a status of Mexican quasi-nationality. There are further
specific restrictions for owning land in coastal and border areas. These had also
affected Mexican immigrants who had naturalized in the United States. The tol-
eration of dual nationality removes this obstacle.
PAR T T HR E E INT R ODUCTI ON 307

Mexico seems now more concerned about losing its emigrant population,
whose remittances and investments represent a considerable economic asset,
than about a potential sellout of the territory to Mexican Americans based
abroad. Similar reasons have motivated policy reforms toward facilitating dual
citizenship in Turkey, which is the major sending state of migration to Western
Europe. Yet the Mexican government still appears to share concerns about the
political impact of dual citizenship that are entirely symmetrical with those of
U.S. conservatives. If the latter fear that Mexican issues might come to domi-
nate U.S. elections in areas like Southern California, the former dread the pros-
pect of a large vote for the opposition by emigrants politically socialized in the
United States. Both concerns have, for the time being, prevented the introduc-
tion of absentee ballots for Mexican nationals.
The Mexican reform makes a terminological distinction between citizenship
and nationality. Only when residing in Mexico do nationals enjoy the full rights
of citizens. In international law the concept of “nationality” generally refers to
the external effect of citizenship that affiliates a person to a sovereign state and
restricts thereby another state’s powers to submit him or her exclusively to its
own laws. The Mexican usage concerns instead the relations of citizens living
outside the territory to the Mexican state. It should therefore be thought of as an
external citizenship, that is, a specific bundle of rights and obligations assigned
to citizens when they reside abroad. This is not merely a terminological ques-
tion. The Mexican reform seems to rest on the idea that a person can be a dual
national but not a dual citizen. It appears to me that, in fact, it establishes dual
citizenship with a differentiation of rights according to residence. While voting
rights cannot be enjoyed when living abroad, the rights to own land and to re-
turn to Mexico are retained even for those who take up another citizenship
abroad. When they move back to Mexico, they become again full citizens but
lose their claims to diplomatic protection by the United States.
This halfway model of dual citizenship makes the citizenship of the other
country to a large extent dormant. Rather than driving a wedge between citizen-
ship and nationality by turning them into distinct legal categories, one should
discuss one by one the list of rights and obligations entailed in full citizenship
and see which among them can be meaningfully assigned to, and exercised by,
those living abroad and holding a second citizenship. Such an approach could
provide pragmatic answers to the generally exaggerated concerns about con-
flicting loyalties and duties or unjustified privileges of these groups. As far as
voting rights are concerned, the basic requirement for exercising it should be
some present involvement in the political community and some likelihood that
the voters will themselves bear the future consequences of their political
choices. If seems to me that with their high rates of cross-border mobility and
308 RAI NER BAUB_CK

strong transnational family networks, first-generation Mexican Americans per-

fectly qualify for a dual franchise.
There is another aspect in which the Mexican law uses a traditional under-
standing of “nationality” in order to make a distinction among different kinds of
citizens. Only Mexicans by birth are fully protected against being deprived of
their nationality. Naturalized Mexicans lose it by acquiring the citizenship of
another country or may also be denaturalized after residing continuously
abroad for five years. Once again, this distinction is not entirely alien to U.S.
law, which bars naturalized immigrants from the highest political office. Yet,
their weaker protection against a loss of citizenship in Mexican law is certainly
a more serious matter.
First, this differentiation does not survive a simple test of generalization.
(One should consider a Golden Rule for citizenship policies: Do not make pro-
visions in your nationality law to which you would object if they were adopted
by other states and affected your own citizens.) If the United States adopted the
same rule, it would deny Mexican immigrants naturalization unless they re-
nounce their Mexican citizenship. This move would thwart the whole Mexican
reform by also depriving Mexican nationals by birth of its benefits.
Second, by considering naturalized immigrants, in a way, as merely proba-
tionary citizens, the Mexican laws give priority to a national community into
which one is born over a political community that one may choose. It does not
seem unreasonable to ask those who naturalize for an explicit declaration of
their loyalty that is never demanded from those who acquire their citizenship at
birth, which is what all democratic states do. Distrusting those who already
have shown their consent by becoming citizens, however, undermines a demo-
cratic conception of citizenship as a consensual membership in a polity.
The European Union is not a federal state, but it is more than an alliance of
states for limited purposes of market integration or common defense. This am-
biguous character is revealed in its construction of a citizenship of the Union,
formally introduced by the Maastricht Treaty. If citizenship is understood as
membership in a democratic polity, then this move would imply that the Euro-
pean Union has reached a stage of integration at which it has become a polity. A
closer examination, however, reveals that both the substance of rights and obli-
gations implied in such membership as well as the social preconditions for con-
ceiving of the Union as a political community are still extremely thin.
Citizenship of the Union is, on the one hand, merely a compilation of an inco-
herent set of rights that reflect the present stage of economic and political inte-
gration, and, on the other hand, a symbolic exercise that announces a larger
project still to be achieved in the future. Should we conclude that introducing
this kind of quasi-citizenship was premature or merely an ideological move in
PAR T T HR E E INT R ODUCTI ON 309

order to sell the burdens of economic integration to a reluctant electorate? Even

if the latter may have been the political motive, the question of whether the pro-
ject of the Union needs a structure of citizenship remains.
In my view, the strongest need for a European citizenship emerges from the
much-discussed democratic deficit. Democracy is a form of government in
which all those who are affected by collectively binding decisions are equally
represented in the decision making. The citizens of member states are today
subjected to both the political powers of their national governments and those
of the institutions of the Union. The legislative powers of the European Council
and Commission and the judicial powers of the European Court of Justice have
grown to such an extent that their actions can no longer be legitimated within an
intergovernmental framework. Creating a citizenship of the Union spelled out
that to live up to the democratic commitments of all its member states, the Un-
ion itself ought to be seen as a polity in the making with its own structure of in-
clusive individual membership. Affirming this project provides us with a
yardstick for measuring the formidable obstacles for progress and the serious
deficiencies of the present conception of citizenship.
The major obstacle is the lack of a common European civil society. Citizen-
ship requires not only a common political authority, but also a network of asso-
ciations embedded in a shared public sphere. Civil society in Europe is still
compartmentalized into national societies. What is needed so that “ordinary cit-
izens” can experience their membership in the emerging European polity as im-
portant? First, a European public sphere, including mass media and political
parties that are no longer primarily attached to national publics and electorates.
Second, spontaneous forms of voluntary association that cross national bound-
aries. Today’s European NGOs are hardly genuine expressions of transnational
self-organization of citizens but rather are pressure groups trailing the shifts of
political power toward Brussels. Third, much higher rates of geographical mo-
bility between member states. Only outside their country of national citizenship
can individuals fully experience the relevance of their rights as citizens of the
Union. Obviously, all three developments can only be politically facilitated or
encouraged but cannot be directly brought about by legislation. As long as they
persist, Union citizenship will remain a legal construction in limbo.
Even if one ought, therefore, to reject a voluntaristic approach, there are still
serious deficiencies in the present provisions on citizenship that cannot be ex-
plained by these social limitations. The first striking thing about Union citizen-
ship in the Maastricht Treaty is that the only rights listed there are those of free
movement, diplomatic protection, petition, and political participation in munic-
ipal and European Parliament elections. And although the treaty stipulates that
“citizens of the Union shall be subject to the duties imposed thereby,” one
310 RAI NER BAUB_CK

searches in vain for a list of such legal duties. The Amsterdam Treaty has added
an important provision against discrimination, which is, however, seriously
hampered by requirements of unanimity for implementation. Certainly, funda-
mental civic and social rights are protected through the European Convention
of Human Rights, the Social Charter, and other documents, but it seems signifi-
cant that the framers of the Union have not felt the need to summarize and sys-
tematize them in a bill of rights that would document the full content and scope
of Union citizenship. Jürgen Habermas has suggested that political integration
in Europe will require developing a constitutional patriotism rather than a na-
tional sense of unity based on common culture and history. There is so far, how-
ever, no definition of citizenship that could provide a focus for such loyalty.
The second deficiency lies in the mode of access to citizenship and is linked
to what we may call the European inclusion deficit. Citizenship of the Union is
derived from being a citizen of a member state, and the nationality laws of the
member states are vastly different in their rules for naturalization and for the ac-
quisition of citizenship at birth. The common status of Union citizenship can
thereby be reached in fifteen different ways, which may be characteristic for the
early stages of federal integration in which the constituent units still act as gate-
keepers for immigration and admission to political membership. Yet, a pressing
European problem is the political integration of millions of disenfranchised im-
migrants who are third-country nationals. In some European states, naturaliza-
tion requirements are extremely difficult to meet, jus sanguinis turns those born
in the country into foreigners, and resident aliens are subjected to discrimina-
tory laws. Union citizenship could become a vehicle for integration, but its
present architecture highlights the exclusionary features.
There are three paths toward a more inclusive conception: one could give
third-country nationals direct access to Union citizenship without requiring
their previous naturalization in a member state; one could introduce a uniform
legal status for permanent residents from third countries that would give them
many of the rights but not the formal status of Union citizens; or one could har-
monize the nationality laws of the member states so that access to both national
and Union citizenship becomes easier and the same everywhere. None of these
solutions currently has much chance of being adopted, but it seems to me that a
combination of the second and third would be highly desirable, whereas the
first one would merely result in a further devaluation of Union citizenship in the
eyes of the native population and would consolidate exclusionary citizenship
policies at national levels.
Union citizenship is today a supranational construction rather than a
postnational or transnational one. It creates a thin layer of additional rights
placed on top of the thicker national citizenships and accessible only to those
PAR T T HR E E INT R ODUCTI ON 311

who are recognized as members by one of the states of the Union. Mending its
deficiencies would not require disconnecting it from national citizenship but
enhancing its set of rights and addressing the inclusion deficit. Policy makers
should finally acknowledge that the integration of immigrants has become just
as much a European agenda as the control of immigration.1 Once this task is
taken seriously, the linkage between national and Union citizenship may stimu-
late a transmission of transnational dynamics from the European level down to
the member states as well as a harmonization of their nationality laws from be-
low.

1. The European Council meeting in Tampere, Finland, on October 15 and 16, 1999, took a
first step by proposing that third-country nationals should enjoy rights comparable to those of Euro-
pean Union citizens.
 CHAPTER TEN

Nationality in Mexico

MANUEL BECERRA RAMQREZ

REGULATION OF THE population is a fundamental power of the sovereign state.

The state determines who composes its population, which includes defining the
legal status of its nationals and citizens.
The case of Mexico can be considered unique in some ways because of its
extensive border with the United States. Mexican population flows between the
two countries are substantial. The economy of Mexico is poor, with a chronic
incapacity to provide employment to millions of people, mostly peasants, who
find that they must emigrate in search of work. Naturally, they migrate north-
ward where the U.S. economy is the strongest in the world. This migration to
the United States is a frequent irritant to the bilateral relationship between the
countries.
The Mexican government has dedicated itself to protecting the rights of its
nationals in the United States, who are alleged to suffer from discrimination in
employment opportunities, from the cutoff of benefits, and from the lack of po-
litical rights. During the recent welfare and migration reforms in the United
States, it was alleged that Mexicans are subject to discrimination by virtue of
their national origin.1 In addition, the important contribution of these Mexicans
to the economy of the United States usually goes unrecognized.

This chapter was translated by Mary Ann Larkin.

1. It is believed that Mexicans maintain their customs without adapting fully to the U.S. cul-
ture, which is interpreted as a threat to U.S. society.

312
ME XIC O 313

In recent years, the Mexican government reached the conclusion that a con-
siderable number of Mexican emigrants to the United States were not naturaliz-
ing in the United States in order to preserve their Mexican nationality. As a
result, they have de facto accepted the legal, employment, administrative, and
political disadvantages under which they live. As a response to this dilemma,
the Mexican government launched a project to reform the Mexican legal system
from the national Constitution down to provisions of specific laws to offer
some relief. Reforms included passage of the Nationality Law in 1997, which
permits dual nationality. Thus, dual nationality has shifted from being treated
as a legal aberration to being fashioned as a solution for the legal system.
This article examines nationality and dual nationality in the international le-
gal and scholarly context and provides a detailed account of nationality in Mex-
ico. This review will trace nationality through Mexican constitutional history,
including the most recent amendments on the subject passed by the National
Congress in 1997. Finally, it will present in detail the subsequent incorporation
of key passages on dual nationality into law and regulation.

Nationality from a Legal and Political Perspective

The concept of nationality has a variety of meanings as viewed from the dif-
ferent perspectives of sociology and law. In sociology, nationality refers to the
sense of belonging felt by a group of persons who share one culture, including
language, traditions, history, and social values.2 By contrast, in the legal field,
nationality refers to the relationship or link between individuals and the state
that translates into certain reciprocal rights and responsibilities. A person may
hold a nationality understood as a sociological matter that differs from their na-
tionality as recognized by law; for example, person may be Jewish of Argen-
tine, Russian, or even Mexican nationality and hold legal nationality from the
United States, Germany, Canada, or another country.
Currently, Mexican nationality is undergoing profound revision from both
perspectives. Officially, nationality has been rooted in its Indian past—lo mes-
tizo. This concept of nationality stems from the ideology of the Mexican Revo-
lution, which “reassessed the concept of the mestizo and came to see it as a
quintessential national asset and, in doing so, redefined the essential elements
of the nation.”3 In order to explicate the term “national” in Mexico, one must

2. Cabaleiro, for example, notes that the nation is “a group of individuals united by a common
language, customs, culture, territory, common historic tradition. Together with these visible char-
acteristics, some authors have imposed a subjective characteristic: the belief on the part of the group
members in a common destiny.” Cabaleiro, 1962, pp. 4–5.
3. Lomnitz, 1993, p. 188.
314 MANUEL BECERRA RAMQREZ

turn to the mestizo metaphor, which Lomnitz has argued resulted in the ascen-
dancy of a complex set of authoritarian formulas of governance. By contrast,
Lomnitz’s own ideal centers the definition of nationality in the elevation of in-
dividual rights over the rights of the nation.4 This all-encompassing icon of the
mestizo, however, obscures the fact that Mexico has comprised, and continues
to comprise, different groups of people with different cultural backgrounds
(language, beliefs, customs, and so on), a society that anthropologists might de-
scribe as cosmopolitanism. The indigenous rebellion in Chiapas and the current
discussion of indigenous rights demonstrate the fallacy and the limitations of
the mestizo icon.
Nationality and citizenship are distinct concepts under Mexican law. Na-
tionality binds an individual to the Mexican state; citizenship, one aspect of na-
tionality, signifies the eligibility of nationals to participate in governance
through the right to vote and hold office. Mexican nationality is usually estab-
lished at birth or through naturalization. Citizenship is acquired automatically
at the age of eighteen. The law also mandates that an individual must have led
an “upright” life (“tener un modo honesto de vivir”), but this requirement is
rarely enforced. A citizen may hold office after becoming twenty-one years old.

The Authority of the State to Regulate Nationality

By most standard definitions, the essential elements of the state are its popu-
lation, its sovereignty, and its territory. Each element is inextricably linked: the
population is subject to the laws and legal norms defined by the state by virtue
of its sovereign power, subject to its territorial limits. In principle, the state has
the power to establish norms that regulate the population, including norms that
permit or deny entry of foreigners to its territory. The state’s power in this area
is undeniable, but has some limits. The first of these limits refers to those that
the state accepts through entering into international treaties, especially human
rights accords that form the basis for modern international human rights law.
The second set of limits on the state refers to treatment of individuals after
they enter national territory. The assumption here is that the state has been orga-
nized to serve the general welfare of individual human beings, making it imper-
missible for the state to act in any way against its people—even those who do
not hold the same nationality. Furthermore, international legal doctrine recog-
nizes the existence of certain principles that regulate the attribution of national-
ity. According to the literature on the subject,5 these principles have been born

4. Lomnitz, 1993, p. 194.

5. See Mancilla y Mejia, 1998, p. 30; Trigueros Gaisman, “La doble nacionalidad,” 1996, p.
586.
ME XIC O 315

of international practice. Some of these principles may not be legally binding,

but they are nonetheless important as a source of emerging international norms
and jurisprudential principles. Among these principles are the following:
—International law recognizes the right of each state to determine how na-
tionality is acquired and lost;
—No state may determine conditions for the acquisition or forfeiture of a
foreign nationality;
—The determination process for the conferring of nationality is limited by
international law;
—International legal restrictions are the result of international covenants en-
tered into by states, international custom, and the general principles of law, as
universally recognized in Article 38 of the Statutes of the International Court of
Justice;
—A declaration of nationality issued by one state within the limits of its
competence under international law has legal implications for other states;
—If nationality is acquired through a transgression of international law,
other states and international bodies are not bound to recognize this status. The
conferral of nationality in this way will be effective for domestic purposes,
based on the legal system in the state that granted nationality, only so long as it
is not challenged by another state and, by its request, then revoked;
—Nationality is conferred on an individual from his or her day of birth;
—Single nationality is recognized;
—One has the right to change nationality;
—Dual nationality is a condition to be avoided;
—Nationality is not conferred automatically;
—One has the right to renounce one’s nationality;
—The possibility of forfeiting one’s nationality occurs only upon acquisi-
tion of another nationality;
—The threat of forfeiture of nationality may not be used as punishment.
In general terms, the state has the sovereign right to regulate its population.
But, as shown, this right is neither absolute nor unlimited; it is limited by inter-
national law, including human rights law.

Regulation of Nationality in Mexico

Traditionally, Mexico’s legislation has reflected its nationalist fervor. As

with many other countries, Mexico’s history plays an important role in the de-
velopment of nationality law. The language of much of the Constitution is char-
acterized by strong protectionism, which is understandable in the light of losses
of territory over time, among other experiences.
316 MANUEL BECERRA RAMQREZ

The Constitution of 1857

Nationality law in Mexico has its roots in the Constitution of 1857. That doc-
ument set out the general outline for matters related to foreigners, nationality,
and citizenship that were retained in the 1917 Constitution. Reviewing particu-
lar articles, the earlier Constitution established the following:
—Article 30 based nationality on a combination of jus sanguinis and jus
soli.6 Moreover, the early text underscored the state’s economic interest by in-
cluding among those who could be considered Mexican, foreigners who ac-
quire real estate;
—With regard to employment, Mexicans are entitled to preference in all
cases over foreigners, in equal circumstances;
—Foreigners have rights, or enjoy individual guarantees, granted by the
Constitution (Article 33);
—Citizenship, which is granted to all Mexicans of good moral standing at
eighteen years of age, confers political rights (Article 35);
—Citizenship is forfeited by “naturalization in a foreign country” (Article
37). There was no mention of the loss of nationality, only the loss of citizenship.
That is, an individual continues to be Mexican but holds no political rights.

The Constitution of 1917

The preceding provisions were carried forward by the Constitution of 1917.

Currently, the following articles are among those that pertain to foreigners in
the country:
—Article 1 refers to rights of individuals;
—Article 11 guarantees freedom of movement;
—Article 30 establishes that nationality may be acquired by birth or natural-
ization;
—Article 32 establishes the principles by which nationals are accorded pref-
erence in employment and public office, as well as those principles that reserve,
for national security reasons, certain employment to native-born Mexicans;
—Article 33 refers to the rights and obligations of foreigners;
—Article 34 refers to citizens;
—Article 35 refers to the privileges of citizenship;

6. The Constitution of 1857, Article 30, establishes that Mexicans are

I. All those born of Mexican parents within or outside the territory of the Republic.
II. Those foreigners who naturalize in accordance with the laws of the Federation.
III. Those foreigners who acquire real estate or have Mexican children, as long as they manifest
no intention of retaining their nationality.
ME XIC O 317

—Article 36 sets out the obligations of citizens;

—Article 37 refers to the forfeiture of nationality and of citizenship;
—Article 38 regulates the cases in which the rights and privileges of citizen-
ship may be suspended;
—Article 73, paragraph XVI, establishes the exclusive powers of the Na-
tional Congress to issue laws governing nationality, legal status of foreigners,
citizenship, and naturalization; thus, the individual states of the Federal Union
are forbidden to deal with this federal issue, leaving it to the exclusive domain
of the federal government.
I will now describe some of these provisions in greater detail.

RIGHTS OF INDIVIDUALS. The current Constitution begins with the asser-

tion that all persons enjoy the guarantee of their rights as individuals under the
Constitution by merely stepping on Mexican soil (Article 1). The term “individ-
ual” is broadly defined to include both nationals and foreigners. This interpreta-
tion was confirmed by a passage relating to foreign slaves who “upon entry to
national territory shall attain, by this sole act, their liberty and protection under
law.” Later, this blanket coverage was tempered by the possibility that the Con-
stitution itself may restrict or suspend such “individual guarantees” (Article 1)
and that only the Constitution may do so. In this way, the Mexican Constitution
establishes certain limits on foreigners as detailed below.

FREEDOM OF MOVEMENT. In principle, there are limits on the guarantee of

freedom of movement (Article 11) that the 1917 Constitution recognizes for all
individuals.7 The Constitution authorizes legislation relating to emigration, im-
8
migration, and public health that places limits on foreigners and, specifically,
9
“undesirable aliens living in the country.” The concept of the undesirable alien,
which comes from the Constitution of 1857, is overly broad. If by “undesir-
able,” one means “dangerous,” the criteria for determining this status remains
unspecified. According to Montero Solana, “A foreigner’s freedom to enter,
exit, transit, and remain in Mexico is subject to legal restrictions.”10

PROPERTY. The passages of the 1917 Constitution that contain broad re-
strictions on foreign ownership of property have their roots in the nineteenth

7. Article 11 provides: “All men have the right to enter and leave the Republic, travel within its
territory and move residence, without the need for a security pass, passport, safe conduct or other
similar requirements.”
8. Article 73, paragraph XVI.
9. Article 33.
10. Montero Solana, 1992, p. 37.
318 MANUEL BECERRA RAMQREZ

century. With half the nation’s territory already lost, the fear that the “overflow-
ing prosperity in North America” would spur further U.S. annexation led the
Liberals (the political group victorious in the earlier Mexican civil war of the
1800s) to propose legislation to restrict the colonization of Mexico by anyone
from the United States.11 Thus, Article 27 of the 1917 Constitution provides for
the following:

I. Only Mexicans by birth or by naturalization and Mexican companies

have the right to acquire ownership of land, water and waterfront prop-
erty, or to obtain concessions for the operation of mines or waterways.
The State will grant the same rights to those foreigners who appear before
the Foreign Relations Secretariat as nationals with respect to such prop-
erty and with the understanding that they will not invoke, for this reason,
protection of their governments in matters relating to it, under penalty, in
the event of breach of contract, of forfeiting for the good of the Nation the
property that had been acquired by virtue of the same. Under no circum-
stances will foreigners acquire direct ownership over land and waterways
within one hundred kilometers of the border and fifty kilometers of the
shoreline.
The State, in accordance with domestic public interest and the princi-
ples of reciprocity, will, at the discretion of the Foreign Relations Secre-
tariat, grant authorization to foreign governments so that they may
acquire in the permanent place of residence of the Federal Powers, the
private real estate property necessary to service directly their embassies
or missions.

Foreigners are prohibited from direct ownership of land, water, and waterfront
property, unless they submit to the Calvo Clause before the Foreign Relations
Secretariat, by which they agree to forfeit any diplomatic protection for the
property by any other state. Absolute restrictions also exist regarding the border
and coastal zones. The Restricted Zone now has exceptions, with the possibility
of banking trusts open to foreigners and, more recently, with reforms concern-
ing the nonrenunciation of other nationalities, which means that those who have
dual nationality, including Mexican nationality, of course, will have access to
the Restricted Zone.

11. Vallarta, 1986, p. 20. Ignacio Vallarta, an illustrious jurist at the time of the Constitution of
1917, wrote a now famous opinion regarding the legality under domestic and international law of
Mexican restrictions on foreign ownership of property.
ME XIC O 319

MEXICAN NATIONALITY. Since the original text of the Constitution, Arti-

cle 30 has included the recognition of two paths for acquiring Mexican nation-
ality, one by birth and one by naturalization. Article 30 has come under several
modifications over the years, in 1934,12 1969,13 1974,14 and the latest in 1997,
which will be described below.
Citizenship at birth. In general, Mexican nationality policy has been a com-
bination of rules of jus soli and jus sanguinis.
—Jus soli. In 1934, the Constitution was amended to confer nationality upon
all those born in the territory of the Republic, independent of the nationality of
the parents.15 Thus, by the mere act of having been born in Mexican territory, in-
dependent of the nationality of the parents, Mexican nationality is granted.16
This provision has great current significance for the country, owing to the mi-
gration flows from countries such as Guatemala, El Salvador, and Honduras
during the internal conflicts there in the 1980s. Even though Central America
has now achieved peace, a large group of refugees from this region have de-
cided to remain permanently in Mexico. Many now have Mexican-born chil-
dren, who are legally Mexican and thereby entitled to all the rights the Mexican
Constitution grants to its nationals.
Mexican legislative policy maintained some equilibrium insofar as it took
into consideration the intentions of the Mexican-born children of foreign par-
ents. Upon reaching the age of eighteen, the child of a foreigner may petition
the secretary of Foreign Relations to opt for Mexican nationality, if and when
proof of residence is demonstrated for the previous six years. Note that this rule,
in effect, results in dual nationality until the age of eighteen for children born to
non-Mexican citizens in Mexico.
—Jus sanguinis. The pre-1997 text referred to Mexicans by birth as those
“children of Mexican parents, born within or outside the Republic.” It did not
require parents to have been born in Mexican territory. The 1997 amendments
are described below.
Naturalization. Article 30(B) recognizes as Mexican nationals “foreigners
who obtain a naturalization card from the Foreign Secretariat.” This provision
leaves open the possibility that future legislation may stipulate procedures for
acquiring Mexican nationality by way of naturalization.

12. Diario Oficial de la Federación, del 18 de enero de 1934.

13. Diario Oficial de la Federación, del 26 de diciembre de 1969.
14. Diario Oficial de la Federación, del 31 de diciembre de 1974.
15. Article 30 of the Constitution provides: “Mexican nationality is acquired by birth or by nat-
uralization: (a) Mexicans by birth: I. Those individuals born in the territory of the Republic, irre-
spective of the nationality of their parents.”
16. Mexican territory is defined in Articles 27 and 42 of the Constitution.
320 MANUEL BECERRA RAMQREZ

FOREIGNERS. The current text of Article 33 had its origins in Article 33 of

the Constitution of 1857. The government (it was not specified which part of
the government) had the power to “expel undesirable aliens,” as an exception to
individual guarantees. The term “undesirable” was not further defined. Article
33 reads as follows:

Foreigners are those who do not meet the criteria established in Article
30. They have the right to the guarantees granted under Chapter 1, Para-
graph One, of the present Constitution, but the Chief Executive will have
the exclusive authority to order immediate expulsion from national terri-
tory without need for prior trial of any foreigner whose stay is considered
undesirable.
Under no circumstances may foreigners interfere in the political af-
fairs of the country. [emphasis added]

Thus, the language remains broad and vague.

The drafters of the 1917 Constitution recommended more specific designa-
tion of the grounds for expulsion.17 But the proposal was ultimately not ac-
cepted. It nonetheless appears reasonable. Although, as Professor Gutiérrez
Baylón has maintained, the state is recognized as having “undisputed territorial
jurisdiction in determining the stay of foreigners in its territory,” in exercising
this authority, the state risks violating human rights, expanding the already am-
ple powers of the executive (as has happened), or even creating a dangerous
precedent for Mexico.18
At a time when the protection of human rights has reached nearly universal
acceptance, an undisputed principle of law is that all individuals have the right
to a trial that conforms to standard formal procedures and guarantees a proper
defense. Every individual also has the right to present evidence at trial. Yet Ar-
ticle 33 does not provide for such rights. Indeed, it appears to negate the guaran-
tee of a prior trial contemplated in Article 14—although it does not cancel the
guarantees against illegal search and seizure incorporated in Article 16 of the
Constitution. No known precedents exist, however, that contest it.
Article 33 also prohibits foreigners from “interfer[ing] in the political affairs
of the country.” This statement raises the question of whether interference in
economic affairs may not be of equal concern today. Perhaps it is time to recon-

17. Diario de Debates, 1985, pp. 1127–28.

18. See, for example, the following thesis on the dangerous precedent for the country:
Gutiérrez Baylón, 1996, pp. 9–13.
ME XIC O 321

sider the idea, proposed by the 1917 Constitutional Commission, that the Con-
stitution designate specified causes for expulsion of foreigners.

HIGH OFFICE AT THE FEDERAL LEVEL. The Constitution requires that to

become a federal deputy in the Chamber of Deputies or a senator in the Senate,
one must be a Mexican citizen (Articles 55-I and 58). By contrast, until re-
cently, to be eligible to be president, one must “be a Mexican citizen by birth
enjoying full rights, be the child of a Mexican father or mother, and have re-
sided in the country for at least 20 years.”19 This provision was modified in 1994
to permit a candidate with a foreign father or mother to be eligible for the presi-
dency. The change, which will enter into force on December 31, 1999, will be
in effect in the presidential election in the year 2000.
In order to become a justice on the Supreme Court, the highest court in the
nation, one must “be a Mexican citizen by birth.” Note the curious wording. As
we know that a Mexican citizen is one who has reached the age of eighteen (Ar-
ticle 34-I), it is therefore impossible to be a Mexican citizen at birth.

Constitutional Reforms of March 20, 1997

The newest and most important aspect of the reforms begins from a premise
that acknowledges the “permanence of nationality” or the “nonrenunciation of
nationality.” Both, in the opinion of Trigueros Gaisman, “occur frequently in
Anglo-Saxon legal systems by the persistence of the notion of personal and per-
petual alliance with the sovereign.”20 The much-expected constitutional re-
forms relating to nationality took effect in 1998.21

Citizenship at Birth

Article 30(A)(I), pertaining to jus soli, was not modified in 1997 and re-
mains in the Constitution. Paragraph II, however, underwent a significant
change. It now provides for nationality for “those individuals born abroad, chil-
dren of Mexican parents who were born in national territory, of a Mexican fa-
ther born in national territory or of a Mexican mother born in national territory.”
Before the reform, the text simply mentioned “those born abroad of Mexican
parents, of a Mexican father or of a Mexican mother.” Thus, jus sanguinis is
now limited by the added requirement that one of the parents must have been

19. According to the reforms of 1994 (Diario Oficial de la Federación, I-VII, 1994).
20. Trigueros Gaisman, “Nacionalidad única,” 1996, p. 96.
21. Diario Oficial de la Federación, del 20 de marzo de 1997.
322 MANUEL BECERRA RAMQREZ

born in national territory. That is, Mexican nationality for those born abroad is
now limited to the first generation.
The 1997 reforms added a third paragraph to Article 30(A) that stipulates
Mexican nationality for “those individuals born abroad to parents who are natu-
ralized Mexicans, to a naturalized Mexican father or to a naturalized Mexican
mother.” Again, the principle of jus sanguinis is not applied beyond the first
generation. That is, the children of a Mexican national who was born abroad to
naturalized parents do not obtain Mexican nationality at birth, as they do not
meet the requirement that at least one of their parents was born in Mexican terri-
tory.
The following hypothetical cases illustrate how Mexican nationality is con-
ferred, according to the reforms:
—Individual born abroad to Mexican parents born in national territory. The
person in this case will directly acquire Mexican nationality by virtue of having
Mexican parents, but the individual may have a second nationality if the state in
which he or she is born applies the principle of jus soli as a criterion in confer-
ring nationality.
—Individual born abroad to a Mexican father born in national territory and a
mother born in another country. Here, the child is Mexican; however, the sce-
nario may produce double or triple nationality. If, for example, the mother has a
different nationality from that which the child receives by place of birth, the po-
tential exists for the child to acquire various nationalities: that of the father,
which would be Mexican; that of the county of birth; and that of the mother, if
the country of origin follows jus sanguinis.
—Individual born abroad to a Mexican mother born in national territory and
father born in another country. As in the previous scenario, the child is Mexican
and may hold two or three nationalities, depending on the law of those coun-
tries.
—An individual born abroad to naturalized Mexican parents. This individ-
ual will be a Mexican national at birth, but his or her children born outside of
Mexico will not be Mexican nationals.
—Furthermore, paragraph IV of the constitutional reform, which earlier cor-
responded to paragraph III, establishes Mexican nationality for “those individ-
uals born aboard Mexican ships or aircraft, be they of war or commercial craft.”
By extension, Mexican ships and aircraft are considered Mexican territory, and
in the application of jus soli, nationality is conferred upon those born aboard
these craft. It is not clear if paragraph II, which the requires the parents to have
been born in national territory, applies to this paragraph. Likewise, the fact that
Articles 27 and 42 of the Constitution do not include ships and aircraft under the
rubric of “territory” leaves open the possibility that those Mexicans to which
ME XIC O 323

paragraph IV refers will not be considered as having been born in national terri-
tory on the terms laid out in paragraph II. This scenario, however, may not arise
often, because women in their latter months of pregnancy typically do not travel
by boat or plane. If the foreigners who give birth to a child aboard ship or air-
craft were entitled as well to the nationality of the country of origin, of course,
this hypothetical case could cause dual nationality.
—Children of foreigners who are born in territory occupied by Mexican em-
bassies, such as asylum seekers in Mexican diplomatic missions abroad. Here,
it would be logical that the children born under these circumstances would also
have Mexican nationality, however, the eventuality is not mentioned at the end
of Article 27, nor in Article 42.

Naturalization

The reforms also amended Article 30(B), paragraph II of which now recog-
nizes Mexican nationality for “the woman or man who enters into marriage
with a Mexican man or woman and has or establishes residence within national
territory and complies with the remaining requirements on the matter as stipu-
lated by law.” The phrase “and complies with . . . ” was added to the text. The
two objectives in adding this phrase were to prevent the conferral of Mexican
nationality by marriage alone and to avoid fraud, that is, to avoid marriage be-
tween foreigners and nationals for the mere purpose of obtaining Mexican na-
tionality.

Forfeiture of Nationality and of Citizenship

One of the fundamental changes in the constitutional reforms referred to the

forfeiture of nationality. Although there were several reasons for loss of nation-
ality included in Article 37(A) of the prereform text, the reforms centered on the
restriction contained in Article 37(A)(I) of the prereform text, which provided
for loss of nationality “by voluntary acquisition of a foreign nationality.” By
contrast, the revised text reads: “No Mexican by birth shall be deprived of his or
her nationality.” (The amendment does lay out in revised Article 37(B) how
naturalized Mexicans may lose nationality, which will be discussed below.)
The amendment for the nonforfeiture of nationality was accompanied by a
provisional article that allows for its retroactive application: “This right may be
exercised during a period of five years from the effective date [March 20, 1998]
of this provision.” This statement means that, for example, Mexicans who were
deemed to have forfeited Mexican nationality by naturalizing in the United
324 MANUEL BECERRA RAMQREZ

States before March 20, 1998, will have until March 2003 to reclaim Mexican
nationality.
The loss of citizenship was also addressed in the constitutional reforms in re-
vised Article 37(C). Only the following item of six causes for loss of citizenship
was amended, as follows: “I. By accepting or using titles of nobility of foreign
governments.” Edited out of the old text was the ending phrase “by accepting or
using titles of nobility that imply submission to a foreign government” (empha-
sis added). The current provision is stricter than the previous version by clearly
punishing with the loss of citizenship any acceptance or use of titles of nobility
of foreign governments. Other causes for loss of citizenship may be addressed
by future legislation.

The Issue of Dual Nationality

Traditionally, state doctrine and practice have considered dual nationality
in negative terms. The general disfavor expressed toward this practice was il-
lustrated by the Principle on Nationality adopted by the Institute for Interna-
tional Law in 1985, which reads, “no one may hold two nationalities
simultaneously.”22
Several developments in recent years have changed the tradition of Mexican
nationalism. In the 1995–2000 National Development Plan, the executive
branch declared a priority for constitutional and legal reforms that would permit
Mexicans to retain their nationality independent of their state of residence or
citizenship. Subsequently, on April 4, 1995, members of various political par-
ties in the National Congress introduced a bill that set in motion a process that
culminated in constitutional reform in 1997. A Special Pluri-partisan Commis-
sion was created to study and propose constitutional and corresponding legal
reforms “to address the problem of dual nationality, as well as the citizenship of
those Mexicans who reside abroad, and to update legislation on the matter.”23
In justifying their proposal, the legislators cited the following consider-
ations:
—A large number of Mexicans emigrate, for reasons related to the economy
and economic opportunity, without losing touch with their roots, their Mexican
identity, and their link to the country of origin;

22. Arellano García, 1992, p. 10. As we have seen, the constitutional reforms allow for the rec-
ognition of dual nationality. Although dual nationality was technically possible under the previous
Constitution, it was treated as temporary in nature while an individual matured to the age of eigh-
teen years. At that stage, he or she would choose a single nationality.
23. Taken from Arellano García, 1996, pp. 21–22.
ME XIC O 325

—Many of these Mexicans, in order to maintain their nationality do not take

the legal steps that would permit them greater expression of their social, civil,
and political rights in their place of residence, even when living abroad for ex-
tended periods;
—Other Mexicans who do seek citizenship abroad even though they con-
sider themselves Mexican encounter various barriers when carrying out their
economic or family pursuits in their country of origin despite not having for-
mally lost their nationality;
—Mexican children of Mexican parents born abroad carry dual nationality
until they come of age and then must choose citizenship in one country;
—In comparing the legislation of various countries, many cases are recorded
in which the possibility of dual nationality occurs without affecting basic prin-
ciples of dignity and national sovereignty;
—Representatives of the different political parties of Mexico have advo-
cated legislative reforms to ensure that Mexican nationals do not lose their na-
tionality.24
This bill caused an interesting debate in Mexico with arguments both in fa-
vor and against dual nationality. Some of the major arguments in favor of dual
nationality included the following:25
—Mexicans in the United States need protection because of an increase in
xenophobia directed mainly at Mexicans;
—Despite its tainted image, dual nationality has gained worldwide accep-
tance over the past three decades in more than forty nations;26
—Dual nationality has been accepted in U.S. jurisprudence;
—Since the 1970s, Chicano groups in the United States have requested dual
nationality with Mexico as a way to help themselves advance in U.S. society,
while enjoying rights in Mexico, including their right to own border-front prop-
erty on the Mexican side; it is estimated that some 1.2 to 2.5 million Mexicans
are eligible for U.S. citizenship.
Arguments against dual nationality included the following:27
—U.S. law regarding naturalization requires that each person on whom citi-
zenship is conferred must swear under oath before the court to, among other
things, “absolutely, and entirely, renounce and abjure all allegiance and fidelity
to any foreign prince, potentate, state or sovereign of whom or which [they]

24. Taken from Arellano García, 1996, pp. 21–22.

25. See García Moreno, 1995, pp. 193–98.
26. For example, Argentina, Costa Rica, Chile, the Dominican Republic, Ecuador, El Salva-
dor, Guatemala, Nicaragua, Panama, Paraguay, Peru, Uruguay, France, Germany, Great Britain, It-
aly, Spain, and Switzerland
27. See Arellano García, 1996, p. 22.
326 MANUEL BECERRA RAMQREZ

have heretofore been a subject or citizen” and to “support and defend the Con-
stitution, and laws, of the United States. . . .” The penalty for violation of the
oath is to be charged with lying under oath or breech of solemn oath, which the-
oretically leaves no room for dual nationality;
—Mexicans who migrate lose their roots, their sense of Mexican identity,
and their ties to the country of origin, transferring their loyalty to their new na-
tionality;
—A large number of Mexicans in the United States either cannot qualify for
or do not want U.S. citizenship;
—While Mexicans who take on other nationalities do encounter certain bar-
riers upon return to Mexico, it is because of their foreign status, and legislation
existing at the time eased this impact. Although the prereform Mexican Consti-
tution (Article 37, A-I) declared that Mexican nationality was forfeited “by vol-
untary acquisition of a foreign nationality,” the laws regulating its application
clarified what was meant by voluntary acquisition. Article 22 of the Nationality
Law of 1993 directed: “Voluntary acquisition of nationality will not be deemed
to have taken place for purpose of law by virtue of simple residence or when na-
tionality is a necessary condition for obtaining work or to maintain employment
already acquired.” In addition, Article 28 of the same stipulated the easy proce-
dures for recovery of nationality once forfeited; Comparison of Mexican legis-
lation with other countries’ legislation is irrelevant;
—Naturalized U.S. citizens have no recourse under law nor the Constitution
with respect to ownership of land in the border area restricted to foreigners.
Even before the 1997 reforms, however, Mexican law produced dual nation-
ality, or at least tolerance of the phenomenon.28 Nonetheless, the emphasis
placed on the protection of Mexicans in the United States sent a strongly critical
message to the United States. This criticism then became a foreign policy issue
and yet one more item for discussion in the supremely complicated bilateral re-
lationship.
A popular proposal with those who were in favor of adopting a dual nation-
ality law was to regulate the rights of dual nationals by means of limiting their
citizenship rights. This proposal was eventually adopted in the 1997 law.
Dual nationality is allowed but only with limited rights. Although the Consti-
tution gives dual nationals the right to vote, Mexicans living outside the coun-

28. Professor Laura Trigueros Gaisman reasons, “The renunciation of foreign nationality is
made before the Mexican authorities, therefore, it becomes subject to the recognition of the foreign
state; nevertheless, in U.S. naturalization proceedings, there is no stipulation that one must await
the acceptance of such renunciation in order to confer nationality, which frequently results in dual
nationality.” See Trigueros Gaisman, “La doble nacionalidad,” p. 591.
ME XIC O 327

try are not entitled to participate in Mexican elections.29 It is currently being

debated whether voting outside of Mexico should be permitted, but pending
legislative proposals would exclude dual nationals from voting abroad. In short,
the goal of the constitutional change was to permit dual nationality, not dual cit-
izenship.
The recognition of dual nationality as a permanent status is made clear by
amendments to Article 32 of the Constitution, which authorizes legislation to
regulate the legal problems that arise with dual nationality. Article 32 provides:

The law will regulate the exercise of rights granted by Mexican legisla-
tion to those Mexicans who hold another nationality and will establish
norms for the purpose of avoiding conflicts that arise because of dual na-
tionality.
Those government offices and functions for which, by the provisions
of the present Constitution, the holder is required to be Mexican by birth,
are reserved for those who meet this criterion and do not acquire another
nationality. This restriction also will apply where stipulated in other laws
legislated by the National Congress.
In peacetime, no foreigner will serve in the Army, nor with the police
or security forces. To join the Army in peacetime and the Navy or the Air
Force at any time or to carry out any office or commission in these ser-
vices, one must be Mexican by birth.
It is imperative that the same requirement hold for captains, pilots, ma-
chinists, mechanics, and in general, for all personnel who serve on any
ship or aircraft operating under the Mexican flag or merchant insignia. It
will also be a necessary condition to fill the position of captain and all air-
port command and staff operations.
Mexicans will be given preference over foreigners in equal circum-
stances for all types of concessions and for all government employment,
public office, and commissions for which it is not imperative that one be a
citizen.

Therefore, Article 32 provides the foundation for secondary legislation in vari-

ous respects. While recognizing the possibility that an individual may hold

29. Some 7 million Mexican nationals are estimated to reside permanently in the United States,
about one-third of whom are undocumented. See Bi-National Study on Migration: Migration Be-
tween Mexico and the United States, p. 7. According to the 1990 U.S. census, the main destinations
of Mexican migrants are California, 45 percent; Texas, 29 percent; Illinois, 5 percent; Arizona, 5
percent; New Mexico, 2 percent; Colorado, 2 percent; Florida, 1 percent; Michigan, 1 percent; and
New York, 1 percent (Reforma, 1998, p. 2A).
328 MANUEL BECERRA RAMQREZ

more than one nationality, the Constitution foresees the establishment of

“norms to avoid conflicts that arise because of dual nationality.” Significantly,
under Article 32, dual nationals will be considered non-nationals and, hence,
subject to the article’s restrictions on military service and employment.
Article 27(I) of the Constitution restricts foreigners from acquiring direct
ownership over lands and waterways within 100 kilometers from the border and
50 kilometers from the coast.30 Unlike the restrictions of Article 32, these re-
strictions will not apply to dual nationals after the constitutional reforms. That
is, a U.S.-Mexican may purchase land in the zone traditionally restricted to
Mexican ownership. The reason for the change appears simple: foreign invest-
ment (that technically would not be foreign) can flow into these areas.
But surely this explanation gives rise to many questions: How is the reform
consistent with the historical explanations for the ban on foreign ownership?
Does the country run the risk of undercutting nationalism? Is national sover-
eignty jeopardized once again by such a provision? If there is substance to the
concerns of some foreign experts that the United States has an insatiable appe-
tite for territory and that Japan has a need to claim some territory to help propel
its entry into other markets (such as the United States), then it is not so far-
fetched that territory would be acquired to suit foreign purposes and in such a
way as to cause Mexico’s loss of control over the territory. The recommended
course would be to eliminate these new notions about ownership so that the
original intent of the constitutional drafters in placing such restrictions may be
respected.

The New Nationality Law

On March 20, 1998, the new Nationality Law went into effect. The law im-
plements Articles 30, 32, and 37(A) and (B) of the amended Constitution of
1917.31 The Nationality Law recognizes three types of Mexican nationality:
Mexican nationality acquired by birth or by naturalization, and dual nationality.

Mexican Nationality by Birth

The Nationality Law does not define who are Mexicans by birth, as this was
treated under Article 30 of the Constitution. The law refers only to certain
“bonds” or obligations that devolve upon Mexicans by birth when they take on
another nationality. Thus, for example, they should present themselves as na-

30. Mexican Constitution, Article 27 (1997).

31. Published in the Diario Oficial de la Federación, del 23 de enero de 1998.
ME XIC O 329

tionals upon entry and exit from national territory (Nationality Law, Article
12).
In addition, Article 13 states that nationals by birth will conduct themselves
as nationals with respect to the following:

I. Legal action taken within national territory and in the areas of Mexi-
can government jurisdiction in accordance with international law; and
II. Legal action taken outside national jurisdiction, among them:
a) Participation at any level in providing capital to any Mexican per-
son of good moral standing or entity constituted or organized in confor-
mance with Mexican law, or in the exercise of control over such persons
or entities;
b) Extension of credit to any person or entity referenced above;
c) Holding of title to real estate located in national territory or other
rights whose exercise are restricted to national territory.

The focus of this provision is to avoid a situation of diplomatic protection and to

some extent is a result of the famous Calvo Clause found in the Mexican Con-
stitution’s Article 27. Relative to the actions mentioned, the Nationality Law
provides for sanctions in the event of noncompliance. If anyone in this condi-
tion should invoke the protection of a foreign government, the provision di-
rects, “the individual will forfeit for the good of the Nation any property or any
rights for which he or she has invoked such protection.”32
Despite the foresight on the part of Mexican legislators in these cases, one
must remember that international law has clear rules for diplomatic protection
where dual nationality applies. It is a principle of international law that a state
may not legitimately attempt to extend diplomatic protection on behalf of a na-
tional against a state that also considers the same individual one of its own.
The Nationality Law also refers to the case of abandoned children and estab-
lishes the presumption that “unless proved otherwise, a foundling discovered in
national territory is presumed to have been born in-country and to be the child
of a Mexican father and mother.”33
The law defines a Mexican of good moral standing in the way traditionally
described in Mexican legislation: “Mexican nationals of good moral standing
are those who comply with Mexican law and maintain their legal residence in
national territory.”34

32. Article 14 of the Nationality Law.

33. Article 7 of the Nationality Law.
34. Article 8 of the Nationality Law.
330 MANUEL BECERRA RAMQREZ

Mexicans by Birth Who Hold More than One Nationality

We may assume that Mexicans by birth who hold more than one nationality
constitute a distinct category by the fact that the Nationality Law provides for
certain restrictions on them. In principle, they may not invoke diplomatic pro-
tection under the terms described above.
Furthermore, dual nationals are not eligible for certain employment from
which foreigners are barred. The Nationality Law stipulates that a public office
or position may be reserved to persons who are citizens at birth and have no
other nationality (“restricted employment”) if such a restriction is “expressly
stated in the applicable provision.”35 Dual nationals may, however, remove the
bar by obtaining a Certificate of Mexican Nationality. The requirements for a
certificate include renunciation of any other nationality to which he or she may
be entitled (and to all foreign protection outside Mexican law and authority)
and a declaration of allegiance, obedience, and submission to the law and au-
thorities of Mexico.36 Similarly, the authorities should demand proof of nation-
ality before granting such employment.37 In the event that an individual
acquires another nationality in the course of discharging his or her duties in the
restricted employment, the individual is expected to immediately cease his or
her duties.

The Nonforfeiture of Nationality

A core objective of the constitutional reforms was to ensure the
nonforfeiture of Mexican nationality for Mexicans by birth, a purpose now se-
cured by Article 37(A).38 These reforms, then, recognize dual nationality as a le-
gitimate status. The decision of the Mexican government to accept dual
nationality is significant and has been effected virtually without controversy.
Despite its importance, the article in the Nationality Law that refers to the
recognition of the nonforfeiture of nationality appears merely as one of a num-
ber of provisional articles listed at the end of the law:

Fourth. In order to benefit from the provisions of Article 37, Part A, of the
Political Constitution of the United States of Mexico, the interested party
should:

35. Article 15 of the Nationality Law.

36. Article 17 of the Nationality Law.
37. Article 16 of the Nationality Law.
38. Article 37(A) states: “No Mexican by birth will be deprived of his or her nationality.”
ME XIC O 331

I. Present a written request to the Secretariat, Embassies or Consulates

of Mexico, within five years beginning March 20, 1998;
II. Provide proof of Mexican nationality, as determined by this Law;
and
III. Provide proof of identity to the authorities.

The Foreign Relations Secretariat estimates that between 2 and 3 million people
who acquired other nationalities may recover their rights as Mexican nationals.
Although dual nationality is not directed against any one country in particular,
in political terms it is seen as directed primarily at the United States. The eco-
nomic, political, and cultural factors related to Mexican migration to the United
States surely weighed heavily in the Mexican government’s decision to move to
a policy of multiple nationalities.39 Still pending is the issue of granting political
rights to these Mexicans so that they may participate in Mexican elections,
which will be subject to future debate.
In accordance with international law, it is the state’s sovereign and irrefut-
able right to determine its nationals. Thus, Mexico’s decision may not be con-
tested. International law, however, also indicates that when a measure may
affect a third country, that country should be consulted. In this case, however,
Mexico, may not be obliged to act if a lack of reciprocity is demonstrated. In
practice, for example, the United States does not take Mexico sufficiently into
consideration when it legislates matters related to migration that affect the in-
terests of Mexican migrant workers.
The boldness of the Mexican government’s move on dual nationality must
be acknowledged. At the same time, constructing the legal infrastructure that
will make dual nationality operational and establishing boundaries against the
use of dual nationality for the introduction of purely foreign interests constitute
an enormous task. Where we must seek congruence, however, is in Mexico’s
dual position as an exporter of manpower to the United States and as a receiver
of migrants in the south of the country.
Given the expectation that the nonforfeiture of nationality may give rise to
conflicts, the Nationality Law stipulates specific rules for division of goods in

39. The director general for the Program for Mexican Communities Abroad, of the Secretariat
of Foreign Relations, Rodolfo Figueroa, noted that the Hispanic community in the United States en-
compasses 27 million people, of whom 18 million are of Mexican origin; of those, approximately
10.5 million were born in Mexico, he reported. Of the remaining, 5 million are legal residents of the
United States and 500,000 of those are naturalized in the United States. “This leaves 2.5 million un-
documented, more or less.” Estimates are that approximately 65 percent of the migrants return to
Mexico within the first ten years, he pointed out. Figueroa noted that based on remittances and
transfers registered by the Bank of Mexico, migrants send approximately U.S.$4 billion to Mexico
annually. The average remittance is U.S.$225. (Reforma, 1998, p. 2A.)
332 MANUEL BECERRA RAMQREZ

the case of dual nationals (Article 13). These rules recognize the principle of
primacy of the law of the court of jurisdiction (ley del foro). The opinion of
Mexican foreign policy expert José Luis Siqueiros on this issue may prove use-
ful to clarify the latter point. Siqueiros postulated that an intermediate or com-
plementary point exists between the two traditional systems of determining
nationality (jus sanguinis, jus soli). That midpoint, termed jus domicili, takes
into consideration an individual’s intention to remain (animus manendi) and
has the added benefit of clarifying that an individual is subject to the law of the
land in which he or she resides.40

Proof of Nationality

The documents necessary to prove nationality are defined in the Nationality

Law and consist of the following:
—Birth certificate issued in conformance with the applicable provisions of
law;
—Mexican Nationality Certificate, which will be issued by special petition,
exclusively for the purposes of Articles 16 and 17 of the Nationality Law;
—Naturalization card;
—Passport; and
—Citizen identity card.
In the absence of the documents mentioned above, nationality will be proved
by whatever means, in conformance with the law, convince the authorities that
the requirements for attribution of Mexican nationality have been met.41

Mexican Nationality Certificate (CNM)

The Mexican Nationality Certificate has become an important document

and, as explained above, a requirement for dual nationals who wish to obtain re-
stricted employment. The Nationality Law defines the purpose of the National-
ity Certificate, its regulation, and how it may be annulled.42
In order to obtain a Nationality Certificate, the applicant petitions the For-
eign Relations Secretariat and must fulfill the requirements described above.
With respect to annulment of the Nationality Certificate, the Nationality Law
provides for the possibility that the Foreign Relations Secretariat may,

40. See Gómez-Robledo Verduzco, 1994, p. 325.

41. Article 3 of the Nationality Law.
42. Mexican Nationality Certificate: legal instrument that attests that an individual is of Mexi-
can nationality by birth and holds no other nationality (Article 2(II) of the Nationality Law).
ME XIC O 333

subject to an interview with the applicant, declare the certification null

and void when it has been issued in violation of this law and procedures
or when the applicant has not complied with the stipulations of the Law
and procedures.
The annulment will specify the expiration date of the certificate. In all
cases, third parties acting in good faith will be protected with respect to
any legal action taken during the effective life of the certificate.43

From the text, one can see that the revocation of nationality is an administrative
order of relative character: it is made valid only by the Foreign Relations Secre-
tariat, its application is limited to the parties involved, and “third parties acting
in good faith will be protected with respect to any legal action taken during the
effective life of the certificate.” The law does not mention a prescribed time
limit but, rather, makes reference to supplementary laws. In this regard, the law
provides that “for everything not foreseen in this Law, the provisions of the
Civil Code for the Federal District in Ordinary Matters (Materia Común), for
the entire Republic in Federal Matters, and provisions of the Federal Law on
Administrative Procedure will be considered supplementary.”44
The Mexican Nationality Certificate also may be revoked upon the pre-
sumption of loss of Mexican nationality.45 Finally, the “interview with the ap-
plicant,” consistent with Article 14 of the Constitution, is an important
guarantee maintained under the Nationality Law.

Mexican Nationality by Naturalization

To acquire Mexican nationality by naturalization, the Nationality Law stipu-

lated the requirements to be fulfilled by the applicant, as follows:
—Present request to the Secretariat indicating intention to acquire Mexican
nationality;
—File renunciations and affirmations previously noted when processing the
Mexican Nationality Certificate. The Secretariat will not require these affida-
vits to be filed until it has made a determination to grant nationality to the appli-
cant. The naturalization card will be issued once the affidavits have been
verified;
—Prove that one can speak Spanish, knows the history of the country, and is
integrated into national culture; and

43. Article 18 of the Nationality Law.

44. Article 11 of the Nationality Law.
45. Article 32 of the Nationality Law.
334 MANUEL BECERRA RAMQREZ

—Provide proof of residence in national territory for the term established

under Article 20 of this Law.46
With respect to residency, the law provides for four different cases of natu-
ralization, as follows:47

Five years of residence is required under the following circumstance:

The foreigner who intends to naturalize as a Mexican must provide
documentation that he or she has resided in national territory at least dur-
ing the five years immediately preceding the date of application.

Two years residence is required immediately preceding the date of appli-

cation when the applicant:
—is a direct descendant of a Mexican by birth;
—has Mexican children by birth;
—is from a country in Latin American or Iberian Peninsula; or
—at the discretion of the Secretariat, has provided service or achieved
outstanding work of a cultural, social, scientific, technical, artistic, sport
or business nature that benefits the Nation.

A foreign man or woman who marries a Mexican man or woman must

present proof that they maintained a residence and lived together as hus-
band and wife in that residence in national territory. It is not necessary for
the residence to be in national territory if the Mexican couple travel
abroad under orders or commission of the Mexican Government.

In the case of marriage between foreigners, the acquisition of Mexican

nationality on the part of one of the parties after the marriage will enable
the other party to obtain nationality, as long as he or she fulfills the re-
quirements set out in this section.

The previous law resulted in disputes because of the lack of clarity about
when nationality is acquired, whether automatically upon marriage or at the
time the Mexican Nationality Certificate is issued. The latest reforms make it
clear that nationality is acquired upon issuance of the Nationality Certificate.48
The law also makes clear that those who acquire Mexican nationality in this

46. Article 19 of the Nationality Law.

47. Article 20 of the Nationality Law.
48. See Hernández Trillo, 1992, pp. 15–16.
ME XIC O 335

way will preserve it even after the dissolution of the marriage, except in cases of
annulment of the marriage attributed to the naturalized party.49
The Nationality Law provides for additional scenarios. First, one year’s res-
idence, immediately prior to the application, is required in the case of adoption,
as well as of minors to the second generation, subject to Mexican parental au-
thority. In the event that parents have not sought the naturalization of adopted
children or minors, they themselves may do so within one year of their coming
of age.
In cases in which parents have not sought naturalization for their children,
residency must be uninterrupted.50 In general, it should be noted that “tempo-
rary absences from the country will not interrupt residency, except when ab-
sence occurs within two years of presentation of the request and when it
exceeds six months in total.”51
Second, no residence requirement need be met to confer nationality in spe-
cial circumstances. These circumstances refer to the discretionary and excep-
tional powers of the executive—as when in the judgment of the executive, the
foreigner “has provided services or has achieved outstanding work of a cultural,
social, scientific, technical, artistic, sport or business nature that benefits the
Nation.” In such cases, the residency requirement is waived.52

Naturalization Card
The Nationality Law provides the following rules with respect to the Natu-
ralization Card, which is defined as the “legal instrument by which to prove that
Mexican nationality has been conferred on a foreigner.”53 The Naturalization
Card becomes effective on the day of issuance.
In general terms, the Nationality Law refers to suspension for cause and to
revocation of the Naturalization Card. The procedure for obtaining the Natural-
ization Card is suspended when a formal arrest warrant is issued for the appli-
cant or when he or she is taken into custody in Mexico, or its equivalents
abroad.54
The Nationality Law stipulates that the Naturalization Card will not be is-
sued under the following conditions:

49. Article 22 of the Nationality Law.

50. Article 20 of the Nationality Law.
51. Article 21 of the Nationality Law.
52. Article 20(I)(D) of the Nationality Law.
53. Article 2(II) of the Nationality Law.
54. Article 24 of the Nationality Law.
336 MANUEL BECERRA RAMQREZ

—Applicant is in non-compliance with the requirements of the Nationality

Law;
—Applicant is completing a prison term for a serious crime in Mexico or
abroad; and
—When, in the judgment of the Foreign Relations Secretariat, it is inconve-
nient to issue the Naturalization Card, in which case it must provide a reason for
its decision.55
With respect to the revocation of the card,

the Foreign Relations Secretariat will take action in the event that the card
was issued fraudulently or without fulfilling the stipulated requirements.
In all cases, third parties acting in good faith will be protected with re-
spect to any legal action taken during the effective life of the certificate.56

The Forfeiture of Mexican Nationality by Naturalization

In reference to the forfeiture of Mexican nationality acquired by naturaliza-

tion, the Nationality Law defers to the causes listed in Article 37(B), as
amended.57 Thus, subject to an interview with the applicant, a naturalized Mexi-
can may lose nationality for the following reasons:

I. By voluntary acquisition of a foreign nationality, by presenting one-

self as a foreigner in a public transaction, by use of a foreign passport, by
accepting or using titles of nobility that imply submission to a foreign
State.58
II. By residing five continuous years abroad.

The constitutional reform guarantees nationality only to Mexicans by birth.

With this change, only Mexicans by birth, not by naturalization, have the possi-
bility of dual nationality. To be clear, Mexicans by naturalization are prohibited
from holding dual nationality. Upon taking Mexican nationality, naturalized
Mexicans must renounce any other nationality they hold and, furthermore,

55. Article 25 of the Nationality Law.

56. Article 26 of the Nationality Law.
57. Article 27 of the Nationality Law.
58. With regard to determining when another nationality has been acquired, the circumstances
are most important, according to the Nationality Law. Except when proven otherwise, it is pre-
sumed that a Mexican has taken on a foreign nationality when he or she has taken some legal action
to obtain or preserve it or if he or she presents himself or herself as a foreigner to any authority or in
any public document (Article 6 of the Nationality Law).
ME XIC O 337

should they acquire another nationality at any point after taking Mexican na-
tionality, they lose Mexican nationality. The same condition holds should they
present themselves with a foreign passport or if they were to use a title of nobil-
ity that implied submission to a foreign state.
By residing for five continuous years outside the country, a naturalized
Mexican risks being left without any nationality. In some instances, excused
absence from the country may be the result of family, work, or other affairs but
may not include acquiring another nationality. While one may become es-
tranged from the country by prolonged absences, it does not necessarily mean
that a naturalized Mexican has expressed his or her intent to establish links to
another state. The following hypothetical example may be far from unique. A
British citizen marries a Mexican student in Spain. The couple establish resi-
dence in Mexico and Mexican nationality is conferred upon the wife. The hus-
band then accepts an important position in Spain that keeps them away more
than five years. The result is that the wife of British origin and Mexican nation-
ality by naturalization loses Mexican nationality with no intention of doing so.
Who takes action to demand the forfeiture of nationality by naturalization?
In these cases, the federal government and other authorities are obliged to in-
form the Foreign Relations Secretariat when they discover that an individual
falls into one of the categories mentioned above, which are listed in Article
37(B) of the Constitution. The Nationality Law stipulates that such notice must
be given to the Secretariat within forty working days of the date on which an in-
dividual is suspected of violating the terms.59
Furthermore, the forfeiture of nationality by naturalization affects exclu-
sively the individual on whom the charge falls.60 In all cases of forfeiture of
Mexican nationality by naturalization, the Foreign Relations Secretariat is
obliged to seek the opinion of the Interior Secretariat before taking action.61
Finally, when notice of the supposed violation of Mexican nationality is given,
the process to revoke the Mexican Nationality Certificate commences. In the
event of violation of the Nationality Laws, fines determined on a sliding scale
may be imposed by the Foreign Relations Secretariat,62 with discretionary au-
thority.63

59. Article 28 of the Nationality Law.

60. Article 29 of the Nationality Law.
61. Article 31 of the Nationality Law.
62. The highest fine category ranges from 500 to 2,000 times the minimum salary “for those
who marry with the sole intention of obtaining Mexican nationality” (Article 33-III of the National-
ity Law).
63. Article 37 of the Nationality Law. In deciding to impose fines, the Secretariat must take
into consideration the seriousness of the violation, damages, and injury caused, as well as the per-
sonal background and socioeconomic situation of the violator.
338 MANUEL BECERRA RAMQREZ

Adoption and Nationality

Adoption does not confer nor forfeit nationality for the child nor adopted
parent. We must remember, however, that adopted children are in a privileged
situation with respect to time, as they require only one year of residency in the
country to acquire nationality, without prejudice as to the provision of Article
20, Section III, of the Nationality Law.64

Modifications to Other Provisions for the Purpose of

Nonforfeiture of Nationality
With the constitutional reforms and the possibility for Mexicans to hold
more than one nationality, additional reforms were carried out on a series of
laws that restrict dual nationals from occupying various positions, the “re-
stricted employment” laws.65 Although some fifty-five regulations were identi-
fied,66 only thirty-one laws were actually modified. The focus of the reforms
was to carve out certain services, occupations, and employment prohibited to
dual nationals and, of course, to foreigners.67
The creation of restrictions on dual nationals relates to the Mexican govern-
ment’s national security concerns with respect to protecting the armed forces,
upholding justice, preserving political and labor rights, and so on. Given the
logic for limiting dual nationals’ access to restricted employment, the actual list
of restricted jobs is short. To give one example, the Federal Law for Protection
of the Consumer is omitted, in which Article 51 requires that the federal prose-

64. Article 30 of the Nationality Law.

65. Diario Oficial de la Federación, del 23 de enero de 1995.
66. García Moreno, 1995, p. 198.
67. In accordance with this package of reforms, the following laws were modified: Mexican
Foreign Service Law, Regulation of the Mexican Army and Air Force (Ley Orgánica), Regulation
of the Mexican Navy, Code of Military Justice, Military Service Law, Regulation of the Federal Ju-
diciary, Regulation of the Federal Fiscal Tribunal, Law for the Treatment of Juvenile Defenders in
the Federal District on Common Matters (Materia Común) and for the entire Republic on Federal
Matters, Regulation of the Procuraduría General (Justice Department) of the Republic, Regulation
of the Federal District Attorney’s Office, Federal Code on Electoral Institutions and Procedures,
Navigation Law, Civil Aviation Law, Federal Labor Law, Social Security Law, Law on the Insti-
tute for Social Security and Services for State Workers, Law on the Institute for Social Security of
the Mexican Armed Forces, Federal Law on Non-governmental Entities, Regulation of Constitu-
tional Article 27 Pertaining to Nuclear Matters, Law on the National Commission for Human
Rights, Federal Brokerage Law, Regulation of the National Institution of Anthropology and His-
tory, Foreign Investment Law, General Law that Establishes the Bases for Coordination of the Na-
tional Security System, Energy Regulatory Commission Law, Retirement Savings Systems Law,
Constitution of Agrarian Tribunals, Bank of Mexico Law, Federal Law on Economic Competition,
Federal Law on Public Service Workers—Regulation of Part 15 of Constitutional Article 123, and
Law on the National Banking and Investment Commission.
ME XIC O 339

cutor be a Mexican by birth. Thus, a dual national could theoretically assume

this post.
These reforms do not address the problem of extradition. It remains unclear
how the principle of nonextradition of nationals should apply to a suspect who
holds more than one nationality. This extradition problem may be resolved by
the principle of effective nationality.68

Conclusions

First, at this time, the concept of nationality in Mexico is being revisited.

Various issues such as the reappraisal of the nationality of indigenous peoples
and the decision to permit dual nationality have played a very important role in
this reassessment.
Second, with respect to nationality, Mexico has maintained a policy of basic
protection of its nationals. The result has left Mexico in a contradictory situa-
tion. On the one hand, Mexico protects and promotes the rights of its nationals
in the international arena. On the other hand, it neglects the protection of those
from countries to the south, who travel to Mexico in the hope of finding work in
the United States just like Mexicans.69
Third, some observers express fear that the spread of dual nationality will
undermine national culture, but Mexican national culture is strong. Because of
this strength, Mexico should be more open to the outside world, working from
the standpoint of equals. Mexican nationalism, as it has been traditionally han-
dled, has a provincial character that is not appropriate in these days of economic
opening and globalization.
Fourth, another concern is that Mexico cannot protect its Mexican nationals
when they obtain U.S. nationality. International common law prohibits a first
country from carrying out protection activities against a second country of
which an individual is also a national. Thus, a certain sector of the Mexi-
can-born population in the United States will remain outside the reach of the
current reforms.
Fifth, one of the most interesting political implications of dual nationality
with respect to the U.S.-Mexico relationship is the attraction Mexicans feel to-
ward their roots in Mexico and their rejection of a policy based on “the melting
pot.” This phenomenon provides Mexico an important element for negotiation.
Mexico needs to be prepared and clear about what it wants in its dealings with

68. Spain has taken this stance in its dual nationality policy. See Rodríguez Mateos, 1990, p.
477.
69. Aguayo Quezada, 1992, p. 39.
340 MANUEL BECERRA RAMQREZ

the United States. Mexico should, for example, work toward enhancing real re-
spect and protection for the rights of Mexicans in the United States and toward
commencing negotiation on an agreement regarding migrant workers.
Sixth, in general, dual nationality can be a controversial subject. But it
should be noted that Mexico for the first time has taken the initiative in this mat-
ter and that making dual nationality operational may require negotiation with its
northern neighbor.

References
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 CHAPTER ELEVEN

Citizenship in the
European Union

MARCO MARTINIELLO

THE PAST DECADE has witnessed a return of the citizen and of citizenship both
in academic and in political discourse.1 The number of research projects, books,
journals, conferences, and articles dealing with citizenship issues has also in-
creased dramatically. The words citizenship and citizen are used in a growing
number of different areas and social contexts. Whereas these words were tradi-
tionally linked exclusively to human beings, now discussions about citizenship
extend to plants, animals, and corporations. In many ways, the concept of citi-
zenship has become a political slogan.
But despite a renewed, extensive academic interest in citizenship issues, a
comprehensive theory of citizenship broadly accepted by the academic com-
munity is still absent. Some scholars stress the formal dimension of citizenship,
namely the juridical link between the individual and state. Others reduce it to a
set of rights enjoyed by the individual by virtue of her or his belonging to a na-
tional community. Others find it more useful to study the participatory dimen-
sions of citizenship in order to explore new forms of political mobilization and
social movements in contemporary societies. Exchanges between these schol-
ars, who often seem to be interested in quite different phenomena and pro-
cesses, are afflicted with chronic misunderstandings. Dialogue between
academics and policy makers or politicians is often even more problematic.

1. This report is largely based on my previous published and unpublished work on EU citizen-
ship, which I have revised, updated, and corrected as necessary.

342
E UR OPE AN UNION 343

At least three features characterize current debates on citizenship issues.

First, these discussions often become entangled with other diverse academic
and political topics, such as the debates on international migration, the manage-
ment and the impact of cultural diversity, and the place of the nation-state in the
post–cold war era. Second, although liberal approaches to all these issues seem
to predominate among academic scholars, the general public has proved sym-
pathetic to illiberal views on ethnicity, nationalism, citizenship, and multicul-
turalism. These views increasingly find a channel of expression in extreme
right-wing and conservative politics, such as the Vlaams Blok in Belgium and
the Front National in France.2 The gap between academic liberalism and a
growing illiberalism among the general public is an important context for un-
derstanding the scope and meaning of citizenship in general, European Union
(EU) citizenship in particular. Third, the confusion that has infused debates
over citizenship is often rooted in the difficulty of distinguishing between nor-
mative concerns one the one hand and explanatory concerns on the other hand.
Moreover, considerations fundamentally intended to answer the question
“what ought to be?” are presented as mere analyses of the situation and vice
versa.
These same difficulties plague the more specific debates on EU citizenship,
in which both theoretical and political disputes abound. The issue of EU citi-
zenship is closely linked to the issues of migration, cultural diversity, and the
future of the nation-state in the old continent. The European Union is home to a
wide variety of ethnocultural and national affiliations and identities. This diver-
sity is not going to disappear under the pressure of globalization. Rather, Euro-
peans have entered a process that will only magnify European diversity. The
enlargement of the EU has and will increase the sheer range of national identi-
ties available within a common framework. Moreover, in several member
states, such as Spain, France, Belgium, Italy, the United Kingdom, and so on,
subnational mobilization promotes ethnoregional identities and group claims to
recognition as national minorities. Along with these two sources is the reality of
migration. Europe will continue to be a continent of immigration. Migrants
come from all over the world following new patterns of migration. Some of
them settle and adapt culturally while simultaneously enriching the local cul-
ture and the variety of ethnocultural identities. The European Union is highly
diversified both in terms of ethnonational identities and in broader cultural
terms. The myth of monoculture that is often invoked to justify exclusionary
policies does not fit the sociological reality of any society. The European Union

2. See, for example, “Racism and Xenophobia,” 1997.

344 MARCO MARTI NI ELLO

will continue to be de facto a multicultural society, a culturally diversified soci-

ety in which many collective identities coexist.
Despite the huge misunderstandings within the academic world over issues
linked to EU citizenship and multiculturalism, many scholars seem to share a
common starting point. They all acknowledge that in the current world, ideas of
ethnocultural homogeneity, “natural” or created, do not mirror the actual socio-
logical composition of the population, which is diverse. The traditional se-
quence ethnies–nations–citizenry–nation-state has seriously been challenged
by international migration, European integration, and globalization. Therefore,
crucial questions arise: How does the European Union deal with its de facto
multicultural, multireligious, multiethnic, growing character while simulta-
neously reasserting its democratic exigencies and dealing with growing social
and economic inequality and exclusion? In other words, how does it raise the
question of a multicultural citizenship of the European Union?
The concept of EU citizenship has certainly entered into a process of change
and development, but to predict how and in which direction it is going to evolve
is fraught with uncertainties.3 Could it develop by analogy with the U.S. federal
citizenship?4 Could it replicate the multidimensional Commonwealth citizen-
ship? What are the prospects for a new imperial model of citizenship in Eu-
rope?5 Should EU citizenship be entirely new? Can we imagine a multicultural
model of citizenship for the European Union?6 These questions are and will be
very difficult to answer, and it is essential to underline that any thought about
EU citizenship still remains largely prospective.
The aim of the present report is primarily to explicate the meaning and scope
of the existing EU citizenship. It contains seven sections. The first section pres-
ents a definition of citizenship. The second section defines citizenship of the
European Union and presents its development. The third section presents a crit-
ical view of EU citizenship in its current form. The two following sections deal
with the implementation of EU citizenship and the use EU citizens make of EU
citizenship rights. The sixth section examines the impact of the introduction of
EU citizenship on the structure of citizenship in the European Union. The sev-
enth and conclusive section deals with the further development of EU citizen-
ship by distinguishing a top-down approach and a bottom-up approach. It also
presents some general considerations on the project of a multicultural citizen-
ship of the European Union.

3. Turner, 1990; Meehan, 1993.

4. Closa, 1992.
5. Leca, 1992.
6. Castles and Miller, 1993.
E UR OPE AN UNION 345

Defining Citizenship
As pointed out above, no general agreement has been reached on the defini-
tion of citizenship, let alone on its meaning and scope. Conceptions of citizen-
ship vary according to the academic discipline but also according to the school
of thought within the various academic disciplines. Furthermore, language is
often an obstacle to mutual understanding. The English word citizenship, for
example, can be translated in French as citoyenneté but also as nationalité. The
distinction between nationalité and citoyenneté covers approximately the dis-
tinction between formal citizenship and substantive citizenship. The former re-
fers to a formal link between an individual and a state, to the individual
belonging to a nation-state, which is juridically sanctioned by the possession of
an identity card or passport of that state. The latter refers to the bundle of civil,
political, social, and also cultural rights enjoyed by an individual, traditionally
by virtue of her or his belonging to the national community. It also refers to the
participation of the individual in the management of the public affairs of a given
national and political community. These realities are clearly linked, but they
need to be distinguished just as clearly.
In order to clarify the terms for this study, it is useful to adopt a starting defi-
nition of citizenship. Three main features characterize modern citizenship.7
First, citizenship is a juridical status granting civil, political, and social rights
and duties to the individual members of a political entity, traditionally a state.
Second, citizenship refers to a set of specific social roles (voter, activist, and so
on) performed by citizens and through which they express choices with regard
to the management of public affairs and, hence, participate in government. Citi-
zenship thus implies some sort of access to the political system. Citizens have
the ability to use their status in order to defend their interests in the political
arena. Third, citizenship also refers to a set of moral qualities thought to be cru-
cial for the existence of the good citizen. These qualities are often referred to as
the expression of civic virtue. The recognition of the existence and primacy of a
public interest transcending private ones is a crucial aspect of civic virtue.
Citizenship historically developed within the framework of state building. In
an ideal world, the political and cultural boundaries of a people would neatly
correspond with divisions drawn between independent political units, and all
the members of a nation would share the same status as citizens. In the contem-
porary world, international migration, the issue of national and cultural minori-
ties, and the emergence of supranational constructions like the European Union
have revealed that political boundaries and cultural boundaries very rarely co-

7. Leca, 1991.
346 MARCO MARTI NI ELLO

incide. Questions then arise: Is the traditional conception of citizenship still

adaptable to recent social and political developments worldwide? How should
EU citizenship be understood as a form of membership? What does it mean to
be a citizen of the European Union since it is not a state? To answer these ques-
tions, the content and history of EU citizenship must first be explored.

Defining Citizenship of the European Union

Historically, the European integration process was the exclusive province of

small bureaucratic and political elites who were in charge both of the European
decision-making process and of the dissemination of knowledge about Euro-
pean integration. The citizens of the member states did not evince a deep inter-
est in the integration process, and they were rarely consulted by the European
elites.
The first serious attempt to involve the citizens of the member states in the
European integration process and to flesh out the idea of a Citizens’ Europe
dates back to the summit of the heads of states or governments in 1974.8 This at-
tempt occurred soon after the report on European identity of 1973 and in paral-
lel with the Tindemans report on the European Union. But it was only at the end
of the 1980s and in the early 1990s that the issue of citizenship of the European
Union (hereafter, EU citizenship) became salient, especially when work toward
the Maastricht Treaty was initiated in 1991.
In 1992, the year before the official completion of the European internal
market, various themes related to the European integration process, and espe-
cially the Treaty on the European Union, were given widespread public atten-
tion. The important newspapers and journals in most member states
periodically provided space for critical discussion of integration issues by lead-
ing intellectual figures. This discussion stimulated a public debate on the con-
struction of Europe. Maurice Duverger and Edgard Morin, for example, wrote
often on different aspects of this topic in the prestigious French daily Le Monde.
The pace and course of the European integration process became a major topic
of public discourse in several member states.9 This press and public interest
started to decline after the French referendum on the Maastricht Treaty. The
year 1993 was characterized by a worrying public silence on Europe’s future,
which expressed a growing europessimism. Again, experts within the European
institutions tended to claim a monopoly of the knowledge about the European

8. As in the literature and in official documents, in this article I use two expressions that, in my
view, cover the same meaning: “Citizen’s Europe” and “Citizens’ Europe.”
9. Wolton, 1993.
E UR OPE AN UNION 347

integration process by using a kind of juridical and economical technocratic jar-

gon that was opaque to the majority of the citizens of the member states. In the
view of the internal European experts, nobody outside the European institutions
was better suited than they to understand the process of European integration
and to lead it.
Despite many difficulties, the Treaty on the European Union was ratified
and entered into force on November 1, 1993. According to several observers,
the Maastricht Treaty buried the old technocratic, economic, and elitist Europe
and opened the way for a new political Europe in which the citizens would play
a central part. In other words, the Treaty on the European Union was supposed
to mark a complete change of nature of the integration process.10 The issue of
whether the treaty signified this magnitude of change is complex and contested,
and cannot be discussed here. But in terms of EU citizenship, it is indisputable
that the Maastricht Treaty, for the first time in the history of European integra-
tion, gave some juridical basis to that notion.

The Maastricht Treaty

The Maastricht Treaty set out certain basic elements of European Union citi-
zenship, but one confined exclusively to the nationals of one of the member
states of the European Union.11 Under this treaty, Union citizenship consists of
the following set of rights: the rights of freedom of movement and residence on
the territory of the member states,12 the right to vote and to be elected in the local
elections and in the elections of the European Parliament in the member state of
residence,13 the right to diplomatic protection in a third country,14 and the right
to petition the European Parliament as well as the possibility to appeal to a Eu-
ropean ombudsman.15 The question of EU citizenship of the Union is also dealt
with elsewhere in the treaty,16 but in a more indirect way.
It should be underlined that the concept “citizenship of the European Union”
and the expression “Citizens’ Europe” do not cover the same realities. The for-
mer deals predominantly with civil and political rights, leaving aside social and
economic rights. The latter included the free movement of persons as well as

10. Wolton, 1993; Cloos, Reinesch, Vignes, and Weyland, 1993.

11. Title II, Part 2, Articles 8, 8A, 8B, 8C, 8D, 8E.
12. Article 8A.
13. Article 8B.
14. Article 8C.
15. Article 8D.
16. Title II, Part 3, Articles 138A, D, E, and Article 157; Title VI, Article K1; Final Act of the
Maastricht Conference, Declaration no. 2.
348 MARCO MARTI NI ELLO

“special” political rights for the European citizens. But it also adopted a broad
conception of the well-being of the individual by stressing the importance of
culture, communication, public health, and the protection of privacy.17
In legal terms, EU citizenship undoubtedly constitutes only a minimal ad-
vance that could perhaps be developed in the future.18 Article 8E of the
Maastricht Treaty mentions the possibility of extension of EU citizenship but it
says nothing more on this point, leaving the future open. The extension of EU
citizenship is certainly not seen as a legal obligation but as a mere possibility.

The Amsterdam Treaty

Before and during the Intergovernmental Conference (IGC) that started in

1996 and led to the adoption of the Amsterdam Treaty in June 1997, several
voices called for a revision and an extension of EU citizenship. The opportunity
for the revision of the Maastricht Treaty opened the door to go further in terms
of EU citizenship. As to the introduction of new citizenship rights, many pro-
posals were made either by experts or by institutions like the European Parlia-
ment and the Migrants Forum. The European Parliament proposed that the
Union should sign the Council of Europe Convention on Human Rights and
Fundamental Freedoms. It also advocated the inclusion in a new version of the
treaty of a clear reference to equality of treatment for all individuals independ-
ent of their race, gender, age, or religion.
The European Parliament also recommended grouping all citizenship
rights in one single chapter of the treaty. In its view, the political aspects of
citizenship should be deepened by stimulating the formation of European po-
litical parties. It called for stronger provisions to protect the equality for
women and the rights of minorities.19 Independent experts, on their part, pro-
posed several new rights to be included in the treaty, such as a European right
to association. Other proposals supported the extension of the EU citizenship
to non-nationals of member states based on the criterion of residence. The
Economic and Social Committee and the Migrants Forum advocated such an
evolution. The Italian Socialist member of the European Parliament, Renzo
Imbeni, advocated a similar step in his report on citizenship of the European
Union. In his view, the IGC should have modified Article 8 in order to in-

17. Cloos, Reinesch, Vignes, and Weyland, 1993, p. 163.

18. Mira, 1991, p. 169.
19. European Parliament, 1995, PE 190.441/1; European Parliament, 1996, Agence Europe,
no. 1982.
E UR OPE AN UNION 349

clude, under specific conditions, residents who are not nationals of one of the
member states.20 In her report on the status of third-country citizens in the Euro-
pean Union, the French ecologist and former member of the European Parlia-
ment Djida Tazdait advocated the granting of voting rights at the local level to
third-country citizens on the basis of a period of five years of legal residence in
the European Union.21 Considering the fact that both the Economic and Social
Committee and the Migrants Forum were not powerful enough to impose their
views and that both the Imbeni report and the Tazdait report were rejected at the
January 1994 plenary session of the European Parliament22 for, among other
reasons, “going too far,” it was clear that no radical changes could be expected
in terms of EU citizenship.
In a way, the last hopes for treaty revision vanished in December 1995 when
the groupe de reflexion formed to prepare the IGC for the release of its report. It
became clear that the IGC would, at most, clarify the foundations of EU citizen-
ship rather than expand the rights associated with it. The governing idea behind
the treaty was to stipulate more precisely the rights and duties of both EU citi-
zens and third-state citizens residing in the EU as well as to enhance nondis-
crimination and fundamental rights. For the pessimists, the risk that nothing
would be done at all and that EU citizenship would not even be on the agenda of
the IGC was real. Eventually, the worst fears were not realized and the theme of
citizenship was finally included in the list of issues to be discussed during the
IGC.
The end result reached in Amsterdam followed the line presented as early as
December 1995. Three changes are worth mentioning, although none of them is
radical in terms of either deepening or extending EU citizenship. These changes
include amendments to Article 8, the adoption of an antidiscrimination clause
in the Amsterdam Treaty, and the adoption of articles intended to better protect
human rights and fundamental liberties.
A sentence stating that EU citizenship supplements national citizenship and
does not replace it is added to Article 8.1. Clearly, this addition reinforces the
approach of the Treaty of Maastricht, according to which EU citizenship is de-
rived from national citizenship of one of the member states. Consequently, this
change closes the door for now to the conferral of EU citizenship to third-coun-
try nationals residing on the territory of the EU. It reemphasizes the legal dis-

20. Agence Europe, no. 6150, January 17 and 18, 1994, p. 4.

21. Agence Europe, no. 6141, January 5, 1994, p. 11.
22. Agence Europe, no. 6152, January 20, 1994, pp. 4–5; Agence Europe, no. 6153, January 21,
1994, p. 11; Migration News Sheet, no. 131/94-02, pp. 8–9.
350 MARCO MARTI NI ELLO

tinction between EU citizens and non-EU citizens, which can only impair the
status of the latter. In this sense, the change can be interpreted as a setback be-
cause it emphasizes the link between EU citizenship and national citizenship,
between citizenship and nationality—whereas EU citizenship has often been
presented as an attempt to break this link. Possession of national citizenship of
one of the member states remains the foremost condition for acquisition of EU
citizenship.
Furthermore, a third paragraph is added to Article 8D. It states that EU citi-
zens can write to any EU institution in the European language of their choice
and get a reply in that same language. This provision is undoubtedly a step to-
ward more transparency and nondiscrimination, but its scope remains quite
limited. For the remainder, Article 8 of the Maastricht Treaty is left untouched
in the new Amsterdam Treaty, which has caused a huge disappointment among
antidiscrimination and pro-immigrant activists throughout Europe who had not
abandoned their hopes earlier.
A more positive aspect is the introduction of an antidiscrimination clause in
the Treaty of Amsterdam that could potentially strengthen EU citizenship. Arti-
cle 6A of the treaty states that the council can adopt adequate measures to combat
discrimination based on gender, race, ethnic origin, religion, age, sexual prefer-
ence, and handicap. This new article constitutes progress because for the first
time the principle of nondiscrimination is given a legal ground on which political
and legal action can be based for both EU and non-EU citizens. It could, however,
have gone further to include nationality in the list of discriminatory criteria. At
present, discrimination based on nationality remains covered by the old Article 6.
In practice, the implementation of Article 6A will depend on the emergence of
considerable political will at the EU level. Any decision to implement a new mea-
sure to combat discrimination as defined in Article 6A requires unanimity among
member states. This requirement will be difficult to meet.
Finally, fundamental human rights are slightly reinforced through the in-
troduction of paragraph 1 in Article F of the Treaty on the European Union. It
states that the European Union is grounded on the principles of democracy,
freedom, and the respect of human rights and fundamental liberties. In other
words, all member states are committed to respect these principles. In case of
nonrespect by one of the member states, it may temporarily lose its voting
right.
Clearly, despite some progress, the opportunity for the IGC to develop EU
citizenship was largely missed. The Amsterdam Treaty confirms to a large ex-
tent the philosophy of the Maastricht Treaty as far as EU citizenship is con-
cerned.
E UR OPE AN UNION 351

A Critical View of EU Citizenship

As discussed above, drawing a clear-cut distinction between analytical and

normative accounts of citizenship in general is often very difficult. This obser-
vation is certainly relevant in the specific case of EU citizenship. Increasingly,
an orthodox approach to EU citizenship has developed that reflects more a nor-
mative standpoint than a detached, analytical one. According to this standard
approach, the introduction of EU citizenship marks a dramatic change in the
process of European integration that would transcend the EU’s economic un-
derpinnings to transform it into a substantive political body in which citizen-
ship would become a major priority. This approach also assumed that EU
citizenship opens the way to a new form of postnational membership in which
citizenship rights and nationality would be dissociated. Furthermore, this ap-
proach believed that the participation of the citizens would be crucial in the new
phase of the European integration process. By this view, the construction of the
European Union would cease to be a top-down process. It would become a bot-
tom-up process based on active citizenship. Let us examine these three assump-
tions in a critical manner in order to get a more precise understanding of the
meaning and scope of EU citizenship.

A Major Concern in the European Integration Process?

Since its inception, work toward a more united Europe has mainly been an
economic project, as shown by the creation of the European Economic Com-
munity in Rome in 1958. The cultural, political, and social aspects of European
integration have for a long time been neglected. The permanent primacy of the
economic and monetary dimensions over all other dimensions in the process of
European integration was again highlighted during the Maastricht Summit of
1991. At that time, the most significant results were reached in the field of the
economic and monetary Union, and not in the field of a political Union. Despite
the fact that the Maastricht Treaty deals with a move from the European Eco-
nomic Community toward a broader European Union, the priority is, as in the
past, to complete as soon as possible the internal market and to assure the condi-
tions of its efficiency. The other dimensions, that is, the cultural, social, and po-
litical aspects, are still mainly conceived as supporting measures intended to
facilitate the realization of the central economic and monetary goals.
The title of a report on social Europe published in 1988 by the interservice
group of the European Commission offers a good example of the permanent
subordination of noneconomic dimensions to economic ones in the process of
352 MARCO MARTI NI ELLO

European integration: The Social Dimension of the Internal Market.23 Further-

more, the question of an EU citizenship was only briefly mentioned at the Edin-
burgh Summit of December 1992 through a discussion on Article 8A
concerning the free movement of people. This focus on the economic aspects
has for a long time been the only dimension of EU citizenship that regularly re-
ceived attention in broader debates over immigration controls and policy. The
prevalence of economic and monetary dimensions over social, cultural, and po-
litical aspects of European integration reflects both in the Intergovernmental
Conference of 1996–1997 and in the Amsterdam Treaty to which it led in June
1997.
Therefore, EU citizenship for itself, which is part of the political Union, does
not seem to be a major concern of the institution builders of a more integrated
Europe. The political Union as well as an EU citizenship are required only to
the extent that they are considered necessary for a more efficient completion
and functioning of the internal market and Euro monetary area. Member states
are too jealous of their own autonomy to cede their sovereignty in other areas.
From this perspective, the present minimal political Union and EU citizen-
ship seem to be merely means to achieve economic and monetary goals and
nothing more. They are not central objectives in their own right, and, hence,
they still are minor concerns to the institutional constructors of Europe. The fact
that Jacques Santer used the expression “citizenship” seventeen times in his
first speech as number one of the European Commission does not necessarily
mean that the issue of EU citizenship has gained central importance in the pro-
cess of European integration.

Supranationalism or Postnationalism?

Any discussion about EU citizenship implies a debate about the nature of the
European political society as well as a debate on the meaning of European iden-
tity. In the present stage, the European Union is “neither a federative Empire,
nor a nation-state elevated to the rank of a continental power. The European
Union is an economic entity that could perhaps become political.”24 Many clas-
sical elements of the state are present in the recent Maastricht and Amsterdam
Treaties (for example, a territory, a currency, a foreign policy, a citizenship).
Nevertheless, the European Union still has no juridical personality as a state in

23. Commission of the European Communities, 1988.

24. This is a free translation to English of the following quotation: “ni Empire fédérateur, ni
Etat-Nation élevé en pouvoir continental: l’Union européenne est une entité économique qui,
éventuellement, pourra devenir politique,” Lafont, 1991, p. 27.
E UR OPE AN UNION 353

its own right.25 The type of European political society that is envisioned will de-
termine both the content and the shape of the EU citizenship. No unanimously
shared conception exists of a future political European Union. The historical
opposition between the Federalists and the Confederalists has not completely
disappeared. The influence of the Federalists, however, who were led until the
Maastricht Summit by Jacques Delors, has increasingly eroded. The
Confederalists, and all those who fear that the European project will entail the
dissolution of the nation-states, seem to have gained power during the 1990s
throughout the European Union.
In this context, the agreement achieved in Maastricht and confirmed in Am-
sterdam with respect to EU citizenship must be viewed as the smallest common
denominator between the two main historical conceptions of a political Europe.
It is a compromise that does not irreversibly commit the member states in one
way or the other and that leaves the gate open to both options. In other words,
EU citizenship as introduced in the Maastricht Treaty and confirmed in the Am-
sterdam Treaty allows the Federalists to pursue their objective provided that
they do not openly refer to the word federation. At the same time, it leaves
Confederalists a strong basis to defend their position that nation-states within
the Union retain the exclusive power to decide what should or should not be-
long to their individual purview. Among these matters is national citizenship.
Only a decisive solution of this conflict in favor of the Federalists could bring
new substantial developments in terms of a stronger and more complete EU cit-
izenship. But the prospects of such a victory seem unlikely for the foreseeable
future.
Therefore, in the present state of affairs, EU citizenship, as designed in
Maastricht, is nothing more than a functional semicitizenship as opposed to a
substantive citizenship. It merely formalizes under the official heading of EU
citizenship a set of preexisting rights with a few novelties. (One such novelty is
that some member states had to introduce the right to vote and to be elected in
the country of residence for European citizens both at the local and at the Euro-
pean elections.)26
The conferral of these political rights is sometimes presented as a critical
step toward the overcoming of the nation-state in dissociating the possession of
a nationality and the possession and exercise of citizenship.27 Here my analysis
and Soysal’s account of postnational membership converge.28 In her view, the

25. Cloos, Reinesch, Vignes, and Weyland, 1993, p. 116.

26. Callovi, 1993.
27. Meehan, 1993; Tassin, 1991.
28. Soysal, 1994.
354 MARCO MARTI NI ELLO

settlement of migrants in Western Europe forced European states to move be-

yond their traditional understanding of citizenship linked to national belonging.
A new postnational membership has progressively developed based on human
rights in which most citizenship rights that were historically reserved for na-
tionals are now available also to legally residing foreigners. Soysal argues that
citizenship rights and national identity have been increasingly decoupled in Eu-
ropean immigration countries and how temporary guest workers have been pro-
gressively incorporated into their host countries.
In my view, both analyses are partly correct but also too optimistic. The con-
cept of EU citizenship introduced in Maastricht is still largely derived from the
national concept of citizenship.29 The Amsterdam Treaty makes the point even
more clearly than the Maastricht Treaty. Neither treaty creates any new juridi-
cal and political constructs. The main condition to be recognized as a citizen of
the European Union is to be a citizen of one of its member states, that is, to have
the nationality of one of the member states. This conception of European citi-
zenship was earlier expressed in the Spanish proposal of September 1990. Ac-
cording to President Felipe Gonzales, citizenship of the European Union should
“develop without weakening in any manner the national citizenship to which it
should be a complement and not a substitute.”30 By and large, this approach to
EU citizenship still seems valid about a decade later.
Therefore, EU citizenship as introduced in Maastricht and confirmed in Am-
sterdam can at present be viewed as a renewal of the nationalist logic in the
Gellnerian sense.31 Theoretically, it tries to stimulate a European political iden-
tity that is largely linked to a prior belonging of the individual to one of the fif-
teen nations corresponding to the member states of the European Union. In its
present shape, EU citizenship is thus a sort of complementary supracitizenship
that confirms the existence of the fifteen cultural and political identities corre-
sponding to the fifteen member states of the European Union.
This renewal of nationalism under the form of a European supranationalism
accounts for the exclusion of third-country nationals legally residing in Europe
from the benefits of EU citizenship. This exclusion would have no legal justifi-
cation if a sharp and complete dissociation of nationality and citizenship had
been introduced. This important point merits further development. As stated
above, many observers consider the establishment of EU citizenship a signifi-
cant advancement toward postnationalism in the sense that the objective crite-

29. O’Keefe, 1992.

30. This is a free translation of the following quotation: “prendre corps sans entamer en rien la
citoyenneté nationale dont elle serait un complément et non un substitut,” “Opinion of the Commis-
sion on the Political Union of October 21, 1990,” Agence Europe, no. 1659, October 31, 1990, p. 5.
31. Ferry, 1990.
E UR OPE AN UNION 355

rion of residence would replace the criterion of nationality to determine who

should be granted the rights commonly associated with citizenship. Now, if this
perspective had been effectively adopted, it would be incoherent and discrimi-
natory to limit the access to EU citizenship to the nationals of one of its member
states.
That it was not adopted is the core of the problem. By using an undifferenti-
ated concept of citizenship,32 or by selecting the dimension of citizenship that
suits their argument, many analysts have neglected the fact that, as far as politi-
cal rights are concerned—after all, one of the main novelties introduced by the
Maastricht Treaty in the field of citizenship—EU citizenship does not break the
association citizenship-nationality at all but renews it in a slightly different
way. Some member states of the European Union have not waited for the
Maastricht Treaty to move further on the way toward a larger dissociation be-
tween nationality and citizenship in the field of politics. States such as the Neth-
erlands and Sweden, for example, granted local voting rights to foreigners more
than ten years ago. To them, this dimension of EU citizenship is, in a way, a set-
back. As far as socioeconomic and civil citizenship are concerned, non-EU citi-
zens were granted rights as individuals and as workers, regardless of their
nationality, before the introduction of EU citizenship.33
In a sense, the Soysalian perspective is partially correct. But the Maastricht
Treaty and the Amsterdam Treaty do nothing to advance the trend Soysal sees
toward the dissociation between nationality and citizenship in most of the mem-
ber states of the European Union. In short, the fundamental criterion for the
granting of EU citizenship remains the possession of a nationality, that is, the
belonging to a nation as sanctioned by nationality laws. This nationality may
correspond to the state of residence, but a national of one member state may
also reside in the territory of another. In acquiring a transnational European citi-
zenship, the criterion of residence is still largely subordinated to the criterion of
nationality. This subordination is unlikely to change in the near term. The pas-
sage to supranationalism and postnationalism may well not occur in the fore-
seeable future, even though some developments point in that direction. One
such development is the decision taken by the European Parliament in January
1993 to grant the right to petition to non-EU citizens. This small step goes fur-
ther than existing EU citizenship policy toward a dissociation between nation-
ality and citizenship.34

32. The work of T. H. Marshall is crucial for the sociological study of modern citizenship, es-
pecially the distinction he made between three types of rights associated with citizenship, namely
civil rights, political rights, and socioeconomic rights (Marshall and Bottomore, 1992).
33. North, 1992.
34. Agence Europe, no. 5905, January 25 and 26, 1993, p. 6.
356 MARCO MARTI NI ELLO

The Result of a Top-Down Approach

In his article “Outline of a Theory of Citizenship,” Turner extends the classi-
cal work of T. H. Marshall by introducing a useful distinction between a pas-
sive citizenship, developed “from above” by the state through the granting of
rights, and an active citizenship developed “from below” by the citizens
through their protest participation in various social movements.35 EU citizen-
ship has thus far been primarily constructed from above. The introduction of an
EU citizenship through the conferral of a set of “special” rights to the citizens of
the member states is to be understood as a compromise between the European
institutions and the member states and not as the result of some kind of mobili-
zation of the grassroots citizens of Europe.36 During the preparation of the Euro-
pean Council of Dublin, the ministers of Foreign Affairs raised the question of

how to integrate and to extend the notion of a communitarian citizenship

to which specific rights (human rights, social and political rights, total
freedom of movement and residence) are attached and which is granted to
the citizens of the Member States by virtue of the belonging of these
States to the Union.37

Clearly, the role played by the will and mobilization of the citizens of the Euro-
pean states in the process that led to the adoption of an EU citizenship in
Maastricht was decidedly minor. Some of them have campaigned to bring forth
a new political movement that would advance the development of the citizen-
ship of the European Union.38 But associations like ECAS (Euro-Citizen Action
Service) or VOICE (Voluntary Organisations in a Citizen’s Europe), which be-
gan to be active during the campaign for the French referendum on the
Maastricht Treaty, remain far from forming a significant social and political
movement of European citizens. In September 1993, for example, ECAS orga-
nized an important week-long seminar of the European citizen around the no-
tions of equality and the struggle against discrimination. Since then, ECAS has
never stopped being active in its attempts to promote a European Union that
would be more open to the citizens and, hence, more democratic. But this type
of initiative remains confined to a small circle of “enlightened” European citi-

35. Turner, 1990.

36. Bryant, 1991.
37. Emphasis added. This is a free translation of a quotation included in the document adopted
by the ministers of the Foreign Affairs of the EEC at their meeting in Luxembourg on June 11, 1990
(Agence Europe, no. 1628, 1990). The aim of the meeting was to prepare the European Council of
Dublin that took place June 25 and 26, 1990.
38. de Schutter, 1992.
E UR OPE AN UNION 357

zens who organize more like a lobby than like a transnational, grassroots citi-
zens movement. Even in Brussels, where the ECAS has its seat, very few
citizens know about it. Furthermore, the action of unions and political parties at
the European level remains problematic. Workers’ solidarity across European
national borders, for example, is not easy to organize. As Jürgen Habermas ob-
served, if EU citizenship is conceived as a potential basis for transnational col-
lective action and as the consciousness of an obligation toward a shared
European welfare, then it does not exist at present.39
If EU citizenship is more the result of a movement from above, of a
top-down approach, than of a movement from below, why did both the Euro-
pean institutions and the governments of the member states introduce it in the
Maastricht Treaty and confirm it in Amsterdam? At this stage, an analysis of the
power relations between the various European institutions and the national gov-
ernments would be useful, but it goes beyond the purpose of this report. Any
such analysis would need to look closely at the impact of both intra-institutional
and inter-institutional conflicts on the decision-making processes at the Euro-
pean level. In this regard, the institutions and the governments engaged in the
European integration process should not be treated as homogeneous and undif-
ferentiated bodies working exclusively in the framework of a positive coopera-
tion.
Five reasons are commonly put forward to explain the introduction of EU
citizenship of the European Union from above despite the relative low concern
of the populations of the member states. The first reason is somewhat technical.
The mobility of highly qualified workers and executives among the various Eu-
ropean branches of the international companies is certainly one condition for
the efficiency of the internal market. Therefore, it seems important to make this
mobility and the residence abroad as comfortable as possible for those who are
directly concerned. From this perspective, EU citizenship can be viewed as a
means of granting an acceptable legal protection to those mobile, European,
highly qualified workers and executives. The granting of political rights at the
local and European levels could be considered an extension of the free move-
ment of European workers.40 This first reason may initially not seem compel-
ling since EU citizenship does not offer any substantial advances with respect
to socioeconomic and civil rights. But a closer examination of the provisions
contained in EU citizenship reveals that, in fact, only moving European citizens
benefit from it. This statement certainly makes this first reason more convinc-
ing.

39. Habermas, 1991.

40. Heymann-Doat, 1993.
358 MARCO MARTI NI ELLO

The second reason issues from the general recognition of the “democratic
deficit”41 that affects the process of European integration. Effectively, the mem-
bers of the European Council of the heads of states or governments, the national
governments that take part in the negotiations in the framework of the Council
of Ministers of the European Union, the European Commission members are
not directly elected by the peoples of the various member states. The European
Parliament is the only European institution elected by universal suffrage, but its
powers remain limited. In this context, the introduction of EU citizenship has
been analyzed as an attempt by the commission to solve the democratic deficit
problem and to “assure a real participation of the citizens to the community
work simultaneously and proportionately with the development of policies in
the fields that affect them directly.”42
If solving the democratic deficit problem were to be the main aim of EU citi-
zenship, then the efficiency of this tool should be seriously questioned. The
only voting and eligibility rights granted to the citizens of the Union under the
Maastricht Treaty refer to local and general European elections. These rights
could, therefore, be seen to confer only a second-class order of citizenship.43 As
far as the participation of European citizens in local elections of their country of
residence is concerned, it is difficult to understand how it could increase the
democratic participation at the European Union level. Concerning participation
in the European elections, it should be stated that, despite the fact that the pro-
cess of codecision has certainly increased the powers of the European Parlia-
ment, at least theoretically, it remains the least powerful of European Union
institutions. Therefore, it is difficult to explain to what extent the right to elect a
relatively powerless institution is likely to increase the citizens’ participation in
the European integration process and to reduce the democratic deficit it suffers.
Furthermore, trying to reduce the democratic deficit through undemocratic,
opaque decision-making processes such as the Maastricht and Amsterdam ne-
gotiations may seem paradoxical and not convincing in the citizens’ view.
The third reason presupposes that the European Union’s future is to become
a singular nation or a quasi nation-state, sharing a common European culture
and an ideology of cultural resistance against encroachments from poorer,
non-Western regions to the south.44 This vision of the future assumes the final
victory of the Federalists over the Confederalists. From this perspective, EU

41. The French expression is “déficit démocratique.”

42. This is a free translation of the following quotation: “pour assurer une véritable participa-
tion des citoyens à l’oeuvre communautaire au fur et à mesure que se développent des politiques
dans des domaines qui les touchent directement,” “Opinion of the Commission on the Political Un-
ion of October 21, 1990,” Agence Europe, no. 1659, October 31, 1990, p. 5.
43. Moxon-Browne, 1992.
44. Balibar, 1989.
E UR OPE AN UNION 359

citizenship can be considered as the first step in the transfer of the national
sociopolitical principle to the European Union level. The fact, however, that
this victory is far from being achieved leaves viability of this vision question-
able. Still, proponents of this view may be right that the introduction of EU citi-
zenship will contribute to attempts to build a European culture and to promote a
European identity.
In searching for ways to promote a common European cultural identity, two
major options can be distinguished: the traditionalist option and the modernist
option.45 In the traditionalist and fundamentalist option, the “European culture”
is seen as a given, an admitted fact on the basis of which a European “commu-
nity of destiny” should be developed. The idea of the intangible existence of a
natural European culture based on the common Judeo-Christian and humanist
experience grounding a “European spirit” has been recurrent for a long time. In
his project for a perpetual peace written at the turn of the seventeenth century,
the Abbé de Saint-Pierre states that contrary to Asia or Africa, Europe is “a real
society with its religion, its manners, its customs and its laws, and whose peo-
ples can not deviate from it without directly causing troubles.”46 In 1924 Paul
Valéry wrote that “every race and every land that has been successively
romanized, christianized and submitted, as far as the spirit is concerned, to the
discipline of the Greeks, is absolutely European.”47 In Valéry’s mind, the Homo
Europeus can thus be defined by a European spirit built through the ages by the
Roman, Greek, and Christian heritage. At present, several advocates of Europe
attempt to mobilize this heritage in order to ground the European culture
and consequently the European “community of destiny” of tomorrow. For
Pierre-Yves Monette, for example, the essential core of the European civiliza-
tion, that is,

the European specificity, is explained by all that we have in common: our

cultural Judeo-Christian basis, our marked taste for liberty, justice and
democracy . . . our conception of the role of the woman which conflicts
completely with other civilizations, our spirit of openness and tolerance
which is not the integralism cultivated by some other peoples. . . .48

45. Ferry, 1990.

46. This is a free translation of the following quotation: “une société réelle qui a sa religion, ses
moeurs, ses coutumes et ses lois, dont aucun des peuples qui la composent ne peut s’écarter sans
causer aussitôt des troubles” (Coll, 1963, p. 107).
47. This is a free translation of the following quotation: “toute race et toute terre qui a été
successivement romanisée, christianisée et soumise, quant à l’esprit, à la discipline des Grecs, est
absolument européenne” (Coll, 1963, p. 99).
48. This is a free translation of the following quotation: “la spécificité européenne s’explique
par tout ce qui nous est commun: nos fondements culturels judéo-chrétiens, notre goût prononcé
pour la liberté, la justice et la démocratie . . . notre conception du rôle de la femme qui est en opposi-
360 MARCO MARTI NI ELLO

In the modernist and constructivist option, a major political objective is to

create a common European cultural space. From this perspective, the cultural
construction of Europe should follow the same pattern as the economic con-
struction. Policy initiatives in various fields such as plurilinguism, education
and universities, multimedia, publishing, and so on have been launched to pro-
mote a common European identity.49 Long neglected, considerable attention
has been focused on education and universities in Europe since the implementa-
tion of the Maastricht Treaty.50 Exchange programs for students, researchers,
and academics such as Erasmus, Socrates, Human Capital, and Mobility, for
example, have had growing success even though their implementation faces
numerous problems (financial, administrative, and so on). Increasingly, Euro-
pean universities are harmonizing their curriculums, a process that will have an
impact on a European academic culture and, perhaps, in the long term, on popu-
lar conceptions of European identity.
As witnessed by an Opinion of the Economic and Social Committee on a
Citizen’s Europe published in September 1992,51 these two options for promot-
ing a shared European cultural identity are not mutually exclusive. Article 128
of the Maastricht Treaty leaves both options open, with a formidable conse-
quence in terms of exclusion from the “Europeanity” of those citizens living in
Europe who are coming from non-Christian civilizations, for example, the im-
migrant origin populations coming from countries in which Islam is the main
religion. Nevertheless, it seems at the moment a bit impetuous to defend the hy-
pothesis that the European Union has entered into a proper “nationalization”
process. As a matter of fact, such a movement is impeded by the strong resis-
tance of the European national identities and states formed in the past.
Let us now turn to the fourth reason that could explain the introduction of an
EU citizenship. The achievement of both the great internal market and the eco-
nomic and monetary Union imply additional deprivations for the European
population, whose standard of living has been significantly decreasing since the

tion complète avec celle de nombreuses autres civilisations, notre esprit d’ouverture et de tolérance
qui n’est pas l’intégrisme cultivé par certains peuples. . . .” (Monette, 1991, p. 285).
49. Domenach, 1990.
50. The treaty established a juridical basis for cooperation in the field of education through Ar-
ticle 126 and Article 127.
51. “The key to a Citizen’s Europe is its unity and diversity of culture, its pluralism of thought
and tradition, its Christian heritage and appreciation of other faiths as well as humanistic and secu-
lar values and principles, and its fundamental attachement to liberty, peace, social justice, toler-
ance, human rights and the Rule of Law. The ‘soul’ of Europe is in fact imbued with humanistic
principles (notably the right to human dignity), such principles constituting the bedrock and driving
force of democracy. . . .” Economic and Social Committee, “Opinion on Citizen’s Europe,”
CES(92) 1037, September 23, 1992, p. 2.
E UR OPE AN UNION 361

first oil crisis in 1973. The now famous “convergence criteria,” which eleven
out of fifteen member states have accepted to establish the new European cur-
rency system, the Euro, required severe austerity policies that further lowered
the standard of living of the population. Before Maastricht, it was no secret that
a certain degree of people’s consent to this additional austerity would be neces-
sary if the economic integration was to progress in Europe. In this respect, the
heads of states or governments of the European Union declared at their Bir-
mingham meeting of October 1992, “As a community of democracies, we can
progress only with the support of our citizens.”52 According to some political
actors, the stimulation of a European identity was one means to obtain the peo-
ple’s support and the people’s consent in the face of additional deprivations.53
In this context, the introduction of EU citizenship may be viewed more as an
attempt to create “a feeling of belonging to the European construction”54 than as
the expression of a political will to provide the European citizens with a real and
direct means of participation in this construction and some real political power.
This hypothesis is supported by the evolution of the debates and decisions that
have led from the Citizens’ Europe to EU citizenship. The first European Com-
munity decisions in this area stressed the importance of creating European sym-
bols that were not seen as mere and futile gadgets but as central elements of
identification to the European Community. This desire to promote shared loyal-
ties explains the appearance of a European Union flag, passport,55 and anthem.
The same period saw the creation of a tool to control the evolution of European
public opinion at the same time as it was trying to give birth to it, that is the
Eurobarometer.56
The fifth reason, which is also the most logical one, is well summarized by
the following quotation:

If one sticks to the creation of a political Union, whatever scope one

wishes to give to the concept, it is at first advisable to solve the prelimi-
nary question of its domain of jurisdiction, both at the geographical level

52. This is a free translation of the following quotation: “En tant que communauté de
démocraties, nous ne pouvons progresser qu’avec le soutien de nos citoyens,” “Déclaration of Bir-
mingham,” Agence Europe, special edition, no. 5839, October 18, 1992, p. 3.
53. Bryant, 1991.
54. This is a free translation of the following quotation: “un sentiment d’appartenance à la con-
struction européenne,” “Opinion of the Commission on the Political Union of October 21, 1990,”
Agence Europe, no. 1659, October 31, 1990, p. 5.
55. The European Community passport is not a single passport but merely a document of uni-
form design issued and delivered only by the member states to their citizens (Closa, 1992).
56. For more details on the Citizens’ Europe, it is useful to refer to the communication of the
Commission to the Council “A Citizens’ Europe,” COM (88) 331 final, June 24, 1988.
362 MARCO MARTI NI ELLO

and at the level of persons. Even from a purely logical point of view, it is
not possible to conceive of a political Union without an accurate previous
delimitation and without defining the persons belonging to the Union.57

From this perspective, the aim of EU citizenship should be to bring about this de-
limitation, but this aim raises again the question of determining membership cri-
teria for citizens of the political Union. Here we need to refer back to the third
reason, that is, to the construction of a European culture and the confinement of
EU citizenship to those individuals who are supposed to belong to this culture.
In the end, it seems that the introduction of EU citizenship from above can be
explained reasonably well by a combination of the first, third, fourth, and fifth
explanations presented above. To the extent that EU citizenship is conferred on
the basis of the individual’s belonging to one of the European Union nations
and on the basis of belonging to a shared European culture in construction, the
result excludes from full membership numerous immigrants from different re-
gions of the world who have already settled in Europe. It could also exclude
those potential migrants who arrive in Europe as asylum seekers or as part of
the family reunification process. The idea that one should be an EU citizen and
“culturally” European to reap the benefits from Europe’s relative economic
well-being seems to be gaining growing public support. This support could lead
to the assertion of an ethnoracial conception of the European society that could
be used to justify the exclusionary practices suffered by the nonmembers of that
European society. Any such justification would contradict the fact that all Euro-
pean societies are de facto multiethnic, multicultural, and multiracial. Indeed,
the various minorities living in the member states whose presence is a conse-
quence of colonialism, labor migrations processes, and other patterns of human
mobility remain a living challenge to the mythical view of an ethnically, ra-
cially, and culturally homogeneous Europe.

The Implementation of EU Citizenship

The implementation of the various provisions contained in Article 8 can be

analyzed both at the European level and at the national level. A quick and effec-
tive implementation depends on the interplay between the European institu-

57. This is a free translation of the following quotation: “Si l’on s’en tient à la création d’une
Union politique, quelle que soit la portée que l’on souhaite donner à ce concept, il convient tout
d’abord de résoudre la question préalable de son domaine de juridiction, tant sur le plan
géographique que sur le plan des personnes. Même d’un point de vue purement logique, il n’est pas
possible de concevoir une Union politique sans une délimitation préalable précise et sans que soient
définies les personnes appartenant à l’Union” (Mira, 1991, pp. 168–69).
E UR OPE AN UNION 363

tions on the one hand, and the governments and the administration services of
the member states on the other hand. In the present case, as in other matters, nu-
merous technical and political problems have emerged that have impeded the
process of EU citizenship implementation, which was not completed yet when
the Intergovernmental Conference started in March 1996. In other words, the
revision of Article 8 officially started before its full implementation.
Consider, for example, the case of the freedom of movement and settlement
for European citizens within the European Union.58 The Treaty on the European
Union (TEU) does not provide for a general and total recognition of these
rights. They are subject to a number of conditions and limitations according to
European law. This issue is also connected with the more general issues of ex-
ternal migration toward the European Union and the establishment of a Euro-
pean space without borders. Furthermore, the abolition of internal borders is
still impeded by the Anglo-Spanish dispute over Gibraltar, which renders im-
possible the adoption of the directive on the crossing of external borders of the
Union. As a result, full implementation of the promised rights of freedom of
movement for all European citizens has still not been achieved. For the time be-
ing, controls at the internal borders of the Union are still often operated, and
freedom of circulation remains limited and conditional even for European citi-
zens, let alone for third-country nationals.
As to the right of settlement, the European Commission has been very active
in trying to improve the situation. The recognition of professional qualifica-
tions across Europe is here an important issue that has been handled through the
adoption of various directives. Nevertheless, as in the case of the right to free
movement, the right of settlement remains limited. One can wonder whether a
European social security regime must first be established as a preliminary con-
dition before this right can be fully implemented, but this question need not be
addressed here. Whether or not such a regime is a necessary condition, little
progress toward it has been achieved.
The implementation of Article 8B concerning the right to vote and to be
elected in the elections of the European Parliament and in the municipal elec-
tions in the member state of residence is now completed at the European level.
The voting and eligibility rights at the elections of the European Parliament are
actually the first part of EU citizenship to have been implemented through a di-
rective issued by the council in December 1993.59 The directive is based on five

58. Article 8A of the Treaty on the European Union.

59. Council Directive 93/109/EC of December 6, 1993, laying down detailed arrangements for
the exercise of the right to vote and stand as a candidate in elections to the European Parliament of
citizens of the Union residing in a member state of which they are not nationals.
364 MARCO MARTI NI ELLO

main policy options. First, it provides for minimum rules and avoids any hints
toward a harmonization of member states’ electoral systems. Second, it reas-
serts the principle of nondiscrimination between nationals and other European
citizens. Third, European citizens remain free to choose where they want to
vote or to stand as candidates. Fourth, European citizens are obliged to choose.
They can not participate twice in the elections. Fifth, the same rules of disquali-
fication are mutually recognized by the member states.60
Furthermore, because of pressure from Luxembourg, which has been sup-
ported by other member states such as Belgium, an important derogation was
introduced in the directive that limits somewhat this new political right.61 Ac-
cording to Article 14 of the directive, a member state in which the proportion of
non-national European citizens of voting age exceeds 20 percent of the total
electorate can restrict the right to vote to those who have resided in that member
state for a minimum period (not more than five years). It can also restrict the
right to stand as a candidate to those EU citizens who have been residing in that
same member state for a minimum period (up to ten years). In Luxembourg,
where more than a quarter of the population is made of non-national European
citizens, most of whom are from Portugal, this derogation was meant to avoid
any opposition between Luxemburgers and European citizens. Still, this exam-
ple shows the willingness of the defenders of the nation-state to preserve some
sort of political sovereignty and the ambiguities of the construction process of a
political Europe. European citizens living in a member state other than their
own are considered to be equal to EU citizens living in their own member state,
but they are a bit less equal than them. The deadline to adopt regulations, laws,
and administrative procedures to comply with this directive was February 1,
1994, just a few weeks before the European elections. This deadline was met,
and since then European citizens can, at least in theory, exercise their new polit-
ical right.
As to the right to vote and to be elected in the municipal elections in the
member state of residence, a directive laying down and detailing arrangements
for the exercise of these rights was issued only in December 1994.62 It is very
similar to the directive concerning the right to vote and to be elected in the Eu-
ropean elections. In principle, the directive should have implemented the right
of non-national European citizens to participate in the local administration and
government of their place of residence on the basis of the principle of equality

60. Oliver, 1996.

61. Actually, the directive provides for a second derogation, the scope of which is more limited
since it concerns exclusively Britain and Ireland.
62. Directive 94/80/EC, O.J. L368, 31.12.1994.
E UR OPE AN UNION 365

with national citizens. This generous principle, however, has been undermined
in the final directive because of legal and political problems that emerged in
some member states. The French Constitution, for example, provides that only
French nationals can hold the office of mayor. In France, the mayor can also ex-
ercise governmental functions and participate in political elections. Since no
political majority emerged to change this provision in France, the council de-
cided to take this limitation to EU citizenship into account. The final directive,
then, states that member states can reserve the office of mayor or its equivalent
to nationals. Furthermore, member states may also stipulate that European citi-
zens elected as members of a representative council shall not take part in the
designation of delegates who can vote in a parliamentary assembly or in the
election of the members of that assembly.
In December 1994, Belgium put pressure to include “a 20 percent deroga-
tion” as Luxembourg did in the case of European elections. According to Arti-
cle 12 of the directive, a member state in which the proportion of non-national
European citizens of voting age exceeds 20 percent of the total electorate can
restrict the right to vote to those who have resided in that member state for a
minimum period (no longer than the term for which the municipality council is
elected). It can also restrict the right to stand as a candidate to those who have
resided in that same member state for a minimum period (no longer than twice
the term for which the municipality council is elected). The deadline to imple-
ment this directive was January 1, 1996. It was not met by the fifteen member
states. Some of them were more than eighteen months late in transposing the di-
rective into national law. Belgium, for instance, was so unwilling to do so that
the commission had to appeal to the European Court of Justice against Belgium
on this matter.
The delay in the process of implementation of Article 8B is not simply due to
the usual technical problems. It can well reveal the political dilemma faced by
some member states when dealing with the very sensitive issue of political citi-
zenship. One the one hand, they agreed that no democratic political European
Union would be possible without giving some political rights to non-national
European citizens. On the other hand, most political rights were until recently
reserved for nationals, which was considered normal. Therefore, the extension
of some political rights to non-nationals raises the issue of political citizenship
beyond nationality and raises questions about the future of the nation-state and
its articulation with the European Union. Since the answer to that question is
not clear, some member states seem to hesitate between the promotion of politi-
cal integration for all EU citizens and nationalistic setbacks.
Furthermore, the issue of the implementation of Article 8B is also to be con-
nected with internal political issues of some member states. Why, for example,
366 MARCO MARTI NI ELLO

is Belgium so slow on that matter? For the same reason that it demanded a dero-
gation of the right to vote at the municipal level. The issue of the extension of
these political rights to non-national European citizens has to be understood as
a dimension of the perennial opposition between the Flemings and the
Francophones in the Belgian State in which the Brussels area is of central im-
portance. The Brussels periphery belongs politically to Flanders but hosts im-
portant Francophone minorities and many European civil servants. The latter
are supposed to be more sympathetic with the Francophones than with the
Flemings. Therefore, it is often feared in some Flemish political circles that the
granting of local voting rights to Europeans will empower Francophone parties
in the Flemish periphery of Brussels. Their resistance is directed less against an
EU citizenship in abstracto than against what they see as a risk for their politi-
cal and linguistic dominance in parts of their territory. Belgium, under the pres-
sure of the Flemish majority in the federal government and Parliament, required
a derogation to Article 8B and impeded the process leading to its implementa-
tion in order to avoid the issue of the participation of European citizens in the
local elections of October 1994. Clearly, this case shows that issues of EU citi-
zenship and attendant political rights often have more to do with national poli-
tics than with European politics.
As to the right to diplomatic and consular protection contained in Article 8C,
which is not of central importance for most European citizens, the principle is
generally accepted. The areas of protection remain unclear, however. Further-
more, the procedure to be followed in order to exercise this new right is not de-
scribed clearly anywhere in the Maastricht Treaty. The right to petition the
European Parliament and the right to appeal to a European ombudsman are now
implemented. It nevertheless took more than a year after the European elections
of 1994 to appoint the ombudsman in July 1995.
Before turning to the issue of the practice of EU citizenship, it must simply
be repeated that its implementation has been a long and difficult process. There
are certainly technical and legal reasons involved, but there are also political
reasons connected to internal politics of some member states.

How Do Citizens Use EU Citizenship Rights in Practice?

As noted above, much attention has been given to the emergence of EU citi-
zenship seen as a top-down process. Many studies on the attitudes of European
citizens toward the process of European integration have also been conducted.
One of the aims of Eurobarometer surveys is to monitor regularly the evolution
of the attitudes of the European public opinion. But much less has been said
about the practice of European citizenship. The concept of European citizen-
E UR OPE AN UNION 367

ship practice has been widely explored by Antje Wiener.63 In her view, it desig-
nates quite broadly the process of policy making and political participation that
contribute to shaping the terms of EU citizenship. What I call the practice of EU
citizenship is more restricted and refers to the uses of the “new” set of rights
contained in EU citizenship by European citizens: To what extent have EU citi-
zens used their new rights? To what extent have they practiced their “new” citi-
zenship? From this perspective, EU citizenship is looked at as a bottom-up
process.
Most observers acknowledge that the practice of EU citizenship has not
been impressive so far. Among the many reasons that could explain why EU
citizens have not used their new citizenship rights as extensively as some may
have hoped, three are worth mentioning. First, there has been a problem of in-
formation. Many EU citizens still do not know precisely what EU citizenship
involves and what the link between this new concept and national citizenship
exactly is. After the introduction of the Maastricht Treaty, the European Com-
mission received letters from citizens of some member states expressing their
anxiety and at times their refusal to accept the new EU citizenship. Some of
them declared that they already had a national citizenship with which they
were happy and that they did not want to have it replaced by EU citizenship.
This example illustrates perfectly the confusion that surrounded the introduc-
tion of EU citizenship within the population and the general ignorance of its
content.
Second, for technical and political reasons related to its national implemen-
tation, some elements of EU citizenship have not been available yet, such as
voting rights in local elections. This situation increased the confusion within
the population: on the hand, EU citizens were in theory granted a new political
right, on the other hand, they were told that they might have to wait as many as
six years to exercise it. In Belgium, for example, prospective voters have been
required to wait until the 2000 local elections to exercise their new political
right. Third, most of the rights included in EU citizenship make sense only for
citizens of the member states who live in a member state different from their
own. In other words, only the small minority of mobile EU citizens can take ad-
vantage of most EU citizenship rights and exercise EU citizenship in their daily
life. In that sense, EU citizenship may be seen as a de facto indirect discrimina-
tion against EU citizens who live in their own country! The latter are protected
by guarantees concerned with freedom of movement, the right to petition the
European Parliament, and the right to apply to a European ombudsman, but

63. Wiener, 1998.

368 MARCO MARTI NI ELLO

only mobile EU citizens can enjoy the totality of the rights included in EU citi-
zenship.
In order to assess how EU citizens have exercised their EU citizenship
rights, let us look at a selection of them: the freedom of movement and resi-
dence within the territory of the European Union, and the voting and eligibility
rights at the elections of the European Parliament.
On paper, EU citizens have the right to move and to reside freely within the
territory of the member states under certain conditions.64 Freedom of movement
and of residence is a crucial element of any democratic citizenship. In practice,
many EU citizens have used their right to move freely but few have used their
right to reside in a member state other than their own. The European Union
counts 370 millions inhabitants. Only 5.5 million of them live in a member state
other than their own, that is, 1.5 percent, and this percentage has not seemed to
increase.65 EU citizens do travel within the European Union for their holidays,
but they did not need the introduction of EU citizenship to do so. EU citizenship
has implied a major change that facilitates intra-European tourist traveling: the
reduction of border controls. But another element explains the growing tourist
mobility within Europe more fundamentally: the development of fast and cheap
transportation reduces the distance between some European capital cities.
Brussels and Paris, for example, are only one hour and twenty-five minutes
away from each other with the new high speed train Thalys, and the fare can be
as low as $60 for a return tourist ticket. This evolution encourages short-term
excursions within Europe but not necessarily the resolve to live in another Eu-
ropean Union state.
Whereas capital flows readily from one member state to another, EU work-
ers and citizens are not very mobile and do not move to another European Un-
ion country very easily. Generally, they do not favor moving within their own
country either. Clearly, Europeans are far less mobile than U.S. citizens. In
other words, Europeans show little interest in exercising this new right granted
to them through EU citizenship provisions. Why this lack of interest? Several
reasons can be given. Historically, mass intra-European workers migrations did
take place in the twentieth century and especially from 1945 to the mid-1970s
from the poorer rural areas of southern Europe to the industrialized cities in the
north. These mass migrations were considered to be temporary even though
they led to permanent settlement. The governments of the receiving and send-

64. Article 8A of the TEU.

65. Memo d’Eurostat, no. 0498, April 16, 1998; “Résumé du rapport du groupe de haut niveau
sur la libre circulation des personnes présidé par Mme Simone Veil,” Agence Europe, no. 2030,
April 9, 1997.
E UR OPE AN UNION 369

ing countries organized these migration movements through bilateral agree-

ments. These movements, then, were not spontaneous and, in a way, were
stigmatized as the only way for poor Europeans to survive. The attachment to
the native soil and environment seems historically much higher in Europe than
it is in the United States.
Language is clearly another obstacle to mobility in Europe. For a European,
moving to another European country often means adapting to a new and totally
different linguistic environment. This difficulty reduces mobility. The fact that
social benefits and social protection remain largely linked to the member state
of which one is a national is another disincentive to move. Europeans often fear
that moving to another European country will have negative consequences for
their retirement benefits, their social rights and protection, their health care pro-
tection, and so on. To a certain extent, these fears are warranted and will con-
tinue to be until a common European social policy in these fields is designed
and implemented. For all these reasons, moving within the European Union is
much more problematic than moving within the United States, and the end re-
sult is therefore not surprising: mobility is much lower in Europe than it is in the
United States.
Incentives are needed in order to encourage human mobility within the Eu-
ropean Union. European institutions are aware of this necessity. The European
Commission has published a practical guide informing EU citizens about their
social security rights when they move within the Union.66 But information is not
enough. More Europeans will start moving when they are convinced that doing
so will accumulate gains for them and their families in terms of salaries, quality
of life, prestige, career, access to the labor market, and so on.
As to the participation of EU citizens living in a member state other than
their own in the elections of the European Parliament of 1994, the results reveal
a low turnout throughout the Union. Official figures indicate that the percent-
age of EU citizens who registered to vote in their country of residence did not
exceed 44.11 percent of the potential EU voters, in the case of Ireland, for ex-
ample.67 The rate of registration was less than or equal to 5 percent in Belgium,
Greece, France, Italy, Portugal, and the United Kingdom. It was between 6 per-
cent and 10 percent in Germany, Luxembourg, and Austria. It was about 12 per-

66. Commission Européenne, “Vos droits de sécurité sociale quand vous vous déplacez dans
l’Union Européenne, Guide Pratique,” Luxembourg, Office des Publications officielles des
Communautés Européennes, 1995.
67. “Rapport de la Commission Européenne au Parlement Européen et au Conseil sur
l’application de la Directive 93/109/CE relative au Droit de vote et d’éligibilité aux élections au
parlement européen pour les citoyens de l’Union résidant dans un autre état membre dont ils ne sont
pas ressortissants,” COM(97) 731 final, 07.01.1998.
370 MARCO MARTI NI ELLO

cent for Spain and about 24 percent in the Nordic countries (Denmark, Sweden,
Finland). Only one EU candidate was elected in a member state other than his or
her own. Clearly, EU citizens have not demonstrated a deep interest in voting or
competing for a seat in their country of residence, which in theory is a crucial
aspect of EU citizenship as designed in Maastricht and confirmed in Amster-
dam.
Various reasons can be adduced to explain low voter participation in Euro-
pean-wide elections. Declining electoral turnout is part of a broader trend that
has occurred at the national level throughout Europe during the past few
years. But other factors are also important to consider. The European Parlia-
ment is the least powerful European institution, and a significant number of
EU citizens have probably wondered why they should make the effort to vote
for members of a largely toothless body. In addition, serious problems of in-
formation persist. Many EU citizens have not known exactly what their new
right meant. Could they vote in their country of residence for candidates in
their home country? Or could they vote for candidates of their country of resi-
dence? Or could they perhaps vote for both? The need to register to vote and
the somewhat complex registration procedures in some member states have
also contributed to reducing the rate of participation. In some countries it
could take at least half a day to register, and only the most motivated EU citi-
zens have been inclined to do so.
Some observers have viewed low turnout as proof of the weakness of a Euro-
pean political identity among the European citizenry. This hypothesis should
not be dismissed casually. But weak participation could also be interpreted as
an expression of political resistance by EU citizens against the current evolu-
tion of the European integration process that has not corresponded to their
wishes and needs. Not voting may reflect simple apathy but it can also be a po-
litical act. Not voting may in many cases represent a vote against the European
Union in its present form, but it does not necessarily indicate that no shared Eu-
ropean political identity exists or is possible.
According to a recent Eurobarometer survey, 70 percent of EU citizens de-
clared that they are willing to participate in the 1999 elections of the European
Parliament.68 This level of participation may be an achievable goal. In order to
succeed, though, information needs to be improved and registration procedures
simplified. Beyond this plausible short-term goal, a general public debate on
the meaning of EU political identity is necessary if the final aim is to build a
more democratic European Union composed of equal and active citizens.

68. Eurobarometer, report no. 48, March 1998.

E UR OPE AN UNION 371

The Effect of EU Citizenship on Citizenship Structure in the

European Union
Extending the work of Brubaker and Hammar, I have formulated elsewhere
the hypothesis of the emergence of a triangular citizenship structure in the Eu-
ropean Union.69 In my view, the introduction of EU citizenship did confirm and
sanction juridically this “triangularization” of citizenship in the European Un-
ion while modifying it slightly. Three main levels of citizenship, that is, three
types of citizens, can be distinguished in the European Union depending on the
particular mix of civil rights, socioeconomic rights, and political rights they en-
joy.
Only the citizens of a member state living within the border of their national-
ity state possess the entire basket of civil, socioeconomic, and political rights,
that is, full citizenship. But sharing full citizenship does not necessarily mean
equality of status. A growing number of them are effectively excluded from the
processes of redistribution of economic, social, and political resources.
At the next lower level are the citizens of a European Union member state
who are residing in a member state other than their own. They enjoy only lim-
ited political rights (mainly the right to vote and to be elected at the local and
European level). In other respects, their civil rights are not complete. Article 8A
of the Maastricht Treaty, for example, does not guarantee the total freedom of
settlement in another European Union country. In order to avoid movements of
unemployed workers from member states with low social protection to member
states that offer a high level of protection, European citizens must satisfy two
conditions if they want to settle in another member state. These conditions are
financial independence and no dependence on social security. Furthermore, the
employment opportunities for European citizens in their country of residence of
which they are not a national remains severely limited. Although this category
of European citizens is largely protected by European Union law, the full equal-
ity between nationals and other European Union citizens has not yet been
achieved. This problem is exacerbated by the fact that the social legislations of
the member states are far from being fully harmonized. The idea of a coordi-
nated European Union social policy has always faced strong opposition, and
not only from the government of the United Kingdom.
The third category of citizens is actually divided into two subcategories. One
may be understood as “denizens,” that is, citizens of a third state (nonmember)
who are legally settled in the European Union. Denizens have, to a certain ex-
tent, become integrated into the civil and socioeconomic life of European soci-

69. Brubaker, 1989; Hammar, 1990; Martiniello, 1992.

372 MARCO MARTI NI ELLO

ety. As human beings and as workers, they enjoy fundamental civil and
socioeconomic rights. But they generally have no significant political rights in
the European Union.70 For the past few years, the Forum of the Migrants of the
European Communities has been working in this area. In theory, the forum
should offer a means of expression for the third-country migrants at the Euro-
pean level as well as a platform for dialogue between them and the commission.
The forum, however, has no decision-making power and is clearly located at
the margins of the European polity.
The second subcategory, the “margizens,” enjoy extremely limited civil, so-
cioeconomic, and political rights. In many cases, they have almost no rights at
all because they live illegally in a member state. I have grouped denizens and
margizens together in the same category because they suffer analogous mecha-
nisms of exclusion from the cultural and political “Europeanity.” Between the
denizens and the margizens, one could also mention a growing category of legal
temporary residents or workers. Members of this category may have high-sta-
tus positions while many more are severely marginalized.
This hypothesis concerning the emergence and consolidation of a triangular
citizenship structure in the European Union requires qualification. The practi-
cal implementation of the rights associated with citizenship sometimes makes
the distinctions among nationals, denizens, and margizens less clear-cut in
daily life than in my proposed model. We must consider the growing socioeco-
nomic exclusion processes affecting both nationals and foreigners in Europe,
especially in urban settings, to understand the concrete realities shaping this
triadic citizenship structure. Although, for example, the nationals in principle
enjoy all the socioeconomic rights, including the right to work, a growing num-
ber of them are condemned in almost all member states to long-term unemploy-
ment, poverty, and exclusion. The living conditions of these nationals then tend
to resemble that of some margizens.
This resemblance is especially, but not at all exclusively, the case for a sig-
nificant proportion of black nationals in several European countries.71 The pos-
session of the nationality of a European state does not impede racial
discrimination. No strict and binding guidelines intended to fight racism at the
European level exist. No common policy in this area has emerged, and each
member state has its own particular approach.72 At the end of the 1997 European

70. In the framework of the negotiations between the EEC and some EFTA states in the per-
spective of an enlargement of the EEC and their accession to it, the status of the citizens of those
EFTA states is likely to evolve rapidly.
71. Many member states of the European Union have a minority of dark-skinned citizens who
are a legacy of their past colonial experiences. It is certainly the case of Britain, France, the Nether-
lands, and Germany, but also of Belgium and Italy.
72. Commission of the European Communities, 1992; Niessen, 1992.
E UR OPE AN UNION 373

Year against Racism, Padraig Flynn, the Irish commissioner in charge of social
affairs, committed himself to introduce new antidiscrimination legislation be-
fore the end of the term of the European Commission in June 1999.73 The Euro-
pean Commission indeed adopted a Communication in March 1998 that
contains an Action Plan on the fight against racism. More recently, in Novem-
ber 1999, the new European Commission, led by Romano Prodi, approved a
package of four proposals to combat discrimination on the basis of powers con-
ferred by the Amsterdam Treaty. But at this stage these four remain merely pro-
posals, which need unanimous approval from all the Member States to produce
any effect.

Toward a Multicultural Citizenship of the European Union?

In order to envisage the further developments of EU citizenship, it is useful
to differentiate between EU citizenship seen as a top-down construction (EU
citizenship from above) and EU citizenship seen as a bottom-up process (EU
citizenship from below). It is also instructive here to distinguish between
short-term and long-term developments.
The development of EU citizenship from above in the short term raises the
issue of its implementation as designed in Maastricht and confirmed in Amster-
dam. A revision of the Amsterdam Treaty has already been planned in the short
term, although no precise date has been set. A new institutional negotiation
could commence when the number of member states of the European Union has
reached twenty. It could also begin after the integration of a sixteenth member
state.74 In any case, given the fact that negotiations regarding enlargement are
moving forward, the revision of the Amsterdam Treaty can be expected in the
next five years. Will EU citizenship be included in the list of issues to be dis-
cussed during this revision? No one can predict with absolute accuracy.
In looking forward to future prospects, three main ways to develop EU citi-
zenship can be theoretically distinguished. First, Article 8 could be technically
improved and thus be subject to minor cosmetic changes. Second, new rights
could be added for EU citizens either in Article 8 or elsewhere in the TEU.
Third, EU citizenship could be extended to third-country nationals who have
been residing legally within the European Union for a period to be fixed (five
years, ten years). Obviously, these three developments could also take place si-
multaneously.

73. Agence Europe, no. 7128, December 24, 1997, p. 3.

74. Dehousse, 1997.
374 MARCO MARTI NI ELLO

With respect to the first route, the introduction of cosmetic changes intended
to improve technically the functioning of Article 8 is the easiest way to address
from above concerns over EU citizenship, but it is not necessarily the most
fruitful one. We can expect such changes as the most probable development in
the short term, but they will not substantially advance the development of EU
citizenship. As to the second way, many proposals have already been made re-
garding the introduction of new citizenship rights. These proposals have come
both from independent experts and from institutions like the European Parlia-
ment, such as during the IGC that prepared the Amsterdam Summit of June
1997. More new proposals may emerge in the coming month and years. Which
of these proposals could be adopted in the near future remains an open question.
The third way—the extension of EU citizenship to third-country nationals who
have legally been residing within the European Union for a period of
years—does not seem to be politically feasible in the short term. Nevertheless,
proposals have been made for this extension by basing citizenship eligibility on
the criterion of residence rather than on nationality. Nothing precludes this ex-
tension juridically, but reaching a common agreement seems unlikely in the
short and medium term. Therefore, no profound and significant developments
of EU citizenship from above can be expected in the near future. The main bar-
rier is the absence of political agreement on the future shape of a political Euro-
pean Union in the long term.
What are now the long-term prospects for EU citizenship, in particular, and
the political Union, in general? Effectively, their respective evolution will be
closely linked. The nature, the shape, and the content of the future EU citizen-
ship will depend on the type of European society that will actually be con-
structed and vice versa. Will the EU vacillate between the present hybrid
Confederalism and some kind of a vague European Federalism? Will the imple-
mentation of a European citizenship remain largely based on the national model
to which some elements of a federal citizenship are added? What will be the im-
pact of the dilemma of enlargement versus deepening of the Union on the future
shape of a European polity and citizenship? When will the issue of a long-term
project of a democratic European polity be publicly discussed? To address such
questions would require a discussion about a real European social policy, a real
European equal-opportunity policy, and a real European antiracism policy. No
consensus exists among the member states on the adequacy of the European
level to tackle such issues traditionally dealt with at the national level. Will
there be some space for a postnational and postethnic political Europe and thus
for a postnational and postethnic EU citizenship?75

75. Hollinger, 1995.

E UR OPE AN UNION 375

In Glotz’s view,76 Maastricht was more likely to be the end rather than the
beginning of a political European Union. According to him, the European Com-
munity will continue to be a sort of loose confederation of nation-states that will
cooperate in a free trade zone.77 If we try to extend Glotz’s analysis, it may well
be that EU citizenship as introduced in Maastricht and confirmed in Amsterdam
was an end, the greatest common denominator between the respective wills of
the European institutions and of the member states that can be found. Forced to
abandon parts of their sovereignty in other areas, the member states will strive
to keep control of what is left of their sovereignty, namely the independent de-
termination and delimitation of who can be considered as their nationals.
Chabot’s analysis follows the same lines when he asserts that an involvement of
the member states in the construction of Europe is often followed by a with-
drawal that makes all further progress impossible for a certain time.78 Smith ad-
vances the hypothesis that a sort of pan-European nationalism could develop,
grounded on the mobilization of a European cultural heritage, provided that it
will not compete with the national identities and cultures. The political Euro-
pean Community could thus constitute a new kind of collective identity em-
bracing the present nations without, however, abolishing them.79
At present, no development seems to herald the beginning of a postnational
era cherished almost ten years ago by Ferry, Habermas, Lafont, Oriol, and
many others. In Ferry’s view, a postnational European society could be based
on the principles of constitutional patriotism and cultural sovereignty.80 Lafont
does not use the same expression, but he aims at the same type of society in his
argument for a “mixed” and transparent Europe as well as for a “deterri-
torialized” human being.81 The same is true with Oriol when he states that “the
Europe of the citizens can only be the Europe of all the resident citizens.”82
For the time being, issues related to multiculturalism and issues related to
citizenship are almost completely disconnected at the European level, and this
disjuncture is reflected in the concept of EU citizenship that says nothing about
the promotion of diversity in Europe. It also says very little about the social di-

76. Glotz, 1992.

77. It could easily be argued that the European Community is already far more than that, but the
monetary clash of summer 1993 shows that setbacks are not to be excluded.
78. Chabot, 1987.
79. Smith, 1991.
80. Ferry, 1990; Ferry, 1991.
81. It is almost impossible indeed to translate Lafont’s terms. The original expressions are “une
Europe métisse et désopacifiée et un homme déterritorialisé” (Lafont, 1991).
82. This is a free translation of the following quotation: “l’Europe des citoyens ne peut être que
l’Europe des citoyens résidents” (Oriol, 1992, p. 217).
376 MARCO MARTI NI ELLO

mension of citizenship. Clearly, the idea of a multicultural citizenship for the

European Union does not rank very high on the political agenda in Europe.
The fact that various and conflicting national narratives of citizenship and
multiculturalism exist within the European Union impedes the emergence of
that type of debate at the European level. In France, the republican rhetoric of
national integration and citizenship underlines the divisive effects of a public
recognition of cultural diversity. Multiculturalism is often presented as a new
tribalism, as a balkanization of France, and, in the end, as a risk for citizenship.
In Britain, things are different. The British have conflicting views on multicul-
turalism but the issue is at least openly discussed. The accommodation of diver-
sity in the public sphere is less problematic. In Germany, a “multikulti” trend
coexists with a quite exclusive conception of citizenship. Each country, for his-
toric and political reasons, has its own way to address these issues and wants to
keep its sovereignty in these matters. This concern with national sovereignty
explains why debates over supranational European structures seldom receive
much attention.83
Furthermore, in many member states of the European Union, debates on is-
sues related to multiculturalism overlap with the debate on the position on eth-
nic immigrant minorities. Multiculturalism is not seen as a broad project for
society at large. This narrow perspective discourages the development of a
multicultural EU citizenship.
The necessity to accommodate ethnocultural and national identities in the
European Union in a dynamic way seems clear. Any attempt to promote a ho-
mogeneous Europe will fail because Europe means diversity. Accommodation
will require promoting a postethnic Europe based on the recognition of multiple
and fluid identities and respect for the equality of opportunity for every inhabit-
ant. This notion of accommodation differs from Kymlicka’s model,84 which
runs the risk of essentialization and rigidification of ethnicities and which
leaves aside the issue of economic and social inequality. Promoting cultural
rights without promoting a fair share of economic and social resources between
individuals would certainly not be a good solution for a democratic European
Union. Inhabitants of the European Union, like any other individuals, display a
complex and multidimensional identity that is the result of various affiliations
and identificational processes: Muslims in Europe can affiliate with the Euro-
pean idea, second-generation immigrants, too, without necessarily renouncing
other dimensions of their identity. This reality is often either underestimated or

83. Martiniello, 1997; Vertovec, 1998.

84. Kymlicka, 1995.
E UR OPE AN UNION 377

overestimated in the current debate. It should be taken into account more care-
fully.
The presence in the European Union of a variety of ethnocultural and na-
tional identities is not per se an obstacle for an EU citizenship and an EU politi-
cal identity that rests on a commitment to a shared project of society. It can,
nevertheless, become an obstacle should social and economic inequality con-
tinue to grow. If the holders of alleged illegitimate identities are also the ex-
cluded and the poor, and if the holders of alleged legitimate identities are also
the included and the rich, then Europe as a focus of identification and commit-
ment does not seem to make sense.
In my view, only a successful mobilization of the denizens and margizens
together with the full citizens, that is, a significant pressure from below, for a
new multicultural EU citizenship could bring about a decisive breach in the na-
tionalist logic and open the way toward postnationalism and postethnicity in
Europe. But what are the prospects of construction of EU citizenship from be-
low? Generally, collective action is developing at the European level.85 But
transnational and European grassroots citizens’ mobilization and collective ac-
tion remains highly problematic and underdeveloped.86 As Edgard Morin put it
some years ago, the challenge of a democratic Europe at this stage would be to
develop European political parties, European trade unions, and European asso-
ciations committed to the construction of the Union.87 Can such a process of de-
velopment of an EU citizenship from below be stimulated from above?
Probably to a certain extent. But in any case, without an active EU citizenship,
the idea of a multicultural Eurodemocracy will remain an inaccessible dream,
and EU citizenship could be blocked in its present embryonic stage for some
time.

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 PART FOUR

Ethnic Republics?
Citizenship in Israel and Japan
 CHAPTER TWELVE

Introduction

ARISTIDE R. ZOLBERG

SOME CASES ARE more unusual than others, and there is no gainsaying the idio-
syncrasy of Israeli citizenship. As is well known, its foundation stone is the
Law of Return, which extends to every Jew in the world at large the right to im-
migrate, settle, and establish citizenship. Albeit grounded in the traditions of
European nationalism, at least at the level of theory, the Law of Return in effect
reverses the usual relationship and accords to immigrant Jews a superior status
over the native-born. “Every Jew,” indeed, but how does a person qualify? Jews
of the Diaspora who live in liberal democracies generally insist that Judaism is
a religion and, hence, a private and voluntary matter that falls outside the state’s
purview—for example, in the United States, “Jewish” is not available as an eth-
nicity within the white race in the census. Yet “Jew” for purposes of the Law of
Return is evidently not established principally on religious grounds: although
one can qualify on the basis of conversion to Judaism, neither religious prac-
tice, nor a belief in the deity specified in Judaic traditions, nor even a belief in a
deity tout court is generally required. Rather, in keeping with the structure of
Zionist ideology, formed in the mold of late-nineteenth-century European na-
tionalism, qualification is commonly on the basis of membership in the tribe,
established on the basis of ancestry. Although one Jewish parent suffices, the
Jewishness of that parent is itself determined on the basis of ancestry—or at
least putative ancestry, since in most cases, by virtue of the vagaries of regional
history, records are not available—and so on until one enters the Andersonian
realm of “imagined communities,” of putative origins in the desert tribe that be-

383
384 ARI STI DE R. ZOLBERG

gan its transformation into a settled territorial nation upward of five millennia
ago. And if there is some doubt over lineage, the matter is to be settled on the
basis of Jewish religious law. So, Israeli citizenship does rest on a religious
foundation, after all. Or does it?
And these peculiarities, ambiguities, and contradictions, are only the begin-
ning. The Israeli case is a misfit in relation to all the typological exercises set
forth by social scientists as a prelude to theorizing on the subject of citizenship.
In relation, for example, to the contrast drawn by Rogers Brubaker between the
universalistic French model of citizenship and the ethnic German model, Israel
clearly belongs in the German camp. The Israeli concept of citizenship is
clearly republican, however, in the strong sense of that term, in that it entails not
only rights but also obligations, centering on military service. Whereas this is
easily understood in the light of the historical contingencies that have sur-
rounded the state’s existence since its inception, at a more theoretical level this
republicanism is traceable to the French revolutionary tradition of the “nation in
arms.” In contrast with the “blood nation,” a republican nation is constituted on
the basis of active reciprocity: citizens are obligated to serve the republic, but in
return the republic has stronger obligations toward its citizens than is the case
for merely liberal states. Indeed, Hertzl’s engagement in Zionism was precipi-
tated by the French Republic’s failure to meet its obligations toward a citizen
who served, Captain Dreyfus. But Israel’s republicanism is, in turn, jumbled up
with outright communalism in the realm of family law, whereby marriage rules
are determined on the basis of community affiliation. Derived from Ottoman
tradition, this sort of pluralism belongs structurally in the realm of empire rather
than of republic. Although pluralism in itself does not necessarily entail in-
equality—it is possible to be “separate and equal”—in Israel the communities
in question are clearly not equal, but provide the foundations for what Ayelet
Shachar terms “degrees of citizenship,” a structural element that echoes the
U.S. situation prior to the civil rights revolution, as well as South Africa in the
epoch of apartheid.
Although Shachar’s major objective is to provide a critical assessment of the
Israeli situation, a task of which she acquits herself with the utmost intellectual
integrity and admirable moral sensitivity, her paper also provides the makings
of stimulating comparisons. As she astutely demonstrates, the uniqueness of Is-
raeli citizenship arises from the disparate character of its constitutive elements,
assembled on the basis of imperatives that are themselves highly disparate,
ranging from the foundational principles of Zionism—themselves of mixed ori-
gin—to the realistic constraints of managing a heterogeneous population,
whose differences are laden with ominous significance by way of their relation-
ship to the tense international environment, and the hegemony of orthodox Jew-
PAR T FOUR INT R ODUC TI ON 385

ish authorities in a state whose Jewish population is on the whole less religious
than their American cousins. To this has been added, most recently, the experi-
ence of foreign guest workers, which links Israel with the United States during
the era of the bracero program, Western Europe during the Bretton-Woods
boom years, and, more recently, the Arab oil states of the Gulf. Somewhat para-
doxically, the disparate character of the resulting Israeli configuration reveals
aspects of these several elements that are not visible in their native habitat, and
thereby enhances our understanding of their significance.
Japan and Israel surely stand out as the “odd couple” of the comparative citi-
zenship project, each of them being an outlier in which one element of citizen-
ship policy has been extrapolated into a dominant feature. In short, Japan comes
closer than any other economically advanced constitutional democracy to re-
taining a fundamentalist version of jus sanguinis, and the “blood” involved is
the immediate and concrete one of family or lineage, rather than merely the
usual “imagined” national community.
In her balanced account, Chikako Kashiwazaki properly emphasizes the
protracted problems encountered by former colonials and their descendents,
but also provides a detailed review of the important improvements that finally
were enacted in recent decades. Although matters are not all they might be,
there is fortunately some light at the end of that tunnel.
Her conclusion, however, highlights the distance that separates Japan from
the other countries considered in the project: unlike most European
nonimmigration states, including now even Germany, Japan has still not
adopted the perspective “of conceptualizing resident aliens as future citizens of
Japan.” Arguably, of course, this does not constitute a problem from a humani-
tarian or rights perspective, so long as a country is willing to forgo the economic
advantages of immigration, and so long as it is willing to meet the obligations
incurred as a member of the international community with regard to refugees.
Indeed, for most of the post–World War II period, Japan in fact did adopt inter-
nal and external economic strategies that enabled it to ignore the temptation of
guest workers. But more recently, Japan relented and hence acquired a signifi-
cant foreign resident population whose status remains unacceptably marginal.
Citizenship issues arising in the refugee sphere are less significant, but only be-
cause Japan has maintained an extremely restrictive stance with regard to asy-
lum.
 CHAPTER THIRTEEN

Citizenship and Membership

in the Israeli Polity

AYELET SHACHAR

CITIZENSHIP MEANS drawing borders: between peoples, between states, be-

tween insiders and outsiders. Citizens assume their positions because of
their legal status, their shared history, or their sense of identity. For a variety
of historical reasons, the constituency of such a group may be distinctly het-
erogeneous. In Israel, a land of immigrants, roughly 80 percent of the citi-
zenry is Jewish and 20 percent is Palestinian Arab.1 A significant number of
the Jewish Israeli citizens are foreign-born. In 1996, for example, after the
large influx of Jews born in the former Soviet Union, approximately 38 per-
cent of the Jewish population in Israel (1.75 million) had been born outside
the country.2 In other words, one in every three Israelis was an immigrant.

An earlier version of this paper was presented at the Third International Metropolis Conference,
Zirchron Yaacov, Israel, November 30-December 3, 1998. I am grateful for the responses I
received to previous drafts of this paper, particularly those from Ari Zolberg, Joe Carens, Christian
Joppke, Doug Klusmeyer, Kathleen Newland, Demetri Papademetriou, Don Galloway, Miriam
Feldblum, David Martin, Dan Friedman, Caroline Sand, and Lisa Brill. I would also like to thank
the members of the Legal Department at the Association for Civil Rights in Israel (ACRI),
especially Dan Yakir, Orna Kohn, and Anat Shekolnikov, for their insights regarding the issues
raised in this article. Special thanks to Alex Aleinikoff for his comprehensive assistance and
detailed comments.

1. As of May 1998, the Israel Central Bureau of Statistics announced that the current popula-
tion of Israel was estimated at 5.94 million. Of the total population in 1998, approximately 4.76 mil-
lion were Jews and 1.18 million were non-Jews. See Israel at 50, September 22, 1998.
2. See Statistical Abstract of Israel, 1997, p. 49.

386
ISR AE L 387

By way of comparison, according to the United States Census Bureau, “in

1997 nearly one in ten residents of the United States (25.8 million) was for-
eign-born,”3 and that is in the context of one of the largest immigration waves
in U.S. history.
In the words of Rogers Brubaker, “citizenship is a powerful instrument of
social closure.”4 In Israel, immigration also serves as an important strategy in
the project of nation building and a means to affect the demographic balance
between Jews and non-Jews occupying the land.5 Like any other modern state,
Israel formally defines its citizenry, identifying a set of persons as its members,
or “the people” in whose name the state is understood to act.6 Any citizenship
law and immigration policy must determine who is entitled to full membership
in a given political community, and, therefore, who profits by the rights and
who must fulfill the subsequent obligations. The unique nature of Israeli immi-
gration policy rests in its perception of expanded state membership to any per-
son who is entitled to the “right of return” that is codified in the 1950 Law of
Return.
“Every Jew,” proclaims section 1 of the Law of Return, “has the right to
come to this country as an oleh [immigrant].”7 This open invitation to immi-
grate and settle in Israel (or “right of return”) “is considered one of the most
fundamental rights in Israeli law.”8 It is often described as reflecting the raison
d’être and ideological underpinning of the State of Israel with the state’s aim of
the reuniting of the scattered Jewish people (the “exiles”) in their ancient home-
land.9 The Law of Return views every Jew and his or her family members as in
potenia citizens of the State of Israel, thus establishing a formal, legal link be-
tween the State of Israel and the community of world Jewry, and expressing a
fundamental Zionist value upon which the state itself is founded: that Israel

3. U.S. Census Bureau, April 9, 1998.

4. Brubaker, 1992, p. x.
5. See Goldscheider, 1990, pp. 131, 138. See, generally, Soffer, 1994, p. 289 (explaining the
function of demography in the shaping of Israel).
6. Membership in the Israeli polity is formally defined in two major legal acts: The Law of Re-
turn and the Citizenship Act. See, generally, Israel, 1950, The Law of Return, 4 L.S.I. 114; and Is-
rael, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52). (The Hebrew title of this law is hok ha-ezrahot,
literally, “Citizenship Law.” Note that the official government translation uses the term “National-
ity Law” rather than “Citizenship Law.”)
7. Israel, 1950, The Law of Return, 4 L.S.I. 114, § 1. For the purposes of the Law of Return,
Jew “means a person who was born of a Jewish mother or has become converted to Judaism and
who is not a member of another religion.” Israel, 1970, The Law of Return (Amendment No. 2), 24
L.S.I. 28, § 4B. For further analysis of the question “who is a Jew,” see discussion infra Citizenship
by Return.
8. See Klein, 1997, p. 53.
9. “The Declaration of Independence,” May 14, 1948, p. 1.
388 AYELET SHACHAR

should provide a home to any Jew who so desires.10 Yet, the obligation to im-
migrate, settle, and establish citizenship in Israel is not automatically imposed
upon a person simply because of his or her Jewishness. Rather, any person
who is considered a “Jew,” according to the legal definition encoded in sec-
tion 4B of the Law of Return, has an open invitation from the State of Israel to
establish his or her life in that country as a citizen. This invitation to settle in
Israel (or right of return) is also conferred upon family members of that per-
son, up to a third generation, regardless of their own religious affiliation.11
Moreover, non-Jewish family members have an inalienable right to return
even if the person through whom the right is claimed has deceased or has
never settled in Israel.12
The centerpiece of Israeli immigration policy, the Law of Return, is effec-
tively grounded in the romantic nationalist ideology of Zionism from the late
nineteenth century. This law reflects a perception of membership in the state
that is not territorially bound or defined,13 but rather is based on a preexisting af-
filiation with the Jewish people, in its perception of that people as a “nation.”14

10. Upon presenting the proposed Law of Return to the Knesset (Israeli Parliament) in 1950,
David Ben Gurion, Israel’s first prime minister, observed that the right of return “existed before the
state did, and it is that which built the state.” Lorch, 1993, p. 613.
11. Section 4A(a) of the Law of Return states that the right to return to Israel is also granted to
“a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse
of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his re-
ligion.” Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4A(a). In the initial
wave of immigration to Israel in the late 1980s, about 15 percent of the immigrants from the former
Soviet Union entered the country as non-Jews entitled to the right of return based on their family af-
finity to a Jewish person. Since 1993, more stringent procedures of verification of the entitled per-
son’s “Jewishness” have been enforced, while at the same time, the numbers of non-Jews
“returning” to Israel has steadily grown.
12. See Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4A(b).
13. In the Israeli example, the criteria for membership by return are derived from a religious
definition of “who is a Jew,” which the state then adapts. See Israel, 1970, The Law of Return
(Amendment No. 2), 24 L.S.I. 28, § 4B. Ironically, the criteria for acquiring membership, as laid out
by the Israeli Law of Return (a form of expanded jus sanguinis), has family resemblance to the Ger-
man ethnocultural perception of membership, as expressed by section 116 of the German Basic
Law (Grundgesetz). See Klein, 1997, pp. 53–55.
14. I put the term “nation” in quotation marks because it reflects the Zionist view of the Jewish
people, developed in the late nineteenth century and the early twentieth century, that conceptual-
ized the “Jewish problem” not as a religious or social problem, but rather as a national problem.
Jews were, as Theodor Herzel put it, a “nation without a land,” and like other nations, deserved a
homeland. “Let sovereignty be granted us over a portion of the globe large enough to satisfy the
rightful requirements of a nation,” he wrote in 1896 in Der Judenstaat (the Jewish state). Herzl,
1943. This national perception of the Jewish people is modernist and secularized. It has never been
the only way to think about membership in the Jewish people, nor has it been accepted by all
branches of Judaism.
ISR AE L 389

As it was written in 1950, in the aftermath of World War II and the Holo-
caust, the primary aim of the Law of Return was to help Jews and their family
members “who continued to live in repressive societies or in places where the
freedom to maintain their Jewish identity was restricted.”15 Today, while the
Law of Return still formally maintains this original purpose, Jews in most coun-
tries are free to preserve their religious identity and have full membership rights
in their respective political communities. Given the current political climate,
the Law of Return, designed to be an inclusive law aimed at Jews, now also ap-
pears to be an exclusive law effectively excluding all those who do not have a
pre-existing affiliation with the Jewish faith.16 Unlike “returning” Jews, who are
entitled to automatic citizenship in Israel, all other immigrants who wish to es-
tablish citizenship in Israel need to go through a relatively rigid naturalization
process.17 When evaluated from a comparative perspective, the prerequisites for
naturalization in Israeli citizenship law are not more restrictive than immigra-
tion procedures in other developed countries in terms of residency or language
proficiency requirements.18 Yet, unlike most other countries, while Israel regu-
lates the flow of immigrants to its territory, it also permits an unrestricted enti-
tlement to membership for a particular group of persons: anyone entitled to the
right of return.
The act of Jewish immigration to Israel has a special ideological position
within Zionism and that is reflected by the word “aliyah,”19 which has particular
and strong connotations of self-fulfillment and ascent in the Hebrew language,
and is a term that is not adequately translated by the standard English term “im-

15. Peretz and Doron, 1997, p. 62.

16. With the above-mentioned exception of non-Jewish family members who are entitled to
the right of return. Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4A.
17. Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 5. See also discussion infra Citi-
zenship by Naturalization.
18. As in the United States and Canada, for example, Israeli citizenship law provides that a per-
son seeking to gain citizenship by naturalization must fulfill a set of qualifications specified in law.
In all three countries, an applicant for naturalization must have been lawfully admitted to the coun-
try. A minimal period of three years of physical residence is also required in all three polities (three
years out of the five years immediately preceding the date of application in Israel and the United
States, and three years out of the four in Canada). Knowledge of the official language is another
standard requirement; however, unlike the United States and Canada, Israel does not impose a man-
datory language proficiency test. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 5; Is-
rael, 1998, Immigration and Nationality Act, §§ 316, 312(a)(1), 8 U.S.C §§ 1427, 1423; Canada,
1999, Citizenship Act, R.S.C., ch. C-29, § 5. For a more detailed account of the prerequisites for
naturalization as they are set out in section 5 of the Israeli Citizenship Law, 1952, see discussion in-
fra Citizenship by Naturalization.
19. Literally, “ascent.” Aliyah is the term used for the action of people immigrating under the
Law of Return. See Israel, 1950, The Law of Return, 4 L.S.I. 114, § 1.
390 AYELET SHACHAR

migration.”20 In order to establish Israeli citizenship by way of return, an eligi-

ble person need only express a desire to immigrate to the country and physically
settle in Israel, or “make aliyah.” The State of Israel actively attempts to solicit
the immigration (aliyah) of Jews to Israel. Immigrants who are claiming the
right of return are entitled to a host of benefits, such as language training pro-
grams underwritten by the state, tax breaks, employment training courses, and
housing subsidies.21 Furthermore, new immigrants by return are automatically
entitled to full membership, that is, citizenship, as soon as they settle in Israel.22
No waiting period is imposed on newcomers before they are granted formal in-
clusion in the body politic.23 In other words, there is nothing equivalent to a nat-
uralization process in the case of “returning” Jews because, as with other
family-related perceptions of ethnocultural membership, Israeli citizenship law
views persons eligible for return as already belonging to the constitutive com-
munity; that is, they are considered to have a status equal to Israeli-born citi-
zens.24
Israel is unique in its active recruitment of Jewish immigrants and over-
whelmingly accommodating policy of granting them immediate full participa-
tory citizenship by way of return. The main problem with this immigration
policy is that it does not apply to all potential immigrants. Only Jews and
non-Jewish relatives of Jews (as specified in the law) may benefit from the Law
of Return. Most importantly, other persons such as Arab Palestinians25 do not
have the benefits and privileges bestowed on the olim. For the purposes of this
discussion, I refer to three different statuses Palestinians occupy in relation to
the Israeli citizenship regime: (1) as citizens of the state; (2) as subjects of the

20. Thus, a Jewish immigrant who “returns” to Israel is termed, in Hebrew, an oleh (plural:
olim), that is, “one who ascends.” See Israel, 1950, The Law of Return, 4 L.S.I. 114, § 1.
21. See Ministry of Immigrant Absorption, 1996, pp. 42–51, 56–65, 71–72, 85–89.
22. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), §§ 1, 2(a).
23. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 2(b). “Israel nationality by re-
turn is acquired . . . by a person having come to Israel as an oleh after the establishment of the
State—with effect from the day of his aliyah.” Israel, 1952, Citizenship Law, 6 L.S.I. 50,
(1951–52), § 2(b).
24. This perception is apparent, for example, in the Passports Law, 1952, which permits the is-
sue of an Israeli passport to a new immigrant regardless of the time he or she has actually resided in
the country after making aliyah. See Israel, 1952, Passports Law, 6 L.S.I. 76, (1951–52). An at-
tempt to change this law and impose a one-year residence requirement before the issuing of an Is-
raeli passport to a new immigrant was defeated because it was argued that it would have created an
unwanted legal distinction between the new immigrant and the settled citizen. See Rubinstein,
1976, pp. 159, 177. On different variants of the ethnocultural citizenship model, see, for example,
Brubaker, 1992 (on Germany); Peled, 1992, p. 432 (on Israel).
25. My usage of the term “Palestinians” refers to persons who were entitled to Palestinian resi-
dency or citizenship under the British Mandate, before the establishment of the State of Israel in
1948.
ISR AE L 391

occupied territories in the West Bank and Gaza, and since 1993, as permanent
residents under the jurisdiction of the Palestinian Authority (PA); and (3) as ref-
ugees in neighboring Arab states26—“all states which have, with the exception
of Jordan, refused citizenship to Palestinians residing within their borders.”27
While aliyah is the prime means for immigration to Israel, citizenship status
can also be created in three other important ways: by residence in the country,
by birth to an Israeli parent, or by naturalization. One in every five Israelis is a
Palestinian Arab citizen28 and must have acquired citizenship status by way of
residence, birth, or naturalization.29 I propose to analyze these three ways of es-
tablishing Israeli citizenship in greater detail below.
My discussion proceeds in four sections. The first section analyzes the dif-
ferent ways of establishing Israeli citizenship, paying special attention to the
right of return. Like many other countries, Israel adopted a combination of jus
sanguinis and jus soli principles, placing greater emphasis on the jus sanguinis
principle.30 As a destination country for immigrants, Israel is exceptionally le-
nient in permitting its new “returning” citizens to maintain their previous for-
mal affiliations (that is, citizenship status) to the countries from which they
emigrated.31 Hence, Jewish Israeli citizens can maintain a dual citizenship sta-

26. Given the scope of this article, my discussion below of the legal implications of the Law of
Return and the Citizenship Law upon non-Jews will focus on Palestinian citizens of Israel (the first
category mentioned above), as opposed to the legal implications for Palestinian noncitizens who
wish to enter the country (the second and third categories).
27. Weiner, 1997, pp. 1, 31.
28. As of 1998, the total population of Israel numbered approximately 5.94 million. Of the total
population in 1998, approximately 4.76 million were Jews and 1.48 million were non-Jews. See Is-
rael at 50, September 22, 1998.
29. While formally entitled to full and equal citizenship rights, Palestinian Arab citizens, in
general, have not achieved full social, economic, or cultural equality in Israel. To provide just one
illustration of this problem, the Israeli State’s official symbols are clearly associated with the Jew-
ish majority: the Israeli flag reflects Jewish symbols (it is inspired by the Jewish prayer shawl, the
tallit, and includes the Shield of David), and the national anthem, Hatikva (“the Hope”), expresses,
in Hebrew, the yearning of the Jewish people to be “a free people in our own land.” None of these
official symbols of the state make Israel a comfortable home for all its citizens, regardless of their
religious or national affiliation. See, generally, Kretzmer, 1989; Peled and Shafir, 1996, pp. 391,
402–404.
30. The right to membership by descent, however, is not limited to the state’s citizens. Rather,
it may be “activated” by any person who belongs to the Jewish people and wishes to settle in Israel.
See discussion infra Citizenship Acquisition by Return.
31. This, again, reflects the centrality of the Zionist concept of “gathering in of the exiles” in
the legal construction of Israeli citizens. A person who made aliyah to Israel automatically acquires
Israeli citizenship unless a declaration of refusal is filed within three months of arrival to the coun-
try. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 2. There is no requirement that the
new Israeli citizen renounce his or her previous citizenship status. See Israel, 1952, Citizenship
Law, 6 L.S.I. 50, (1951–52), § 14. Many countries (including the United States) require a voluntary
performance of an expatriatory act for a citizen to lose his or her citizenship status; under these legal
392 AYELET SHACHAR

tus, either because they immigrated to Israel or because their parents immi-
grated to Israel and they acquired foreign citizenship by way of descent.32
The second section examines the rights and obligations of citizenship, illus-
trating how Israeli citizenship law emphasizes a republican perception of mem-
bership, as expressed in the emphasis on the obligations a citizen has toward the
collective. According to this view, citizenship is not merely a bundle of rights
(or a “passive” entitlement to membership in the body politic), rather it is an ac-
tive practice epitomized in one’s military service and ultimate willingness to
sacrifice one’s life for the nation. In analyzing the emphasis on military service
as the virtue of full membership in the Israeli polity, I illustrate how selective
recruitment policies tacitly preserve structural inequalities among citizens, par-
ticularly between Jews and Palestinian Arabs (members of the latter group are
usually not called upon for the service).33 Military service also serves to pre-
serve more nuanced, and less obvious, structural inequalities, such as sustain-
ing a power differential between men and women (although all Jewish women
are, like men, obliged to do their compulsory national service). I label such state
practices and legal rules that sustain power disparities among formally equal
citizens’ “degrees of citizenship.”34 Covert yet systemic differentiation among
formally equal citizens based on criteria such as religion, ethnicity, race, na-
tional origin, or sex is anything but unique to the Israeli State. But because these
cleavages are so visible in the Israeli context, they call attention to, and are il-
lustrative of, a host of problems that may be “dormant” in other, less divided so-
cieties and citizenship regimes, such as the United States.35

circumstances, the automatic conferral of citizenship status by the State of Israel upon an oleh
would not cause loss of citizenship in the native home country. See Afroyim v. Rusk, 387 U.S. 253
(1967).
32. The only exception to this rule is if an Israeli citizen has left the country illegally and re-
sides or acquires citizenship in a country that is at a formal state of war with Israel. A list of these
countries is mentioned in the Prevention of Infiltration (Offenses and Jurisdiction) Law, 1954. See
Israel, 1954, Prevention of Infiltration (Offenses and Jurisdiction) Law, 8 L.S.I. 133 (1953–54). In
such a case, the individual may lose his or her Israeli citizenship. This rule has a grave effect on Is-
rael’s Arab citizens, who may be denationalized if they permanently reside in a neighboring coun-
try that is at a formal state of war with Israel.
33. See Kretzmer, 1989, p. 98.
34. My analysis here builds on different critiques of the gap between the claim to universality
of citizenship and its practical imposition of disproportionate burdens upon certain groups of citi-
zens, such as minority-group members or women. See, generally, Young, 1989, p. 250; Kymlicka,
1995; Peled, 1992 (claiming that Israel’s citizenship is best described as “ethno-republican”).
35. Note, however, that there is also formidable historical evidence to race-based and gen-
der-based restrictions on immigration and on full entitlement to citizenship in the United States.
See, generally, Smith, 1997.
ISR AE L 393

The third section further discusses the republican underpinnings of Israeli

citizenship law that are also reflected in the legal requirements for relinquishing
citizenship. In Israel, unlike the United States, expatriation is not viewed as an
inherent right of a citizen. Rather, the Citizenship Law precludes a voluntary
severance of national ties to Israel unless the consent of the government is ob-
tained.36 Hence, while Israeli citizenship is easily conferred upon every person
entitled to the right of return, it is equally hard to surrender if one belongs to the
dominant Jewish majority. This duty-bound understanding of citizenship, and
its conception as a lifelong bond between the individual and the state, has re-
mained surprisingly stable despite the dramatic changes that Israel has under-
gone in the past decade.
The fourth section will briefly explore new trends in Israeli immigration pol-
icy since the late 1980s, in light of changes related to the gradual emergence of a
neoliberal order in Israel, the arrival of almost 1 million new immigrants from the
former Soviet Union, the 1993 Oslo agreement signed between Israel and the Pal-
estine Liberation Organization (PLO), and the growing numbers of foreign work-
ers admitted to the country as nonimmigrant “temporary workers.” This article,
then, aims to provide a clear picture of how Israeli citizenship law is legally con-
ceived and practiced; its relationship with the republican ethos of membership in
the Israeli polity; and its role in creating different types of statuses, or “degrees of
citizenship,” among formally equal citizens of the Israeli state.
Finally, I reflect on how rapid socioeconomic, political, and demographic
changes in Israel since the late 1980s have brought to the forefront of Israeli im-
migration policy fundamental questions associated with the tension embedded
between the rollback of the welfare state and the increasing movement of per-
sons, goods, and capital across frontiers (or “globalization”), on the one hand,
and the republican, duty-bound, religious-based perceptions of membership
with its more state-centrist understanding of identity, still encoded in Israeli cit-
izenship law, on the other.

Establishing Citizenship Status in Israel

Israeli immigration and citizenship law is composed of two major legislative

acts: the Law of Return (enacted in 1950, amended in 1970) and the Citizenship
Law (enacted in 1952, amended in 1980).37 Israeli citizenship can be established

36. Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 10.

37. Israel, 1950, The Law of Return, 4 L.S.I. 114; Israel, 1970, The Law of Return (Amend-
ment No. 2), 24 L.S.I. 28. Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52); Israel, 1980, Citi-
zenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80).
394 AYELET SHACHAR

only in accordance with the provisions of the Citizenship Law and the Law of
Return. While the Law of Return establishes the right of every Jew to immigrate
to Israel (the right of return), the Citizenship Law provides three other ways in
which to acquire Israeli citizenship: residence, birth, and naturalization.38 I ex-
amine each of these categories in turn.

Citizenship by Return

The cornerstone of Israeli citizenship law is the right of every Jew (and cer-
tain specified family members) to establish automatic citizenship in Israel (the
right of return). The right of return is encoded in section 1 of the Law of Return
and is grounded in the Zionist perception of the State of Israel as a safe haven
for the Jewish people of the Diaspora,39 who historically endured centuries of
persecution and were considered less-than-full-members in almost every coun-
try in which they lived.40 It encompasses an open door policy toward Jewish im-
migrants and is viewed as one of the country’s founding principles. The Law of
Return, then, is a statutory expression of the Zionist perception of independent
statehood.41
The combined provisions of the Law of Return and the Citizenship Law send
an open invitation to every Jew in the world to immigrate, settle, and establish
citizenship in Israel.42 This right to return is nonselective: the state is unable to
restrict the number of Jewish immigrants who arrive in Israel under the Law of
Return and is bound to provide automatic citizenship to every person who
makes aliyah to Israel.43 The idea behind this carte blanche granting of citizen-

38. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 1. In exceptional cases, Israeli
citizenship can also be “granted” by the state, at the discretion of the minister of the interior. See Is-
rael, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 9.
39. As Robin Cohen observes, the word “diaspora” is derived from the Greek verb speiro (to
sow) and the preposition dia (over). When applied to humans, the ancient Greeks thought of dias-
pora as migration and colonization. For the Jews, as well as other communities that have been dis-
persed from an original “center” to several foreign regions, the experience of diaspora often
“signifies a collective trauma, a banishment, where one dreamed of home but lived in exile.” Co-
hen, 1997, p. ix.
40. Sharkansky, 1997, pp. 71–72. See, generally, Cohen, 1997, pp. 3–20.
41. In Rubinstein’s words, as “a deliberate reply to centuries of Jewish dispersion and suffer-
ing.” Rubinstein, 1976, p. 160, n. 4.
42. Section 2(a) of the Citizenship Law is complementary to the right of return established in
the Law of Return. It provides that “every oleh under the Law of Return shall become an Israel na-
tional.” Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 2(a).
43. The only qualifications to the right of return are found in section 2(b) of the Law of Return.
The minister of the interior may refuse to grant oleh (immigrant) status to an individual who either
“engaged in an activity against the Jewish people”; is likely to “endanger the public health or the se-
curity of the state”; or has a criminal background and is likely to endanger the public welfare. Israel,
ISR AE L 395

ship reflects the Zionist view of Israel as the national home to the Jewish peo-
ple. As David Kretzmer observes, the right of return (of foreign-born Jews to
Israel) encoded in the Law of Return “is one of the only cases in Israeli legisla-
tion in which an overt distinction is made between the rights of Jews and
non-Jews. . . . This aspect of the Law of Return [aliyah] is generally regarded as
a fundamental principle of the State of Israel, possibly even its very raison
d’être as a Jewish state.”44 As well as its practical success, in terms of
“chang[ing] the place of residence of the world’s Jews from the Diaspora to
Zion,” aliyah expresses the ideological underpinning of the Israeli state with its
aim of gathering in the exiles.45
From this perspective, the State of Israel is a “trustee” of the right to return,
which itself predates the inception of the state and is vested in a preexisting af-
filiation, that is, one’s membership in the Jewish people.46 It is this preexisting
membership in “a people” that is crucial for entitlement to citizenship in Israel
by right of return, to the extent that section 4 of the Law of Return states that ev-
ery Jew—even one who was born in Israel—is in the same position as one who
immigrated under this law.47 This reversal of priorities in the Israeli conception
of membership in the polity, under which a person who was born in the territory
to an Israeli parent is deemed to have the same legal status as a person who im-

1950, The Law of Return, 4 L.S.I. 114, § 2(b). Note, however, that there is no instance known in
which the minister of the interior has used the power to restrict immigration because of a situation in
which the security of the state was endangered, or because of an act against the Jewish people.
Some individuals, however, were denied this status because of health, insanity, the cumulative con-
ditions of a criminal past, and the likelihood of endangering the public welfare. See, for example,
H.C. 125/80, Angel v. Minister of the Interior, 34(4) P.D. 329; H.C. 442/71, Lansky v. Minister of
the Interior, 26(2) P.D. 337.
44. Kretzmer, 1989, p. 36. See Peretz and Doron, 1997, pp. 46–62, for a concise discussion of
the patterns of Jewish immigration to Israel since 1948. Various scholars have explored the impact
of Jewish immigration and Zionist nationality upon the citizenship status of Israel’s non-Jewish
population. See, for example, Kretzmer, 1989; Kook, 1996, p. 199; Peled, 1992.
45. Arian, 1998, p. 19. In 1882, there were 24,000 Jews in Palestine, or 0.31 percent of the
world’s Jewish population at the time. By 1996, Israel’s 4.6 million Jews constituted almost 36 per-
cent of the world’s Jews. Note, however, that this dramatic increase in the percentage of Jews living
in Israel out of the total Jewish population in the world is the result of both mass immigration to Is-
rael and the tragic decrease in the world’s Jewish population during World War II. By way of illus-
tration, in 1914 the total Jewish population was approximately 14 million; in 1925, approximately
15 million; in 1939, at the eve of World War II, approximately 16 million. In 1945, the total Jewish
population in the world decreased to approximately 11 million. Today, the total world’s Jewish
population is estimated at approximately 13 million, of which about one-third live in Israel. See
Statistical Abstract of Israel, 1997, p. 52.
46. See Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4B. Section 4B
adopts a semi-Halachic definition of the term “Jew.”
47. See Israel, 1950, The Law of Return, 4 L.S.I. 114, § 4.
396 AYELET SHACHAR

migrated to the country, reflects the legislatures deliberate attempt “not to make
any distinction whatsoever between an oleh and a Jew born in Israel.”48
This approach to immigration is clearly unorthodox in that it reverses the com-
mon hierarchy of statuses between a native citizen and a new immigrant. The
standard case of immigration requires that the newcomer gradually becomes
more like a member of the host society in the country of his or her choice, a pro-
cess that is epitomized by the acquiring of the rights and status of citizenship. In
Israel, a reverse logic is applied. There, “in the eyes of the law, it is not the new
immigrant who is considered as though he were a native-born Israeli; [rather] the
Jew born in Israel . . . [is] deemed to be [an] immigrant.”49 In the early days of the
Zionist movement, emphasis was placed on gaining control of the immigration
policy from the British Mandate. Crucial control over the definition of immigra-
tion policy came with sovereignty in May 1948. Section 13(a) of the Law and
Administration Ordinance of 1948, the first legislative act passed by the Provi-
sional Council of the State after independence, retroactively revoked British leg-
islative restrictions on Jewish immigration to the country.50
Since the establishment of Israel as an independent state in 1948, the number
of people making aliyah has varied from year to year. In total, however, about
2.7 million Jews immigrated to Israel between 1948 and 1998.51 This is an ex-
traordinarily high volume of immigration for a country whose total population
in 1998 was approximately 5.94 million people.52 There are no pertinent statis-
tics in the Israeli Census about the color or racial origin of the population. The
Statistical Abstract of Israel, however, published by the government’s Central
Bureau of Statistics, does report citizens’ religion. Of the total population in
1998, approximately 80.5 percent were Jews, and 19.5 percent were
non-Jews.53

48. Rubinstein, 1976, p. 161.

49. Gouldman, 1970, p. 21. The 1980 amendment of the Citizenship Law, however, has for the
first time recognized a more conventional jus sanguinis principle. Section 4(a) of the amended Citi-
zenship Law holds that “the following shall, from the date of their birth, be Israel nationals by birth:
(1) a person born in Israel while his father or mother was an Israel national; (2) a person born out-
side Israel while his father or mother was an Israel national—a) by return; b) by residence in Israel;
c) by naturalization; d) under paragraph (1).” Israel, 1980, Citizenship Law (Amendment No. 4), 34
L.S.I. 254, (1979–80), § 4(a). For further discussion of the 1980 Amendment of the Citizenship
Law, see infra notes 111–116 and accompanying text.
50. Israel, 1948, Law and Administration Ordinance, 1 L.S.I. 7, § 13(a).
51. See Israel at 50, September 22, 1998.
52. See Israel at 50, September 22, 1998.
53. See Israel at 50, September 22, 1998. Arab Palestinian citizens of Israel are divided into
three main groups: Muslim, Christian, and Druze. In 1996, approximately 78 percent of the Arab
Palestinian population in Israel was Muslim, 14 percent was Christian, and 8 percent was Druze.
See Israel at 50, September 22, 1998.
ISR AE L 397

Arab Palestinians constituted almost 20 percent of the Israeli citizenry at

the inception of the state in 1948. By the mid 1950s, however, “large waves of
Jewish Immigration . . . changed the population composition in favor of Jews
so that . . . [Palestinian] Arabs comprised only [eleven] percent of Israel’s
population.”54 The first massive wave of Jewish immigrants arrived in Israel
from 1948 through 1951. In these formative years of nation building, almost
688,000 olim, an average of 172,000 immigrants per year, arrived in Israel,
doubling the Jewish population of the state in these years.55 This wave of im-
migrants was composed largely of refugees from the Nazi concentration
camps, Jews who were refused entry to Israel under the British Mandate rules
and were deported as “illegal immigrants” before the establishment of Israel,
and Jews from Arab countries.56 Between 1952 and 1989, about 1.2 million
immigrants acquired Israeli citizenship by return. Of them, about 750,000
were Arab-speaking Jews who arrived in Israel during the 1960s and early
1970s from Iraq, Yemen, Syria, Lebanon, Egypt, Morocco, Tunisia, Algeria,
and Libya.57
By the mid 1980s, aliyah “ha[d] decreased and the number of Jewish emi-
grants ha[d] increased.”58 By 1986, for example, approximately 18 percent of
Israeli citizens were Arab Palestinian, and 24 percent of Arab population was
between the ages of zero and four.59 As Lewin-Epstein and Semyonov observe,
the proportional increase of the Israeli Arab population “represents an average
annual growth of 4.1 percent, a rate very close to the average rate in the Jewish
population which stands at 4.3 percent.”60 Yet “almost half of the Jewish popu-
lation growth (45.7 percent) is due to immigration whereas 1.6 percent of the
Arab population growth is accounted for by immigration.”61 The Jewish popu-
lation, then, is structurally dependent on aliyah to keep its numerical domi-
nance in the state.62
In 1989, when it became possible for large numbers of Jews and their family
members to leave the former Soviet Union, Israeli governmental and
nongovernmental agencies actively solicited them to come to Israel to settle. It
appears that a combination of “pull” and “push” factors led significant numbers
of people from the former Soviet Union to seek a new home country in Israel

54. Lewin-Epstein and Semyonov, 1993, p. 16.

55. See Peretz and Doron, 1997, p. 47.
56. See Peretz and Doron, 1997, pp. 47–48.
57. See Peretz and Doron, 1997, p. 49.
58. Soffer, 1994, p. 296.
59. See Soffer, 1994, p. 297.
60. Lewin-Epstein and Semyonov, 1993, p. 16.
61. Lewin-Epstein and Semyonov, 1993, p. 16.
62. See Soffer, 1994, p. 297.
398 AYELET SHACHAR

(see table 13-1).63 The State of Israel granted these newcomers (by return) full
citizenship and a host of social and economic benefits intended to ease their
kelitah (or “absorption”) in Israel.64 Moreover, these olim were automatically
entitled to an Israeli passport, and, with it, established a formal option to pursue
a new life.65
In the past decade, automatic citizenship by return has been granted to ap-
proximately 722,400 immigrants from the former Soviet Union.66 This massive
wave of immigration again raised the complex question of “who is a Jew,” and
therefore who is accorded the right of return as set forth in the Law of Return
and the Citizenship Law.67 The question of “who is a Jew” for the purpose of en-
titlement to the right of return has plagued the State of Israel since its inception,
mainly because it exposes a deep gulf between the two main paradigms for de-
fining Jews: religious and secular. Of the different religious (Halakhic) defini-
tions of Jewishness, the most important one politically in Israel has been the
Orthodox definition, namely, birth to a Jewish mother or an Orthodox conver-

63. See, generally, Portes and Böröcz, 1989, p. 606 (discussing international “pull-push” mi-
gration theories). Note, however, that unlike the standard understanding of “push” and “pull” fac-
tors (which are primarily economically based) in the case of Jewish immigration to Israel, these
factors also have an ideological dimension, reflected, for example, in the growing “pull” factor Is-
rael had after the Six Day War, which brought a large number of immigrants from economically
well-off countries (Europe and the United States), or a growing sense of anti-Semitism, as a “push”
factor. See, generally, Sharkansky, 1997, pp. 71–84.
64. These benefits, known as the sal-kelita (“return packet”), included, for example, language
training fully paid for by the state, universal health coverage, housing subsidies, employment train-
ing courses, and entitlement to financial support. The form and extent of financial assistance varied
with the immigrant’s country of origin, family size, age, and economic circumstances. It could take
the form of a grant, stipend, loan, or standing loan (a loan that becomes a grant after a specified pe-
riod of settlement in Israel). All immigrants who arrived from the former Soviet Union, however,
were entitled to direct monetary aid upon their settlement in Israel. See Ministry of Immigrant Ab-
sorption, 1996, pp. 30–35, 42–55, 71–72, 85–89, 119–23.
65. For some of the olim who joined the massive exile from the former Soviet Union, “Israel
was a transition station; for most, it became a permanent home.” Peretz and Doron, 1997, p. 50.
66. See Ministry of Immigrant Absorption, June 1998, p. 2.
67. The Law of Return grants automatic citizenship to non-Jewish immigrants by return, if, for
example, their spouse has a Jewish grandfather or grandmother. See Israel, 1970, The Law of Re-
turn (Amendment No. 2), 24 L.S.I. 28, § 4A; Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52),
§ 2(a). Before their aliyah, some of the Russian immigrants had only minimal affiliation with Juda-
ism or with the State of Israel, and their entitlement to return was put into question. In 1984, another
significant group of immigrants arrived in Israel, numbering approximately 7,000; these were Ethi-
opian Jews being brought to Israel in a rescue effort known as “Operation Moses.” In 1991, another
15,000 olim from Ethiopia arrived from Addis Ababa in a dramatic airlift known as “Operation Sol-
omon.” The “authenticity” of these new returning immigrants’ Judaism was also put into question.
In their case, however, the challenge was by the Orthodox Rabbinical establishment, referring to
the Ethiopian Jewish community as a whole, not to specific individuals’ entitlement to the right of
return as determined by the state’s bureaucratic agencies. See Sharkansky, 1997, p. 82.
ISR AE L 399

Table 13-1. Immigration to Israel by Region of Origin, 1989–1997

Percent of total
Region Total immigrants immigrants

Total 847,900 100.0

Asia 10,000 1.2
Africa 40,100 4.7
Europe 761,600 89.8
(former Soviet Union) (722,400) (82.25)
North America and
Oceania 20,400 2.4
Latin America 14,900 1.8
Other 900 0.1
Source: Ministry of Immigration Absorption, Immigration and Absorption 1989–1997, An-
nual Report (Jerusalem: 1998), p. 2.

sion to Judaism. The secular Zionist understanding of Jewishness, on the other

hand, is expressed through Israeli nationality and self-identification of an indi-
vidual with the state, and has little to do with the obligations or beliefs of tradi-
tional Jewish faith.68 These two paradigms have been in direct conflict, pitting
religious positions against the secular Zionist understanding of Jewishness.
This conflict has manifested itself in the legal arena, time and again, and has
been the subject of several landmark Supreme Court decisions in the 1960s and
1970s, of which I will discuss the most prominent decision: the Shalit case of
1968.69
In the 1960s and the 1970s the question of “who is a Jew” was aired in the
debate about whether a person’s Jewish identity and nationality should be de-
fined by “external,” religious (Halakhic) rules, or by “internal” decisions, such
as self-identification and choices expressed through the person’s actions, for
example, by establishing a home in Israel and becoming rooted in its history
and culture. In Shalit, the Court held in favor of the latter definition by a narrow
five to four majority.70 The Court ruled that for purposes of the population regis-

68. See, generally, Arian, 1998, pp. 6–11.

69. H.C. 58/68, Shalit v. Minister of Interior, 23(2) P.D. 477.
70. In Shalit, the Court had to decide whether the minister of the interior could register children
born to an Israeli Jewish father and a non-Jewish mother as “Jewish,” for purposes of the population
registry, when under the Halakhic definition of membership they were not considered Jewish. The
specific issue was whether children of an Israeli-Jewish father and an Israeli non-Jewish mother
could be registered as Jews for the administrative purpose of the population registry, which invoked
400 AYELET SHACHAR

try (and by analogy, for the purposes of the Law of Return), the government,
through its administrative bodies, such as the Ministry of the Interior, had no
authority to determine a person’s national or religious affiliation. Rather, the
only relevant criterion was a person’s bona fide statement of such an affilia-
tion.71 The Israeli legislature thought differently, however. In an unusual move
in Israeli politics, the Knesset overruled the Supreme Court by amending sec-
tion 4B of the Law of Return to read as follows: “for the purposes of this Law,
‘Jew’ means a person who was born of a Jewish mother or has become con-
verted to Judaism and who is not a member of another religion.”72
To balance out this narrow, semi-Halakhic definition of Jewishness, the
Knesset added another section to the Law of Return, which greatly expanded
the right of return by granting this right to any family member of an entitled per-
son (that is, a “Jew” by the above definition), up to a third generation and re-
gardless of the family members’ religious affiliation. Section 4A of the 1970
amendment vests in “a child and a grandchild of a Jew, the spouse of a Jew,” the
spouse of a child and a grandchild of a Jew all the rights of an oleh to Israel.73
Here, again, we see the unusual conception of Israeli immigration law that goes
to great lengths to determine who is an “insider” to the collective. Once a person
is considered eligible for the right of return, however, then all the gates are open
and a conscious effort is made to erase formal legal distinctions between the
newcomer immigrant and the settled citizen.74
In its construction of the legal category of membership by return, of “who is
a Jew” for the purposes of the Law of Return and the Citizenship Law, the 1970
amendment resolved the tension surrounding the question of who is by family
genealogy or marriage entitled to Israeli citizenship. It established a middle
ground between a religious definition of Jewishness (section 4B), and a secular
Zionist understanding of Israeli national identity (section 4A), which generally
welcomes non-Jewish family members who are willing to come to the country
and establish their life as participants in its republic.75 In other words, living in

the more general question of how to interpret the criteria for membership in the Jewish people in the
context of the Law of Return. See H.C. 58/68, Shalit v. Minister of Interior, 23(2) P.D. 477.
71. In other words, the presumption is that a citizen’s statement is truthful. The only way to re-
but the person’s statement is through a declaratory judgment of a district court to the effect that the
information given to the registration officer was false. See H.C. 58/68, Shalit v. Minister of Interior,
23(2) P.D. 477, p. 489.
72. Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4B.
73. Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4A.
74. It is estimated that since the mid-1990s significant numbers of immigrants from the Soviet
Union were not seen as “Jews” by the Orthodox Halakhic definition. In 1997, for example, only
56.4 percent of the immigrants by return were “Jews” by the Orthodox Halakhic definition. See
Somech, June 12, 1998.
75. See, generally, Lahav, 1997.
ISR AE L 401

Israel, taking part in its culture, and expressing willingness to serve or have
their children serve in the military, is, according to the secular Zionist under-
standing of citizenship, as much a proof of those persons’ affiliation with the
state as any religious criteria for membership of the Jewish people.
The 1970 amendment of the Law of Return, however, remained silent on
another issue—conversion—that proved to be a major controversy in the
late 1980s and early 1990s. The Law of Return states in section 4B that any
person who has converted to Judaism is entitled to Israeli citizenship by re-
turn, but the law does not specify the rules under which the conversion must
take place, and thus has set the stage for current controversy over “who is a
Jew.”76 In the 1980s and the 1990s, then, the debate shifted to an inquiry
about the rites of passage that a person with no previous affiliation with Ju-
daism or the State of Israel has to go through in order to be recognized reli-
giously as a “Jew,” and based on that definition, the individual may establish
entitlement to citizenship by way of return. Specifically, the point at issue
was whether any denomination of Jewish rabbi or religious institution could
officiate a conversion to Judaism, or whether this authority was solely
vested in the representatives of Orthodox Jewry.77
This debate brought to the surface the bitter division between the institu-
tional power of Orthodox Jewry in Israel and the overwhelming opinion of (the
mainly non-Orthodox) world Jewry. Many conversions to Judaism take place
outside Israel and under the guidance and authority of non-Orthodox rabbis. In
1989, the Supreme Court held in Sephardi Torah Guardians, Shas Movement
v. Director of Population Registry that for purposes of immigration, any person
who converted to Judaism outside Israel, whether under an Orthodox, Conser-
vative, or Reform religious institution, is automatically entitled to all the rights
of an oleh, as stated in the Law of Return and the Citizenship Law.78 In 1995, in
Pesarro (Goldstein) v. Minister of Interior, the Supreme Court was again drawn
into the muddy waters of identity politics.79 This time, the question brought be-
fore the Court was whether a non-Jewish person who underwent a non-Ortho-
dox conversion in Israel was entitled to automatic citizenship based on the right
to return. The ostensibly insignificant fact of the location of the conversion is
highly politically charged due to the Orthodox institutional monopoly over
Jewish religious services in Israel (such as solemnizing of marriage and di-

76. See Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4B.
77. See Arian, 1998, p. 316.
78. H.C. 264/87, Sephardi Torah Guardians, Shas Movement v. Director of Population Regis-
try, 43(2) P.D. 723.
79. H.C. 1031/93, Pessaro (Goldstein) v. Minister of Interior, 49(4) P.D. 661 (hereinafter
Goldstein).
402 AYELET SHACHAR

vorce), and the growing power of religious parties in the Knesset.80 Had the
Court ruled in favor of the petitioners in the Goldstein case, its actions would
have been portrayed as “deregulating” the religious services arena, a step that
could have caused a backlash by the legislature, as was indeed the case in the
aforementioned 1968 Shalit case. In 1995, however, the justices were more
cautious. The Court ruled that while in principle a non-Orthodox conversion
may take place in Israel and have validity for the purposes of the Law of Return,
they did not rule on the merits of the case brought before them. Even this care-
fully crafted judicial decision was viewed as inflammatory by religious parties
in the Knesset who in return initiated a proposed new amendment to the Law of
Return that would specify that only Orthodox conversion to Judaism could be
valid for the purposes of the Law of Return and the Citizenship Law. This legis-
lative proposal has been a source of great discontent to U.S. Jewry in particular,
whose leaders view such an amendment to the Law of Return as potentially un-
dercutting the bond between Israel and the rest of the Jewish world, which, for
the most part, is not Orthodox. By claiming the illegitimacy of the main reli-
gious institutions of world Jewry in the very law that defines the centrality of
the Diaspora to the sovereign Jewish state, the Orthodox parties could seriously
erode relations between the Israel and world Jewry.81 This legislative proposal
has not materialized in law, but it has neither been fully removed from the polit-
ical agenda.82

Citizenship by Residence

As explained above, all Jews born in Israel, or who immigrated to Israel, ac-
quire automatic citizenship through the Law of Return. Non-Jews cannot gen-
erally acquire Israeli citizenship by way of return (unless they are family
members of a person entitled to the right of return); rather, they must establish
citizenship by way of residence, birth, or naturalization. These different meth-
ods of establishing citizenship were set in place in 1952, the formative years of
nation building in Israel.83 At that time, the citizenship law had to establish the
requirements for citizenship by way of residence, a definition that had signifi-
cant political implication in light of the following facts: until 1947, “Arabs con-
stituted two-thirds of Palestine as a whole and made up nearly one-half of their

80. See Arian, 1998, pp. 127–33.

81. See Arian, 1998, p. 316.
82. See Sharkansky, 1997, p. 161.
83. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 3.
ISR AE L 403

residents in the area designated the Jewish state by the partition plan.”84 For
complex reasons, the 1947 UN partition plan never went into effect.85 Instead,
British officials were to govern Palestine until May 15, 1948, the last day of
the League of Nations Mandate over Palestine.86 Between November 30,
1947, and May 15, 1948, the tensions between the Jewish and Arab communi-
ties escalated into violent incidents. Amid these events, on May 14, 1948, Is-
rael was established as an independent state by the Declaration of
Independence by Jewish leaders of the Yishuv. The following day, on May 15,
with the official termination of British Mandate, the armies of Egypt, Syria,
Lebanon, and Iraq joined forces in the battle to prevent the establishment of
the a Jewish state. The 1948 war (which Israelis call the “War of Independ-
ence,” and Palestinians call al-Nakaba, or “the Disaster”)87 officially ended in
1949 with a set of armistice agreements that solidified Israel’s frontiers with
its Arab neighbors until 1967.88
This war, like any other war in history, had many tragic consequences. Yet
because both Israelis and Palestinians hold territorial and national claims over
the same land, “there can be no agreement on what actually happened in
1948.”89 In terms of our discussion of citizenship, it is important to note that
there is a continuing debate over how and why hundreds of thousands of Pales-
tinians left their homes and lands after the establishment of the State of Israel in
May 1948.90 Many of those who left Israel later became refugees in neighboring
Arab countries and are collectively referred to as the “1948 refugees.”91 Some
international estimates suggest that “the number of 1948 refugees was approxi-
mately 604,000, about half of the Palestinian population living in Israel at the

84. Peretz and Doron, 1997, p. 55. The UN partition resolution recommended that Palestine be
divided into a Jewish state, an Arab state, and an international enclave around Jerusalem. UN Gen-
eral Assembly Resolution 181 (Partition Plan), November 29, 1947.
85. The Jewish community in Palestine (the Yishuv) generally viewed the UN partition resolu-
tion as a significant step toward the fulfillment of the Zionist dream of “establishing in Palestine a
national home for the Jewish people.” This phrasing of the Zionist aspiration was incorporated in
the Balfour Declaration given by Great Britain on November 2, 1917. This Declaration took the
form of a public letter signed by Lord Alfred Balfour, the British foreign minister, which stated that
“His Majesty’s Government view with favor the establishment in Palestine of a national home for
the Jewish people . . . it being clearly understood that nothing shall be done which may prejudice
the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and po-
litical status enjoyed by Jews in any other country.” Hurewitz, 1979, p. 106.
86. See Peretz and Doron, 1997, p. 42.
87. See Kimmerling and Migdal, 1993, p. xv.
88. See Peretz and Doron, 1997, p. 42.
89. Shlaim, 1995, p. 287.
90. See Weiner, 1997, p. 7.
91. See, generally, Weiner, 1997, pp. 5–10.
404 AYELET SHACHAR

time.”92 Yet the exact number of refugees has never been established. Several
Israeli scholars place the figures between 600,000 and 750,000,93 while certain
Arab sources suggest that the numbers are even higher, ranging from 750,000
to 1,000,000.94 A related dispute refers to the causes of this mass displacement.
Roughly speaking, “most pro-Palestinian narratives claim that the Palestinian
evacuation resulted from a carefully designed Israeli campaign to drive the
Arabs out of Palestine,” whereas the traditional view expressed by Israeli pol-
icy makers “is that most Palestinians left their homes during the 1948 war either
because of a general sense of fear and confusion, or because they were
prompted to evacuate by Arab leaders.”95 The question of voluntary or involun-
tary exodus is significant not only in terms of “getting the history right”; but
also, it may also have major political implication: any comprehensive peace
agreement between Israel, the Palestinians, and its neighboring Arab states
must eventually address the 1948 refugees’ claim for repatriation or establish a
scheme of financial compensation (as a possible alternative to resettlement).96
In the eyes of the 1952 Israeli Citizenship Law, however, any Palestinian
who discontinued his or her residency in Israel after the establishment of the
state lost his or her entitlement to automatic Israeli citizenship by right of resi-
dence.97 In other words, the official policy adopted by the Israeli government in

92. Weiner, 1997, p. 7.

93. See, for example, Lewin-Epstein and Semyonov, 1993, p. 16; Lustick, 1980, p. 28 (estimat-
ing the number of 1948 refugees to be 750,000); Soffer, 1994, p. 292 (estimating the number of
1948 refugees to be more than 700,000). See, generally, Morris, 1987.
94. See Kimmerling and Migdal, 1993, p. 147. The ArabNet, for example, a comprehensive
online resource on the Arab world published by a Saudi research and marketing group, deals with
this controversial issue in the following way: “as a result of the war, 780,000 Palestinians became
refugees. About half that number left in fear and panic while those remaining were compelled to
make room for Jewish immigrants from both European and Arab countries.” Palestine History, Jan-
uary 19, 1999.
95. Weiner, 1997, pp. 15, 21–22. In recent years, a number of Israeli “revisionist” or “new his-
torians” have challenged the traditional Israeli interpretation, arguing that while there was probably
no Israeli plan to drive the Arab population from their homes and lands, certain local incidents of
expulsion carried by individual commanders effectively spurred the Palestinian departure. See,
generally, Morris, 1990.
96. See, generally, Weiner, 1997 (comprehensively analyzing the 1948 refugee problem and
the Palestinians’ “right to return”).
97. Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 3; Peled and Shafir, 1996, pp.
402–404. In many cases, persons who left the country or failed to register as inhabitants also lost
their entitlement to property in Israeli territory. The Absentees’ Property Law, 1950, regulated mat-
ters related to the administration of property “abandoned” by the Arab Palestinians refugees during
the 1948 war. Interestingly, the definition of “absentee” in this law is similar to that of the require-
ments for entitlement to citizenship by way of residence encoded in the Citizenship Law of 1952.
Both these laws were formulated to exclude as many Arabs as possible from the classification of
citizenship, that is, those persons entitled to full civil, political, and social rights. See Hofnung,
1996, p. 105.
ISR AE L 405

the 1950s was to prevent the 1948 refugees from establishing Israeli citizenship
status.98 The main idea behind the newly established state’s citizenship policy
toward Palestinians was, as one scholar aptly summarized it,

that nationality by residence should be conferred only upon those

non-Jews who remained in Israel after the establishment of the State or
who subsequently entered Israel lawfully, e.g., under a family re-unifica-
tion scheme. Those who crossed to the enemy lines during the War of In-
dependence only to infiltrate back again later were not to be rewarded
with the grant of Israel nationality.99

In the early years of statehood, the borders of the new Israeli State were far
from sealed. Individuals managed “to cross from one side to the other without
going through the official entry posts.”100 Indeed, “many [Palestinian] Arabs
who had fled their homes, or had been expelled, to neighboring countries dur-
ing the war managed to cross the border back into Israel.”101 Regardless of the
causes that had led them to depart from their homes and lands during the war,
these persons were understandably anxious to formalize their status as residents
and to register in the Population Registry, in order to establish their Israeli citi-
zenship.102 Yet many Palestinian Arabs found it difficult to prove that they had
met the stringent conditions laid down in section 3 of the 1952 Citizenship Law,
and, as a result, were denied Israeli citizenship status.103
The provisions for acquiring Israeli citizenship by way of residence, set
forth in section 3 of the Citizenship Law, consisted of three cumulative condi-
tions: (1) residency; (2) presence in Israel after the establishment of the state in
1948; and (3) registration in the 1951 Population Registry.104 Section 3 was
clearly designed to grant automatic citizenship status to Arab residents who had
stayed in Israel during the 1948 war, while denying this status to Arab residents
who had left Israel during the war.105 During the 1950s, the Supreme Court

98. This position was expressed, for example, by Israel’s first foreign minister, Moshe Sharett,
in a 1949 debate in the Knesset: “Allowing the refugees to return without a peace settlement with
the neighboring countries would be suicide for the State of Israel; it would be like stabbing our-
selves in the chest, no other state in our situation would even consider such a step.” D.K. (1949)
721, Statement of Foreign Minister Moshe Sharett.
99. Gouldman, 1970, pp. 70–71.
100. Kretzmer, 1989, p. 37.
101. Kretzmer, 1989, p. 37.
102. See Kretzmer, 1989, p. 37.
103. See Hofnung, 1996, pp. 77–82.
104. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 3.
105. See Kretzmer, 1989, pp. 37–38; Rubinstein, 1976, p. 171.
406 AYELET SHACHAR

rarely overruled administrative decisions that denied Arabs’ requests to be reg-

istered as residents or as citizens, even if these persons had been illegally de-
ported from Israel and had later managed to return to their homes.106 This policy
left a class of persons who lived in Israel but were stateless, since they had lost
their previous Palestinian citizenship (which was terminated with the end of the
British Mandate) but were unable to prove the cumulative conditions set in the
Citizenship Law in order to acquire Israeli citizenship by residence.107 These
persons de facto resided in Israel but had no de jure residence or citizenship
status.
This problem was partly resolved with the 1960 Mussa case,108 in which the
Supreme Court changed its previous narrow reading of the Citizenship Law and
held that because citizenship is one of the most precious entitlements an indi-
vidual has, it cannot be denied because of procedural faults.109 This change in
policy meant that people who had left Israel with permission for a period during
the war or shortly thereafter were entitled to Israeli citizenship, even if their res-
idence was “interrupted” by the war. “Any other reading of the Citizenship
Law,” held the Court, “would deny Israeli citizenship to thousands of non-Jew-
ish residents . . . a result which the Knesset would never have intended.”110 The
1980 amendment of the Citizenship Law finally resolved the problem of state-
lessness of Israeli Arab residents who were previously residents of the territory
but could not prove their entitlement to citizenship by residence under the strict
provisions of the original 1952 Citizenship Law. The 1980 amendment retroac-
tively recognized these Israeli residents as citizens of the state since its incep-
tion in 1948.111 More important, the amendment also granted automatic

106. See, for example, H.C. 64/54, Bader v. Minister of Police, 8 P.D. 970.
107. See, for example, H.C. 125/51, Hassin v. Minister of Interior, 5 P.D. 1386; H.C. 157/51,
Abad v. Minister of Interior, 5 P.D. 1680. For a more detailed discussion of the attempts by former
Arab residents to obtain Israeli citizenship, see, generally, Hofnung, 1996, pp. 76–86. The Citizen-
ship Law did not resolve the status of thousands of Arab residents who returned to Israel illegally by
crossing the border back into the state without the government’s permission after the end of the
1948 war. Such denial of status had grave implications in terms of these persons’ ability to claim
ownership over “abandoned” homes, lands, and property that were left behind in Israeli territory.
For further discussion of this troubling period in Israel’s history, see Hofnung, 1996, pp. 101–12
(discussing the Absentees’ Property Law of 1950).
108. H.C. 328/60, Mussa v. Minister of Interior, 16 P.D. 1793, aff’d F.H. 3/63, Minister of Inte-
rior v. Mussa, 17 P.D. 2467.
109. Technically, this decision meant that section 3 of the Citizenship Law need not be inter-
preted as requiring uninterrupted residence.
110. H.C. 328/60, Mussa v. Minister of Interior, 16 P.D. 1793, p. 1868.
111. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), §
3A(5)(b).
ISR AE L 407

citizenship to the children of these residents by virtue of a jus sanguinis princi-

ple.
Note, however, that none of the above-mentioned changes in the Citizen-
ship Law affected the legal status of the Palestinian Arab population in the
West Bank and Gaza Strip, nor that of Palestinian refugees residing in neigh-
boring Arab countries.112 Between the Six Day War of 1967 and the signing of
the 1993 Declaration of Principles (the Oslo peace accord) between Israel and
the PLO, the Palestinian Arab population in the West Bank and Gaza Strip
was subject to Israeli military occupation. Palestinians living in these territo-
ries enjoyed only heavily circumscribed rights, since they were considered
neither citizens nor residents of Israel.113 Thus, although noncitizen Palestin-
ian Arabs were in many respects effectively part of the Israeli society and its
economy, they were not legally incorporated into the state.114 Their status was
even less favorable than that of “denizens” in Europe and North America,
since as occupied persons they were not permitted to establish a secure perma-
nent residence status in Israel.115 Instead, Palestinians in the West Bank and
Gaza were granted “permanent residence” status in the occupied territories,
by a registrar operated by the Israeli Civil Administration, under the Israeli
minister of defense. As a result of the Oslo peace accord, the Palestinian Au-
thority (PA) now has the general power to determine “permanent residence”
status of persons under its territorial, functional, and personal jurisdiction
over most of the West Bank and Gaza Strip.116

112. Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 4. Some of
these refugees assumed citizenship status in Jordan or in other non-Arab countries where they re-
sided, but many still claim their right of return to Israel. Politically, the problem of citizenship for
refugees is likely to be resolved as part of a comprehensive peace settlement between Israel, the Pal-
estinians, and the neighboring Arab countries. Several negotiation proposals refer to monetary
compensation to the 1948 Palestinian refugees, assistance to help resettle the refugees in neighbor-
ing countries rather than a materialization of a Palestinian right of return to Israel or a future Pales-
tinian entity. See, generally, Weiner, 1997.
113. After the Six Day War, Israel established a military occupation in the West Bank and
Gaza in 1967, but it has never annexed these territories. East Jerusalem, however, was incorporated
to Israel in 1967 and formally annexed to Israel in 1980. See Basic Law, January 3, 1999. For a con-
cise overview of the complex legal and political problems of Jerusalem, see, generally, Sharkansky,
1997, pp. 115–47.
114. See, generally, Rubinstein, 1994, p. 237.
115. I use the old English word “denizens” as employed by Tomas Hammar to refer to a cate-
gory of “privileged noncitizens.” They are, in his definition, “foreign citizens who have a secure
permanent residence status [in the host country], and who are connected to the state by an extensive
array of rights and duties.” Hammar, 1989, pp. 81, 84.
116. In effect, the accord provided that (1) all persons who were illegally residing in the West
Bank and Gaza for a period of at least three years, before January 1996, were permitted to apply for
Palestinian permanent residence status; (2) the PA acquired authority to register as “Palestinian per-
manent residents” in the territories, all children who were sixteen years of age or younger if one of
408 AYELET SHACHAR

Citizenship by Birth

Returning to the discussion of the different ways of acquiring Israeli citizen-

ship, it is important to note that any person born in Israel whose father or mother
is an Israeli citizen is automatically granted Israeli citizenship at birth. There is
no requirement that the child’s parent be married or that both parents have Is-
raeli citizenship. Similarly, the manner in which the parent acquired Israeli citi-
zenship is irrelevant.117 Hence, children of Jews and Arab citizens have a similar
entitlement to birthright citizenship.118 The 1980 amendment to the Citizenship
Law resolves the anomaly present in the 1950 Law of Return, that children born
in Israel to at least one Israeli Jewish parent are regarded as if they themselves
were immigrants, or citizens by way of return (rather than by way of birth to an
Israeli parent). In other words, the Citizenship Law now gives precedent to the
principle of citizenship by birthright over the legal fiction of granting citizen-
ship to children born in Israel based on the right to return.119 This change is sig-
nificant because it “normalizes” the pattern of acquiring Israeli citizenship
(toward a standard jus sanguinis principle), and because it provides a universal
definition of birthright entitlement to Israeli citizenship that is devoid of any re-
ligious-based distinctions.
Children born outside Israel to an Israeli parent are also granted auto-
matic citizenship at birth. In fact, until the 1980 amendment to the Citizen-
ship Law, Israeli citizenship was transmitted as a birthright by descent in
perpetuity, regardless of the place of birth or of the parents’ place of resi-
dence.120 A person who attained citizenship jure sanguinis outside Israel

their parents had permanent residence status; and (3) the PA acquired authority to determine the le-
gal status of nonresident spouses of Palestinian permanent residents (subject to Israeli approval of
such an application). See Association for Civil Rights in Israel, 1996. See also Declaration of Prin-
ciples, September 13, 1993; Gaza-Jericho Agreement, January 21, 1999.
117. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), §
4(a)(1).
118. The Law of Return states that all Jews born in Israel are regarded as if they were immi-
grants, hence Jewish children born in Israel are entitled to citizenship both by way of return and by
way of birth. It would seem, then, as one commentator put it, that the “real ‘citizenship beneficia-
ries’ of section 4(a)(1) [of the Citizenship Law] regarding citizenship by birth are Arabs born to par-
ents one of whom is an Israeli citizen.” Kretzmer, 1989, p. 39.
119. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), §
4(a)(1).
120. Section 4 of the Citizenship Law, in its old version, provided that: “A person born while
his father or mother is an Israel national shall be an Israel national from birth.” Israel, 1952, Citizen-
ship Law, 6 L.S.I. 50, (1951–52), § 4. The amended section 4 now provides that “(a) The following
shall, from the date of their birth, be Israel nationals by birth: (1) a person born in Israel while his fa-
ther or mother was an Israel national; (2) a person born outside Israel while his father or mother was
an Israel national—(a) by return; (b) by residence in Israel; (c) by naturalization; (d) under para-
graph 1.” Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 4(a)(1).
ISR AE L 409

could, in turn, transmit Israeli citizenship to his or her children even if that
person never stepped foot in Israel and had no effective links to the state.121
This imposition of Israeli citizenship in perpetuity imposed the duties of citi-
zenship upon such children born outside the country. They were subject, for ex-
ample, to recruitment to the military at the age of eighteen and were considered
deserters if they did not fulfill this mandatory citizenship obligation. Moreover,
because Israeli citizenship is only lost in extreme circumstances (as I discuss
later in this chapter), the Citizenship Law forced membership upon individuals
solely because one of their progenitors was once an Israeli citizen.122 The 1980
amendment to the Citizenship Law changed this legal situation, and currently
acquisition of citizenship jure sanguinis outside the state is limited to one
generation only.123 The only determining factor for acquiring citizenship in
this fashion is that at the time the child is born outside Israel, one of the par-
ents must be an Israeli citizen. If a child is born outside Israel after the death
of the parent who was an Israeli citizen, the child is still granted automatic
citizenship at birth.124

Citizenship by Naturalization
In contrast to the acquisition of Israeli citizenship by way of return, resi-
dence, or birth, which is automatic, naturalization is subject to the discretion of
the minister of the interior. In order to qualify for citizenship by way of natural-
ization, the applicant must fulfill six prerequisites listed in section 5 of the Citi-
zenship Law. That is, the applicant must (1) be in Israel; (2) have been in Israel
three out of the five years preceding the day of submission of the application;
(3) have been entitled to permanent residency; (4) have settled or expressed in-
tent to settle in the Israel; (5) have basic knowledge of the Hebrew language
(however, no mandatory language proficiency test is imposed); and (6) have re-
nounced his or her prior citizenship or has proved willingness to terminate it
upon becoming an Israeli citizen.125 Upon approval of the application for natu-
ralization by the minister of the interior, the naturalized person is entitled to Is-
raeli citizenship after taking the following simple oath: “I declare that I will be a

121. See Rubinstein, 1976, p. 172.

122. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 4.
123. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80),
§ 4(a)(1).
124. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 4(b).
125. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 5. Moreover, section 6(c) of
the Citizenship Law exempts all people who were Palestinian citizens under the British Mandate
(that is, before the establishment of the State of Israel in May 1948) from the language proficiency
requirement. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 6(c).
410 AYELET SHACHAR

loyal [citizen] of the State of Israel.”126 These prerequisites for naturalization are
in many respects no harsher than those of many other countries in the world;127
however, they are extremely restrictive in comparison with the automatic grant-
ing of citizenship by way of return to Jews and their non-Jewish family mem-
bers who wish to make aliyah to Israel. While olim, for example, do not have to
renounce their citizenship to other countries upon becoming Israelis, natural-
ized immigrants are required to renounce or express willingness to renounce
their prior citizenship.128 This distinction is another reflection of the entrenched
“ethnocultural” conception of Israeli citizenship and immigration policy. It
likely assumes that a “feeling of solidarity and loyalty to the political commu-
nity can be presumed only of those persons who by way of common interests or
shared historical experience” are already part of the nation,129 whereas those
who are not by religion, ancestry, or family affinity related to the Jewish people,
must assert their loyalty to the Israeli State by severing their citizenship ties to a
former political community.130 To provide further illustration to this problem,
the next section considers the effect of Israeli citizenship law and immigration
policy upon third parties, such as non-Jewish alien spouses of Israeli citizens
(who until 1996 were treated differently if they were married to a Jewish Israeli
citizen or a non-Jewish Israeli citizen).

Gender, Marriage, and Citizenship

Until recently, Jewish citizens received preferential treatment over non-Jew-

ish citizens in matters where citizenship and marriage converged. Specifically,
the minister of the interior implemented two different legal procedures for the
acquisition of Israeli citizenship by an alien spouse, depending on the religion
of the Israeli spouse.131 In principle, if an alien spouse married a Jewish Israeli
citizen, the alien spouse was automatically entitled to Israeli citizenship upon
marriage. This automatic granting of citizenship was based on a long-estab-
lished interpretation of section 4A of the Law of Return that states that the
“rights of a Jew under this Law and the rights of an [oleh] under the [Citizen-
ship] Law . . . are also vested in a child and a grandchild of a Jew [and] the
spouse of a Jew.”132 It was taken for granted that the legislature intended to in-

126. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 5(c).
127. See supra note 18 and accompanying text.
128. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 5(a)(6).
129. Hailbronner, 1989, p. 75 (discussing the German right of return).
130. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), §§ 5(a)(6), 5(c).
131. See Gouldman, 1970, p. 84; Klein, 1997, p. 61.
132. Israel, 1970, The Law of Return (Amendment No. 2), 24 L.S.I. 28, § 4A(a).
ISR AE L 411

clude the “alien” spouse of an Israeli Jewish citizen within those family mem-
bers who are entitled to citizenship by way of return, thus permitting the alien
spouse of a Jewish Israeli citizen to bypass the prerequisites of naturalization
(as set forth in the aforementioned section 5 of the Citizenship Law).133 An alien
spouse who married a non-Jewish Israeli citizen, however, could not use the
Law of Return “bypass.” Instead, the alien spouse had to go through the more
complex procedure of seeking Israeli citizenship by way of naturalization.134 In
principle, an alien spouse of an Israeli citizen could obtain citizenship by way of
naturalization, even if he or she had not met the prerequisites of naturalization.
This is a privilege, however, not a right.135 The minister of the interior has dis-
cretion over whether to grant such an exemption and what the scope of such an
exemption might be, specifically, which of the prerequisites specified in section
5 may be waived in any particular naturalization case because of marriage.136
Since September 1996, the minister of the interior has adopted a new “hard
line” against any person seeking citizenship by way of marriage to an Israeli cit-
izen, even when the Israeli spouse is Jewish.137 The minister of the interior now
requires that alien spouses married to Israeli citizens, whether Jewish or
non-Jewish, “leave the country for six weeks to confirm the ‘sincerity’ of the
marriage.”138 Thereafter, the alien spouse can reenter the country on a tempo-
rary visa,139 apply for permanent resident status from within Israel, and only
then begin the citizenship process.140

133. See supra notes 128–31 and accompanying text.

134. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 5. See also discussion supra
Citizenship by Naturalization.
135. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 7.
136. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 7. Note, however, that if the
marriage took place outside Israel, and the Israeli citizen was not Jewish, then in order for the alien
spouse to legally enter Israel, the spouse has to initially enter Israel on a tourist visa. As tourists,
these spouses are not covered by the state’s otherwise universal health coverage, nor are they enti-
tled to social security benefits (permanent residents, however, are entitled to these benefits). See
Adalah (the Legal Center for Arab Minority Rights in Israel), March 1998, p. 40. The question of
social entitlements is of special concern in Israel because many of the alien spouses who applied for
naturalization were Palestinians from the West Bank and Gaza Strip or from one of Israel’s neigh-
boring Arab countries. Given the economic disparities among Israel, the West Bank and Gaza Strip,
and neighboring Arab countries, establishing permanent residency or citizenship in Israel has great
significance in terms of ensuring, on average, a higher standard of living both for the couple and
their children. See Economist Intelligence Unit, 1993–1994 (describing the economic disparities).
137. See Reinfeld, November 24, 1998.
138. Reinfeld, November 24, 1998.
139. See Adalah, March 1998, p. 39.
140. See Reinfeld, November 24, 1998. See also H.C. 3497/97, Kamella v. Minister of Interior,
decision given on December 4, 1997 (unpublished), cited in Adalah, March 1998, p. 40.
412 AYELET SHACHAR

This new immigration policy has a “race to the bottom” rationale. Instead of
making it easier for the alien spouse of a non-Jewish citizen to establish Israeli
citizenship, it “equalizes” the hardships by imposing greater difficulties upon
alien spouses of Jewish Israeli citizens. Apparently, this policy was changed by
the minister of the interior as a means of preventing “fictitious marriages” for
the purposes of acquiring Israeli citizenship.141 It reflects the growing anxiety
about the status of nonmembers in Israel, particularly foreign workers who be-
gan entering the country in substantial numbers in the late 1980s.142 In this re-
spect, the motives behind the tightening regulation of immigration policy
toward alien spouses in Israel were not too different from those that led to the
passing of stricter immigration requirements in other countries, such as the Im-
migration Marriage Fraud Amendments of 1986 adopted by the United States
Congress.143 Yet, unlike the United States, this new policy was not publicly de-
bated in Israel, nor was it approved by the Knesset, although it represents a de-
parture from the long-standing interpretation of the Law of Return as granting
automatic citizenship status to alien spouses of Jewish Israeli citizens.144
In practice, for many alien spouses (whether they are married to Jewish or
non-Jewish Israelis) the real issue pivots around establishing permanent resi-
dency, a status that grants most of the social and economic benefits that are at-
tached to Israeli citizenship.145 Yet establishing permanent residency may prove
to be more difficult for some alien spouses than others. In particular, the minis-
ter of the interior seems to place serious bureaucratic obstacles before male
alien spouses who wish to establish permanent residency based on their mar-
riage to Israeli wives. This case has long been a problem in the context of “fam-
ily reunification” requests put forth by Palestinian Arab Israeli women.146 These
administrative hardships create a de facto barrier from fulfilling the right of ev-
ery Israeli citizen to establish his or her family in Israel and to grant immigra-
tion status to his or her spouse. The problem is most acute in the case of Arab
Israeli women who marry Palestinian husbands from the West Bank or Gaza.147

141. See Reinfeld, November 24, 1998. See also “Petitioner’s Brief,” H.C. 3648/97, Stemka v.
Minister of Interior.
142. See discussion infra New Trends in Israeli Immigration Law.
143. See, generally, Immigration and Marriage Fraud Amendments of 1986, Pub. L. No.
99-639, 11 Stat. 3537 (codified as amended in scattered sections of 8 U.S.C.).
144. The legality of this change in immigration policy is currently under review by the Su-
preme Court. See H.C. 3648/97, Stemka v. Minister of Interior (decision pending).
145. See Adalah, March 1998, pp. 39–40.
146. See Association for Civil Rights in Israel, 1996 (discussing the Association for Civil
Rights in Israel’s representation of Palestinian Arab women seeking permanent resident status for
their spouses).
147. See Association for Civil Rights in Israel, 1996.
ISR AE L 413

To be more specific, it seems that the minister of the interior is operating un-
der archaic gender presumptions that echo the infamous common-law principle
of female coverture in marriage. That doctrine holds that “by marriage, the hus-
band and the wife are one person in law; that is, the very being or legal existence
of the wife is suspended during the marriage, or at least is incorporated and con-
solidated into that of the husband.”148 Historically, this principle of family unity
(or “dependent citizenship”) had a deleterious effect on the legal status of
women who married aliens,149 leading, for example, in certain periods in United
States history, to automatic expatriation of “those [American] women who
dared marry a foreigner.”150 Men, however, were not subject to the same sanc-
tion if they married an alien wife.151 This gender-based distinction was common
in most countries’ citizenship and nationality laws until World War I and is still
practiced in several countries today.152 Israeli law, however, never subscribed to
this concept of dependent citizenship.153 Instead, it firmly adopted the principle
of “independent citizenship,” whereby an Israeli woman’s nationality and citi-
zenship are not lost “upon marriage to an alien even if, under the husband’s na-
tional law, marriage has the effect of bestowing the husband’s nationality upon
her.”154 In short, nothing in the provisions of the Citizenship Law permits dis-
crimination in bestowing citizenship upon an alien spouse based on the gender
of the Israeli citizen.155 Yet, from the scattered evidence available about the
practice of the minister of the interior in the case of requests for permanent resi-
dency or naturalization based on marriage to non-Jewish Israeli wives, there
seems to be a pattern of imposing greater administrative hardships upon male
Arab husbands who wish to establish status in Israel based on the principle of
family unity than would be the case if a non-Israeli wife sought to join her
non-Jewish citizen husband in Israel.156

148. Ehrlich, 1959, p. 83.

149. See, generally, Committee on Feminism and International law, International law Associa-
tion, May 1998.
150. Sapiro, 1984, pp. 1, 10.
151. See Sapiro, 1984, pp. 1, 10.
152. See, generally, Stratton, 1992, p. 195.
153. See Gouldman, 1970, p. 83.
154. Gouldman, 1970, p. 83.
155. In fact, the Citizenship Law clearly asserts the independence of each spouse in matters of
nationality (that is, Israeli citizenship is not automatically bestowed upon the alien spouse, whether
wife or husband). See Gouldman, 1970, p. 83.
156. See Association for Civil Rights in Israel, May 25, 1993. As mentioned earlier, there are
no official numbers regarding the number of requests for family unity based on marriage that were
refused or on the impact that the gender of the spouse had upon the refusal. The only occasion on
which the issue of sex-based discrimination was directly confronted in the context of immigration
policy was in 1993 in Gabari’th v. Minister of Interior, where the petitioner alleged discrimination
414 AYELET SHACHAR

To sum up the question of acquisition of citizenship, Israeli citizenship can

be established by way of return, residence, birth, or naturalization. Israeli citi-
zenship is transmitted primarily through the jus sanguinis principle. Birthright
entitlement to membership in the polity is equally guaranteed to all Israeli citi-
zens, Arabs and Jews alike, regardless of the way in which they themselves es-
tablished citizenship. Children born outside Israel to an Israeli parent acquire
automatic citizenship at birth; however, their children are not entitled to Israeli
citizenship by birth if the family has no effective ties to the country.

Rights and Obligations of Citizenship

Most of the civil, economic, and social entitlements guaranteed by law to Is-
raeli citizens are equally applicable to permanent residents.157 Citizenship
makes a difference in two arenas, however: on the “rights” side, that is, the right
to full political participation on the national level; and on the “obligations” side,
that is, the duty to serve in the military.
Only citizens are entitled to vote for the Knesset (the Israeli Parliament) and
for the prime minister (in direct elections).158 Citizenship is also a precondition
for employment in the civil service.159 The right of Israeli citizens to enter the
country, remain therein, and depart therefrom, is constitutionally protected.160
In order to enter and depart Israel, a person must present a valid passport or a
laissez-passer to an official at a frontier station.161 “All persons are free to leave

by the minister of the interior against women from East Jerusalem who seek to establish residency
status for their foreign husbands. The Court never reached a decision, however, because the petition
was dismissed as moot after the minister of the interior granted permanent residency to the individ-
ual who brought the case, and also declared that “there would be no significance to the sex of the
person requesting family unity from here thereafter.” “Motion to Dismiss the Petition,” H.C.
2797/93, Gabari’th v. Minister of Interior.
157. See Adalah, March 1998, p. 40. These benefits include, for example, entitlement to social
security benefits, universal health care, and freedom of occupation. Individuals who enter Israeli on
a temporary nonimmigrant visa (for example, tourists, foreign students, foreign workers) are
granted a more limited set of rights and protections as specified by statute or case law. See Adalah,
March 1998, p. 40. It is important to note that Basic Law: Human Dignity and Liberty (enacted in
1992) states that: “There shall be no violation of the life, body, or dignity of any person as such.” Is-
rael, 1992, Basic Law: Human Dignity and Liberty, S.H. 1391, § 2 (emphasis added).
158. See Israel, 1958, Basic Law: The Knesset, S.H. 244, § 5. In March 1992, the proposal for
direct election of the prime minister was adopted, although implementation was delayed until the
1996 election. Before this change, the prime minister was the head of ruling coalition in the
Knesset.
159. Israel, 1959, Civil Service Law (Appointments), § 16.
160. See Israel, 1992, Basic Law: Human Dignity and Liberty, S.H. 1391, §§ 6(a), 6(b).
161. See Rubinstein, 1976, p. 184 [citing Entry into Israel Law, 1952, 6 L.S.I. 159 (1951-52)
§ 7 and Emergency Regulations (Departure from the State), 1948, 15 L.S.I. 179].
ISR AE L 415

Israel”;162 however, Israeli citizens who have attained military age or are reserve
soldiers can be prohibited from leaving Israel without a special travel permit
from their military units.163 Thus, in practice, all reserve soldiers must carry
travel permits from their military units in order to leave the country lawfully.
By law, all Israeli citizens, male or female, are to be recruited at the age of
eighteen for mandatory military service. The 1986 Defense Service Law (Con-
solidated Version) imposes a duty on every Israeli citizen, both men and
women, to serve in the military.164 Yet, as an administrative practice, the minis-
ter of defense has discretion to exempt certain persons from the obligation of
mandatory military service.165 This practice has been the case for many years for
male ultra-Orthodox Jews who have attained the age of recruitment but are
full-time students at a religious institution (yeshiva),166 and for the majority of
Palestinian Arab Israeli citizens.167 Most Jewish Israeli citizens, however, do
serve in the military. Male soldiers serve for a period of at least three years,
while women soldiers usually serve for a period of two years.168 These young
men and women serve in the same units, but women are still largely barred from
positions bearing the “direct combat” label.169
Unlike the United States and most other countries in the world, women in Is-
rael have been admitted to the military service since the inception of the state in

162. See Israel, 1992, Basic Law: Human Dignity and Liberty, S.H. 1391, § 6(a).
163. See Rubinstein, 1976, pp. 184–85. Hence, any citizen must report to his or her military
unit if called lawfully to service; failure to report is an offense for which a solider may be tried in a
military court.
164. Israel, 1986, Defense Service Law (Consolidated Version), §§ 1, 13, 15.
165. See, generally, Kretzmer, 1989, pp. 98–107.
166. See Kretzmer, 1989, p. 106. The exemption of yeshiva students from military service by
administrative practice rather than by law was struck down by the Supreme Court in December
1998. See Reinfeld, December 10, 1998; Ilan and Alon, December 10, 1998; H.C. 3267/97,
Rubinstein v. Minister of Defense, decision given on Dec. 9, 1998 (unpublished).
167. Since the establishment of the state, recruiting officers, operating under the minister of de-
fense, have refrained from recruiting the majority of Arab Israeli citizens for the draft. Male mem-
bers of the Bedouin and Druze communities, however, have been recruited since the late 1950s. As
Kretzmer notes, “there would appear to be two reasons for exempting the Arabs from military ser-
vice. The official version is the wish not to present the Israeli Arabs with the conflict of having to
take up arms against members of their own people (and possibly, even their own families). It would,
however, be naive to believe that the fear that some Arabs might be tempted to use their arms
against the Jewish state, rather than in defending it, was not an equally weighty reasons.” See
Kretzmer, 1989, p. 99 (citations omitted). These two reasons for not recruiting the majority of Pal-
estinian Arab citizens to the Israeli military raise a host of questions (which go beyond the scope of
this article) about how the Israeli government views Arab citizens, and how they view themselves
in terms of identity and loyalty to the state.
168. See Kretzmer, 1989, p. 98.
169. The restriction on women holding direct combat positions is gradually being overturned.
See, generally, Association for Civil Rights in Israel, 1996; H.C. 4541/94, Miller v. Minister of De-
fense, 49(4) P.D. 94.
416 AYELET SHACHAR

1948. The hearing in the Knesset that preceded the enactment of the 1949 De-
fense Service Law, which established a mandatory duty for Israeli women (and
men) to serve in the military, is full of references to women’s contribution to
statehood building (during the Yishuv period), and their right—as full and equal
citizens of the newborn state—to serve in the military.170 As David Ben Gurion,
Israel’s first prime minister, said:

Our solider is first and foremost a citizen, in the fullest meaning of that
term. A citizen belonging to his [or her] homeland, to the history of the
nation, its culture and language. . . . [The military] is the state institution
where all cleavages: ethnic, political, class-based or of any other sort,
vanish. Each solider is equal to his companion in status.

Thus, “at the age of eighteen, immigrants and sons of the land, girls and boys,
all are required . . . to know how to bear arms and use them.”171
As previously mentioned, the emphasis on military service for the nation as
the proof of inclusion in the body politic echoes a republican conception of citi-
zenship, in which a connection is made between the commitment to make sacri-
fices for the nation and the right to fair share in governing.172 The word “citizen”
itself, as Linda Kerber observes, still carries “overtones inherited from antiq-
uity and the Renaissance, when the citizen made the continued existence of the
city possible by taking up arms on its behalf.”173 While much has changed since
antiquity, political membership, especially in countries like Israel, still implies
a profound connection between having full citizenship and the duty of military
service.
This understanding of citizenship as a practice of active participation (not
only as a mere bundle of rights) has had, however, an adverse effect of creating

170. See, for example, D.K. (1949) 1455, Statement of Knesset Member Y. Meridor.
171. D.K. (1949) 1336, Statement of Prime Minister and Minister of Defense David Ben
Gurion. Ben Gurion’s words were echoed by many of the other speakers. Some emphasized
women’s important contribution to the fight against the British Mandate authorities and the War of
Independence, while others stressed the significance of military service in terms of full inclusion:
“In creating a pioneer army in Israel, let the place of women not be neglected; we are equal partici-
pants in the building of the nation and in its protection.” D.K. (1949) 1561. Even within this frame-
work, however, women were always seen as “different” from men, as bearing a special
responsibility the family and the home. The biblical image of the eshet chayil (or “woman of valor”)
who stands at the core of her family, home, and community, has, as Pnina Lahav observes, heavily
influenced the political discourse regarding women’s status in the early days of nation building in
Israel. See Lahav, 1993, pp. 149, 125–53.
172. See, generally, Dahl, 1989, p. 246.
173. Kerber, 1993, pp. 95, 104.
ISR AE L 417

in Israel what I label different “degrees of citizenship.” By this term I refer to

state practices and legal rules, as well as social practices and cultural conven-
tions, that create a complex matrix of membership statuses that, explicitly or
implicitly, differently allocate rights, duties, and ultimately powers among in-
dividuals who are all formally entitled to full and equal citizenship rights.
While Jews and Palestinian Arab citizens of the Israeli State formally enjoy
equal citizenship rights, for example, most Arab citizens are not recruited to the
military (with the exception of male members of the Druze and Bedouin com-
munities), and hence cannot “exercise their citizenship as practice, by attending
to the common good.”174 In a country like Israel, where identity and group mem-
bership matter significantly and where wars and armed confrontations are still,
for various exogenous and endogenous reasons, a real threat, military service
has become an obvious demarcating tool for distinguishing between different
members of the same polity—that is, between those who truly belong to the re-
public and those who are entitled to the rights of citizenship in the state but are
conceived as less than full members of the political community because they do
not partake in its most fundamental expressions of self-determination, that is,
military service.175
In Israel, then, the clearest demarcation between different “degrees of citi-
zenship” is the distinction between members of the Jewish majority and mem-
bers of the Palestinian Arab citizen minority. Yet, every modern nation state
has a potential tension between “citizenship in the state and membership of the
nation. The former determines the criteria for formal participation in the politi-
cal community. . . . The latter determines the criteria of substantive participa-
tion in the political community.”176 This potential tension between citizenship in
the state and membership of the nation is aggravated in Israel, a state that is con-
stitutionally defined as both Jewish and democratic.177 The relationship be-

174. See Peled, 1992, p. 432 (emphasis added).

175. Some scholars consider the line of demarcation between these different degrees of citi-
zenship as highly problematic. Peled, for example, suggests that Arab Israeli citizens cannot be-
come full members because “Jewish ethnicity is a necessary condition for membership in the
political community, while the contribution to the process of Jewish national redemption is a mea-
sure of one’s civic virtue. This conception necessarily excludes the Arabs.” Peled, 1992, p. 435.
Smooha suggests that Israel is best categorized as a “democratic ethnic state” that combines an “ex-
tension of political and civil rights to individuals and certain collective rights to minorities with in-
stitutionalized dominance over the state by one of the ethnic groups.” Smooha, 1990, pp. 389, 391.
176. Cohen, 1989, pp. 66, 67.
177. Israel has a set of Basic Laws that together serve as the formal core of the state’s constitu-
tional law. The definition of Israel as both a Jewish and democratic states appears, for example, in
two Basic Laws enacted in 1992 (Basic Law: Freedom of Occupation, and Basic Law: Human Dig-
nity and Liberty). This definition was already expressed in 1948, in Israel’s Declaration of Inde-
418 AYELET SHACHAR

tween the two terms of this definition is such that democracy usually takes
priority, and it is extremely rare to explicitly use “Jew” and “non-Jew” as distin-
guishing factors among those already considered members of the body politic,
that is, citizens. This is not the case, however, in determining who is eligible for
membership in the state, as demonstrated by the Law of Return. The legislature
sometimes uses the criterion of military service as a basis for providing supple-
mental social benefits to those who have participated in the highest obligation
of citizenship, almost exclusively referring to members of the Jewish majority,
thus discriminating between nominally equal Jewish and non-Jewish citizens.
These social benefits include supplementary children allowances, tax credits,
or assistance in mortgage payments, and go beyond the basic support provided
to all other citizens.178 While many countries provide discharged soldiers with
benefits not available to others, the use of military service as criterion for enti-
tlement in Israel may serve as a disguise for discrimination, because as a matter
of administrative practice (not of law) most Israeli Arab citizens are not called
up for military service and, thus, cannot enjoy those benefits that are provided
exclusively to discharged soldiers.179 In this respect, the republican ethos of ac-
tive participation in the defense of the nation has the divisive effect of creating
stratification between “first class” and “second class” Israeli citizens.180
Gender is another dividing line, which creates an even more complex matrix
of “degrees of citizenship.” By law, Israeli women are recruited to the military
as an expression of their full membership in the state.181 Even within this frame-
work, however, women have always been “different” from men, bearing a spe-
cial responsibility for the family and the home. Already in 1949, in presenting
the Defense Service Law to the Knesset, David Ben Gurion noted, in analyzing
the question of women’s participation in the defense forces, that

we must take into account two factors—and both of them together. The
first factor—a woman has a special designation of motherhood . . . the
second factor—a woman is not only a woman, she also has a legal person-

pendence, and is commonly referred to by the Supreme Court. Various commentators have
analyzed the legacy of this dual Jewish and democratic character of the State of Israel, and its politi-
cal and legal consequences. See, generally, Kimmerling, 1985, p. 262.
178. See, generally, Kretzmer, 1989, pp. 98–107.
179. See Kretzmer, 1989, p. 99.
180. It is important to note that both the Jewish majority and the Palestinian Arab citizen mi-
nority are internally diverse communities. On certain issues, such as the peace process, for example,
the ties that bind certain members across these two communities are deeper than the cleavages that
divide among members within each community.
181. See Israel, 1986, Defense Service Law (Consolidated Version), §§ 13, 16.
ISR AE L 419

ality [in her own right], in the same way as a man. As such, she must en-
joy all the same rights and duties as a man.182

This understanding of motherhood as service to the nation, a duty that

“women of the republic” bear toward the collective,183 has found statutory ex-
pression in section 39 of the 1986 Defense Service Law (Consolidated Ver-
sion), which states that “a mother to a child or a pregnant woman is exempted
from the duty to military service upon informing [the military authorities] of
her motherhood or pregnancy.”184 Similarly, a married woman at the age of re-
cruitment may chose to volunteer for the military, although she is not bound to
participate in this otherwise universal citizenship duty.185 These exemptions il-
lustrate that women’s inclusion in the military, important as it may be in sym-
bolic terms of equality, is still considered secondary—in the eyes of the
Defense Service Law—to their “primary” contribution to the nation as wives
and mothers. The duty of motherhood, it seems, takes precedence over
women’s other citizenship duties, namely military service, if these obligations
are deemed to be in direct conflict with each other. Interestingly, the fact that
male soldiers may also be husbands and fathers does not, in any way, affect
their military status or duty as citizens.
Furthermore, while women in Israel have full citizenship rights, and are
guaranteed equal treatment by law as wives and mothers, Israeli women are
nevertheless subject to a system of gender-discriminatory religious codes that
structurally relegate women to a “second class” citizenship status. For various
historical reasons, Israel has preserved the ancient Ottoman Empire’s millet
system in the context of marriage and divorce regulation. Thus, no uniform
state law applies over all citizens. Instead, each religious community governs
its own members’ marriage and divorce proceedings through a system of auton-
omous religious courts that have been vested with exclusive jurisdiction over
these matters by the state. The communal autonomy granted to the various rec-
ognized religious communities in Israel is important in terms of permitting dif-
ferent citizens to preserve their cultural and religious group identity. Yet, it also
gives Jewish and Muslim men certain privileges over their wives, instituted by
religious authorities and sanctioned by state law, that would have never passed
constitutional muster had they occurred outside the “protected” realm of reli-
gious family law.186

182. D.K. (1949) 1568-69, Statement of Prime Minister and Minister of Defense David Ben
Gurion.
183. See, generally, Kerber, 1980.
184. See Israel, 1986, Defense Service Law (Consolidated Version), § 39(a).
185. See Israel, 1986, Defense Service Law (Consolidated Version), § 39(b).
186. I discuss this problem in detail in Shachar, 1998, pp. 285, 289–96.
420 AYELET SHACHAR

Put in a broader comparative context, the Israeli case study shows that while
citizenship as a legal concept is a crucial factor in determining who is inside or
outside a given political community, significant differences may still be main-
tained within the polity among formally equal citizens. As my brief discussion of
the differences in entitlement of Jews and Palestinian Arab Israeli citizens (and to
a lesser extent, between male and female Israeli citizens) demonstrates, a com-
plex interplay of legal rules, administrative practices, social factors, and cultural
conventions determines the de facto status of formally equal members within the
same political unit. Different “degrees of citizenship” are created among for-
mally equal citizens of the same polity when access to certain obligations and
goods is not equally distributed because of overt and covert discriminatory mech-
anisms. As mentioned above, the key obligation of citizenship (military service),
under a republican conception of government, clearly imposes greater burdens
upon Jewish Israeli citizens. At the same time, it also grants these individuals ac-
cess to well-defined “extra” social benefits, for which Palestinian Arab citizens in
the majority of cases cannot qualify because they are not generally recruited by
the military.187 Furthermore, even within the participatory Jewish community,
men and women are not similarly situated, at least not in terms of their rights and
duties at the intersection of family and military service duties in the public sphere.
To complicate the picture even more, it is clear that Arab Israeli women are even
more vulnerable to threats to their citizenship status, as they may be discrimi-
nated against both as Arabs and as women.188 These different “degrees of citizen-
ship,” in short, stem not only from the bright-line laws of the government, but
also from a multilayered social framework in which the mosaic of ethnicity and
religion, as well as gender and class, determines to varying degrees and depend-
ing on the particular legal arena the first, second, or third class membership sta-
tuses of formally equal citizens.

Loss of Citizenship and Dual Citizenship

Israeli citizenship is hard to lose. An individual’s voluntary renunciation of
membership in the body politic is not sufficient to break the formal linkage to the
state. Israeli citizenship may be renounced only with the expressed consent of the

187. See supra notes 177–78 and accompanying text. Note, however, that because of Israel’s
self-definition as a Jewish state, religious Orthodox Jews, who are exempted from military service
as long as they continue their yeshiva (Jewish religious) studies, generally suffer little disability for
their lack of military service—unlike their Arab citizens counterparts. See Kretzmer, 1989, pp.
106–107. This fact is due, in part, to the special status (or “cultural autonomy”) granted in Israel to
Orthodox Jews, but not to the Israel’s Arab citizens. See, generally, Peled and Shafir, 1996.
188. See, generally, Crenshaw, 1989, p. 139 (discussing the intersection of race and gender in
the lived experiences of women of color in the U.S. context, and critically analyzing the “single
axis” legal framework that fails to address the multiplicity of different sources of discrimination).
ISR AE L 421

minister of the interior to a person’s request for expatriation.189 Clearly, this ap-
proach to relinquishing citizenship is another facet of the republican conception
encoded in Israeli citizenship law, which emphasizes the duties of membership
and the ultimate loyalty to the nation expected of each person. In this view, citi-
zenship is not an allegiance that an individual may freely and unilaterally sever;
rather, it is a personal allegiance between the individual and the political com-
munity, the state, in which rights and obligations for life arise for each party. The
state must provide minimum living conditions to all its citizens and assure their
self-defense and protection. The individual is required to show loyalty and readi-
ness to risk his or her life for the continued existence of the nation, hence the cen-
trality and valorization of the obligation to serve in the military.
Contrary to the U.S. perception of expatriation as a voluntary relinquish-
ment of citizenship, which involves a “natural” and “inherent” right of a person
to depart from his or her country of origin, the Israeli understanding of expatria-
tion echoes the common-law concept of perpetual allegiance to a person’s na-
tive political community. Under the common-law approach, the right of
expatriation is neither natural nor inherent in each citizen; rather, it is an expres-
sion of the state’s authority to determine who is and who is not a member. Thus,
under section 10 of the Citizenship Law, an Israeli citizen of full age may make
a declaration to the effect that he or she desires to renounce his or her Israeli citi-
zenship.190 Such renunciation, however, will take effect only once the minister
of the interior has expressed consent.191
Immigrants by return automatically establish Israeli citizenship upon settle-
ment in Israel.192 There is no legal requirement that an individual relinquish his
or her previous citizenship affiliation before making aliyah to Israel.193 Thus,
Jewish Israeli citizens who are also citizens of other counties may continue to
hold dual or multiple citizenship affiliations, regardless of why, when, and how
these citizenship affiliations were established (that is, whether the foreign citi-
zenship was acquired before immigration to Israel, by birth, or based on volun-
tary emigration from Israel).194

189. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 10A.
190. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80).
191. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80). Note
that section 10A also states that only a citizen who is not a resident of Israel may seek to renounces
his or her Israeli nationality.
192. See discussion supra Citizenship by Return.
193. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 14(a).
194. The only case in which Israeli citizenship may be revoked because of a conflicting na-
tional loyalty is when an Israeli citizen has established residency or acquired citizenship in an coun-
try that is at a formal state of war with Israel. Such a person is presumed to have expatriated from
Israel, and the minister of the interior has authority to denationalize the citizen. See Israel, 1980,
Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 11(a). The minister of the inte-
rior, however, usually consents to expatriation requests made by persons who made aliyah to Israel
422 AYELET SHACHAR

In the eyes of Israeli law, the Israeli citizenship status is presumed to have a
lexical priority over all other national affiliations held by the individual. Ac-
cordingly, section 14(b) of the Citizenship Law states that a person who has
dual or multiple citizenship is nevertheless legally “considered an Israel na-
tional.”195 This perception fits well with the understanding of Israeli citizenship
as a special and almost inalienable bond between the individual and the politi-
cal community. Yet this legal rule of membership may in practice have a nega-
tive effect on Israeli citizens who wish to sever their ties with the country. Even
if Israeli citizens reside outside Israel for extended periods of time and are natu-
ralized into their new political community, these individuals are still entitled to
the rights and subject to the duties of Israeli citizenship according to Israeli
law.196 Thus, in order to enter and leave Israel, they must, like all other citizens,
hold a valid Israeli passport. If they reside in Israel, they may be subject to Is-
raeli taxation. Even if an Israeli national renounces his or her citizenship and the
minister of the interior consents to the renunciation (as is often the case when
the person emigrates from Israel), the loss of citizenship does not release a per-
son from duties and responsibilities created before the loss of citizenship, hence
a former Israeli citizen might still be obliged to serve in the Israeli military.197
Israeli citizenship is transmitted by descent.198 Hence, the offspring of an Is-
raeli parent automatically acquires Israeli citizenship at birth, regardless of the
place of birth or the family’s effective ties to Israel.199 By the provisions of the

and were automatically granted Israeli citizenship, if they wish to maintain their previous citizen-
ship in order to preserve certain rights in their native home country, such as the right to land owner-
ship, inheritance, or pension payments. This issue is significant because a very high percentage of
Israel’s citizenry is not Israeli-born (as of 1996, for example, approximately 38 percent of the Is-
rael’s Jewish population was born outside the country). See Statistical Abstract of Israel, 1997.
This type of expatriation of Israeli citizenship is relevant, then, only in those cases where in the eyes
of the native home country, the establishment of Israeli citizenship status by the individual along-
side her original citizenship status has detrimental effect on rights she would have been entitled to if
she had maintained only her original citizenship status.
195. See Israel, 1952, Citizenship Law, 6 L.S.I. 50, (1951–52), § 14(b).
196. See Rubinstein, 1976, pp. 177–78.
197. This duty can be activated only when the person sets foot in Israel.
198. See discussion supra Citizenship by Birth.
199. To provide one well-known example: Samuel Sheinbein, a U.S. citizen accused of murder
in the United States, fled to Israel after being named suspect in a brutal murder in a Washington sub-
urb. A request for Sheinbein’s extradition was made by the United States Justice Department and
was supported by Israel’s attorney general, Elyakim Rubinstein. According to Israel’s Extradition
Law, however, an Israeli citizen may not be extradited to another country to face trial for crimes he
is alleged to have committed in that country. Judge Moshe Ravid of the Jerusalem District Court
therefore had to determine whether Sheinbein, the son of an Israeli citizen, is an indeed an Israeli
citizen by birth. On September 6, 1998, Judge Ravid determined that Sheinbein is an Israeli citizen
but is nonetheless extraditable because he has no “affinity” to Israel. Yet, the Israel Supreme Court
in a split three-to-two decision overturned the ruling of the Jerusalem District Court. On February
25, 1999, the majority decision found that “every Israeli citizens has immunity from extradition, ir-
ISR AE L 423

Defense Service Law, this child, as an Israeli citizen, shall be called to military
duty at the age of eighteen, even if he or she holds another citizenship or has re-
sided for years outside Israel.200
Under the republican perception of membership expressed in Israeli citizen-
ship law, such mandatory drafting was intended to preserve a special link be-
tween the Israeli state and the offspring of Israeli citizens who emigrated from
the country, by providing these “lost” children access to the “heartland of citi-
zenship practice” (military service).201 The priorities of the polity can perhaps
be seen by the way in which the obligations of citizenship are balanced against
the right to vote—usually the most visible right of citizenship. Israelis who live
abroad have no right to vote as “absentees” in national or municipal elections,
but these Israelis and their children are formally subject to the obligation of mil-
itary service. In reality, however, the result of this mandatory imposition of mil-
itary duty upon children born outside the country has had an adverse effect,
because “the bond that might have been created naturally by visits to Israel and
intermingling with Israeli society is diminished by a law that converts the first
visit to Israel into a potential recruitment trap.”202
The perception of a birthright and of lifelong allegiance between the person
born as an Israeli and the state is, as I have shown, clearly manifested in Israeli
citizenship law and the various administrative practices governing the issue of
loss of citizenship. The symbolic importance that the state attaches to this alle-
giance is best illustrated in the following particular case where the state stakes
its right to a child’s allegiance. The state reserves for itself the right not to re-
nounce the citizenship status of a minor if the parents emigrated from Israel but
have renounced their own Israeli citizenship status while still being residents of
Israel. If one of the parents remains an Israeli citizen, the child does not lose his
or her citizenship status. Furthermore, if the child remains a resident of Israel,
his or her citizenship status will not be terminated, even if the parents re-
nounced their own attachment to the state and the minister of the interior con-
sented to their expatriation.203

respective of his affinity to Israel.” The Supreme Court President, Aharon Barak, who was in the
minority, “maintained that such immunity can be claimed only by a citizen for whom ‘Israel is the
center of his life and who participates in its life and joins his destiny to that of the country.’” Samuel
Sheinbein was therefore not extradited to the United States. Instead his trial for murder took place in
Israel. He pleaded guilty and was sentenced to twenty-four years in prison. He is now serving his
term in an Israeli cell.
200. See Israel, 1986, Defense Service Law (Consolidated Version), § 13.
201. As an official publication of the Ministry of Immigrant Absorption puts this point, “army
service is the ‘entry card’ to Israeli society and an important basis for social integration.” See Minis-
try of Immigrant Absorption, June 1998, p. 29.
202. Rubinstein, 1976, p. 179.
203. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 10.
424 AYELET SHACHAR

Note, however, that a citizen who has committed “an act consisting of a
breach of allegiance to the State of Israel” may be unilaterally denationalized
by the state.204 This power has rarely, if ever, been used in Israel.205 In recent
years, however, citizenship has been revoked by way of denaturalization, that
is, upon determination that citizenship status was wrongfully obtained based on
false information.206

New Trends in Israeli Immigration Law

Similar to many other Western countries, Israel has been undergoing a sus-
tained drive to “roll back” the state in recent years “from the formerly state-con-
trolled public service arena, as well as an increasing ‘recommodification’ of
formerly ‘decommodified’ services.”207 Examples of this process include the
privatization of media and telecommunication services, the rise of private
higher education institutions, and the liberalization of the foreign currency mar-
ket. These changes, along with the steady rise in number since the late 1980s of
foreign workers admitted to the country as temporary workers, are “indicators
of Israel’s movement toward a variant of neo-liberal market economy.”208
It is estimated that approximately 200,000 foreign workers have entered Is-
rael since the late 1980s. Of these foreign workers, fewer than 85,000 have en-
tered the country lawfully.209 Foreign workers in Israel are, in most cases,
employed in low-skill, low-pay jobs, particularly in the areas of agriculture and
construction. Until the 1980s (before the Palestinian Intifada), many of the jobs
currently held by foreign workers were previously held by Palestinians Arabs
from the West Bank and Gaza.210 These Palestinian noncitizen workers were a
cheap and flexible work force.211 During the Intifada, rigid restrictions were im-
posed on Israeli employers who hired Palestinian noncitizen workers, and the
frequent closures of the West Bank and Gaza for security reasons prevented the
previous influx of Palestinian workers into Israel. These factors, along with the

204. Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 11(b).
205. There are no official figures regarding this practice. But of the known cases of Israelis
who have been convicted of committing an act consisting a breach of allegiance to the State of Is-
rael, none have been denationalized.
206. See Israel, 1980, Citizenship Law (Amendment No. 4), 34 L.S.I. 254, (1979–80), § 11(c).
207. Hirschl, 1997, pp. 136, 138.
208. Hirschl, 1997, pp. 136, 138.
209. See, generally, Forty-Sixth Annual Report of the State’s Comptroller 475-496, 1996 (on
the emerging problem of foreign workers in Israel); Israel Democracy Institute, 1998, p. 1.
210. See, generally, Bartram, 1998, pp. 303, 306–308.
211. See Bartram, 1998, p. 308. See, generally, Lewin-Epstein and Semyonov, 1993 (analyz-
ing the status of citizen and noncitizen Arabs in the Israeli labor market).
ISR AE L 425

gradual opening of the Israeli economy to global market forces, have worked to
the detriment of Palestinian workers. Even when residents of the Palestinian
Authority (established in Gaza and certain parts of the West Bank in 1993 based
on the Oslo peace accords) now enter Israel for purposes of employment, they
often find that many of the jobs they previously held have already been occu-
pied by the new “army” of unprotected labor, the foreign workers.212
Foreign workers who enter the country lawfully receive temporary
nonimmigrant work visas.213 They must leave the country upon termination of
their status, but there is no effective mechanism for enforcing this regulation.
Children born in Israel to non-Israeli parents do not acquire citizenship at birth,
since Israeli law does not follow the jus soli principle. If their parents were ille-
gal residents, these children are not entitled to social benefits, such as state-un-
derwritten health care coverage, to which all Israeli citizens and permanent
residents are entitled. But municipal administrators, school principals, social
workers, and health care providers who work in areas where many foreign
workers live, such as poor neighborhoods in Southern Tel Aviv, have in most
cases decided to overlook the status issue in order to ensure that children of ille-
gal foreign workers are treated fairly and with human dignity.214 As the princi-
pal of Bialik elementary school in Southern Tel Aviv (which received the
prestigious Educational Award from Israel’s president in 1998 on Israel’s fifti-
eth anniversary) puts it, although many of the children attending her school are
illegally residing in Israel, “I [and the Tel Aviv school district] have no interest
in the question of whether their parents have documentation of legal residence
or not. I only have interest in that these are children and [that regardless of their
citizenship status] they are entitled to education. Good education.”215 Important
and significant as this local effort is, it cannot resolve the need to establish a
comprehensive governmental policy that will determine how to address the is-
sue of long-term residence of foreign workers and of the legal status of their Is-
raeli-born children.
Predictably, the large number of legal and illegal foreign workers who en-
tered Israel since the late 1980s in a short period now pose new regulatory chal-

212. See Israel Democracy Institute, 1998, p. 1. Note that Israeli employment laws that regu-
late issues such as minimum payment, working hours, and workers compensation should, in theory,
also be applicable to foreign workers (the law applies to any worker, regardless of his or her citizen-
ship status). In practice, however, these employment laws have rarely been enforced in the case of
foreign workers who are either dependent on their employer for their visa so the abuse of the law is
never reported, or are illegally residing in Israel and would do whatever they can to avoid contact
with state authorities. See Association for Civil Rights in Israel, 1996, pp. 227–28.
213. See Association for Civil Rights in Israel, 1996, p. 12.
214. Livine, June 26, 1998, p. 26.
215. Livine, June 26, 1998, p. 30.
426 AYELET SHACHAR

lenges to Israel’s citizenship law and immigration policy, which crystallized

during the nation-building era of the 1950s and has since remained in place.
Such new challenges are not unique to Israel and neither are the initial govern-
mental reactions that have emerged in the 1990s.216 More than ever before, the
Israeli immigration policy of the past decade has been marked by a growing
awareness of the problem of fraud.217 Indeed, the gradual deregulation or “open-
ing” of the Israeli market to international forces makes Israel a regional “mag-
net” for persons from poorer countries, as has been evidenced by the large
numbers of foreign workers who have entered the country,218 and the influx of
Jewish and non-Jewish persons who established citizenship by way of return in
the massive wave of immigration from the former Soviet Union in the 1990s.219
Given these new trends, the Israeli media have sensationalized recent stories
about people who entered into fictitious marriages in order to establish Israeli
citizenship by way of return; people who falsified documents in order to claim
their “Jewishness”; people who entered Israel on a nonimmigrant visitor visa
with no intention to leave the country; and people who, while illegally residing
and working in Israel, have been blackmailed or abused by persons who threat-
ened to report their status to the police. Some human rights organizations in Is-
rael have begun to address these issues by using due process and human dignity
arguments in protection of foreign illegal workers.220 On the whole, however,
Israel has yet to establish a comprehensive policy toward these foreign workers
who “temporarily” entered its borders (either legally or illegally) and—if any-
thing can be learned from the related experiences of other countries—are likely
to stay for good.221
Thus, the changing political relations with the Palestinian Authority and the
emerging neoliberal economic order in Israel will inevitably bring to the fore-
front of Israeli public policy fundamental questions associated with the tension
embedded between the rollback of the welfare state and increasing trends of
globalization, such as the movement of goods, capitals, and persons across
frontiers, on the one hand, and the republican, duty-bound and religious-based

216. See, generally, Cornelius, 1992, p. 3.

217. See, for example, Reinfeld, November 24, 1998.
218. Foreign workers who entered the country lawfully (that is, with work permits) were re-
cruited primarily from Romania, Thailand, and the Philippines. See Bartram, 1998, p. 314.
219. See supra notes 62–67 and accompanying text.
220. These organizations include, among others, “Kav La’Oved,” the Association for Civil
Rights in Israel, and the Association of Doctors for Human Rights.
221. Israel, like other countries that place greater emphasis on the jus sanguinis principle, will
eventually have to resolve the “second generation problem.” Under current Israeli citizenship law,
children born in Israel to noncitizens who reside in the country (whether legally or illegally) are not
entitled to Israeli citizenship by birth, although they were born on its territory.
ISR AE L 427

perceptions of membership with its more state-centrist understanding of iden-

tity, still encoded in Israeli citizenship law, on the other.222

Conclusion

As it now stands, the Law of Return still echoes the national Zionist goals
written into law five decades ago with Israel’s establishment as the sovereign
modern Jewish state. The Law of Return upholds the right of every Jew to im-
migrate to Israel and to acquire Israeli citizenship automatically and immedi-
ately upon arrival in the country. There is no waiting period for this granting of
citizenship because of the Zionist philosophy that regards the return of Jews to
their ancestral homeland as an expression of the fundamental values upon
which the state itself is based, namely, that Israel is to serve as a safe haven and
homeland for the Jewish people.
As we have also seen, Israeli citizenship can also be acquired by way of resi-
dence, birth, or naturalization. Since 1980, all children born to an Israeli parent,
regardless of the parent’s religious, national, ethnic, or gender affinity, acquire
automatic citizenship status by way of birthright. This equal birthright entitle-
ment is devoid of any “differentiating” markers, thus ensuring that all Israelis
have full formal and equal access to the basic rights associated with citizenship
in a democratic state. Yet, as important and central as this formal entitlement to
citizenship is to each individual, it cannot assure that the ethnocultural, republi-
can conceptions of membership in the nation, which are still encoded in Israel’s
citizenship and immigration regime, will not systematically and adversely af-
fect the distribution of power and social capital among different groups of Is-
raeli citizens.223
Traditionally, Israel has been analyzed as representing an interesting and
special case of a diverse society, where the tension between the Jewish and
democratic principles upon which the state is founded creates what has been
termed as an “ethnic democracy,”224 whereby Israel’s Arab citizens are guaran-
teed full civic and political rights but have no access to the “common good”
foundations of the Jewish state.225 In addition, according to the republican per-
ceptions expressed in Israeli citizenship law, full membership in the polity re-
quires active participation, reflected in the high value ascribed to military
service. In this context, however, it is important to note that two groups—Pales-

222. See, generally, Hirschl, 1998, p. 427; Peled and Shafir, 1996.
223. See, generally, Cohen, 1989.
224. See, generally, Smooha, 1990.
225. See, generally, Peled, 1992.
428 AYELET SHACHAR

tinian Arab Israeli citizens and certain Orthodox Jews—are generally excluded
from the republican “active citizenship” conception, but with very different
consequences. Palestinian Arab Israeli citizens are generally not called upon
for national military service and are subject to various overt and covert discrim-
inatory governmental policies. This fact should serve as a reminder that while
Palestinian Arab Israelis are full members in the state, they are not necessarily
full members in the nation.226 The second group, comprising Orthodox Jews
who are granted administrative exemption from military service because of
their religious studies, has suffered far less injurious consequences from its sys-
tematic lack of participation in this key Zionist national expression of sover-
eignty. Since Orthodox Jews, unlike Israel’s Palestinians citizens, are situated
almost without question within the dominant Jewish community, their full
membership in the nation is hardly ever challenged, even if they refrain from
some of its crucial civic expressions.227 In discussing the role of gender, in terms
of affecting the de facto citizenship status of Israeli Jewish women, this article
alluded to a more complex matrix of “degrees of citizenship,” whereby reli-
gious and ethnic affiliation, as well as gender and class must be taken into ac-
count in analyzing one’s membership status and entitlement to the full benefits
and duties of equal citizenship.
There is no starker example than the combined provisions of the Law of Re-
turn and the Citizenship Law, with their built-in inclusionary-exclusionary di-
mensions, to express the particularistic nature of contemporary Israeli
citizenship and immigration regime. Only time will tell whether the new chal-
lenges posed to this regime by a growing number of “temporary” foreign work-
ers (and their Israeli-born noncitizen children), the transition of jurisdictional
power over Palestinian “permanent residents” in the West Bank and Gaza Strip
to the PA, and the growing constituency of non-Jewish immigrants by return
who have arrived from the former Soviet Union and have settled in the country,
will force a transformation in Israeli citizenship law, gradually making it more
inclusive (for example, by giving greater weight to a jus soli principle).228 Or,
conversely, whether the challenges of the 1990s to the ethnocultural, republican
narrative of the 1950s (still encoded in the Law of Return and the Citizenship
Law) will only enhance the voices that are already calling for a more narrow,

226. See, generally, Kretzmer, 1989; Peled, 1992; Smooha, 1990.

227. Indeed, certain scholars claim that the “ethnocultural” aspects of Israeli citizenship, as en-
coded in the Law of Return, “guarantee the privileged position of the true keepers of the faith—reli-
giously Orthodox Jews—in Israeli society.” Shafir and Peled, 1998, pp. 408, 413.
228. In comparison, examine the planned changes in German citizenship law and naturaliza-
tion procedures. See German Information Center, German Citizenship & Naturalization, April 4,
1999.
ISR AE L 429

Halakhic definition of the right of return, and only give strength to the new
voices that are calling for an imposition of tougher regulatory measures against
illegal residents of the state (for example, deportation orders), thus making Is-
rael’s immigration policy even more restrictive and exclusionary than its cur-
rent attitude toward non-Jews. With regard to such complex and troubling
matters concerning the future of the Holy Land, one would do well to refrain
from prophecy.

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Shachar, Ayelet. 1998. “Group Identity and Women’s Rights in Family Law: The Perils
of Multicultural Accommodation.” Journal of Political Philosophy, no. 6.
Shafir, Gershon, and Yoav Peled. 1998. “Citizenship and Stratification in an Ethnic De-
mocracy.” Ethnic and Racial Studies, no. 21.
Sharkansky, Ira. 1997. Policy Making in Israel: Routines for Simple Problems and
Coping with the Complex. Pittsburgh: University of Pittsburgh Press.
Shlaim, Avi. 1995. “The Debate About 1948.” International Journal of Middle East
Studies, no. 27.
Smith, Rogers M. 1997. Civic Ideals: Conflicting Visions of Citizenship in U.S. History.
New Haven: Yale University Press.
Smooha, Sammy. 1990. “Minority Status in an Ethnic Democracy: The Status of the
Arab Minority in Israel.” Ethnic and Racial Studies, no. 13.
Soffer, Arnon. 1994. “Demography and the Shaping of Israel’s Borders.” In Economic,
Legal, and Demographic Dimensions of Arab-Israel Relations, ed. Ian S. Lustick.
New York: Garland.
ISR AE L 433

Somech, Alex. (June 12, 1998.) “Decline in Proportion of Jews among Soviet Immi-
grants.” Ha’aretz, pp. 1–2. (In Hebrew.)
Statistical Abstract of Israel. 1997. No. 48. (On file with author.)
Stratton, Lisa C. 1992. “‘The Right to Have Rights’: Gender Discrimination in National-
ity Laws.” Minnesota Law Review, no. 77.
“The Declaration of the Establishment of the State of Israel.” (May 14, 1948.) Official
Gazette, no. 1. <http://www.knesset/docs/megilat_eng.htm>
UN General Assembly Resolution 181 (Partition Plan). (November 29, 1947.)
<http://www.mfa.gov.il/mfa/go.asp?MFAH00ps0>
U.S. Census Bureau. (April 9, 1998.) “Foreign Born Population Reaches 25.8 Million,
according to Census Bureau.” <http://www.census.gov/Press-Release/cb98-57.
html>
Weiner, Justus R. 1997. “The Palestinian Refugees’ ‘Right to Return’ and the Peace Pro-
cess.” Boston College International and Comparative Law Review, no. 20.
Young, Iris Marion. 1989. “Polity and Group Difference: A Critique of the Ideal of Uni-
versal Citizenship.” Ethics, no. 99.

Legal Cases
Cases listed below are all in Hebrew and, except for the last two, are on file
with the author.

Afroyim v. Rusk, 387 U.S. 253 (1967).

H.C. 58/68, Shalit v. Minister of Interior, 23(2) P.D. 477.
H.C. 64/54, Bader v. Minister of Police, 8 P.D. 970.
H.C. 125/51, Hassin v. Minister of Interior, 5 P.D. 1386.
H.C. 125/80 Angel v. Minister of the Interior, 34(4) P.D. 329.
H.C. 157/51, Abad v. Minister of Interior, 5 P.D. 1680.
H.C. 264/87, Sephardi Torah Guardians, Shas Movement v. Director of Population
Registry, 43(2) P.D. 723.
H.C. 328/60, Mussa v. Minister of Interior, 16 P.D. 1793, aff’d F.H. 3/63, Minister of In-
terior v. Mussa, 17 P.D. 2467.
H.C. 442/71, Lansky v. Minister of the Interior, 26(2) P.D. 337.
H.C. 1031/93, Pessaro (Goldstein) v. Minister of Interior, 49(4) P.D. 661.
H.C. 2797/93, Gabari’th v. Minister of Interior, “Motion to Dismiss the Petition.”
H.C. 4541/94, Miller v. Minister of Defense, 49(4) P.D. 94.
H.C. 3648/97, Stemka v. Minister of Interior (decision pending).
H.C. 3648/97, Stemka v. Minister of Interior, “Petitioner’s Brief.”
H.C. 3497/97, Kamella v. Minister of Interior, decision given on Dec. 4, 1997 (unpub-
lished).
H.C. 3267/97, Rubinstein v. Minister of Defense, decision given on Dec. 9, 1998 (unpub-
lished).
 CHAPTER FOURTEEN

Citizenship in Japan:
Legal Practice and
Contemporary Development

CHIKAKO KASHIWAZAKI

THE PURPOSE OF THIS paper is to discuss laws and practices concerning Japa-
nese citizenship in comparative perspective and to draw out policy implica-
tions. The number of foreign residents registered in Japan increased from
884,000 in 1987 to 1,483,000, or 1.2 percent of the total population, in 1997.1
The Japanese government reorganized visa categories in 1990 to cope with the
growth of incoming foreigners, while maintaining the policy of not admitting
“unskilled” labor. Rules regulating the attribution of nationality and naturaliza-
tion have also remained strict. Increasing ethnic diversity in Japanese society
raises questions about Japan citizenship, including the legal status of permanent
resident aliens; policies concerning border control, on the one hand, and the in-
tegration of settled foreign residents, on the other; and criteria for attributing
nationality. Together they pose a problem of how to construct and integrate a
multiethnic society. Japan in this sense shares similar challenges with other im-
migrant-receiving countries.
Debates about citizenship and immigration in social sciences initially fo-
cused on immigrant-receiving countries in Western Europe, North America,
and Australia, although the geographical scope is gradually broadening in re-
cent years. The Japanese case also received some attention in the field of inter-
national migration studies when foreign migrant workers in the country
increased in the 1980s. Nevertheless, the nature of the country’s citizenship

1. Zairyu Gaikokujin T okei, 1998.

434
JAPAN 435

policies has only sparsely been documented in English.2 Although Japan is of-
ten treated as a unique case, with its dominant image of ethnic homogeneity
coupled with intolerance for outsiders, the uniqueness itself needs to be ex-
plored in comparative perspective.

Japan in Comparative Perspective

Comparative research suggests that citizenship policies might be effectively
employed for the integration of immigrants in a democratic society.3 Citizen-
ship policies in a broad sense include rules for not only the attribution of full,
formal citizenship but also the admission of legal migrants and the extension of
“partial” citizenship for resident aliens.4 The Japanese case is similar to other
advanced industrial countries in that recent labor migration represents
south-north migration, or migration from developing countries to developed
countries. Experiences of Western European countries in particular provide
useful points of comparison when studying the case of Japan, because Japan in
its modern national state form was constructed by an indigenous majority group
rather than by immigrants, as in the United States, Canada, and Australia.
Contemporary debates about citizenship policies in Western European
countries have their roots in immigration in the post–World War II era. In re-
sponse to sharp increases in the immigrant population, governments of these
countries restricted admission and encouraged return migration in the 1970s.
The result was the settlement of former “temporary” workers and an increase in
family reunification. As immigrants were becoming a permanent feature of the
society, host countries in Western Europe turned increasingly toward incorpo-
ration.5 Over time, foreign workers and their families obtained a greater scope
of citizenship rights. Referred to as “denizens,” resident aliens with permanent
resident status enjoy extensive civil and social citizenship rights, if not electoral
rights on the national level.6
Denizens, however, do not possess full citizenship, notably full political
rights. For fuller integration of immigrants into a democratic political commu-
nity, it becomes important to give them the opportunity to obtain full citizen-

2. See Hanami, 1998, on legal dimensions. On the incorporation of foreigners into society and
the issues of citizenship, see Kajita, 1998, and Miyajima, 1997.
3. Brubaker, 1989, Immigration; Hammar, 1985; Hammar, 1990; Layton-Henry, 1990; Castles
and Miller, 1993.
4. By “partial citizenship” I mean any legal status to which a range of citizenship rights and du-
ties are attached, but which falls short of full citizenship. Denizenship may be considered an ad-
vanced form of partial citizenship.
5. Soysal, 1994.
6. Hammar, 1990, pp. 12–15.
436 CHI KAKO KASHI WAZAKI

ship, not just denizenship. In the 1980s and 1990s, laws regulating nationality
and citizenship were revised in immigrant-receiving countries such as Ger-
many, the Netherlands, Sweden, and Switzerland, where nationality transmis-
sion was mainly based on jus sanguinis (by parentage). These revisions eased
criteria for acquiring nationality by first-generation, long-term resident aliens
as well as by the second and subsequent generations. Major types of legal and
administrative changes include introduction or expansion of the as-of-right ac-
quisition of citizenship; double jus soli, by which the third generation obtains
citizenship automatically; and toleration for dual nationality.7
The development of the status of denizenship led to greater differentiation of
status among noncitizens. As immigrant-receiving countries reinforced border
control, undocumented aliens emerged as a significantly disadvantaged cate-
gory in terms of legal protection. Lawful admission and access to permanent
residence appear to play a major role in shaping one’s life chances, perhaps
even more than the possession of full citizenship.8
In sum, basic trends in Western European countries in the past three decades
include the combination of tighter border control and efforts to incorporate im-
migrants into the host society, the emergence of denizens, and the lowering of
barriers to acquiring nationality. The acquisition of nationality by immigrants is
thus increasingly understood as a point on a continuum of legal status ranging
from “aliens” to “denizens” and then to “full citizens.”9

The Japanese Case

Japan is often cited as the only advanced industrial country that did not rely
on foreign labor during the period of high economic growth. It is even asserted
that ethnic and cultural homogeneity was in fact a key to postwar recovery and
development.10 This line of argument attaches importance to cultural factors
that might be used to explain citizenship and immigration policies as well. The
adoption of the principle of jus sanguinis and strict rules on naturalization
would then be seen as a natural course of development given the characters of
the Japanese. Reducing Japanese citizenship policies to “cultural” factors, how-

7. Bauböck, 1994, p. 33; Çinar, 1994; Soysal, 1994, pp. 26–27. Britain deviates from this gen-
eral pattern. Migrants from Commonwealth countries used to acquire full citizenship upon settle-
ment in Britain by virtue of being British subjects. Since the 1960s, however, they have been
subject to increasingly restrictive admission rules. The unconditional jus soli was terminated in
1981, although full citizenship is still accessible to lawfully settled immigrants in Britain (Dummett
and Nicol, 1990; Dummett, 1994).
8. Schuck, 1989; Brubaker, 1989. Yet, the United States has moved to reinforce the distinction
between full citizenship and denizenship.
9. Çinar, 1994; van den Bedem, 1994.
10. Emphasis on homogeneity has downplayed internal cultural diversity and made minority
populations in Japan “invisible.” See Weiner, 1997, and Maher and Macdonald, 1995.
JAPAN 437

ever, only reinforces the notion of the “uniqueness” of Japan without much ex-
planation. In what follows, I highlight historical factors, administrative
practices, and political choices that have been made concerning citizenship pol-
icies to show that the Japanese case can be fruitfully analyzed in comparative
perspective.
Because Japanese law follows jus sanguinis, the development of citizen-
ship policies in Western European countries with similar legal traditions is
highly relevant to the country. To any state, the presence of a significant num-
ber of resident aliens poses potential problems if their marginalization leads to
social and political unrest. Like governments in European immigrant-receiving
societies, do policy makers in Japan also consider citizenship policies as a use-
ful tool for promoting social and political integration? What are current policy
options? Before considering these questions, it would be useful to first examine
basic features of Japanese citizenship policies.

The Basic Features of Japanese Citizenship Policies

There is no unified, coherent policy that could be called the Japanese citizen-
ship policy. Rather, a variety of laws, regulations, and administrative practices
together produce distinctive characteristics in the management of Japanese na-
tionality and citizenship. Five basic features are discerned: jus sanguinis for na-
tionality transmission, tight border control, strict naturalization rules, a close
relationship between nationality and family registry, and restrictive access to
the status of permanent residents. This section considers these five features in
historical perspective. Emphasis here is on the construction of nationality and
citizenship regulations in postwar Japan. New developments after 1980 will be
discussed in the next section.

The Principle of Jus Sanguinis

In cross-national comparisons of nationality law, it is customary to first

study the principle of nationality transmission, namely varied combinations of
jus soli (by birthplace) and jus sanguinis (by parentage) for attributing national-
ity at one’s birth. Where the principle of jus sanguinis is dominant, second-gen-
eration immigrants do not automatically obtain citizenship and may remain
foreigners indefinitely unless they acquire citizenship later in life. Researchers
have related this role of jus sanguinis with the exclusion of immigrants and the
“ethnocultural conception of nationhood.”11

11. Brubaker, 1992. It is unfortunate that Brubaker’s thesis about the role of cultural idioms
had the effect of encouraging a simplistic understanding of nationality criteria based on a sharp di-
chotomy between jus soli and jus sanguinis.
438 CHI KAKO KASHI WAZAKI

Conventional understanding of jus sanguinis as a mechanism of exclusion

based on ethnicity calls for a couple of qualifications, however. First, access to
citizenship does not solely depend on the basic transmission rule. As discussed
by Tomas Hammar, a potential immigrant faces three “entrance gates” before
becoming a citizen, namely admission to the territory, permanent residence,
and then acquisition of full citizenship.12 Rules governing naturalization and
dual nationality compose criteria for the third, final gate. A jus sanguinis–based
system could potentially be just as open as a jus soli–based system when citi-
zenship is highly accessible for immigrants whose parents are not citizens.13
Second, the legal principles of jus soli and jus sanguinis developed before
the emergence of modern national states.14 Although the rule emphasizing de-
scent rather than birthplace appears to fit well with the image of the ethnically
exclusive nature of contemporary Japanese society, the initial codification of
the principle of jus sanguinis dates back to the late nineteenth century. The
Meiji government codified nationality law in 1899 in response to the external
pressure to modernize the regulation of nationality. The principle of jus
sanguinis was a logical choice for two reasons. First, it was compatible with
previous legal practices, in particular the family registration system that had
been used to define the subject population. Second, the principle was prevalent
in continental European countries, where many of the advisers to the Japanese
government came from. Consequently, one cannot assume that the goal of eth-
nic homogeneity led to the descent-based attribution of nationality.15
The management of nationality under the Japanese colonial empire was also
at odds with a simplistic association between jus sanguinis and ethnocultural
conceptions of nationhood. Japan acquired Taiwan from China in 1895 as a re-

12. Hammar, 1990, pp. 16–18.

13. The principle of jus soli per se does not comprise an “open” or “inclusive” system. When it
is combined with selective immigration control (the first gate), it could exhibit an exclusive charac-
ter, such as in the pre-1965 U.S. system. “Openness” here also implies the notion of individual
choice. Although unconditional jus soli is the most inclusive in terms of turning immigrants fully
into citizens by the second generation, some immigrants may not wish to acquire nationality in the
host country. A system that combines jus sanguinis with a well-developed denizenship and high ac-
cessibility to nationality is therefore considered no less satisfactory than jus soli, even from a nor-
mative point of view. Swedish law exemplifies accessible nationality with jus sanguinis.
14. Jus soli originated in the feudal era in England and was based on the allegiance of the sub-
ject to the lord (Dummett and Nicol, 1990, p. 24). In France, parlements between the sixteenth and
eighteenth centuries developed a set of criteria for defining who belonged to France (Wells, 1995;
Brubaker, 1992, pp. 37–38). Nationality regulations in France thereafter maintained the emphasis
on one’s birth and residence in the French territory. The adoption of jus sanguinis by German states
was partly facilitated by concerns for the influx of the migrant poor (also Germans) from neighbor-
ing states (Brubaker, 1992, pp. 64–71). In all these cases, the initial adoption of particular rules
about the attribution and transmission of membership had little ideological justification.
15. See Kashiwazaki, 1998, for the context in which the first nationality law was codified in Ja-
pan.
JAPAN 439

sult of the Sino-Japanese War. After defeating Russia in 1905, Japan gained in-
fluence over the Korean peninsula and formally annexed the territory in 1910.
The Japanese colonial empire was thus multiethnic in its character, and yet the
principle of jus sanguinis in nationality attribution remained intact. Taiwanese
and Koreans possessed the common status of Japanese imperial subjects, even
though it did not mean equality in citizenship rights and duties. In other words,
the enlargement of the boundaries of “Japanese nationals” did not affect the
rule of nationality transmission.
If the colonial period saw an enlargement of the boundaries of Japanese na-
tionals, postwar reorganization of citizenship resulted in their shrinkage. With
the defeat in World War II in 1945, Japan came under Allied occupation, which
lasted until 1952. Koreans and Taiwanese were liberated from Japanese colo-
nial rule. Yet, the question of nationality of those who continued to reside in Ja-
pan was not resolved immediately. The Japanese government associated
former colonial subjects with social disorder and public security problems. On
the Korean peninsula, two opposing states declared independence in 1948 un-
der the influence of two superpowers, and a civil war erupted in 1950.
U.S.-sponsored negotiations between Japan and South Korea failed to reach
agreement on postwar settlement, including the issue of nationality. In the end,
the Japanese government resorted to a unilateral measure and declared the uni-
form loss of Japanese nationality by former colonial subjects as of April 1952,
when the San Francisco Peace Treaty went into effect.
In accordance with extensive democratization programs organized by the
SCAP (Supreme Commander for the Allied Powers), the Japanese nationality
law was revised during the occupation period. Revisions centered on the elimi-
nation of provisions that were based on the old patriarchal “family” ideas. For
instance, the wife’s nationality no longer automatically followed the husband’s
nationality. The reform, however, did not affect the principle of jus sanguinis.
The nationality law of 1950, which retained the principle, is in effect to this day,
with a few modifications. The law has exhibited an exclusive character in the
postwar period partly because Koreans and Taiwanese were uniformly made
foreigners in 1952, and thus the possession of Japanese nationality was con-
fined to those who were “Japanese” by descent. Border control and the adminis-
tration of naturalization further reinforced the restrictive nature of the
regulation of nationality.

Border Control and Immigrant Policies

Japan is not a country of immigrants in the classic sense. Like most Euro-
pean countries, a dominant indigenous group initiated nation building. During
440 CHI KAKO KASHI WAZAKI

the Tokugawa period (1603–1867), the government employed a seclusion pol-

icy, banning both emigration and immigration. Strict border control in contem-
porary Japan is often interpreted as a continuation from this policy in the past. It
is wrong to assume, however, that modern Japan had not experienced labor mi-
gration before the influx of foreign workers in the 1980s.
In the late nineteenth century, European businesses brought with them Chi-
nese workers, who worked as sales representatives, domestic servants, and
longshoremen.16 Several thousand mainland Chinese composed the majority of
the foreign resident population. Increases in Chinese workers generated con-
cerns about public morals and effects on wages, and anti-Chinese sentiments
were expressed in the public debate. The government took measures to control
and monitor unskilled labor. The “foreign worker problem” thus already ex-
isted a century ago.
Koreans formed an even larger migrant group in Japan during the colonial
period. Because Koreans were technically Japanese nationals, their travel to Ja-
pan was internal migration, and the restriction by the Japanese government was
limited.17 As Japan entered total war in the late 1930s, more than 600,000 Kore-
ans were brought to Japan as conscript labor.18 The number of Koreans residing
on Japanese home islands is estimated to have reached more than 2 million in
1945.19
After August 1945, the majority of Koreans in Japan rushed back to the Ko-
rean peninsula. More than half a million Koreans, however, could not or did not
return immediately and remained in Japan. Some Korean migrants even came
back to Japan after seeing the social and political turmoil in Korea. Those who
stayed on in Japan eventually became the first generation of zainichi, or resi-
dent Koreans in Japan.
Because of concerns about the spread of communism, the SCAP was gener-
ally supportive of strict immigration control by the Japanese government.20 The
primary goal of the Japanese government was to monitor and control the activi-

16. Weiner, 1989, pp. 52–53; Yamawaki, 1994, p. 17ff; Kamachi, 1980.
17. The imperial Japanese state was not united regarding policies on controlling Korean migra-
tion. Whereas the Ministry of Interior was concerned about increases in Korean labor in Japan from
the point of view of the maintenance of social order, the governor-general in Korea opposed restric-
tion on Korean migration on the ground that Korea was part of the Japanese empire. The level of re-
striction also depended on changes in economic and labor market conditions. (Nishinarita, 1997,
ch. 5; Yamawaki, 1994).
18. Weiner, 1994, ch. 6.
19. Morita, 1996, pp. 156–57.
20. Onuma, 1979–1980, and Kim T., 1997, analyze in detail the policies of the SCAP and the
Japanese government between 1945 and 1952.
JAPAN 441

ties of Koreans in and out of Japan. The Alien Registration Order of 1947 stipu-
lated that Koreans and certain Chinese residing in Japan were “regarded as
aliens” for the purpose of this law, despite the fact that they still possessed Japa-
nese nationality.21 This law required non-Japanese persons to be registered with
the authority and to carry their Certificates of Alien Registration at all times.
The 1951 Immigration Control Order was based on the instruction by the SCAP
to establish a comprehensive immigration control following the U.S. model.
The U.S.-style immigration control system produced a different effect when it
was accompanied by restrictive access to citizenship. With no avenues allow-
ing immigrants for settlement, the system in Japan operated as nothing but strict
border control.
The Japanese government in fact employed an explicit policy of not accept-
ing immigrants for settlement. Existence of ethnic minority groups was deemed
undesirable for the maintenance of social order and public security. The follow-
ing statement in an official publication in the late 1950s shows how Justice
Ministry officials understood immigration control and immigrant policy in
light of national interests:

Since Japan is one of the most densely populated countries in the world,
policies of controlling both population growth and immigration are
strongly called for. It should therefore be a government policy to severely
restrict the entry of foreigners into Japan. This is all the more so because
there are undesirable foreigners who would threaten the lives of Japanese
nationals by criminal activity and immoral conduct.22

The Japanese government thus perceived incoming foreign nationals primarily

as a problem of public security and social order. Between 1952 and 1974, a total
of more than 30,000 persons (of whom 97 percent were Koreans) were appre-
hended on account of illegal entry into Japan.23 Foreign nationals already resid-
ing in Japan were also subject to a similar perception as potential criminals. The
police intensely enforced the Alien Registration Law and apprehended resident
aliens, mostly Koreans, on charges such as not carrying with them the Certifi-
cate of Alien Registration. Strict control of immigrants is also reflected in prac-
tices concerning naturalization.

21. Alien Registration Order, Article 11.

22. Shutsunyukoku Kanri, 1959, p. 3.
23. Shutsunyukoku Kanri, 1975, p. 118.
442 CHI KAKO KASHI WAZAKI

Administration of Naturalization
As discussed earlier, accessibility to citizenship may significantly vary be-
cause of rules concerning naturalization or the acquisition of nationality. For in-
stance, the introduction of as-of-right acquisition of citizenship for the second
generation and long-term resident aliens makes citizenship more accessible,
even when the basic transmission principle remains jus sanguinis.
The Japanese system is characterized by restrictive access to citizenship for
resident aliens. There is no category of aliens who enjoy as-of-right acquisition
of Japanese nationality. In other words, any person who was not attributed Jap-
anese nationality by birth has to go through the process of naturalization.24
Rules concerning naturalization are codified in the nationality law. Applicants
must satisfy the following conditions: five years of consecutive residence, an
age of twenty years or more and of full capacity according to the law of his or
her native country, good moral conduct, property or ability enough to lead a fi-
nancially independent life, renunciation of previous nationality, and no current
or previous membership in organizations that advocate the overthrow of the
Constitution or of the government of Japan.25
The fact that final decision rests with the discretion by the Justice Ministry is
often cited as the symbol of exclusive Japanese citizenship. It should be noted,
however, that the use of discretion by the authority in naturalization is not
unique to Japan. Rather, what makes the Japanese system exclusive is the strict
administration of naturalization in practice combined with the lack of any alter-
native channel for obtaining citizenship.
Applicants for naturalization are required to submit extensive supporting
documents.26 Justice Ministry officials then carry out their own investigation to
confirm that applicants satisfy criteria such as “good moral conduct.” It may in-
volve obtaining references from relevant offices such as the police and the tax
office, and interviewing neighbors as well as supervisors and colleagues in the
workplace to collect information on the reputation of the applicant.27

24. The 1984 revision to nationality law created a system of as-of-right acquisition. This sys-
tem, however, is confined to specific cases such as where children born of a Japanese parent failed
to obtain Japanese nationality at birth.
25. Nationality Law, Article 5. In the revised law of 1985, a person is eligible if he or she can
make a living as a dependent of a family member.
26. The fee for naturalization is considered a major barrier discouraging potential applicants in
some countries. It is interesting to note that naturalization itself is free of charge in Japan (Kokuseki
Kika no Jitsumu S odan, 1993, p. 335). But it is, in practice, costly because applicants have to pre-
pare a wide range of supporting documents.
27. Kim Y., 1990, pp. 64–66.
JAPAN 443

Potential applicants may be turned away even before submitting their appli-
cations, at the preliminary stage of “consultation” with officials. This happens
when officials at local offices advise potential applicants against submitting an
application because the chance of obtaining permission to naturalize is deemed
low. A typical reason is the lack of supporting documents.
Cumbersome documentation is closely related to the Japanese family regis-
try system, as discussed below. The administrative procedure requires that the
applicant’s family relationships be clearly known before naturalization is per-
mitted. Applicants whose home countries have a system of family registry
(South Korea and Taiwan) are required to obtain their family registry records
from home. It is not always easy to locate applicants’ records in their home-
town, particularly for those who have already lived in Japan for decades. The
process could be delayed further when records in official documents do not
match actual relationships among family members and relatives.28
Supporting documents may also be considered insufficient in light of the cri-
terion of “good moral conduct.” This condition is adopted in naturalization
laws of a number of other countries as well. In Japan, administrative practice is
such that minor offenses have been considered problematic. Applicants who
have a traffic violation record, for instance, may be advised to reapply a few
years later.29 Applicants have thus been rejected for technical or minor reasons
even when naturalizing them would pose no apparent problem in light of na-
tional interests.
Another factor that has reduced the number of naturalizations is the practice
of family-based naturalization. Administrative guidance of the Justice Ministry
insisted on naturalizing household members as a group rather than just a spe-
cific individual within a family.30 This policy was based on the legal norm of
avoiding a situation where members of the same household hold different na-
tionalities.
The system of naturalization is not designed to transform foreign nationals
promptly into Japanese nationals. Restriction on naturalization corresponds to
the government’s stance on border control, namely that Japan does not admit
immigration for the purpose of permanent settlement. More than half a million
Koreans, however, have resided in Japan since before the end of the war. In

28. The information on family relationships is later entered into the new family registration re-
cord created for a naturalized person. Erroneous documentation is deemed unacceptable in light of
the administrative norm of precise recording of actual relationships. If, for example, a father-child
relationship on paper is found to be false, it has to be settled in court beforehand (Kokuseki Kika no
Jitsumu S odan, 1993, pp. 462–63).
29. Kim Y., 1990, pp. 78–79.
30. Kim Y., 1990, pp. 74–75. This rule appears to be no longer enforced as strictly as before.
444 CHI KAKO KASHI WAZAKI

practice, then, the administration of naturalization up to the 1980s was primar-

ily a question of how to deal with Koreans.
Given the cumbersome procedure, it appears that the Japanese government
has been unwilling to give citizenship to Koreans. One cannot conclude, how-
ever, that the aim of the Japanese state has been to limit the number of
naturalizations by Koreans to a minimum. In the mid-1960s, for instance, the
Justice Ministry issued publications to explain the naturalization process in de-
tail and to encourage application, although they maintained an emphasis on as-
similation into Japanese society.31 Naturalizations by Koreans were fewer than
2,500 per year in the mid-1950s, but increased to about 5,000 annually by the
1980s. Naturalization is on the rise further in recent years, as discussed in the
next section.32
In response to Justice Ministry practices, dominant Korean organizations in
Japan, Soren and Mindan, have negatively viewed naturalization as humilia-
tion.33 They have in particular reacted against the notion of doka, or assimila-
tion into Japanese society. The Justice Ministry has explicitly employed
assimilation as a condition for naturalization. In practice, it is measured by
items such as the knowledge of Japanese language and lifestyle.34 What is at is-
sue, however, is the symbolic significance of the requirement of assimilation.
The term doka implies the loss of Korean identity, a reminder to Koreans of the
assimilationist drive during the Japanese colonial period. Consequently, those
who are naturalized and become Japanese could suffer from a sense of betrayal.
Koreans in Japan, organizational leaders insisted, should retain Korean identity
and live in Japan as overseas nationals of their home country.
In sum, administration of naturalization in Japan has been characterized by a
complicated set of documentation with an emphasis on precise records, fam-
ily-based naturalization, and criteria for assimilation and good conduct. The
Korean community reacted against the system of naturalization with nationalis-
tic sentiment. Once a foreign national is naturalized, a person’s name is re-

31. Kim Y., 1990, p. 20–21.

32. The rate of permission was low in the 1950s, when one out of two applicants was likely to
fail. In recent years, the rate of permission is said to have significantly increased, although statistics
on details are not available to the author. An estimate of the chance of obtaining permission would
have to take into consideration the number of potential applicants who are dissuaded by officials
from applying (Kim Y., 1990, pp. 96–99).
33. Since the mid-1950s, Soren and Mindan have been the two dominant organizations among
Koreans residing in Japan, even though their influence has somewhat weakened after the 1980s.
Soren (Chongryun) is affiliated with North Korea, whereas Mindan has strong connections with
South Korea. On the rivalry between the two organizations, see Lee and DeVos, 1981. See also
Ryang, 1997, on Koreans affiliated with Soren and North Korea.
34. Kim Y., 1990, p. 70.
JAPAN 445

corded into a family registry. A close relationship between the regulation of

nationality and family registry is another major component of the administra-
tion of Japanese citizenship.

Family Registration System and Assimilation

Family registry in Japan is closely related to the management of nationality.

On principle, every person who possesses Japanese nationality is registered in a
family registry. Naturalization involves creating a new record in the Japanese
family registration system.
Originally imported from China in the sixth century, the compilation of fam-
ily registers has a long history in Japan.35 Rulers in Japan used it in a variety of
forms for the purpose of extracting resources from their subject population. Of
particular relevance to contemporary citizenship policies are the ways in which
the Meiji government renewed the use of family registry as a critical tool for
consolidating its nationwide, centralized administration. As the Ainu to the
north and the Okinawans to the south came under modern Japan’s rule, their
family registration records were also created. The standardization of family
registry, a form of institutional assimilation, went hand in hand with cultural as-
similation programs for these ethnic minority groups, including the enforce-
ment of Japanese language use.
Just as in the cases vis-à-vis the Ainu and Okinawans, the Japanese colonial
state gradually introduced Japanese-style family registry into Taiwan and Ko-
rea. The extreme assimilationist drive from the late 1930s involved further stan-
dardization of family registry. The policy of soshikaimei, or forced adoption of
Japanese-style names by colonial subjects, aimed at establishing Japanese fam-
ily structure in the colonies while at the same time cultivating absolute loyalty
to the Japanese emperor.36
In the postwar period, too, family registry retained its character as an
assimilationist institution. Until 1984, a newly naturalized person was required
to adopt a Japanese-style name. Koreans denounced this practice, calling it a
denial of one’s ethnic heritage through forced assimilation.

Permanent Resident Status

In Europe, settlement of foreign migrant workers and their families led to

improvement in their legal protection and the development of the status of

35. Hisatake, 1991.

36. Miyata, Kim, and Yang, 1992.
446 CHI KAKO KASHI WAZAKI

denizenship, which then seems to have contributed to lowering barriers to the

acquisition of full citizenship. In Japan, more than 75 percent of the total of
639,000 resident Koreans were Japanese-born in 1974.37 If we focus only on the
immigrants’ length of stay, we should expect an even faster development of the
status of permanent residents as well as greater access to full citizenship in Ja-
pan than in Europe. Yet, the incorporation of Koreans as Japanese nationals
proceeded only slowly, as we have seen above, and so did the extension of par-
tial citizenship rights for permanently settled resident aliens.
The 1952 immigration control system stipulated that every foreigner should
obtain a visa status to reside in Japan. This requirement was waived for the Ko-
reans and the Taiwanese who had continued to live in the country since before
the end of war.38 This arrangement was considered a tentative measure, until
agreement would be reached between Japan and the relevant governments on
the legal status of these people. The agreements were not forthcoming, how-
ever. Only in 1965 did Japan and South Korea open diplomatic relationships,
whereas Japan has had no diplomatic ties with North Korea to this day. Conse-
quently, North Korean nationality is not officially recognized in Japan. Resi-
dent Koreans who have obtained neither South Korean nor Japanese
nationality, including those who identify with North Korea, have been practi-
cally stateless.
The waiver of the visa requirement in 1952 for Koreans and Taiwanese did
not mean secure permanent residence for them. All resident aliens were subject
to the Alien Registration Law with a risk of deportation. The Japanese govern-
ment was interested in maintaining a wide discretion in repatriating “undesir-
able” foreigners and was unwilling to offer secure permanent resident status to
de facto permanent residents. Continued residence of the former colonial sub-
jects was therefore understood only as an exceptional measure because of the
special conditions that originated in Japanese colonialism and war. Another ex-
ception was long-term resident Chinese from mainland China. In view of their
prolonged stay in Japan, the government issued permanent resident permits to
approximately 15,000 Chinese in 1952.39 Otherwise, few people obtained the
status of permanent resident stipulated in the immigration control law.40

37. Shutsunyukoku Kanri, 1975, p. 105.

38. This category included roughly 600,000 persons, the vast majority of whom were Koreans.
39. Shutsunyukoku Kanri, 1980, pp. 123–24.
40. Up to 1980, fewer than 200 persons annually obtained a permanent resident visa. The num-
ber of applicants was also small. The number of permissions increased to several thousand per year
in the 1980s (Shutsunyukoku Kanri T okei Nempo).
JAPAN 447

In pre-1980 Japan, then, resident aliens consisted of long-term residents

(mostly Koreans, Taiwanese, and mainland Chinese) and just a small number of
other foreign nationals holding visa statuses with time limits. The members of
the latter group were not anticipated to become permanent residents, let alone
Japanese nationals.

Summary and Comparative Perspective

In the course of the disintegration of their colonial empires, both Britain and
France maintained political, economic, and cultural relationships with their for-
mer colonies. They continued to allow, at least initially, relatively free move-
ment of people. In accordance with nationality and citizenship laws, lawfully
settled Commonwealth immigrants possessed full citizenship in Britain. In
France, too, former colonial subjects who settled in the “mother country” had
access to French citizenship. In contrast, the collapse of the Japanese colonial
empire resulted in a sharp demarcation between the Japanese and non-Japa-
nese. Only the “Japanese proper” retained Japanese nationality and enjoyed full
citizenship, whereas non-Japanese colonial subjects uniformly lost their Japa-
nese nationality.
Reorganization of nationality and citizenship in the immediate postwar
years consolidated the contemporary management of nationality and citizen-
ship in Japan. Its restrictive nature is due to the combined effect of jus
sanguinis, restrictive naturalization rules, and tight immigration control. The
leaders of Koreans, the largest noncitizen group in Japan, on their part engaged
in homeland politics. The situation on the Korean peninsula as well as their past
experiences under Japanese colonialism fostered their nationalistic orientation.
Both Justice Ministry officials and Korean leaders defined naturalization as
giving up one’s previous identity and becoming “Japanese” in terms of ethnic-
ity, culture, and loyalty to the Japanese state. Nationality status was thus linked
with ethnonational identity in the postwar period.
Despite the long-term settlement of Koreans and Taiwanese in Japan, legal
rights for resident foreigners were slow to develop. Emphasis on security and
social order by the Japanese government and nationalistic reactions by the Ko-
reans were played out in the context of the cold war. The Japanese government
maintained the explicit policy of avoiding settlement of immigrants, and for-
eigners entering Japan were admitted only as sojourners. Foreign nationals
found no regular steps to follow for moving from being a temporary migrant to
a denizen with secure permanent residence and then to a Japanese national.
Problems and contradictions in postwar Japanese citizenship policies have been
increasingly challenged since the 1980s.
448 CHI KAKO KASHI WAZAKI

Contemporary Development

The dominant portrayal of Japanese society in the post–World War II era has
been that of ethnic and cultural homogeneity. The sense of homogeneity was re-
inforced by the small size of the foreign resident population, whose proportion
to the total Japanese population just reached 1 percent in the early 1990s. In
contrast, the proportion of resident aliens in countries such as Germany and
France was more than 5 percent already in the mid-1970s. In these countries,
the termination of active foreign labor recruitment was followed by family re-
unification and led to a greater recognition of the ethnically heterogeneous
makeup of the society. The trend in Japan was almost the opposite. In the 1970s
and 1980s the nihonjinron literature, or publications about the uniqueness of
Japanese culture, society, and national character, popularized and reinforced
the theme of homogeneity.41
Up to the early 1980s, the vast majority of “foreigners” in Japan were Ko-
rean and Chinese families who had resided in Japan since before 1945. Of the
approximately 840,000 foreign residents in 1984, for instance, more than
640,000 Koreans and 22,000 Chinese fell into several categories of permanent
residents.42 Most Koreans used their Japanese names in social life, making eth-
nic diversity in society even less visible. The myth of ethnic homogeneity was
not seriously disturbed.
In the 1980s, however, new groups of noncitizens arrived and settled in Ja-
pan in greater numbers than before, including Indochina refugees and foreign
workers. The presence of these new groups in turn gave further impetus to the
development of social movements by permanent resident Koreans, who de-
manded a greater scope of residence-based rights. As at the beginning of the
1990s, the legal status of resident Koreans in Japan was similar to the concept
of denizenship, with secure residential rights. In this sense, recent citizenship
trends in Japan to some extent parallel those in Western Europe. Nevertheless,
criteria for the acquisition of full Japanese citizenship have changed little.
This section considers these contemporary developments of Japanese citizen-
ship.

International Legal Norms and Changes in International Context

Since the mid-1970s, Japan has come into prominence in the international
arena as a major player in the world economy. Internationalization became a

41. On the nihonjinron literature, see Yoshino, 1992.

42. Nyukan Tokei Kenkyukai, 1990, pp. 15, 76–79.
JAPAN 449

slogan for the new direction of the country, with demands from both within and
abroad to open up, to take a leadership role, and to assume international respon-
sibility. For the Japanese government, successful economic development pro-
vided the opportunity to assume a greater role in international cooperation and
to increase its legitimacy as a competent, advanced Western democracy. To do
so would require accepting an emerging set of international legal norms, in-
cluding those in the area of citizenship.
Among international legal norms, the most relevant to the recent develop-
ment of citizenship are the UN conventions on human rights and the rights of
migrant workers and noncitizen residents. In Western Europe, international
conventions on human rights have provided legal and normative underpinnings
to the extension of partial citizenship rights to noncitizen residents. The goal of
economic integration through free movement of people within the common
market has also facilitated legislation regarding the legal rights and protection
of migrants.43
Another major impetus for changing laws regarding citizenship and nation-
ality is the principle of gender equality. The 1979 Convention on the Elimina-
tion of All Forms of Discrimination against Women required that signatory
countries accord the same rights to women as they do to men in regard to their
children’s nationality. Consequently, a number of countries that had a
patrilineal jus sanguinis system shifted to the bilineal system where children
obtain both their father’s and mother’s nationality.44
In the absence of an equivalence of European integration, the role and the
extent of international coordination are expected to be different for the Japanese
case. Nevertheless, Japan has also been under the constraints of international le-
gal norms. Admission of Indochinese refugees and the adoption of bilineal jus
sanguinis are two examples that show the impact of international factors on na-
tionality and citizenship regulations.
The end of the Vietnam War in 1975 generated refugees from Indochina. In
the same year, the G7 Summit meeting was established. As the only Asian
country admitted to membership in the G7 Summit, Japan was obliged to take
some steps to accommodate refugees. In 1978, the Japanese government per-
mitted the settlement of refugees within the set limit of the ceiling. The initial

43. Meehan, 1993.

44. The following countries changed from a patrilineal to bilineal system after 1960: East Ger-
many (1967), the Philippines (1973), West Germany (1974), Denmark, Switzerland (1978), Swe-
den, Norway (1979), China, Israel (1980), Portugal, Turkey, Libya (1981), Spain (1982), Austria,
Italy (1983), Greece, Japan (1984), Netherlands, Belgium, and Switzerland (1985) (Bauböck,
1994, p. 51, n. 24; Yamada and Tuchiya, 1985, p. 11). South Korea also changed to bilineal jus
sanguinis in 1998.
450 CHI KAKO KASHI WAZAKI

quota was only for 500 refugees, although it was gradually expanded to 10,000
by 1985. At the end of 1997, 10,241 Indochina refugees had been accepted for
settlement.45
Although the number of refugees settled in Japan was small, their arrival had
a strong impact on the social rights of resident aliens. With the acceptance of
refugees, the Japanese government was compelled to join relevant international
conventions. Japan acceded to the International Covenant on Civil and Political
Rights as well as the International Covenant on Economic, Social, and Cultural
Rights in 1979, and then ratified the Convention relating to the Status of
Refugees in 1981. Provisions in these conventions required that resident aliens
be treated equally with citizens of the country in the areas of social security and
welfare. Consequently, several legal changes removed eligibility restrictions
based on nationality in such areas as national pension and public housing.46 Fur-
thermore, the creation of a new residential status for refugees in 1981 contrib-
uted to improvement in the legal status of preexisting long-term resident aliens.
Regarding nationality law, too, the Japanese government was compelled to
adopt the principle of gender equality in nationality attribution.47 In 1980, Japan
signed the UN convention for eliminating discrimination against women. Ac-
cordingly, the principle of nationality attribution shifted from a patrilineal sys-
tem to a bilineal system of jus sanguinis with the 1984 revision of nationality
and family registration laws. The change did not represent a departure from jus
sanguinis. Of interest, rather, is the way in which the Japanese government at-
tempted to defend the principle of “one and only one nationality.”
In the context of an ever-increasing number of international marriages by
Japanese citizens, many of them with Koreans, the bilineal attribution of na-
tionality was anticipated to generate a large number of potential dual nationals
at birth. Government officials identified this as a serious problem and, in order
to deal with the problem, instituted a “nationality selection” system.48 Under
this system, persons with two or more nationalities are advised to choose one
nationality or another before reaching the age of twenty-two or, where applica-

45. Shutsunyukoku Kanri, 1998.

46. The revision to the National Pension Plan in 1982, however, failed to cover a large number
of elderly permanent resident aliens, who remained practically ineligible. This situation was partly
rectified by the 1994 revision to the Pension Law that stipulated a lump-sum payment to persons
who could not meet the condition on the minimum paid-up period (Tanaka, 1995, pp. 158–60;
Tezuka, 1995, pp. 259–60).
47. In Japan, a particularly serious problem was that of statelessness among children born from
an American father and a Japanese mother (Tanaka, 1995, pp. 167–68).
48. An official guidebook states: “Although the adoption of the bilineal system answers the de-
mand for sexual equality, it at the same time gives rise to a very troublesome problem—that of dual
nationality” (Yamada and Tuchiya, 1985, p. 36).
JAPAN 451

ble, within two years from the date on which they become dual nationals. Those
who opt for Japanese nationality are required to make a “declaration of choice,”
which in practice means filling out family registration forms and submitting
them to the local government office.49
The current international trend in coordinating nationalities is to have a
greater degree of tolerance for the incidence of multiple nationality than for
statelessness. The principle of “one nationality for everyone” is therefore in-
creasingly understood to mean at least one nationality, rather than “only one,”
for each person. Furthermore, migrant-sending countries have tended to sup-
port dual nationality, which would allow their nationals to retain close relation-
ships with their country of origin while enjoying full rights and protection in the
host country.50 Outside Europe, Mexico’s recent move to allow dual nationality
for those who become naturalized U.S. citizens is another example.51 Insisting
on the desirability of “only one” nationality, the official stance of the Japanese
government therefore deviates from the current international legal norm.
In the same 1984 revision, however, the Justice Ministry made a significant
concession on family registry. The new family registration law permitted the
use of non-Japanese family names. The government abandoned the previous
policy that strongly demanded Japanese-style names as well as the use of Chi-
nese characters. Both the acceptance of non-Japanese names and the bilineal
system indicate a limited liberalization in the regulation of nationality and fam-
ily registry.

“Newcomers” and Revisions to Immigration Control Law

Migrant workers to Japan, mainly from other Asian countries, increased sig-
nificantly from the 1980s.52 The term “newcomers” was created to refer to
them, to differentiate them from “old comers,” or Koreans and Chinese families
who had lived in Japan since the colonial period. The scale of migration, how-
ever, never came close to the levels experienced by Germany or France. The

49. Yamada and Tuchiya, 1985, p. 48. The declaration, however, in itself does not make a per-
son a single-nationality holder. That is, since the Japanese government cannot unilaterally deprive a
person of the other nationality, in practice the person could still retain dual nationality. Neverthe-
less, explicit official encouragement to renounce the other nationality is an expression of the gov-
ernment’s desire to reduce dual nationality holders. Government officials summarizing the main
points of the 1984 revision make it explicit that the nationality selection system was introduced in
light of the principle of “one and only one nationality” (Hosokawa, 1985).
50. Hammar, 1990, pp. 112–13.
51. Aleinikoff, 1998, p. 30–31.
52. The literature on foreign workers written in Japanese is voluminous. English sources in-
clude Cornelius, 1994; Mori, 1997; Oka, 1994; Sellek, 1994; Shimada, 1994; Spencer, 1992; and
Weiner and Hanami, 1998.
452 CHI KAKO KASHI WAZAKI

number of foreign workers, including both legal and illegal employees, was es-
timated at more than half a million in the early 1990s.53
Labor migration to Japan in the 1980s has some similarities with the
cases of Western European countries in the 1960s in that, because of demo-
graphic changes and labor shortages, foreign migrant workers came to fill
jobs at the lower strata in the labor market.54 The demand for foreign workers
was particularly strong among small and medium-sized companies, which
found it increasingly difficult to recruit young Japanese into “3D” (dirty,
dangerous, and demanding) jobs. Brokers and other informal intermediaries
promoted migration to Japan, a destination made attractive by the strong
yen. Furthermore, many Asian labor migrants lost jobs in the Middle East
because of the decline of oil prices in the 1980s, and sought migration to Ja-
pan as an alternative.
Foreign workers (gaikokujin rodosha) in Japan include several categories of
people. In a broad sense it should even include Westerners working in Japan.
They, however, are predominantly employed in white-collar jobs, such as Eng-
lish language teachers and staff members in corporations. In the prevailing dis-
course about foreign workers, such Westerners are not considered gaikokujin
rodosha (literally “foreign national laborers”), and the term is strongly associ-
ated with migrants from less-developed, non-Western countries.
First, “foreign workers” typically refers to migrant workers who work on
construction sites, in metal processing, machine tool, and other manufacturing
companies, and in the service sector. In the absence of an official guest-worker
program, most migrant workers entered Japan as tourists and then overstayed
after the three-month limit. Consequently, the form of their employment is ille-
gal, and those workers are always at the risk of apprehension and deportation.
The number of “overstayers,” who compose the bulk of foreign workers, were
estimated at more than 100,000 in 1990 and then increased to nearly 300,000 by
1993.55 Although their predominant image is that of male workers, foreign

53. Kajita, 1994, p. 14.

54. It is important to note, however, that the recruitment of foreign labor did not occur in Japan
earlier in the postwar era, such as during the high-growth period of the 1960s and 1970s. For one
thing, internal seasonal migrant workers served as a reservoir from which labor was drawn flexibly
on demand. Another difference from countries such as Germany and France is that large corpora-
tions in Japan pushed for automation in production instead of bringing in foreign workers. Further-
more, the government had confirmed its policy of not admitting foreign labor on the Cabinet level
and advocated greater participation of the elderly and women in the labor market (Kajita, 1994, pp.
19–20; Hachiya, 1992, p. 49).
55. Tezuka, 1995, p. 63.
JAPAN 453

workers also include a sizable number of women working without a valid visa,
particularly in the sex industry.56
Second, ethnic Japanese from Latin American countries form a special cate-
gory. After the 1990 revision to the immigration control law (discussed below),
employers turned increasingly to the recruitment of ethnic Japanese, who were
eligible for the long-term resident visa and were allowed to take up employ-
ment in any sector.57 The number of Brazilians and Peruvians who reside in Ja-
pan with this visa increased from 67,000 in 1992 to more than 130,000 in 1997.
The lawful nature of their stay and work therefore differentiates them from un-
documented aliens.58
The next three groups enter Japan with a nontourist visa, but they share simi-
lar problems of precarious legal status with undocumented workers. Female
workers recruited mainly from the Philippines by the “entertainment industry”
often become victims of exploitation.59 Trainees are another group, arriving un-
der trainee programs that consist of classroom studies and practicum for acquir-
ing technical skills. These programs, however, often serve as a channel to
recruit unskilled labor. The third group consists of students enrolled in Japanese
schools and colleges. Lacking sufficient financial means for living and study-
ing, they seek part-time or full-time jobs. When their working hours exceed the
prescribed limit, they fall into the category of illegal workers. These three
groups of employees are not recognized as workers by law and hence are not
covered by the standards of labor laws and health insurance systems.
Finally, with increases in international marriage, a significant proportion of
newcomer resident foreigners hold a visa category called “spouse or child of
Japanese nationals.” Their number increased from 57,000 in 1988 to more than

56. The active recruitment of female migrants by the Japanese sex industry preceded the in-
crease of male migrant workers. Until 1987, women had outnumbered men in the number of illegal
workers apprehended (Ito, 1992; Sellek, 1994, pp. 171–72).
57. From the early 1980s, ethnic Japanese politicians in Brazil petitioned the Japanese govern-
ment to improve the visa issuing method so that ethnic Japanese migrants from Brazil could more
easily migrate and seek employment in Japan (Fujisaki, 1991). The admission of ethnic Japanese
has been interpreted as a reflection of blood-based understanding of Japanese citizenship. It should
be clarified, however, that ethnic Japanese from Latin American countries are not entitled to full
citizenship. On this score, the legal arrangement in Japan differs significantly from both the Law of
Return in Israel and the treatment of Aussiedler in Germany. The long-term resident visa issued to
ethnic Japanese has a time limit of three years, although renewal is possible. Most ethnic Japanese
migrants, on their part, come to Japan primarily to make money.
58. In terms of the total number of registered residents, there were approximately 233,000 Bra-
zilians and 40,000 Peruvians at the end of 1997 (Zairyu Gaikokujin T okei, 1998).
59. The number of Filipino women who hold an “entertainer visa” increased from 874 in 1974
to more than 13,000 in 1988 (Nyukan T okei Kenkyukai, 1990, pp. 73, 82–83).
454 CHI KAKO KASHI WAZAKI

274,000 in 1997, contributing to the growth of the “settled” resident alien popu-
lation as opposed to “temporary” residents.60
Heated debates on the issue of foreign workers took place toward the end of
the 1980s. They centered on the choice between “opening up” the country and
“staying closed.”61 Several rationales accompanied the argument for opening
up. First, admitting foreign workers is inevitable because of structural changes
in the economy. Second, greater personnel exchanges would contribute to the
goal of internationalizing Japan from within. Third, accepting foreign workers
can facilitate technological transfer, thereby fulfilling Japan’s international re-
sponsibility as an economic power.
In contrast, proponents for staying closed made the following lines of argu-
ment. First, European experiences show that a guest-worker program would not
work; the better way to cope with labor shortage is economic restructuring and
the use of the elderly and women. Second, the employment of foreign workers
at the lower strata of the labor market would lead to human rights problems and
would severely damage the image of the country; Japan would be seen as ex-
ploiting people in less-developed countries not only overseas but also within
the country. Third, the best way to fulfill the country’s international responsi-
bility is to assist developmental efforts in the form of financial aid, direct in-
vestment, and training, and not by importing labor for unskilled jobs.
What is most salient about the nature of this debate was a neglect of the his-
tory of labor importation under Japanese colonialism earlier in the twentieth
century. Instead, a parallel was drawn from the mid-nineteenth century, as indi-
cated by the use of sakoku-kaikoku (seclusion–open up the country) meta-
phors.62 Both sides shared the prevailing conception of postwar Japanese na-
tionhood as a homogeneous society.
At the same time, the changing international position of Japan decisively
shaped the discourse among elites. Both sides expressed concerns about Ja-
pan’s international image and how to fulfill its responsibility. They agreed on
the need to internationalize Japan; the question was how. Both sides also raised
the issue of human rights. Opponents of labor migration cited human rights
problems as a rationale against carelessly admitting foreign workers, whereas
grassroots activists and lawyers addressed the same issue as a basis for support-
ing the foreign workers who already resided in Japan. Yet, these debates of-
fered few specific suggestions about long-term citizenship policies.

60. Nyukan T okei Kenkyukai, 1990, pp. 64–65; Zairyu Gaikokujin T okei, 1998. Brazilian na-
tionals account for 41 percent of the 1997 figure.
61. See Oka, 1994, pp. 61–67, on the nature of the debate.
62. Lie, 1994, p. 10.
JAPAN 455

The Japanese government initially responded to increases in undocumented

foreign migrant workers by reinforcing border control. The government tempo-
rarily abolished bilateral visa waiver agreements with Pakistan (1989), Bangla-
desh (1989), and Iran (1992) in order to reduce overstayers from these
countries.63 In light of the growth in the number of incoming foreign nationals,
the government also reviewed and revised the immigration control law in 1989.
The main thrust of the revision was twofold: to streamline immigration control
processes by reorganizing visa categories, and to discourage the recruitment of
illegal workers by introducing employer sanctions. In accordance with the need
for internationalization, employment of foreign nationals with high or special
skills was to be encouraged, and trainee programs for technical transfer were to
be enhanced. But the ban on unskilled foreign labor was reaffirmed. The Minis-
try of Justice concluded that the question of unskilled labor would need to be
studied cautiously from a variety of aspects.64
The revision to the immigration control law resulted in an influx of ethnic
Japanese from South America, as discussed above. With the long-term resident
status, they were not subject to restriction on the type of employment. Several
cities and suburbs have seen the development of communities of Brazilians and
Peruvians who took up blue-collar jobs in the manufacturing sector. The ex-
panded trainee program also became a source of unskilled workers. The 1990
law reduced the requirement of classroom study and allowed greater allocation
of time to on-the-job training. As at the end of 1997, the Chinese accounted for
more than half of the total of 26,000 persons holding a trainee visa.65 Since
1993, some 14,000 former trainees have obtained a special visa that allows
them an additional period of stay in Japan for the purpose of gaining more
working experiences.66
In 1991 another special law on immigration control went into effect and con-
tributed to improvement in the permanent resident status of former colonial
subjects. The contemporary situation of resident Koreans could be described as
the “politics of denizenship,” as discussed below.

“Old Comers” and the Politics of Denizenship

Throughout the 1970s, the residential status of long-term resident aliens re-
mained insecure. The internal disparity within the Korean community was also

63. Tezuka, 1995, p. 29.

64. Shutsunyukoku Kanri, 1992, pp. 3, 193–94.
65. Zairyu Gaikokujin T okei, 1998.
66. Shutsunyukoku Kanri, 1998.
456 CHI KAKO KASHI WAZAKI

evident: South Korean nationals with the status of “permanent resident by

treaty” were privileged compared with others regarding legal protection against
deportation and social rights such as access to the national health care plan.67
The 1980s and early 1990s saw a gradual increase in the level of legal pro-
tection and the scope of partial citizenship rights for permanent resident aliens.
Amendments to the Immigration Control Act (renamed the Immigration Con-
trol and Refugee Recognition Act) in 1981 created a new permanent resident
status to cover the remaining long-term resident Koreans who did not have the
status of “permanent resident by treaty.” Thus, Koreans who identified with
North Korea were also granted the status of permanent residence. The 1991 Im-
migration Control Special Law unified different categories of permanent resi-
dent status for former colonial subjects and their descendants into a common
status called “special permanent residents.” Persons holding this status may be
deported only if they are sentenced to imprisonment longer than seven years,
and if the Ministry of Justice finds a serious infringement of Japanese national
interests by that crime.68
Access to social citizenship rights for long-term resident foreigners also im-
proved over time, albeit gradually, in such areas as health insurance and social
security.69 In the early 1970s, Korean groups organized campaigns for remov-
ing the nationality barrier in the National Health Insurance program. By 1974,
the vast majority of localities with a significant Korean population had issued
ordinances allowing noncitizens to join the national plan.70 The accomplish-
ment on the local level, however, did not lead to any legal change on a national
level. Only in 1986 did the central government extend the eligibility to all
noncitizen residents residing in Japan for more than one year. The National
Pension Plan also excluded resident foreigners based on the nationality clause.
The clause was eliminated finally in 1982 as a measure to conform to the Refu-
gee Convention.
With greater security in their permanent residence in Japan, resident Kore-
ans became an equivalent of denizens. Their contemporary social movements

67. This status was a product of the 1965 ROK–Japan Treaty. By 1974, 342,000 persons had
acquired it, whereas approximately 270,000 Koreans had not (Nyukan T okei Kenkyukai, 1990).
68. Shutsunyukoku Kanri, 1992, pp. 118–19; Hanami, 1998, p. 222.
69. In Japan public programs for both health insurance and old-age pension consist of occupa-
tional (employees’) plans and the national plan. Of these two, occupational plans do not have a na-
tionality-based eligibility barrier. They are, however, applicable only to employees in
medium-sized and large companies and hence were irrelevant for most Koreans who, excluded
from large firms because of discrimination, were either self-employed or employed in small busi-
nesses. Their accessibility to social security therefore directly depended on national plans
(Yoshioka, 1995).
70. Yoshioka, 1995, p. 53.
JAPAN 457

have focused on the improvement of the content of their denizenship. Contested

areas include alien registration and fingerprinting, public sector employment,
and voting rights.
In the 1980s, the permanent residence of Koreans was contested over the is-
sue of fingerprinting on the alien registration certificate. The refusal of finger-
printing was addressed in the language of human rights and human dignity. The
dissidents ran the risk of apprehension and the denial of a reentry permit when
leaving Japan. The movement drew support among some Japanese citizens and
also led to some international publicity about human rights problems in Japan.
The question of fingerprinting was taken up in the Japan–South Korea negotia-
tions on the legal status of resident Koreans that started in 1988. The 1991
memorandum issued by the two governments included a statement that the Jap-
anese government would abolish fingerprinting for permanent resident Kore-
ans and seek an alternative means for identity check. The revised Alien
Registration Law of 1993 abolished the fingerprinting requirement for perma-
nent residents.71
Public sector employment is another area to which resident aliens have had
severely restricted access. The primary basis of exclusion was the official
guideline set in 1953 by the Cabinet Legislation Bureau, according to which
Japanese nationality was required of anyone occupying a position that involves
“an exercise of public authority or the formation of public will.”72 Since state
administration and courts applied this phrase broadly, noncitizens were virtu-
ally excluded from the public sector, including jobs in national and local gov-
ernments, public corporations, national and public universities, and public
schools. Although the validity of the practice was increasingly contested in the
1980s, the degree of accessibility to jobs remained low.73 The movement for re-
moving the nationality barrier from public sector employment continued in the
1990s, particularly concerning employment in local governments. Whereas
several local governments opened up job opportunities for noncitizens, the cen-
tral government reacted to limit the scope of those openings.
Demand for electoral rights has also gained strength in recent years. In 1990,
eleven permanent resident Koreans (South Korean nationals) went to court, de-
manding voting rights in local elections. In 1995, the Supreme Court rejected
the plaintiffs’ claim, which confers electoral rights only on Japanese nationals.

71. Shutsunyukoku Kanri, 1992; Tamura and Shigemi, 1993. In March 1999, the Cabinet meet-
ing endorsed a bill that would abolish fingerprinting for all other resident aliens as well (Asahi
Shimbun, March 9, 1999).
72. An official view expressed by the Cabinet Legislation Bureau in March 1953.
73. For instance, the total number of noncitizens formally employed as public school teachers
was only about thirty as of 1985 (Tanaka, 1985, p. 40).
458 CHI KAKO KASHI WAZAKI

In the same ruling, however, the Court declared that the legislature could, under
the Constitution, amend the law to permit voting by permanent residents. Con-
sequently, it is now up to the Diet to take up the issue. Outside the court, Ri Yon
fa, then a lecturer at Kansai University, organized a political party called
Zainichito (resident Koreans’–denizens’ party) and “participated” in the upper
house election in 1992.74
A growing number of scholars have also argued for the extension of voting
rights for permanent resident aliens.75 In response to the interests expressed by
resident Koreans in local voting rights, South Korea has taken up the issue in
diplomatic negotiations with Japan. In his latest visit to Japan in 1998, South
Korean president Kim Dae-Jung requested the Japanese government to give lo-
cal election rights to permanent resident Koreans. Among the dominant Korean
ethnic organizations in Japan, Mindan now supports voting rights, whereas
Soren, connected with North Korea, has maintained the stance against obtain-
ing voting rights in Japan, in accordance with its policy of not intervening in the
politics of a foreign country.
The politics of citizenship in the 1980s and 1990s is thus characterized by a
continued struggle by resident Koreans to improve their legal status. Their
movements and demands have been informed by development of denizenship
in Europe as well as by human rights discourse. Many Korean opinion leaders
have retained a negative evaluation on acquiring Japanese nationality and fo-
cused exclusively on denizenship rather than full citizenship.76 In their view, the
challenge for the Korean community is to retain ethnic identity and cultural her-
itage while securing the equality of rights and opportunity as residents in Japa-
nese society. Resident Koreans of the younger generation, however, are
acquiring Japanese nationality in greater numbers.
Whereas the number of naturalizations by Koreans remained at the level of
5,000 to 6,000 per year in the 1970s and 1980s, it reached the 10,000 mark in
1995. The total number of naturalizations in Japan is also on the rise. Of some
15,000 naturalizations permitted in 1997, Koreans accounted for approxi-
mately 64 percent, followed by the Chinese.77 The increase seems to indicate a

74. Since members of his party were noncitizens, they were not allowed to stand for election as
official candidates. They were nevertheless able to hold an electoral campaign in the absence of le-
gal provisions banning such activity (Ri, 1993).
75. Suh, 1995; Kondo, 1996; Hagino, 1996. While most proponents are for local voting rights,
a few scholars support national-level electoral rights as well.
76. The orientation of second-generation Korean intellectuals is reflected in the following re-
marks by Kim Kyeung-duk, who won a legal battle and became the first noncitizen judicial trainee
in 1978 and then the first noncitizen certified lawyer in Japan: “Even if a system of as-of-right na-
tionality acquisition were instituted, it would only result in ‘assimilationistic’ acquisition just like
current naturalization, in the absence of a secure legal and institutional framework that would en-
able us to live as Koreans” (“Teijyu Gaikokujin,” 1990, p. 114).
77. Homu Nenkan, 1997.
JAPAN 459

weakened sense of betrayal that the Korean community attaches to naturaliza-

tion. Most younger-generation resident Koreans today have little connection
with their “home country.” They are socialized in the Japanese environment,
particularly through Japanese schooling. For these Koreans with high levels of
cultural assimilation, the major concern is life chances within Japanese society
rather than homeland affairs. Obtaining Japanese citizenship would mean the
utmost residential security, greater legal protection, wider employment oppor-
tunities, as well as full rights for political participation in their country of per-
manent residence.
Younger-generation Korean groups have in recent years taken up the issue
of naturalization, a topic that used to be a taboo in the prevailing discourse of
dominant Korean organizations.78 A few Korean opinion leaders now seek the
possibility of retaining Korean ethnic identity while holding Japanese national-
ity, namely to construct the identity of “Korean-Japanese.” The issue of full cit-
izenship and ethnic-national identity is all the more important for the Korean
community because intermarriages between Koreans and Japanese are generat-
ing children of dual nationality at birth because of the 1984 revision to the na-
tionality law.79 At the same time, other opinion leaders continue to warn of
progressive assimilation into Japanese society as a result of the growing num-
ber of Japanese nationality holders among permanent resident Koreans.

Summary and Comparative Perspective

The development in the 1980s and 1990s is characterized by the gradual ex-
tension of partial citizenship rights for permanent residents, on the one hand,
and the stability in criteria for full, formal citizenship, on the other. Interna-
tional dimensions and the interaction between the Japanese government and
resident Koreans are important for understanding this development.
Korean social movements steadily challenged nationality-based discrimina-
tion with the aim of achieving a secure status as denizens. The principle of na-
tionality transmission has been much less politicized than the issue of partial
citizenship rights. The arrival of new groups had little impact on criteria for full
citizenship. Indochinese refugees obtained long-term resident visas, whereas
newcomer foreign workers have still been at the initial stage of settlement, their
stay being widely regarded as temporary. Furthermore, the illegal nature of

78. An example of an active discussion on naturalization is found in Kanagawa Mintoren, et

al., 1999.
79. These dual nationals at birth are now called daburu (the “double”) instead of the previous
haafu (“half”) to attach a positive meaning. They are counted as Japanese nationals in official statis-
tics.
460 CHI KAKO KASHI WAZAKI

many of the foreign workers’ residence does not contribute to the active discus-
sion of rules about the acquisition of nationality.
In comparative perspective, the Japanese case is marked by several charac-
teristics. First, the Japanese state has consistently maintained the principle of
not admitting unskilled labor, which in turn is an outgrowth of the basic policy
of not admitting aliens for settlement.
The second point, and closely related to the above, has to do with permanent
resident status. In Europe, settled long-term resident foreigners acquired per-
manent resident status as they continued to live in the host society. In Japan,
permanent resident status holders had long been confined to former colonial
subjects. Only in recent years have newcomers begun to apply and obtain the
status.
Third, the recent developments of citizenship with regard to permanent resi-
dents are characterized by a sharp disjunction between the trend toward
denizenship and easier access to full citizenship. Here, it is useful to employ
Hammar’s two models for the incorporation of permanent resident aliens.80 One
is the voting rights model, which aims at improving the status of denizenship.
This approach allows resident aliens to enjoy legal status close to that of citi-
zens, without obtaining formal citizenship in the host country. The other is the
naturalization model, which increases access to citizenship. This approach em-
phasizes that fuller integration of immigrants into the political community re-
quires the extension of full citizenship rather than denizenship. Policy tools
include modifications to the nationality law and toleration of dual nationality.
While recognizing the importance of seeking both approaches, most research-
ers, including Hammar, appear to lean toward the extension of full citizenship
based on the norms of liberal democracy.
In Japan, debates over citizenship have had a sharp focus on denizenship.
This is because the politics of legal status has been concerned mainly about Ko-
reans, who have retained their organizational identity in part by not seeking full
citizenship in Japan. The dominant strategy has therefore been to minimize the
gap between citizenship and denizenship. Sections of the majority Japanese
have also shared the same orientation. Advocating the acquisition of Japanese
citizenship by Koreans could easily be seen as tolerating the Japanese state pol-
icy of assimilation. Thus, the issue of obtaining citizenship does not fall on the
same continuum with the acquisition of permanent residence in Japan.
Finally, the role of the immigrants’ countries of origin is also notable in the
Japanese case. Recent discussions of immigration and citizenship have paid at-
tention to the role of the sending country, mainly with regard to dual citizenship

80. Hammar, 1990, ch. 11.

JAPAN 461

and propensity for naturalization.81 The case of Koreans in Japan calls for fur-
ther analysis of this dimension. Even after most immigrants became second and
third generations, the origin shaped both their identity and legal status. South
Korea remains a major actor negotiating the legal status of Koreans perma-
nently residing in Japan.82 The rivaling North Korean government has also been
keen on maintaining influence over the Korean community in Japan.83

Policy Implications
This section considers public policy implications on the basis of the previous
discussion of citizenship in Japan. Laws regulating Japanese citizenship have
been relatively stable over time, characterized by jus sanguinis, strict natural-
ization rules, and tight border control. Whereas some European immigrant-re-
ceiving countries have revised or modified criteria for acquiring citizenship for
immigrants, Japan so far has not experienced much change except for a shift to
the bilineal system. At the same time, “old comers,” or permanently settled Ko-
reans and Chinese, obtained the status of denizenship by the 1990s.
Given increases in the number of foreign residents and greater ethnic diver-
sity in Japanese society, is the country also moving in a direction similar to
other advanced industrial societies? What are the policy options? To draw out
public policy implications, I will first consider factors shaping contemporary
citizenship policies, including demographic, economic, social, political, and in-
ternational dimensions.

Factors Shaping Contemporary Citizenship Policies

The initial impetus that fostered migration of foreign workers to Japan in the
1980s was a severe labor shortage. In the debates about importing labor, propo-
nents argued that it was inevitable because of the structural problem of the labor
market. This economic argument appeared to have weakened with the burst of
the “bubble economy” in the early 1990s and the ensuing economic recession.
Yet, although some foreign workers lost their jobs and returned home, others

81. Hammar, 1990, ch. 6; Freeman and _gelman, 1998.

82. For instance, South Korea played a major role in the issue of fingerprinting as the govern-
ment of immigrants’ origin. It should be noted, however, that most resident Koreans affected by Ja-
pan–ROK agreements neither were born nor grew up in their “home country.” Furthermore,
Koreans in Japan who pledge allegiance to North Korea would not regard the South Korean govern-
ment as their government.
83. Between 1959 and 1967, more than 80,000 Koreans in Japan repatriated to North Korea
(Homu Nenkan, 1967). It is important to their families and relatives living in Japan to retain chan-
nels of communications and transportation with the country.
462 CHI KAKO KASHI WAZAKI

continued to live in Japan. The estimated number of overstayers has not de-
creased and stood at approximately 277,000 as at the beginning of 1998.84 At
the same time, the number of foreign nationals with a valid visa continue to rise,
centering on Brazilians of ethnic Japanese origin who are free from employ-
ment restriction.
Some underlying conditions that generated demand for foreign labor in the
1980s still hold today, including the reluctance of young Japanese to take up
“3D” jobs. Furthermore, Japanese society is rapidly aging while the decline in
the birthrate continues.85 It is not difficult to imagine that voices for importing
labor will repeatedly rise with cyclic changes in economic conditions.
Despite the official policy of not admitting foreigners for settlement, a seg-
ment of resident aliens have de facto settled in Japan. With increases in foreign
workers and their families in Japan, a number of problems arise regarding their
rights as workers and residents in the local community. They include labor acci-
dents, breaches of employment contracts, the infringement of human rights in
the sex industry, medical care, housing discrimination, and education for chil-
dren.
Initiatives for social and cultural integration have come mostly from the lo-
cal levels of administration. Municipal governments in cities and towns with a
high proportion of foreign residents have sought to provide them with neces-
sary public services and to promote their integration into the local community.
Accommodation of young foreign nationals in the educational system has been
of particular concern to local governments. The number of pupils and junior
high school students who need remedial Japanese language instruction in-
creased from 5,500 in 1991 to 11,500 in 1995.86 Schools have developed a vari-
ety of programs in order to manage ethnic and cultural diversity in the
classroom.87
In contrast with local governments, the central government in Japan has so
far taken few measures for the incorporation of resident foreigners into society.
Given the basic policy of not admitting foreigners for settlement, the govern-
ment is not likely to assume a major role in the integration of newcomer resi-

84. Shutsunyukoku Kanri, 1998, p. 126.

85. On this score, keizai senryaku kaigi (the economic strategy conference), an advisory com-
mittee to the prime minister, touched on immigration and citizenship in its recent proposal issued in
February 1999. As measures against a shrinking labor force, it proposes to consider the admission
of foreign nationals as immigrants and to review the nationality law. <http://www.kantei.go.
jp/jp/senryaku/990226tousin-ho.html>
86. Ministry of Education, 1997, p. 31. The figures include only pupils and students in the pub-
lic school system.
87. Ota, 1996.
JAPAN 463

dent aliens as members of the society. In Japan, the size of the foreign resident
population is still small, which may also account for the lack of action for social
integration on the part of the state.
The ideological climate has also shaped the ways in which citizenship
rights of resident foreigners are taken up on the national level. During much of
the postwar era, ideological conflict was at the center of politics in Japan. Is-
sues of resident foreigners were subsumed in this conflict. Together with
dominant Korean ethnic organizations in Japan, opposition political parties
were concerned more with the rivalry between North and South Korea and
with political development within South Korea, and less on the problems and
challenges that long-term residents faced as they continued to live in Japanese
society.
Since the 1980s, and in particular in the 1990s, political parties and media
have shown greater interests in issues of resident aliens. The belief that Japa-
nese society is monocultural and monoethnic is not as powerful as it used to be.
The slogan kyosei, or the idea of different people living together, is instead
gaining currency. Voting rights for permanent residents also seem to be draw-
ing support.
Changes in ideological climate cannot be overstated, however. Citizenship
has not become a major political issue. “Foreigners” are still regarded primarily
as targets of surveillance and control, and are frequently associated with inci-
dence of crime. Media reports generate the image that aliens disturb a well-gov-
erned, relatively crime-free society.
Furthermore, international context to some extent differentiates Japan from
Western European immigrant-receiving states. Despite the end of the cold war,
relationships with North Korea have not normalized. Koreans in Japan who
hold neither South Korean nor Japanese nationality find their legal status still
closely tied to the political developments on the Korean peninsula. Instability in
East Asia continues to shape Japanese state interests in international security.
Officials are also concerned about a possible influx of refugees should there be
some political turmoil in Korea.
Throughout the postwar period, the Japanese government has emphasized
security and social order in its immigration control. One could argue that the
conservative Japanese government has grossly exaggerated the international
security threat. The point, however, is that the perceived threat from abroad
provides the Japanese state with a rationale for maintaining strict regulation of
immigration and citizenship. If the notion of threat is persuasive enough to the
Japanese public, it will weaken voices for greater liberalization of the admis-
sion of foreign nationals and of criteria for obtaining citizenship.
464 CHI KAKO KASHI WAZAKI

Policy Options

I now consider policy options in several relevant areas.

ACCESS TO NATIONALITY: TRANSMISSION, NATURALIZATION, DUAL NA-

TIONALITY. The principle of jus sanguinis has been criticized for its function
to exclude immigrants. It does not follow, however, that the adoption of jus soli
as the basic transmission principle could be the best solution. A more fruitful
approach would be to modify the current system to increase access to national-
ity by the immigrant population. In this sense, countries such as Sweden, Ger-
many, Belgium, and the Netherlands should serve as models for Japan, rather
than the United States or Britain.
If the goal is to incorporate permanent residents into the polity, the basic di-
rection would be to increase access to nationality by settled aliens. Several ap-
proaches can be considered: (1) modifying existing criteria for naturalization;
(2) toleration of dual nationality; (3) introduction of as-of-right nationality ac-
quisition for those who are born or grew up in Japan; and (4) introduction of
double jus soli.
Because of sharp increases in the number of applications, the government
will be, to some extent, forced to employ the first option. Reform would include
streamlining and simplifying the screening process, in particular alleviating the
responsibility of applicants with regard to supporting documents. The last op-
tion, double jus soli, is not the most desirable option in the Japanese context.
Given the history of reaction against the acquisition of Japanese nationality
among Koreans, it is not realistic in the near future to adopt a system that in-
volves unilateral attribution of Japanese nationality. Instead, toleration for dual
nationality and as-of-right acquisition would be effective as measures for the
incorporation of immigrants. They will particularly benefit dual nationals by
birth and those who currently hold permanent resident status.

LEGAL RIGHTS OF DENIZENS. A segment of permanent resident aliens will

continue to hold on to their original citizenship, as in the case of long-term resi-
dent Koreans. Improvement in the status of denizenship is therefore of special
importance in the Japanese context. Basic civil and residential rights, including
protection against deportation and the right of reentry, have significantly im-
proved over the years. Even in this area, further improvement is called for, con-
cerning the law that makes it mandatory to carry the Alien Registration
Certificate at all times.
Another issue of importance is employment in the public sector. Current
practice in Japan significantly limits the job opportunities of noncitizens. With
JAPAN 465

a more developed form of denizenship, eligibility to public sector jobs could be

made a rule rather than an exception. Since some local governments are willing
to expand the scope of jobs available for noncitizens, the problem is also one of
autonomy of local governments from the central government.
The issue of local voting rights will be one of the major foci of the politics of
denizenship in the years to come. With growing support from a variety of sec-
tors, there is some chance that local voting rights will be granted to permanent
residents. Yet, the initial phase might cover only the resident foreigners who
hold “special permanent resident” status, namely long-term resident Koreans,
Taiwanese, and mainland Chinese. The history of Japanese colonial rule pro-
vides greater impetus to the extension of electoral rights for these categories of
people than for others. If and when this first step is achieved, the next task
would be to generalize the system to other permanent residents, in a more insti-
tutionalized form rather than as mere compensation for past injustices.

ACCESS TO PERMANENT RESIDENT STATUS BY NEWCOMER RESIDENT

ALIENS. Restrictive access to permanent resident status is likely to become a
major barrier that hinders civic incorporation of newcomer resident foreigners
into Japanese society. Under the current immigration control law, the status of
permanent resident may be granted “only when the permanent residence of the
person is considered to be beneficial to Japanese national interests,” in addition
to the fulfillment of other conditions, namely good moral conduct and the abil-
ity to maintain independent living.88 A permanent resident visa is thus under-
89
stood as if it were a highly exceptional type of legal status. In light of
anticipated increases in the number of de facto permanent residents, criteria for
granting this status need to place greater emphasis on birth and residence in Ja-
pan. Introduction of an as-of-right component into conditions for the permanent
resident visa will then contribute to laying a regular path from aliens to citizens.

ADMISSION CRITERIA FOR LEGAL ENTRY. A recent trend in the policies of

advanced industrialized societies is characterized by border control efforts cou-
pled with integration of lawfully settled foreigners. In Japan, in contrast, the in-
tegration component has been slow to develop, while strict border control has
been central to immigration control policies. Unlike in some countries where

88. Immigration Control and Refugee Recognition Act, Article 22. The spouse or child of a
permanent resident does not need to satisfy the latter conditions.
89. The number of permanent resident permits issued has sharply risen in the past couple of
years. In 1997, more than 11,000 persons obtained permanent residence, including more than 3,300
Chinese, 2,100 Filipinos, and 1,900 Koreans (Shutsunyukoku Kanri T okei Nempo, 1997). They
likely include a large number of spouses of Japanese nationals (Miyajima and Kajita, 1996, p. 2).
466 CHI KAKO KASHI WAZAKI

undocumented immigrants are a by-product of authorized labor migration, in

Japan unauthorized stay constituted the major form of labor migration. This sit-
uation has posed difficulty in forming public policies.
Current Japanese policies on admission consist mainly of a ban on unskilled
labor migration and legal admission of ethnic Japanese from Latin America and
trainees. In addition to these labor-related categories, spouses of Japanese citi-
zens and family members of lawful residents may obtain a visa for lawful resi-
dence.
A major problem of the current approach is that it does not offer any specific
policy measure vis-à-vis overstaying noncitizens, except for making greater ef-
fort to apprehend and deport them. From the point of view of the protection of
human rights, it becomes increasingly problematic to apply these measures to
immigrants more or less settled in Japanese society.
Amnesty is a possible policy tool, although a large-scale regularization pro-
gram has not yet been seriously considered in Japan. Policy makers fear that
such a measure would invite more migrants. As Hiroshi Komai argues, how-
ever, amnesty is primarily a question of human rights.90 The Justice Ministry
grants “special permission for residence” to overstayers case by case, but this
has mostly been confined to persons having family ties to Japanese nationals.91
Furthermore, as Takashi Miyajima points out, new visa categories would need
to be created in accordance with regularization programs.92
Finally, a reform is required in the Japanese admission of refugees, which
has remained at a low level. The Ministry of Justice recognized as refugees a to-
tal of 218 persons out of 1,654 applicants between 1982 and August 1998.93
Those admitted are mostly Indochina refugees. Stringent criteria reflect the atti-
tude on the part of the Japanese state that Japan has little room for accommodat-
ing extra burdens in this form. The number of applicants for refugee status is
anticipated to increase, and the screening process requires greater transparency
in the future.

Conclusion

More than half a million newcomer foreign workers and their families have
already settled in Japan, and their number is expected to increase in the future.

90. Dialogue between Hiroshi Komai and Yasuo Kuwabara (Komai, 1994, pp. 71–74).
91. This permit was issued to 1,406 persons in 1997 (Shustunyukoku Kanri T okei Nenpo,
1998).
92. Miyajima, 1993, pp. 69–72.
93. If we take the recent period between 1992 and August 1998, only twenty-one persons have
been recognized as refugees (Shutsunyukoku Kanri, 1998, p. 168).
JAPAN 467

They are increasingly incorporated into the labor market and local communities
as members of the society. As far as legally settled foreign residents are con-
cerned, their partial citizenship has gradually expanded in scope. Yet, the Japa-
nese government still does not regard newcomers as future citizens.
To be sure, many of the newcomers harbor the idea of returning home. But
experiences of international migrants in other regions of the world suggest that
segments of resident aliens will remain in the host country. Citizenship policies
in Japan need to discard the assumption that people of non-Japanese ethnic and
national origin may become Japanese citizens only in exceptional instances. In-
stead, there is a need to create a path where one may move from a temporary
foreign resident to a denizen and then to a citizen. In sum, what is needed is the
perspective of conceptualizing resident aliens as future citizens of Japan.

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Conclusion
 CHAPTER FIFTEEN

Managing Membership:
New Trends in Citizenship
and Nationality Policy

MIRIAM FELDBLUM

OVER THE PAST DECADES, changing citizenship practices and politics across
different countries have provoked much popular commentary and critical anal-
ysis. The country and regional—in the case of the European Union—studies
collected in this volume have highlighted numerous legislative, legal, and polit-
ical changes. The previous chapters have addressed reforms affecting national-
ity attribution and acquisition, naturalization, and dual nationality. Some of the
studies also analyzed changing benefits and rights accorded to noncitizens that
enable the incorporation of immigrants as citizens, prospective citizens, or
long-term foreign residents into the polity.1 The aim of this final chapter is to
draw from these varied national and cross-national policy trends some common
themes on the ways that states are now managing the allocation and distribution
of national membership.
What is meant by citizenship or membership here? As discussed in the intro-
ductory chapter of this volume, citizenship has been largely defined in this vol-
I would like to thank Yasemin Soysal, Bill Deverell, Stephanie Pincetl, Jennifer Tucker, and
Chai Feldblum for their careful and close reading of an early version of this chapter. The chapter
then benefited from the constructive comments and suggestions of Ari Zolberg, Rainer Bauböck,
Joe Carens, Will Kymlicka, Alexander Aleinikoff, Demetri Papademetriou, Doug Klusmeyer,
Christian Joppke, and Charles Tilly.

1. A few of the studies conducted for the comparative citizenship project focus primarily on
formal state citizenship acquisition (for example, Baltic states and Mexico), while others include
analyses of foreigners’ rights in various policy areas, such as employment, welfare, social services,
health care, politics, and education.

475
476 MI RI AM FELDBLUM

ume in terms of formal nationality and citizenship status. But substantive

social-political membership is integral to our explanations as well. As amply
demonstrated by the previous chapters, to fully understand the consequences of
formal citizenship for foreigners and immigrants, we need to take into account
their membership status and access in other policy domains, including social
welfare, employment, and education. In practice, immigrants experience differ-
ent apportionments of membership across policy domains, in terms of both
their legal standing and substantive claims.
The trend of differentiated distributions of citizenship both within and
across polities brings together many of the countries under discussion here. In
Australia, Canada, the Western European member states of the EU, Israel,
South Africa, Japan, and the United States, for example, rights traditionally as-
sociated with formal citizenship have been gradually extended to legal, perma-
nent foreign residents over the past decades. Across these different states, legal
foreign residents have access and rights to a large array of social, economic, ed-
ucation, and welfare benefits (and in certain cases political rights). Within this
general convergence, important variations exist in the gradations of rights af-
forded to foreigners in different countries, in the ways in which the formal im-
migration status of the foreigner matters, and in contemporary trends to qualify
rights and benefits already extended to immigrants.2 Indeed, many national
state authorities and agencies now appear to be rethinking how best to manage
national membership.
This final chapter brings together three broad policy trends common to most
of the countries under review within a perspective that examines the variations
in the ways these states have sought to manage the distribution of national citi-
zenship. The policy trends are the growing salience of dual nationality and
other citizenship and nationality reforms; the changing rights, benefits, and
claims-making of foreign residents; and the growing visibility of multiple lev-
els of governance and participation. The chapter is then divided into three sec-
tions. In the first, I examine the proliferation of nationality and citizenship
reforms across the different countries, which I suggest are indicators of how
states seek to reprioritize citizenship as part of their efforts to manage member-
ship distribution. The second section focuses on the extent to which states seek
to qualify rights and benefits of immigrants. I discuss the issue that qualifying
immigrants’ access to rights and benefits stands in contrast to postwar trends of
extending social, economic, and some political rights to foreigners, and the
concurrent rise of claims-making and participation both for and by immigrants

2. For a comprehensive study of the rights of foreigners in Western European countries, see
Çinar, Davy, and Waldrauch, 1999.
NE W T R E NDS 477

in these same policy domains. In the final section, I reflect on the emergent
trend of multiplying governance, or, in other words, the extent to which multi-
ple levels of governance appear to shape policy making and decisions about cit-
izenship practices. While much of the chapter stresses the role of national state
authorities and agencies and their efforts in structuring and managing different
dimensions of formal and substantive citizenship, citizenship is no longer
solely defined or informed by the national state level. As evidenced by the data
collected for the different countries in the project, levels outside the national
state—including international courts, organizations, and other entities—have
assumed greater salience and consequence in citizenship policy making.

Reprioritizing Citizenship

What does the literature theorizing and studying citizenship and immigrants
offer as way of insight into the actual policy making of citizenship acquisition
or nationality reforms? On the one hand, scholarly studies often focus on
changing historical or theoretical understandings of national membership or
contemporary transformations in citizenship practices, ranging from the politi-
cal and institutional to the ethnographic and sociological.3 Policy conversa-
tions, on the other hand, usually grapple with pressing pragmatic concerns,
such as how best to enable foreigner incorporation or on what grounds national-
ity criteria should be expanded or restricted. Yet, policy disputes over incorpo-
ration policies, dual nationality, citizenship promotion, and citizenship
acquisition do rely on understandings and conceptions of national member-
ship.4 And, in recent years, the burgeoning literatures on citizenship and immi-
gration have paid closer attention to actual nationality practices. Proliferating
nationality reforms, the seeming convergence of nationality and citizenship ac-
quisition policies across states, and the rise of dual nationality are some of the
policy trends that now overlap with debates about immigrants, identity, and
membership.5

3. The literature on citizenship and immigration in the United States, Europe, and elsewhere is
vast and continually growing. See, for example, Bauböck, 1994, Redefining; Bauböck, 1994,
Transnational; Soysal, 1994; Jacobson, 1996; Smith, 1997; Brubaker, 1989; Brubaker, 1996;
Pickus, 1998, Immigration; Kymlicka, 1995, Multicultural; Feldblum, 1999; Favell, 1997.
4. Some of the chapters in this volume are very explicit in their inquiries about the relation be-
tween conceptions of citizenship and changing practices of citizenship. See, in particular, the chap-
ters on South Africa, Israel, and Canada.
5. In fact, the interest in nationality and formal citizenship has generated a growth industry in
scholarship and conferences. See, for example, Pickus, 1998, Immigration, and Hansen and Weil,
1999, for conference proceedings focusing on nationality and citizenship in the United States and
Europe.
478 MI RI AM FELDBLUM

Scholarly debates that center on competing historical or contemporary un-

derstandings of national membership have needed to incorporate into their ex-
planations current trends of nationality revisions and convergence, some of
which belie past traditions.6 Debates that center on immigrant incorporation and
settlement have needed to assess the consequentiality of formal nationality sta-
tus and access and the meaning of changing membership practices for different
groups of foreigners and immigrants.7 Debates about the relationship between
the changing patterns of international migration and state sovereignty have ex-
plored the impact of changing citizenship policies and the increased incidence
of dual nationality on state authority.8 The following section takes up two na-
tional issues—dual nationality reforms and citizenship promotion prac-
tices—that were highlighted by the previous chapters, and offers insight into
the ways different states may be rethinking their policy options.

Structuring Dual Nationality

Attention to the growing incidence of dual and multiple nationality has been
increasing among both scholars and policy makers. Within many states, espe-
cially since the 1980s, long-held prohibitions against dual nationality have been
loosened or formally rescinded. Many of the current analyses of dual national-
ity have focused on two dimensions. One has been the de facto incidence of
dual nationals. The other has been the formal and informal bans or acceptances
of dual nationality. The incidence of dual nationals is no doubt on the rise.
Zappalà and Castles, for example, in this volume estimate that the number of
dual nationals in Australia has increased to around 5 million Australian dual na-
tionals today. Likewise, Aleinikoff notes that figures for dual nationals in the
United States are in the millions.9 In Western Europe, the number of dual na-
tionals are believed to be at least several millions and rising. The increase in
dual nationals in the postwar period has been due to a variety of factors, includ-
ing increased migrations, gender equity reforms in nationality transmission and
retention, reforms in nationality criteria, informal policy practices to ignore the
ban of dual nationality, and actual legislation to lift the traditional ban on dual
nationality. Immigrant “sending” countries, in particular, have realized the
pragmatic usefulness of enabling dual nationality for their emigrants. Beyond
domestic changes, international conventions on dual nationality have also

6. See, for example, Shafir, 1998; Tilly, 1996, Citizenship; Smith, 1997; Brubaker, 1996.
7. See Soysal, 1994; Jacobson, 1996; Bauböck, 1994, Redefining; Pickus, 1998, Immigration.
8. See Hollifield, forthcoming; Joppke, 1999; Sassen, 1996; Sassen, 1998, Globalization
Zolberg, 1994.
9. See, also, Fritz, April 6, 1998, p. A1.
NE W T R E NDS 479

come under reconsideration. In 1997, the Council of Europe decided on the

need to rescind parts of its 1963 Convention on Reduction of Cases of Multiple
Nationality and Military Obligations in Cases of Multiple Nationality.
The informal or formal allowance of dual nationality can increase the avail-
ability of rights for immigrants. In the United States, a Dominican American
politician has run for local office in both the United States and the Dominican
Republic, despite the formal ban against dual nationality in the United States.
The comparative literature on immigration also has shown that the transna-
tional political participation of immigrants and dual nationals in numerous
countries has grown.10 Although the formal availability and implications of dual
nationality still generate political controversy, as evidenced by conflict over na-
tionality reform in Mexico in 1997–1998 and Germany in 1998–1999, many
states (both sending and receiving countries of immigration) are now investi-
gating ways to manage dual nationality rather than simply banning it.
Indeed, changes in dual nationality have long been framed simply as ei-
ther-or trends. Either one has a singular nationality or one has access to multiple
nationalities; a state either bans or allows dual nationality. But contemporary
national practices point to the need for reassessment. The case of the Mexican
nationality reform, for example, highlights the way in which a state can struc-
ture the practice of dual membership. In his analysis on Mexican nationality re-
forms, Becerra Ramírez argues that a central thrust of the reforms was “to
prohibit dual citizenship, not dual nationality.” The Mexican reforms were
pragmatic in their recognition of multiple memberships on one level, mainly
that of residence, but sought to ration access to membership on other levels, in-
cluding political participation. The Mexican reforms specifically sought to bar
dual nationals residing elsewhere from the right to vote and stand for office.
Likewise, dual nationals in Mexico cannot hold public office or public employ-
ment (in areas that involve national security).
Other policy efforts also suggest attempts to qualify the status and rights of
dual nationals. In Australia, the formalistic ban on dual nationality may affect
the eligibility of dual nationals to hold public office. According to Zappalà and
Castles, some sources estimate that up to forty members of Parliament could be
affected by an adverse ruling in the matter. In his study of Canadian policies,
Galloway analyzes the government’s public reservations regarding dual nation-
ality. The Parliamentary Standing Committee on Citizenship and Immigration
recommended that the government explore the possibility of reintroducing a
provision stipulating that those who take out a second citizenship lose their Ca-

10. See, for example, Levitt, 1998; Smith and Garunizo, 1998; Basch, Glick-Schiller, and
Szanton Blanc, 1994; Kastoryano, 1994; Kastoryano, 1996; and Danese, 1998.
480 MI RI AM FELDBLUM

nadian status and that naturalized Canadians also have to declare “primacy” to
their Canadian citizenship. In the 1999 German nationality reform, policy mak-
ers there retreated from a general embrace of dual nationality in the face of po-
litical opposition. Instead, the German reform permits second-generation
youth, who would be automatically given German nationality under the new
rules, to hold dual nationality until the age of twenty-three, at which point a
choice would be required except when “unreasonable conditions” apply.11
Reforms that qualify certain components of citizenship even as they extend
the possibility of dual nationality raise difficult questions. To what extent
should states restrict certain kinds of citizenship access or dimensions of citi-
zenship rights while granting qualified nationality access? What are the legal
and social consequences of such policy making? In which domains (politics,
public employment, and so on) are states seeking to qualify rights and benefits
of national citizenship when coupled with dual nationality status? The studies
presented here signal the need to pursue research on dual nationality reforms.
Such research would address some of the debates now shaping policy making.
Studies should also address the extent to which bans on dual nationality and re-
nunciation of prior nationality have been deterrents to acquiring citizenship. Or
to put it conversely, what is the extent to which lifting the ban on dual national-
ity actually increases the recovery of prior nationalities and the number of new
naturalizations?
Research on dual nationality would necessarily include formal and informal
policies, stated principles and actual practices, policy intentions and policy
ramifications. In Australia, for example, the requirement of renunciation did
not actually change until 1986, when it was removed from the allegiance oath in
the Citizenship Act. But Zappalà and Castles note that other reforms after 1973
had the effect of raising naturalization rates. By 1991, according to the report,
70 percent of eligible overseas-born residents were Australian citizens. For cer-
tain groups of immigrants in Australia more than ten years, the rate was more
than 95 percent. The new Mexican or German reforms provide excellent case
studies to analyze the policy formation, implementation, and consequences of
qualified dual nationality. The Mexican law came into effect in 1998, but there
has been ongoing discussion about refining the voting and political rights of
dual nationals. The clause on reacquiring Mexican nationality for those who
lost it because of prohibitions against dual nationality is a transient one. One has
to apply within five years after March 20, 1998. According to Becerra Ramírez,
the Mexican Ministry of Foreign Affairs calculates there are 2 or 3 million peo-
ple who will be able to recover their rights to Mexican nationality.

11. See Cohen, May 22, 1999, p. A3.

NE W T R E NDS 481

Citizenship Promotions

Even as policy makers debate the premises of dual nationality reforms, al-
most none question the premise of citizenship itself.12 In fact, taking citizenship
as a good has been fashioned into a formal policy response to the increased
numbers of long-term foreign residents. Most of the countries discussed in this
volume have not undertaken explicit and universalistic citizenship promotion
campaigns.13 At the same time, the larger theme of belonging—and of critically
examining who is said to belong—runs through most of the country studies. Of
course, the substance of this theme can vary greatly. The policy conversations
regarding citizenship acquisition in the Baltic States, Russia, Israel, South Af-
rica, and Mexico—none of which have undertaken general citizenship promo-
tion campaigns—feature very different views of membership, rights, and
belonging. What the different policy portraits have in common is the way in
which state policy options are pursued in part based on implicit rationales or ex-
plicit argumentation about who belongs and what constitutes the national iden-
tity.
Deliberate citizenship promotion efforts bring these kinds of argumentation
to the center of debate. To be sure, this is not a novel policy approach. But, in
the past decades, citizenship promotion policies in Australia, Canada, and the
United States also have incorporated presumptions or disputes about multicul-
tural belonging in their policy conversations. In their study of Australian pol-
icy, Zappalà and Castles document the pendulum swings in policy between
assimilationist and multicultural efforts. As discussed by Galloway, a similar
debate has been under way in Canada, where “Who belongs?” is one of the most
basic questions. In the United States, the report by the U.S. Commission on Im-
migration Reform arguing for the good of “Americanization” has generated a
new debate among scholars, policy makers, and activists.14 The chapters on Ca-
nadian, Australian, and U.S. policy underscore that citizenship promotion ef-
forts have not only sought to enable and increase citizenship acquisition, but

12. See Schuck, 1998.

13. Some national governments have appointed commissions or councils specifically man-
dated to reflect on national citizenship, identity, and immigrants. See, for example, the report by the
U.S. Commission on Immigration Reform, 1997; also Pickus, 1998, Immigration; Pickus, 1998,
“Introduction.” In Canada and Australia, commissions on multicultural rights and citizenship have
also made policy recommendations; see Kymlicka, 1995, Multicultural; Kymlicka, 1995, Rights;
and Kaplan, 1993. France, too, has appointed several national commissions and councils on citizen-
ship and citizenship incorporation; see Feldblum, 1999.
14. There is a large literature on the history, theory, policy, and politics of multiculturalism and
related policies. See, for example, Kymlicka, 1995, Multicultural; Kymlicka, 1995, Rights; Kaplan,
1993; Takaki, 1993; U.S. Commission on Immigration Reform, 1997; Pickus, 1998, Immigration;
Pickus, 1998, “Introduction”; Joppke, 1997; and Favell, 1997.
482 MI RI AM FELDBLUM

also have been part of the political processes shaping the parameters and ratio-
nale of citizenship policy.
Is the discourse about the priority and value of citizenship more prevalent in
certain groups of policy measures (or when directed toward certain popula-
tions), while the stress on rights is predominant in other policy conversations?
Are these competing conversations? What is the policy impact of debates about
nationhood and identity? These questions could be usefully considered from a
cross-national perspective, taking into account the variation in citizenship crite-
ria and citizenship promotion efforts. Today, state campaigns encouraging nat-
uralization are often considered directly linked to rationales of prioritizing and
revaluing national citizenship. But, the examples of reform efforts and citizen-
ship promotion campaigns in the United States, Australia, and Canada suggest
that empirical research that assesses the usefulness and ramifications of differ-
ent incentives to naturalize is needed. Incentives may include citizenship pro-
motion campaigns or a variety of other targeted policy measures: lifting the ban
on dual nationality, lifting requirements of renunciation of prior nationality,
easing naturalization processes or amnesty programs. At the same time, under-
standings of citizenship promotion have also been used to justify disincentives
and discrimination against foreigners. The disincentives may include discrimi-
nation against foreigners in jobs, harsher immigration control and deportation
measures, lack of entitlements and diminished access to social service benefits
for foreigners, difficulty in obtaining permanent residency status or diminished
citizenship birthrights for children born of foreign parents.15
States continue to rethink their policy options. In Canada, the governmental
decision to grant preferences to citizens had a dual purpose: to enhance the
meaning and value of citizenship and to provide an incentive to naturalize. Aus-
tralia appears to limit public service jobs to citizens, in part to enhance the role
of citizenship as a social unifier in multicultural society.16 The 1986 Australian
reform revised birthright citizenship so that children of illegal aliens would not
be granted citizenship at birth; children would be granted citizenship if they re-
mained in Australia for ten years after birth. In Canada, a parliamentary com-
mittee on citizenship made a similar recommendation: the only children of

15. Numerous newspaper articles have documented the rising concerns among foreigners re-
garding the effects of federal welfare reform. In an article by Charisse Jones entitled “New Welfare
Law Sows Panic among Immigrants,” the subtitle read, “Amid Rumors, a Flood of Citizenship Re-
quests” (August 26, 1996, p. A1). Restrictive measures against foreigners are, of course, only one
cause (and perhaps not even the prime cause) of the rise in naturalization applications in the 1990s.
See the chapter by Aleinikoff in this volume.
16. Of course, such policies do not have a direct effect on naturalization rates.
NE W T R E NDS 483

foreigners granted birthright citizenship should be those born of parents who

are permanent residents.

Qualifying Rights

Beyond their focus on formal nationality or citizenship acquisition, several

of the previous chapters sought to trace the changing rights and benefits ac-
corded to foreign residents. The array of recent policy efforts that entail the dol-
ing out of rights, access, and benefits for foreigners arguably constitutes
another way in which national state policy makers and agencies seek to manage
national membership. These policy efforts have come about through legislative
reforms, administrative regulations, actual implementations, and legal deci-
sions.
In their discussion of policy changes in Australia, Zappalà and Castles docu-
ment the post-1996 government’s turn from multicultural incorporation poli-
cies toward assimilationist principles, and note that fees for visas and English
courses were increased and occupational English courses were cut. Shachar’s
study of Israeli policy and Klaaren’s discussion of current South African policy
efforts underscore that state barriers need not be formal legislation, but can in-
clude administrative decisions and other regulations. But, the focus on states re-
scinding rights and benefits to foreigners is not self-evident. In fact, it has been
the reverse trend—the extension of rights and benefits to foreign residents in
highly industrialized states—that has captured the attention of scholars. In this
section, I briefly review the extension of rights and benefits to foreigners before
turning to the trend of rescinding rights.
There has been much theorizing about the extension of rights in the latter
part of the twentieth century. Scholars argue that states increasingly have given
foreigners benefits and entitlements traditionally associated with the holding of
formal state citizenship. These studies draw important distinctions among
long-term, permanent foreign residents; short-term or more transient foreign-
ers; and undocumented foreigners. With regard to many benefits and rights, res-
idence rather than citizenship determined the kinds of rights and benefits to
which foreigners were entitled. In her study of European policy, Soysal con-
tended that the postwar expansion of benefits and access to foreign residents in-
dicated that, in a more general sense, “personhood” was replacing nationality as
a basis for rights and claims-making and that national identity was being de-
coupled from citizenship.17 Soysal along with others seem to suggest that the
extension of rights to foreigners is the product of ongoing forces, including the

17. Soysal, 1994.

484 MI RI AM FELDBLUM

continued progression of rights in democratic, industrialized polities; the con-

tinuing rise of human rights legislation and decisions; the growing influence of
immigrants’ rights groups; and the increasing internationalization of domestic
policy.18
The previous chapters confirm the general trend. Within the member states
of the European Union, permanent foreign residents have access to health care,
education, social services, welfare, and other benefits. Some member states
have granted local voting rights to permanent foreign residents. Kashiwazaki’s
study of foreigner rights in Japan traced how registered foreigners are covered
by the National Pension law, health insurance, protective labor laws, and wel-
fare provisions. Efforts to grant local suffrage to long-term foreign residents
have also been under way in Japan. In Canada, permanent foreign residents are
entitled access to the full range of benefits. In South Africa, noncitizens have
been afforded constitutional protections, upheld by court decisions. In Israel,
permanent residents have access to the universal health coverage and social se-
curity. In Australia, there is little difference between citizens and foreigners in
most legal matters, including owning land; the right to family reunion; and the
right to education, health care, and social services.
At the same time, the studies in this volume include instances where the
rights and benefits of foreign residents have been taken away and qualified.19
Australia and, to a far greater extent, the United States have aimed to qualify the
rights of foreigners in terms of access to various programs and benefits. The
Australian legislation delayed access to certain benefits by new foreign resi-
dents. In 1993, the government rescinded access to unemployment and sickness
benefits for new immigrants (for the first six months). Later, the waiting period
for foreigners to gain eligibility for most welfare benefits was increased from
six months to two years. The U.S. 1996 welfare and immigration legislation
sought to rescind rights from all groups of foreign residents. The legislation dis-
tinguished between all noncitizens and citizens, between foreign residents pres-
ent in the United States before enactment of the law and legal immigrants
arriving after its enactment, and among different groups of foreigners (for ex-
ample, refugees, permanent residents, undocumented foreigners). While Aus-
tralian and U.S. reforms may make a useful comparison, it should be noted that
restrictive measures cannot be uniformly treated. Barrington’s discussion of the

18. See, for example, Hammar, 1990; Bauböck, 1994, Transnational; Bauböck, 1994, Rede-
fining; Soysal, 1994; Jacobson, 1996; Sassen, 1998, Transnationalizing.
19. Benefits can be and have been taken away from citizens as well as foreigners. This trend is
not unique to foreigners. But I do not believe that foreigners and citizens as a whole are in analo-
gous positions in this regard.
NE W T R E NDS 485

enactment of restrictive policies in the Baltic states takes place in domestic and
regional contexts of contested democratization and regime change.
Legislative change is not the only means to rescinding or qualifying rights.
Administrative efforts to enforce restrictions against foreigners (or decisions to
deny or make more difficult the acquisition of permanent residency status) have
become another counterpoint to the trend of extending benefits. The South Af-
rican government appears to be pursuing a combination of executive restric-
tions and formal legislation to qualify the rights of noncitizens, both legal and
undocumented residents. In Israel, a recent administrative reform qualified the
rights (to a quick naturalization) of non-Israeli spouses married to Jewish citi-
zens. Administrative decisions to enforce restrictions of access to education,
health care, and other basic services to undocumented immigrants may not be a
retraction of a de jure right, but they certainly implicate the loss of de facto
membership rights. Court decisions limiting the rights of noncitizens to access
and preference in public service employment and limiting foreigners’ protec-
tion against deportation are arguably other cases in which rights are being qual-
ified rather than protected or extended.
As Martiniello notes in his chapter on European Union (EU) citizenship, the
creation, expansion, and continuing implementation of EU citizenship may
qualify the rights and entitlements of non-European, long-term foreign resi-
dents. In the case of EU citizenship, rights are being granted to EU nationals
who are foreign residents but not to third-country nationals, who could enjoy
the same foreign residency status. In accordance with the logic and regulations
entailed in European Union institutions, member states may seek to limit cer-
tain benefits and entitlements to their own nationals and other EU nationals.
This logic now extends even to the far Right in these countries and, thus, en-
compasses a harsher exclusionary rhetoric. In 1998, the National Front in
Vitrolles, France, attempted to limit the traditional French “childbirth alloca-
tion” to only French and EU nationals as part of their ongoing politics of “na-
tional preference.”
By rescinding rights and entitlements of foreign residents, states (whether
through legislation, administrative decisions, or court decisions) have rein-
forced the consequentiality of legal status among all categories of foreigners
and between nationals and non-nationals. In this manner, the qualification of
benefits and rights may be tied directly or indirectly to other trends managing
formal citizenship rights and access. Consider the impact of different national-
ity reforms. Several countries have limited birthright citizenship. In 1986, Aus-
tralia rescinded the birthright to citizenship for children born of illegal aliens or
transients. In Canada, a parliamentary committee on citizenship made a similar
recommendation, while politicians and scholars in the United States have also
486 MI RI AM FELDBLUM

made such proposals. In France, noncitizen parents of minor children born in

France can no longer claim citizenship for their children under the age of thir-
teen. In a different context, the citizenship legislation in the Baltic states also
sought to restrict birthright citizenship and later citizenship acquisition.
On a pragmatic policy level, these changes in immigration laws or court and
administrative rulings affect several different groups of foreigners and policy
domains. Decisions, for example, that affect their parents may directly or indi-
rectly shape the life chances and opportunities of minor children, both citizens
and noncitizens. In Canada as elsewhere, the deportation of noncitizen parents
of minor children who are citizens has caused the de facto loss of membership
for those children. According to Australian law, minor children automatically
lose their Australian citizenship when their parents acquire another citizenship.
Not only is the children’s access to nationality affected, but also changes in wel-
fare, social service, and health coverage laws can limit these children’s access
to benefits and rights.20 Another vulnerable group has been new immigrants.
Sections of both the Australian and U.S. reforms rescinded access to certain
programs according to the immigrants’ date of entry.
Explanations of restrictive policy changes have often examined the out-
comes as indicators of broader, anti-immigrant exclusionary politics. Certainly,
the politics surrounding many of these changes have been part of nativist or
anti-immigrant politics. But these policies also appear to be part of broader calls
for a positive reinvigoration of state citizenship and an assertion of state sover-
eignty. In other words, these policy efforts are part of more general trends to
better manage national membership. The question remains, do the policy mea-
sures complement the political intentions, principles, or rationales underlying
them? In fact, the origins and consequences of the different kinds of new citi-
zenship policies are understudied.
Consider the paradox of policy intentions and consequences of restrictive
policy measures. In the aftermath of restrictive nationality reform politics in
France (after 1987 and 1993) and the rescinding of benefits to foreigners in the
United States (after 1995 and 1996), both countries experienced substantive in-
creases in applications for citizenship acquisition. What exactly was the corre-
lation between the political and concrete policy disincentives to “remaining
foreign” and the increased rate of naturalizations? Was there an underlying in-
tention to increase the rate of naturalization or other kinds of citizenship acqui-
sition in both countries? If so, were these effective policy measures? The
answers are mixed, even if we assume that restrictive measures were in part in-

20. Studies must take into account both legal changes and immigrant perceptions regarding the
ramifications of those changes, which may affect their decision to seek benefits for their children.
NE W T R E NDS 487

tended to increase the value and appeal of the citizenship. In the case of the
United States, anti-immigrant policies coincided with the period when many
foreign residents became eligible for citizenship, and some scholars contend
that enabling dual nationality would more effectively increase the naturaliza-
tion rate. Debates also continue about whether the reinforcement or the dimin-
ishment of status distinctions are the best policy strategies to reinvigorate
national citizenship (see the conflicting testimonies of law professor Schuck
and political theorist Carens in the Canadian Lavoie case discussed in Gallo-
way’s chapter). Indeed, the pragmatic policy consequences of regulations, leg-
islation, and rulings that are intended to promote assimilationist citizenship
may paradoxically lay the groundwork for multicultural membership.
Clearly, further empirical research is needed to assess the consequences both
of policies that reinforce status discriminations and of those that eliminate sta-
tus distinctions. Studies of the theoretical and pragmatic implications of differ-
ent policy options must grapple with policy intentions and citizenship
conceptions. When immigrants embrace citizenship because of the disincen-
tives of remaining foreigners, do such trends promote the conception or prac-
tice of citizenship envisioned by policy makers?21 When third-county nationals
within the European Union are encouraged to undergo member-state natural-
ization processes so that they, too, can partake in European Union citizenship,
do such policy aims promote or erode the conceptions of national citizenship
assumed by policy makers? Could such suggestions also lead policy makers to
focus on implementing additional disincentives to retaining the legal status of
third-country nationals in the EU? Addressing these questions would contribute
important empirical evidence to the ongoing debates and literature regarding
different forms and practices of citizenship.
The initial focus on citizenship may center on delineating changes in the ac-
cess to formal citizenship status. Still, it is evident that questions of access as
well as of rights, benefits, and entitlements are now decided on the basis of mul-
tiple kinds of claims.22 Despite state attempts to qualify citizenship, the rights to
gain access to citizenship as well as the rights and benefits traditionally associ-

21. Discussion of the debates regarding foreigners’ motives for naturalization and the intended
purpose of disincentives and incentives can be found in several of the papers in this volume. See, for
example, the papers on Canada, Australia, Mexico, and Israel. With regard to Canada, also see
Kaplan, 1993; and with regard to the United States, the report issued by the U.S. Commission on
Immigration Reform, 1997; as well as Pickus, 1998, Immigration; and Pickus, 1998, “Introduc-
tion.”
22. See, especially, the chapters in this volume on Israel, Canada, Australia, Japan, and the Eu-
ropean Union. See, also, Hanami, 1998, pp. 211–37. For general arguments about claims-making
by and for foreigners, immigrants, and other minority groups, see Soysal, 1994; Soysal, 1997; Ja-
cobson, 1996; Kymlicka, 1995, Multicultural; Kymlicka, 1995, Rights.
488 MI RI AM FELDBLUM

ated with citizenship continue to be sought and obtained in numerous ways.

Claims brought in order to ensure basic rights and entitlements for foreigners
have relied on human rights rulings and conventions, entitlements granted to
communities rather than individuals, and legislation granting protection on the
basis of specific group claims.
The post-1996 efforts to roll back U.S. legislation restricting access to wel-
fare, health care, and other social service benefits by legal foreign residents pro-
vided numerous examples of these different kinds of claims. Some efforts, for
example, focused on facilitating disabled foreign residents’ access to natural-
ization on the basis of federal legislation prohibiting discrimination against the
disabled and mandating reasonable accommodations for the disabled. Other ef-
forts focused on reinterpreting individual rights to welfare and health care as
collective, community rights on the same level as fire and police protection. In
their decision to restore food stamps to additional groups of legal foreign resi-
dents (those already legally resident in the United States at the time of the law’s
enactment in 1996), the U.S. Senate also heard arguments that human rights
considerations called for such a restoration.23
Certainly, most of the opportunities for claims-making by immigrants are
often confined to legal foreign residents. Undocumented foreigners have had
fewer bases upon which to claim rights or access. In fact, even in cases where il-
legal foreign residents may be protected by law, their constrained and precari-
ous lives as well as their fear of deportation may prevent them from seeking
their rights.24 Yet, the de facto membership and benefits of these foreigners
raise important questions about future bases for claims. Often states extend
benefits in practice to undocumented foreign residents. In her study of Israeli
policy, Shachar, for example, distinguishes between principle and precedent
when she notes that illegal foreign residents and their children born there are
not entitled to health care or education. Many Israeli schools nonetheless pro-
vide schooling for such children. In the United States, current federal and state
policy efforts seek to prevent almost all health care access to undocumented
residents. Other state and federal policies, which intend to promote a healthy
community, have mandated school-linked health care delivery programs, such
as Healthy Start in California. These programs enable and facilitate participa-
tion by illegal foreign residents and their children. In fact, such programs seek

23. These efforts were detailed in conversations with Chai Feldblum, director of the Federal
Legislation Clinic, Georgetown University Law Center, and with public health officials in Los An-
geles County, and in memos compiled by the organization Catholic Charities. See, also, Alvarez,
May 13, 1998, p. A1.
24. Undocumented workers, for example, are in principle covered by Japanese protective labor
legislation but rarely seek its protection.
NE W T R E NDS 489

to increase all parents’ participation and membership in the community. The

competing policy priorities of restricting membership rights, on the one hand,
and ensuring wider polity benefits, on the other, need to be better understood by
policy makers and scholars alike.
What has been the impact of the different kinds of claims on citizenship and
incorporation policy formation? The burgeoning claims reflect and contribute
to an increase in the levels of governance through which appeals and policy are
made. These levels range from local jurisdictions to supranational bodies, from
international conventions and treaties to international courts. When a deporta-
tion appeal was rejected in the national courts in France, the appeal went on-
ward to the European Court of Human Rights.25 Numerous national courts,
legislation, and administrative rulings have referenced international conven-
tions and decisions, or have been informed by international bodies and man-
dates. The cross-national perspectives provided by the studies collected here
underscore that levels of claims-making and governance can differ consider-
ably. Within the European Union, Martiniello has shown that there are several
different levels of claims-making in which non-EU immigrant groups (and EU
nationals) may engage.26 Barrington’s study of the passage of citizenship legis-
lation within the Baltic states highlighted not only the roles played by different
international European bodies but also the potential possibilities for claims-
making (regarding emigrants and citizens) by other states within the Russian
Federation and Baltic states. This perspective is reinforced by Ginsburgs’s
thorough assessment of Russian efforts regarding citizenship status and rights
that combine concerns for both its emigrants and immigrants.

Multiplying Governance
Though not a policy area, the trend toward multiple levels of governance has
informed policy making in the areas of immigration control, citizenship, and
immigrant incorporation. Many current analyses of immigration and citizen-
ship frame their discussion within the context of the nation-state, the historic
role national sovereignty has played in defining national membership and con-
trolling migration, and the contemporary transformations of the state role. Con-
trol and implementation of migration, immigration, and citizenship policy
implicate a certain level of national sovereignty, but the extent and substance of
that authority have been contested and the rise of transnational factors in citi-

25. See, for example, European Court of Human Rights, Mehemi v. France (85/1996/704/896).
26. See, also, Marks and McAdam, 1996; Tarrow, 1995; Soysal, 1997.
490 MI RI AM FELDBLUM

zenship and immigration policy practices debated.27 Scholars such as Sassen

have argued that contemporary

immigration can be seen as a strategic research site for the examination of

the relation—the distance, the tension—between the idea of sovereignty
as control over who enters and the constraints states encounter in making
actual policy on the matter. Immigration is thus a sort of wrench one can
throw into theories about sovereignty.28

What is meant by transnational phenomena and multiple levels of gover-

nance varies. The term transnational has been used to describe emergent insti-
tutional settings where the locus in which authority resides or policy is
formulated or decisions are implemented goes beyond the national level. Many
of the institutions of the European Union and their associated policy, political,
or judicial settings are thus considered to be indicative of levels of governance
beyond the national states. Likewise, transnational actors or policy processes or
discourse have emerged in these institutional settings. Transnational norms re-
fers to emergent norms, pressures, or rationales driving policy decisions or im-
plementation that are decoupled from the sole logic of the national state and
territory. According to this perspective, institutional settings may remain do-
mestic—as in national courts—while the decisions or practices emanating from
those settings are indicative of multiple levels of authority or influence.
The arguments elaborating the significance of transnational phenomena and
the associated multiple levels of authority and policy making have been ad-
vanced by scholars in different disciplines. Sassen, a political economist, con-
tended that migration policy is becoming increasingly transnationalized.
According to her, the “relocation of various components of sovereignty . . .
brings with it a potential strengthening of alternative subjects of international
law and actors in international relations, for example, the growing voice of
nongovernmental organizations and minorities in international fora.”29 Legal
scholar Lung-Chu Chen argued more moderately that

the sustained growth of international governmental organizations reflects

not merely the increasing vigor of transnational interaction but also the
shared participation of participants that many of their preferred values
can be obtained only through or in conjunction with collaborative trans-

27. See, for example, Bosniak, 1998; Joppke, 1998; Hollifield, forthcoming.
28. Sassen, 1996, p. 63.
29. Sassen, 1998, Globalization, p. 92.
NE W T R E NDS 491

national action . . . such organizations dilute the importance of historic,

somewhat arbitrary and unnatural, national boundaries. They may gradu-
ally provide alternatives to the overweening power of nation-state offi-
cials.30

Soysal, a sociologist, identified “postnational membership” configurations and

described the emergence of transnational actors, discourses, and policy levels
in immigration.31 These scholars and others have tended to identify transna-
tional configurations that have assumed a linear progression in the postwar pe-
riod, including the cumulative effect of the conventions, growing global
economy, increased transnational migration, and new discourses and member-
ships.32
Not surprisingly, the arguments regarding the emergence of transnational
phenomena, the import of multiple levels of governance, and the extent of di-
minished national sovereignty have become quite controversial.33 In response
to such arguments, other scholars declare that regardless of the institutional set-
ting, if the locus or basis of authority remains the national state, then those pol-
icy processes are indicative of the strength and adaptability of the nation-state.
Or, they argue that regardless of the origin of norms and policy rationale, if the
institutional settings in which these decisions and practices are taking place are
domestic in nature, then those processes, too, are indicative of the continued
predominance and adaptability of the national state.34

30. Chen, 1989, p. 58.

31. Soysal, 1994.
32. This tendency when identifying transnational discourses and norms (such as human rights)
may also be linked to scholars’ methodological and analytical frameworks. Martha Finnemore has
noted that certain institutionalist models place their emphasis on “the mutually reinforcing and ex-
pansive nature of (Western cultural) norms. . . . Institutionalists specify no sources of instability,
conflict, or opposition to the progressive expansion of world culture” (Finnemore, 1996, p. 343).
While the institutionalist scholar Yasemin Soysal explicitly discusses a conflicted dialectic be-
tween national sovereignty and human rights norms, her conclusions still suggest a progressive and
mostly linear expansion of transnational and postnational configurations (Soysal, 1996). See, also,
Jacobson, 1996; Bauböck, 1994, Transnational; Hammar, 1990.
33. Debates continue in the literature over how to interpret the reassertions of sovereignty in
such domains as immigration control and citizenship, on the one hand, and extension of rights to
foreigners, on the other hand. The conflict is sometimes framed in terms of a dichotomy between
globalization and nation-states, with “globalists”—who assert that nation-states are being dimin-
ished—on the one side and “nation-state defenders”—who assert that nation-states are firmly en-
trenched—on the other side (see Joppke, 1998). In fact, scholars who have advanced arguments
about globalization explicitly refute the idea of a dichotomy and readily admit to state sovereignty
actions in such areas as immigration control (see Sassen, 1996; Sassen, 1998, Globalization;
Soysal, 1996).
34. See, for example, Joppke, 1997; Joppke, 1998; Joppke, 1999; Lahav, 1998; Lahav and
Guiraudon, 1997; Freeman, 1998; Freeman, 1995.
492 MI RI AM FELDBLUM

Such arguments regarding ongoing national sovereignty are partly based on

the assertion that domestic principles, agencies, and institutions weigh heavily
against any rise of transnational actors, institutions, and norms. If some of these
scholars acknowledge some level of transnational phenomena, such as that cer-
tain processes in which migration policies and practices take place have shifted
beyond the national level, their focus is to downplay the significance of increas-
ing levels of policy making and practices. In discussing the development of asy-
lum policy in Germany, Britain, and the United States in the postwar period,
Joppke argues that the “capacity of states to control immigration” is not declin-
ing and that there is “an increased willingness and insistence of states to main-
tain their sovereignty.”35 His arguments about asylum policy as well as other
dimensions of immigration and citizenship policy rely on the contention that
the processes and institutions engendering change in these countries, including
the domestic courts, are wholly under state control.36 Likewise, Lahav argues
that services and operational practices delegated or “contracted out” by states
counter arguments that states are “losing control” of migration flows and immi-
gration policy.37
The data and analyses about citizenship policy formation, citizenship prac-
tices, and nationality reforms presented in this volume provide a rich source for
understanding the ways in which numerous international and subnational forms
of governance and sources of authority do shape policy options, strategies, and
outcomes. Consider the varied examples of the Baltic states, the European Un-
ion, and South Africa. Barrington’s analysis of citizenship reform in the Baltic
states assessed the integral roles that international organizations—specifically
the Organization for Security and Cooperation in Europe and the Council of
Europe—played, both directly and indirectly through exerting pressure and
providing resources, in different phases of the reform processes in Estonia and
Latvia. Martiniello’s study of European Union citizenship practices points out
both interaction between the national and European practices and the potential
consequences of EU citizenship on domestic citizenship-rights policies. New
levels for engagement in citizenship politics and debate have also grown in im-
portance and salience in Western Europe, and perhaps elsewhere as well.38
Klaaren’s reconstruction of the legislative history and impetus of the South Af-
rican Citizenship Act of 1995 examines the influence of international norms
and human rights discourse.

35. Joppke, 1997, pp. 260–61.

36. Joppke, 1997; Joppke, 1999.
37. Lahav, 1998, pp. 14–29.
38. See Wiener, 1998; Koslowski, 1999; Levitt, 1998; Holston and Appadurai, 1996.
NE W T R E NDS 493

Changes affecting citizenship policies and practices have taken place at all
levels. These include the influence of decisions in various domestic and inter-
national courts and the logic drawn from international conventions. Regional
bodies such as the European Council and the European Union as well as
nongovernmental organizations and intergovernmental organizations have
shaped national policy making in the past years.39 General policy trends found
in most of the countries and regions under review here have featured the privat-
ization of programs, the devolution of policy, or the dispersal of policy forma-
tion and implementation to international levels.40 While control over national
citizenship criteria and immigration is being reasserted by national states, the
evidence from the previous chapters demonstrates that policy may be initiated,
authorized, qualified, implemented, and otherwise shaped by other levels of
governance and sources of authority.
The multiplying modes of governance and sources of authority and imple-
mentation constitute a critical area of research for citizenship policy analysis.
What are the specific historical and political contexts that encourage or enable
the influence of non-national institutions or international human rights dis-
course? What are the pragmatic effects of pursuing policy strategies at different
levels, such as appealing domestic deportation or criminal cases to international
courts, making claims about immigrant rights (language, schools, religion, and
so on) at the level of the European Union, or placing (direct or indirect) pres-
sures on domestic citizenship legislation from international levels? Addressing
these questions will also contribute to the contentious discussions regarding the
extent to which national states today in effect are “governing by remote con-
trol,” or whether other kinds of substantial transformations in sovereignty are
taking place.41

Conclusion
This volume has provided in-depth portraits of citizenship and nationality
policies in twelve countries and regions. Given the diversity of changes and
contexts represented by the individual studies, it would be neither appropriate

39. Much research has focused on multiple levels of governance within the European Union
(see, for example, Schmitter, 1996, and Shaw, 1997). The difficulties and importance of under-
standing which levels of competence decide policy for third-country nationals in the European Un-
ion is outlined in Guild, 1998.
40. It should also be noted that some of these changes are not novel; for example, Americaniza-
tion efforts in the early twentieth century by the Progressives included citizenship classes, and re-
gional associations have long existed in different forms in Europe.
41. The phrase “governing by remote control” comes from Lahav, 1998, who has cited Aristide
Zolberg as the original source.
494 MI RI AM FELDBLUM

nor useful to presume to offer in this final chapter a forced synthetic summary
of cross-national policy trends. Instead, I have sought to highlight some central
policy trends—the growing salience of dual nationality and other formal citi-
zenship reforms, the attention paid to the rights and benefits of foreign resi-
dents, and the visibility of multiple levels of governance and participation.
As explored by the diverse studies presented here, national state authorities
and agencies appear to be rethinking how better to manage national member-
ship. Taken together, these policy trends may be encapsulated by the term ra-
tioning citizenship. The patterns of rationing or allocating citizenship are
significant because they point to ongoing and emergent state efforts to restruc-
ture the membership rights, benefits, and obligations of immigrants. Policy ef-
forts to restrict immigrant rights have been visible in several of the polities
discussed here. State policies in the United States and Australia sought to fur-
ther qualify benefits and access based upon immigration status and length of
residence. In the United States, in particular, the rationing of benefits and rights
stressed anew divisions between citizens and all kinds of foreigners. Policy ef-
forts to introduce gradations in membership have been successful as well. As
explicated by Becerra Ramírez in his chapter on Mexico, the 1998 nationality
reform there enabled dual nationality but placed restrictions on dual citizen-
ship. In other words, the reform withheld some of the rights of national citizen-
ship from dual nationals.
To be sure, the phrase rationing citizenship encompasses divergent policies
featuring perhaps dissimilar political traditions and opposing political aims.
But they arguably all underscore the simultaneous reality of national citizen-
ships (and the rights and benefits traditionally associated with national citizen-
ship) that are no longer solely shaped by national states, and new state measures
to manage, allocate, and ration those memberships. One of the aims of this
chapter has been to suggest that we pay close attention to these efforts to man-
age the allocation and distribution of what has become today both finite re-
source and fluid practice, that is, national citizenship.
The implications of the varied policy trends of rationing citizenship, espe-
cially once set in the context of reconfigurations of governance and forums for
policy change, can be great. Reflecting on Hannah Arendt’s contention that the
nationalization of human rights laid the groundwork for totalitarianism,
Zolberg has argued that the postwar trend toward a “globalization” of human
rights constitutes a countertrend.42 The studies presented here confirm that new
participants and contributors have come to influence—or at least seek to engage
in—the policies governing citizenship, including the broad array of what we

42. Zolberg, 1994.

NE W T R E NDS 495

define as citizenship matters and the more narrow domain of nationality reform.
At the same time, policies qualifying the rights afforded to foreign resi-
dents—diminishing full access to all the rights of nationality when held by dual
nationals and creating additional gradations of membership as in the case of the
European Union citizenship—point to the ways in which a de facto renational-
ization of human rights need not take place primarily at the national level.
Taking the chapters in this volume as a point of departure, we may already
identify several key factors to consider when examining policy changes and
choices across national contexts. These include the dynamics among different
levels of governance, the extent of institutional transformations (which could
result from processes of democratic transitions or regional integration), and the
structural and political opportunities for a wide array of participants to engage
in citizenship politics. The experiences of immigration, immigrant incorpora-
tion, and citizenship transformations are not unique to any state nor confined
within a single state. The dynamics between policies modifying nationality ac-
cess and qualifying rights in the national domestic context and those policies
and decisions taking place along different levels of governance have become
increasingly complex and interdependent. The policy convergence across
states, the contradictions of policy within and among states, and the unforeseen
paradoxes of future policy directions will be best addressed by concrete, com-
parative, and analytical approaches.

References

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 About the Authors

T. Alexander Aleinikoff is a Senior Associate with the Carnegie Endowment’s

International Migration Policy Program and Professor at the Georgetown Uni-
versity Law Center, teaching immigration and refugee law and constitutional
law. From 1994 to 1997 he served first as General Counsel and then as Execu-
tive Associate Commissioner for the U.S. Immigration and Naturalization Ser-
vice. He has written widely on immigration, citizenship, and refugee law and
policy.
Lowell W. Barrington is Assistant Professor in the Department of Political
Science at Marquette University. He is the principal investigator of a National
Science Foundation–sponsored project surveying ethnic minorities in
Kazakhstan, Kyrgyzstan, Belarus, and Ukraine. He is also Vice President for
Publications of the Association for the Study of Nationalities, and the former
Editor-in-Chief of Analysis of Current Events. His recent publications examine
post-Soviet citizenship policy and post-Communist mass attitudes.
Rainer Bauböck is a Senior Researcher in the Research Unit on Institutional
Change and European Integration at the Austrian Academy of Sciences, and
Senior Lecturer at the Universities of Vienna and Innsbruck. His work focuses
on normative political theory, comparative and theoretical research on citizen-
ship, migration, ethnicity, and nationalism. Recent publications include Trans-
national Citizenship: Membership and Rights in International Migration

501
502 ABOUT THE AUTHORS

(Aldershot: Edward Elgar, 1994); and Blurred Boundaries: Migration, Ethnic-

ity, Citizenship (Aldershot: Ashgate, 1998), edited with John Rundell.
Manuel Becerra Ramírez received Doctorates in Constitutional Law degree
from the Universidad Nacional Autónoma de México (UNAM) and in Interna-
tional Law from the State University of Moscow, in Lomonosov. He is cur-
rently a full-time researcher at the Instituto de Investigaciones Jurídicas at
UNAM, where he also teaches public international law.
Stephen Castles is Director of the Centre for Asia Pacific Social Transforma-
tion at the University of Wollongong. His publications include Immigrant
Workers and Class Structure in Western Europe (London: Oxford University
Press, 1973), with Godula Kosack; The Age of Migration: International Migra-
tion in the Modern World (London: MacMillan, 1993), with Mark Miller; and
Citizenship and Migration: Globalization and the Politics of Belonging (Lon-
don: MacMillan and New York: Routledge, 2000), with Alastair Davidson.
Miriam Feldblum is a Senior Research Associate in the Division of Human-
ities and Social Sciences at the California Institute of Technology. Her publica-
tions include Reconstructing Citizenship (New York: SUNY Press, 1999), on
citizenship politics in France, and articles on comparative citizenship and im-
migration policies in Western Europe and the United States.
Donald Galloway is a Professor of Law at the University of Victoria, British
Columbia, teaching Administrative Law, Immigration and Refugee Law, and
Jurisprudence. He has recently published a book on Canadian immigration law,
as well as a number of articles on related issues. Galloway is a member of Can-
ada’s Immigration and Refugee Board and is currently a member of the Board’s
Convention Refugee Determination Division.

George Ginsburgs earned his Doctorate in Political Science from the University
of California, Los Angeles. He has been a Professor at the Rutgers University
School of Law-Camden since 1973. He has published widely in such journals as
the American Slavic and East European Review and Political Science Quarterly
and is a member of the board of editors of both the American Journal of Compar-
ative Law and the Review of Central and East European Law.

Chikako Kashiwazaki is Lecturer of Sociology at Sophia University, Tokyo.

She received a Doctorate in Sociology from Brown University. Her research in-
terests include ethnic relations, nationalism, and the historical dynamics of citi-
zenship and nationality. She has published articles in Research in Political
Sociology and International Journal of Comparative Sociology.
AB OUT T HE AUT HOR S 503

Jonathan Klaaren is Associate Professor at the Faculty of Law, University of

the Witwatersrand, Johannesburg. He is an American citizen with South Afri-
can permanent residence. With law degrees from both South Africa and the
United States, he is currently working on a Doctorate on immigration law and
racial and state formation in early twentieth-century South Africa through Yale
University. He has published in the South African Law Journal, South African
Journal on Human Rights, and Columbia Human Rights Law Review.
Douglas Klusmeyer is an Associate with the Carnegie Endowment’s Interna-
tional Migration Policy Program, primarily working on comparative citizen-
ship issues. He earned a B.A. from Northwestern University, and a Ph.D. in
Modern European History and a J.D. from Stanford University. He has pub-
lished a monograph, Between Consent and Descent: Conceptions of Demo-
cratic Citizenship, as well as articles in such journals as Daedalus and SAIS
Review.

David A. Martin is Henry L. and Grace Doherty Professor of Law at the Uni-
versity of Virginia, teaching immigration, constitutional law, and international
law. He is a graduate of Depauw University and Yale Law School, where he
served as Editor-in-Chief of Yale Law Journal. From 1978 to 1980, he served as
Special Assistant in the Human Rights Bureau of the U.S. Department of State.
From August 1995 to January 1998, he served as General Counsel to the Immi-
gration and Naturalization Service in Washington.

Marco Martiniello is Senior Research Fellow at the National Fund for Scien-
tific Research (FNRS) and Lecturer in Politics at the University of Liège. He
earned a B.A. in Sociology from the University of Liège and Ph.D. in Political
Science from the European University Institute, Florence (Italy). He is the di-
rector of the Centre d’Etudes de l’Ethnicité et des Migrations (CEDEM). His
latest books include Migration, Citizenship and Ethno-National Identities in
the European Union (Aldershot: Avebury, 1995), as editor; Sortir des ghettos
culturels (Paris: Presses de Sc. Po., 1997); O9ù la la Belgique? (Paris:
L’Harmattan, 1998), co-edited; and Multicultural Policies and the State
(Utrecht: ERCOMER, 1998).

Kathleen Newland is Co-director of the Carnegie Endowment’s International

Migration Policy Program. Her work focuses on refugee policy and interna-
tional humanitarian response. Previously, she was a Lecturer in International
Relations at the London School of Economics and a Consultant to the United
Nations. Her numerous publications include U.S. Refugee Policy: Dilemmas
and Directions (Washington, D.C.: Carnegie Endowment, 1995).
504 ABOUT THE AUTHORS

Ayelet Shachar is Assistant Professor of Law at the University of Toronto,

teaching immigration law, multiculturalism, and civil procedure. She has a
Doctorate from Yale University and degrees in Law and Political Science from
Tel Aviv University. Her research addresses the intersection of contemporary
political theory, family law, and immigration policy. She has recently pub-
lished in the Journal of Political Philosophy, the Canadian Journal of Women
and the Law, Citizenship Studies, and Political Theory, and is the author of
Multicultural Jurisdictions (Cambridge University Press, forthcoming).
Gianni Zappalà has a Doctorate from the Faculty of Economics and Politics,
University of Cambridge. He is currently the Research Coordinator for the
Smith Family (a leading Australian welfare organization). He has held Re-
search Fellow positions at the universities of Cambridge, Sydney, and
Wollongong, and the Australian National University. In 1996 he was the Aus-
tralian Parliamentary Fellow at Parliament House, Canberra. His publications
include Four Weddings, a Funeral and a Family Reunion: Ethnicity and Repre-
sentation in Australian Federal Politics (Canberra: AGPS, 1997).
Aristide R. Zolberg is University-in-Exile Professor of Political Science at the
New School for Social Research; Director of the International Center for Mi-
gration, Ethnicity, and Citizenship; and Co-chair of the MacArthur Program on
Global Change and Liberalism. He is a member of the Social Science Research
Council’s Committee on International Migration, the editorial boards of Inter-
national Migration Review and Journal of Refugee Studies, and the advisory
board of the Centre for Refugee Studies, York University, Canada. His recent
books include Escape from Violence: Conflict and the Refugee Crisis in the De-
veloping World, co-authored with Astri Suhrke and Sergio Aguayo.
 Index

Afghans, 180, 214 Special Broadcasting Service, 51; White

Ainu, 445 Australia Policy, 33, 50; Years of
Albania, 200 Citizenship, 53, 70
Aliyah (immigration, Hebrew), 389, 391, 394, Australia, Defense Act, 67
397, 421 Australia, National Agenda for a
Allies, 439 Multicultural Australia, 52
al-Nakaba, 403 Australia, Nationality and Citizenship Act,
Amnesty, 466 38, 45
Apartheid, 222, 247; anti-apartheid, 235 Australia, Native Title Act, 42, 74
Arab Palestinian. See Palestinian Arab Australia, Naturalization Act, 45
Arabic speakers in Australia, 34 Australia, Public Service Act, 67
Argentina, 140 Australia, Racial Discrimination Act, 42,
Assimilation, 20, 30, 76, 115, 444, 445, 459 65, 77
Australia, 3, 5, 7, 14, 24, 32, 139, 155, 476, Australian Citizenship Act, 43, 44, 54, 56,
479, 481, 494; Australian Institute of 60, 71
Multicultural Affairs (AIMA), 51; Austria, 75, 369
Australian Labor Party, 50, 70, 72; Bureau Azerbaijan, 179. See also Central Asian
of Immigration, Multicultural and Republics; Commonwealth of
Population Research, 53; Department of Independent States; Soviet Union
Immigration and Ethnic Affairs, 53, 150;
Federal Department of Immigration, 49, 69; Baltic States, 7, 8, 17, 175, 179, 253, 492;
Humanitarian Program, 68; Joint Standing ethnic Russians, 256, 259, 267, 271, 274;
Committee on Migration, 57, 70; Liberal minorities, 258. See also Soviet Union;
Party, 53, 57; Liberal-Country Party and individual states
Coalition, 51; Liberal-National Party Bangladesh, 455
Coalition, 54; Migration Program, 68; Bauböck, Rainer, 158
national identity, 72; National Office of Beazley, Kim, 72
Overseas Skills Recognition, 53; National Becerra RamRrez, Manuel, 13, 479,
Party, 53; nativists, 72; Office of 480, 494
Multicultural Affairs, 51, 53, 72; primary Belarus, 179, 188; Belorussians, 181; Union
citizenship, 61; regaining citizenship, 55; Treaty with Russia, 188. See also

505
506 I NDEX

Commonwealth of Independent States; Canadian Security Intelligence Service

Soviet Union Act, 113
Belgium, 343, 364, 367, 369; Vlaams Blok, 343 Cantonese speakers in Australia, 34
Belonging, 481 Carens, Joseph, 28, 102, 110, 487
Berezovskii, B. A., 199 Carnegie Endowment International
Bickel, Alexander, 151 Migration Policy Program, 2
Bipatride, 194, 197, 201 Castles, Stephen, 15, 27, 478, 479, 480,
Birkkavs, Valdis, 289 481, 483
Black, Hugo, 160 Central Asian Republics, 179. See also
Blacks, 12, 224, 245 Commonwealth of Independent States;
Bolkus, Nick, 55 Soviet Union; and individual states
Bombay, 162 Cerkasovas, Severinas, 281
Bophuthatswana, 226, 234. See also South Chabot, Jean-Claude, 375
Africa; TBVC citizens Chechen Republic, 186, 189. See also
Border control: European Union, 368; Japan, Russia
434, 436, 441, 461, 465; Mexico, 328 Chen, Lung-Chu, 490
Botha, P. W. 222 Chesterman, John, 63
Bowen, Lionel, 65 Chiarelli v. Canada, 112
Brazilians, 453, 455, 462 Chicano, 325
Britain, 33, 48, 76, 98, 139, 140, 343, 369; China, 48, 140, 180, 214, 446; immigrants
British Empire, 32, 36; British subjects, 93, from, 124, 129, 152, 440, 446, 448, 453,
97, 115, 223 461, 465
Britain, Naturalization Act (1914), 96 Ciskei, 226, 234. See also South Africa;
British Nationality Act (1948), 38 TBVC Citizens
British Nationality and Status of Aliens Act Citizens, responsibilities/requirements, 1;
(“British Nationality Act,” 1914), 94 Australia, 38; Canada, 85, 87, 89, 95;
Brubaker, Rogers, 165, 278, 282, 284, 371, European Union, 374; Israel, 392, 415;
384, 387 Mexico, 314, 328; Russia, 184, 198, 199;
Brussels, 357, 366, 368 South Africa, 225, 245; United States,
Bulgaria, 200 119, 134
Burkean conservatism, 92 Citizens, rights, 1, 483; Canada, 87, 98,
Buthelezi, Dr., 234, 237, 242, 245 104; European Union, 345, 347, 356,
371; Israel, 392, 415, 425; Japan, 459;
California Proposition 187, 144 Mexico, 314, 316, 327; Russia, 184, 201;
Calvin’s Case, 97, 124 South Africa, 226, 228, 245, 246; United
Calvo Clause, 318, 329 States, 119, 120, 150, 157, 165
Canada, 3, 15, 14, 25, 76, 82, 130, 139, 140, Citizens’ Europe, 346
145, 159, 313, 476, 484; authority, 88; Citizenship, 13, 307, 475; Australia, 37;
citizens, 223; Immigration Legislative Baltic States, 261, 277, 293; as
Review Advisory Group, 102; Japanese citoyenneté, 345; Estonia, 261, 271, 276,
Canadians, 98, 104; Judicial Committee of 277; European Union, 342, 345, 353;
the Privy Council, 98; judiciary, 84; legal Israel, 386; Latvia, 261, 266, 277;
status of citizenship, 92; legitimacy, 88; Lithuania, 261, 277; Mexico, 314; as
loyalty, 101; Parliamentary Standing nationalité, 345; rationing, 494; Russia,
Committee on Citizenship and Immigration, 183; South Africa, 222, 238. See also
100, 114, 479 Citizens, responsibilities/requirements;
Canada, Bill C-63, 83, 115 Citizens, rights; Dual citizenship; Loss of
Canada, Constitution Act (1867), 93, 94 citizenship; Renunciation of citizenship;
Canada, Immigration Act (1910), 94, 110 Triangular citizenship; Value of
Canada, Statute of Westminster (1931), 93, 96 citizenship; and individual states and
Canadian Charter of Rights and Freedoms, 83, regions
84, 105, 109, 113, 114, 116 Citizenship conventions, 49
Canadian Citizenship Act (1947), 83, 96, 99 Citizenship education, South Africa, 245
Canadian Citizenship Act (1977), 82, 84 Citizenship policy, 310; Baltic states, 254,
Canadian Citizenship, A Sense of 260, 278, 287
Belonging, 114 CitizenshipUSA, 131, 135
Canadian Nationals Act (1921), 94 Coke, Sir Edward, 124
INDE X 507

Collectivist, 6 446, 452, 464, 466; Mexico, 320; South

Colombia, 140 Africa, 229; United States, 158, 164
Commonwealth Electoral Act, 41, 65 Derivative naturalization, Russia, 215
Commonwealth Franchise Act, 41 de Saint-Pierre, Abbé, 359
Commonwealth Nationality Act, 45 Diplomatic protection, European Union,
Commonwealth of Independent States (CIS), 347, 366
179, 189, 213 Discrimination: Estonia, 259; European
Commonwealth Public Service, 67 Union, 348, 350; Latvia, 259;
Communitarians, 92 Mexico, 312
Comparative Citizen Project, 2 Dodson, Mick, 40, 74
Confederalists, 192, 353, 358 Dominican Republic, 139, 140, 144, 146
Conference on Security and Cooperation in Dred Scott case, 124–25, 126
Europe (CSCE). See Organization for Dreyfus, Captain, 384
Security and Cooperation in Europe Dual citizenship, 307; Australia, 36, 39, 56;
Constitutions: Australia, 32, 36, 41, 42, 58, 62, Canada, 99; Estonia, 272; Israel, 392,
64, 76, 76; Canada, 84, 104, 105; 420; Lithuania, 264; Russia, 184, 186,
Dominican, 144; Estonia, 257, 259, 275; 193; South Africa, 233, 235; United
France, 365; Latvia, 268; Lithuania, 257, States, 120, 129, 135, 137, 159, 162, 168.
259, 264; Mexico, 305, 313, 315, 316, 321, See also Dual nationality
326, 328, 333, 337; Russia, 179, 181, 182, Dual nationality, 19, 27, 426, 481, 494;
184, 185, 191, 198, 209, 211; Sakha, 185; Canada, 87, 103; Japan, 436, 438, 450,
South Africa, 221, 242; South Africa, 460, 464; Mexico, 313, 315, 322, 324,
Interim Constitution (1993), 226, 228, 234; 330, 338, 340; South Africa, 235, 247.
South Africa, New Constitution (1996), 234, See also Dual citizenship
246; Tatarstan, 186; Tyva, 187; United Due process rights: Australia, 67; United
States, 124, 129, 132, 133, 150, 154, 156, States, 150, 154
160, 163, 166 Dugard, John, 224
Constructivist, 360 Duverger, Maurice, 346
Convention on the Citizenship of Married
Women, 202 Economic rights, 29, 476; European Union,
Convergence criteria, 361 347, 371
Cosmopolitanism, 314 Edinburgh Summit, 352
Costa Rica, 140 Education. See Social benefits
Cullen, Justice, 102 El Salvador, 140, 319
Cwele, Dr., 239 English-speaking persons, 34, 99, 239
Czechoslovakia, 200 Equal concern and respect, 106, 114
Equal protection: Canada, 105, 113;
Dae-Jung, Kim, 458 European Union, 349, 350; Russia, 184
Davidson, Alastair, 49 Equality: Canada, 104, 114; South
Dayton Accords, 122 Africa, 224
Degrees of citizenship, Israel, 384, 392, 417 Estonia, 17, 175; Citizenship and Migration
Delacretaz, John Charles, 59 Department, 275; Congress of Estonia,
Dellinger, Walter, 127 274; Fatherland Party, 279; language
Delors, Jacques, 353 training, 276; Riigikogu, 256, 275, 284.
Democratic deficit, 358 See also Baltic States; Soviet Union
Denationalization: Israel, 424; South Africa, Estonia, Basic Goals for Estonia (1997 and
226, 242; United States, 135, 160 1998), 285
Denaturalization: Israel, 424; Mexico, 336; Estonia, On Estonian Language
United States, 135 Requirements for Applicants for
Denizens: European Union, 371, 377; Japan, Citizenship, 288
435, 456, 459, 464, 467 Ethnicity, 3, 15; Baltic States, 257, 279,
Denizenship: Japan, 446, 455, 457, 460, 461; 282, 286; European Union, 343
United States, 157 Ethnocultural conception of nationhood,
Denmark, 370 437, 438; European Union, 343, 376;
Depatriation, Japan, 446 Israel, 428; United States, 156, 159
Deportation, 26, 486; Australia, 68; Canada, Ethnonationalism, Baltic States, 258;
98, 112; Estonia, 256; Israel, 406; Japan, Eurobarometer, 361, 366, 370
508 I NDEX

European Economic Community, 351 Fundamental rights, European Union, 349

European Union (EU), 1, 4, 8, 19, 122, 253,
269, 277, 288, 305, 342, 475, 485, 490; G7 Summit, 449
Amsterdam Summit, 374; Council of Gaikokujin rodosha (foreign workers,
Europe, 18, 289, 492; Council of Ministers, Japanese), 552
358; cultural diversity, 343; Economic and Gaisman, Trigueros, 321
Social Committee, 348, 360; economic Gallegly, Elton, 126
concerns, 351, 360; Euro-Citizen Action Galligan, Brian, 63
Service (ECAS), 356; European Galloway, David, 6, 27, 29, 479,
Commission, 373; European Council, 309, 481, 487
493; European Court of Human Rights, 489; Gaza Strip, 391, 407, 412, 424, 428
European Court of Justice, 309; European Gender/sex, 3; Israel, 392, 410, 412, 424,
Parliament, 10, 348, 369, 373; Forum of the 428; Japan, 439, 449, 450
Migrants of the European Communities, Germany, 35, 67, 75, 121, 137, 148, 159,
348, 372; Intergovernmental Conference 168, 200, 313, 369, 384, 385, 451, 480,
(IGC), 348, 352, 362, 372; migration, 343; 492; citizenship laws, 145, 159; German
nation-state, 343; political participation, speakers in Australia, 34
369; sovereignty, 375; state-building, 345; Gibraltar, 363
Voluntary Organisations in a Citizen’s Ginsburgs, George, 8, 176, 258, 489
Europe (VOICE), 356; Year against Racism Global migration, 1
(1997), 373 Glotz, Peter, 375
European Union, Amsterdam Treaty, 9, 348, Goldstein v. Minister of Interior. See
352, 373 Pesarro v. Minister of Interior
European Union, Convention on Human Gonzales, Felipe, 354
Rights and Fundamental Freedoms, 348 Good Neighbor Councils (Australia), 49
European Union, Convention on Reduction of Gorbunovs, Anatolijs, 266
Cases of Multiple Nationality and Military Government employment, 29, 42;
Obligations in Cases of Multiple Australia, 67; Canada, 109, 110; Israel,
Nationality, 479 414; Japan, 457, 464; Russia, 184; South
European Union, Treaty on European Union Africa, 246; United States, 119, 152,
(Maastricht Treaty), 9, 122, 308, 346, 347, 153, 160
348, 351, 352, 358, 363, 367, 373 Graham v. Richardson, 152, 155
Europessimism, 346 Graham, Pamela, 144
Exchange programs, 360 Greece, 59; Greeks, 34, 50, 359, 369
Exclusion, 14, 29, 75, 175, 253, 260, 282, 294 Guatemala, 319
Exiles, 239 Gurion, David Ben, 416, 418
Expatriation, 306; Israel, 393, 413, 421; United
States, 134, 134, 146 Habermas, Jurgen, 310, 357, 375
Extradition: Estonia, 256; Latvia, 257; Hague Convention, 27, 56, 137
Mexico, 339 Haiti, 163
Hammar, Tomas, 64, 157, 371, 438, 460
Family genealogy, Israel, 400 Hancock, Moffat, 95, 104
Federalists, 100, 353, 358 Hanson (Independent MP, Queensland), 72
Feldblum, Miriam, 19 Health insurance. See Social benefits
Ferry, Jean-Marc, 375 Helsinki Agreement, 122
Fingerprinting, 457 Helsinki Watch, 287
Flynn, Padraig, 373 Hertzl, Theodore, 384
Former Soviet Union, 260, 261 Holland, 110
France, 35, 128, 140, 343, 365, 384, 451, 485; Homo Europeus, 359
French, 99, 128, 345; Front National, 343; Homogeneity: European Union, 344; Japan,
Paris, 368 435, 436, 438, 448
Franchise. See Political participation; Honduras, 319
Political rights Horne, Donald, 73
Fraser, Prime Minister (Australia), 51 Howard, Prime Minister (Australia), 72
Freedom of speech: Australia, 66; Canada, Human rights, 1, 176; Canada, 89, 105;
105; United States, 150 European Union, 350; Israel, 426; Japan,
Fuchs, Lawrence, 148 449, 454, 457, 462; Mexico, 314, 320;
INDE X 509

Russia, 190, 204; South Africa, 226, 247; of Justice, 466; National Health
United States, 127, 67 Insurance program, 456; nationality
Hungary, 200 selection system, 450; National Pension
Plan, 456; nationals, 439; nihonjinron
Illegal/undocumented immigrants: Australia, literature, 448; regularization programs,
43; Japan, 436, 441, 452, 466; South Africa, 466; seclusion policy, 440; sex industry,
230, 247; United States, 125, 158 53, 462; Soren, 444, 458; Tokugawa
Imbeni, Renzo, 348 period, 440; trainees, 453, 455; Zainichi
Inclusiveness, 14, 175, 254, 262, 266, 271, (resident Koreans), 440; Zainichito party,
277, 282, 286, 310 458
India, 139 Japan, Alien Registration Law
Indigenous peoples: Australia, 33, 36, 40, 74, (1993), 457
77; Mexico, 339. See also Native Japan, Alien Registration Order (1947),
Americans; Torres Strait Island people 441, 446
Indochinese refugees, 449, 459 Japan, Immigration Control and Refugee
Integration, 20, 28; European Union, 347, 351, Recognition Act (1981), 456
370, 375; Japan, 434, 437, 449, 462 Japan, Immigration Control Order
International Convention on the Elimination of (1951), 441
All Forms of Racial Discrimination, 42 Japan, Immigration Control Special Law
International Covenant on Civil and Political (1991), 456
Rights (ICCPR), 13, 66, 69, 450 Jews, 11, 14, 384, 386, 398, 417; Halakhic
International Covenant on Economic, Social definition of Jewish identity, 398, 429;
and Cultural Rights, 450 rights of, 387, 394; solicitation of, 390,
Intifada, 424 397. See also Israel; Judaism
Iran, 455; Iranians, 181 Jones, J. Mervyn, 93
Iraqi Kurds, 181 Joppke, Christian, 492
Ireland, 33, 140, 223 Judaism: Conservative, 401; conversion
Israel, 3, 11, 140, 383, 386, 476, 481; to, 401; Orthodox, 398, 415, 428;
democratic, 417, 427; kelitah (absorption), Reform, 401
398; Knesset, 400, 406, 412, 414, 418; Jus domicili, 332
nation-building, 387, 397; Population Jus sanguinis, 5, 8, 12, 18, 26, 306, 385;
Registry, 405; War of Independence (1948), Australia, 36, 39, 44, 47; Canada, 85;
403; yeshiva, 415; Yishuv, 403, 416. See Israel, 391, 407, 408; Japan, 436, 437,
also Degrees of citizenship; Jews; Judaism 447, 449, 450, 461, 464; Latvia, 267;
Israel, Citizenship Law, 393, 401, 404, 408, Lithuania, 263; Mexico, 316, 319, 321,
413, 422, 428 332; Russia, 200, 206; South Africa, 230;
Israel, Declaration of Independence, 403 United States, 123, 126, 129, 140, 145,
Israel, Defense Service Law (1949), 415 158, 161, 168
Israel, Defense Service Law (1986), 415, Jus soli, 5, 7, 16, 25, 306; Australia, 36, 39,
418–19, 423 43, 47; Canada, 85; double (Japan), 436,
Israel, Law and Administration Ordinance, 396 464; Estonia, 261; Israel, 391, 425;
Israel, Law of Return, 4, 11, 14, 383, 387, 393, Japan, 437, 464; Latvia, 261; Mexico,
410, 418, 427 316, 319, 321, 332; Russia, 206; South
Israel, Marriage Fraud Amendment, 412 Africa, 230, 246; United States, 120, 123,
Italy, 50, 67, 343, 369; Italian speakers in 148, 156, 158, 161, 168
Australia, 34
Kama, Kaido, 275
Japan, 3, 12, 18, 385, 434, 476, 484; Kardamitsis, Bill, 59
anti-Chinese sentiments, 440; Cabinet Karnups, Viestur, 280
Legislation Bureau, 457; Family Registry, Kashiwazaki, Chikako, 12, 18, 385, 484
437, 438, 443, 445, 451; immigrants from, Kask, Peet, 279
152; imperial subjects, 439; Kazakhstan, 179, 210. See also Central
internationalization, 448, 454; intolerance, Asian Republics; Commonwealth of
435; Japanese Canadians, 98, 104; Justice Independent States; Soviet Union
Ministry, 442, 444, 451, 455, 456, 466; Kerber, Linda, 416
loyalty, 445; Meiji policy, 438, 445; Khusainov, A, 212
migration, 452; Mindan, 444, 458; Ministry Kioa v. West, 43
510 I NDEX

Kirch, Aksel, 280 Mandela, Nelson, 248

Klaaren, Joseph, 11, 483, 492 Marginalization, 2
Komai, Hiroshi, 466 Margizens, European Union, 372, 377
Komi Republic, 191 Markauskas, Rimantas, 283
Koreans, 18, 214, 439, 440, 445, 455, 458, Marriage: Israel, 400, 410; Russia, 202
461, 465 Mars, Mrs. I., 245
Kotov, Gennady, 259 Marshall, T. H., 20, 40, 150, 356
Kretzmer, David, 395 Martin, David, 126
Kvarno, Ole, 280, 288 Martin, Paul, 96, 98
Kymlicka, Will, 376 Martinez, Miguel Angel, 291
Kyosei (living together, Japanese), 463 Martiniello, Marco, 9, 485, 489, 492
Kyrgyzstan, 210. See also Central Asian McLachlin, Justice (British Columbia), 109
Republics; Commonwealth of Independent Melting pot concept, 30
States; Soviet Union Membership, 2, 7, 475, 477, 489; Baltic
States, 254, 258; Canada, 83, 88, 90, 92,
La Forest, Justice (Canada), 108, 109 97, 113, 115; Israel, 389, 391, 395, 417,
Lafont, Robert, 375 427; South Africa, 248; United States,
Lahav, Gallya, 492 119, 121, 149, 155, 157, 159, 163
Lamani, Senator (ANC, South Mexico, 4, 6, 13, 130, 139, 141, 142, 162,
Africa), 241 305, 312, 451, 479, 481; Foreign
Language, 27, 34; European Union, 345, 359, Relations Secretariat, 318, 331, 332, 337;
369; Japan, 445 Institute for International Law, 324;
Latvia, 7, 17, 175, 179; Fatherland and Interior Secretariat, 337; Liberals, 318; lo
Freedom-LNNK party, 269, 280; mestizo, 313; Mexican Nationality
Parliament, 17, 269; Cabinet of Ministers, Certificate (CNM), 332, 337; Ministry of
270; Citizenship and Immigration Foreign Affairs, 145, 480; 1995–2000
Department, 266, 270; Human Rights National Development Plan, 324;
Committee, 259; Naturalization Board, 270; population, 314; Restricted Zone, 318;
Saeima, 267, 283, 289. See also Baltic revolution, 313; sovereignty, 314
States; Soviet Union Mexico, Civil Code for the Federal
Latvia, Rights and Obligations of a Citizen and District in Ordinary Matters (Materia
a Person, 269 Común), 333
Lavoie v. Canada, 28, 110, 487 Mexico, Federal Law for Protection of the
Lawful settlement, 28, 121, 157, 167 Consumer, 338
Lewin-Epstein, Noah, 397 Mexico, Ley del foro, 332
Lincoln, Abraham, 27 Mexico, Nationality Law, 313, 328,
Lithuania, 7, 17, 175; Committee on Human 332, 337
and Citizens Rights and Nationality Affairs, Mexico, Principle on Nationality, 324
283; Department of Nationalities, 281; Migrant workers: Japan, 434, 446, 447, 449,
Lithuanian Soviet Socialist Republic 451, 461; Mexico, 331. See also
(LiSSR), 262; Sajudis, 263, 278; Special Temporary workers
Commission of Questions of Citizenship, Migration, 343
281, 283; Supreme Council, 265; Supreme Military service: Australia, 67; Israel, 392,
Soviet, 262. See also Baltic States, Soviet 401, 415, 423, 428; United States, 133
Union Mill, John Stuart, 108
Lithuania, On Public Organizations, 257 Miyajima, Takashi, 466
Lomnitz, Claudio, 314 Mnisi, Senator (Democratic Party, South
Loss of citizenship, 477, 482; Australia, 54; Africa), 238
Canada, 86; Israel, 393, 420; Mexico, 316, Mobility: Australia, 67, 69; Canada, 90;
323, 324, 333, 336; Russia, 182, 200, 202, Estonia, 256; European Union, 347, 357,
211, 214, 216; South Africa, 224, 235; 363, 368; Israel, 414; Japan, 464;
United States, 120, 134, 139 Lithuania, 257; South Africa, 246; United
Luxembourg, 364, 369 States, 119
Modernist, 360
Mabo v. Queensland, 42, 74 Moldova, 179
Macedonian speakers in Australia, 34 Monette, Pierre-Yves, 359
Mandarin speakers in Australia, 34 Mongolia, 200
INDE X 511

Morin, Edgard, 346, 377 Nazi camp refugees, 397

Moss, Irene, 65 Netherlands, 76, 110, 355
Mozambique, 222, 229 New Settlers’ Leagues (Australia), 49
Mulder, C. P., 225 Noncitizens, responsibilities/requirements:
Muldoon, Justice (Canada), 101, 103 Canada, 90; Japan, 442, 457; Russia,
Multicultural, 30, 281, 482; Australia, 35, 39, 184; South Africa, 247
48, 51, 72; Canada, 99, 111; European Noncitizens, rights: Baltic States, 255, 256;
Union, 343, 362, 376 Canada, 91, 104, 107, 113; Estonia, 256,
Multinational state, 280, 282 259; Israel, 425; Japan, 435, 446, 449,
Muslims, 376 456, 457, 460, 462, 463; Latvia, 258–59;
Mussa v. Minister of Interior, 413 Lithuania, 257, 259; Mexico, 314, 315,
Mutalibov, A., 209 317, 327; Russia, 184; South Africa, 240,
246; United States, 119, 120, 165. See
Nationalism: European Union, 343, 354; also Rights
Mexico, 328, 339 Non-English-speaking background (NESB,
Nationalist, 6, 315 Australia), 34, 50
Nationality, 13, 307, 483; Australia, 39, 76; Norman, Richard, 254
Canada, 93, 100; European Union, 350, 354; North American Free Trade Agreement
Japan, 436, 439, 441, 447, 457, 460; 313, (NAFTA), 4, 116, 146
315, 319, 321, 323, 339; proof of (Mexico), North Korea, 200, 209, 446, 456, 458, 463
332; South Africa, 226, 238. See also Dual
nationality Okinawans, 445
Nation-state, 280 Olim (immigrants, Hebrew), 387, 390,
Native Americans, 164 396, 410
NATO, 253, 288, 292 Organization for Security and Cooperation
Natsiya (nation, Russian), 278 in Europe (OSCE), 253, 277, 286, 266,
Naturalization, 14, 26, 176; Australia, 287–88, 289, 492
36, 44; Canada, 93; card (Mexico), 319, Oriol, Michel, 375
335; discretion (Russia), 182; education
(South Africa) 243; Estonia, 261, 275; Pakistan, 455
Israel, 409; Japan, 436, 442, 447, 460, Palestinian Arabs, 11, 14, 386, 397, 417,
464; Latvia, 261, 266, 270, 290; Mexico, 424, 428; citizens, 390, 404; refugees,
319, 323; Russia, 208; as social policy 391, 404; rights of, 390
(U.S.), 121; South Africa, 228, 233, 241, Palestinian Authority (PA), 391, 407,
247; United States, 120, 129. See also 426, 428
Derivative naturalization; Naturalization, Panama, 140
disincentives; Naturalization, incentives; Parry, Clive, 95
Naturalization oath; Naturalization Passports: Israel, 414; Mexico, 337; Russia,
requirements 190, 197, 200, 203; South Africa, 226,
Naturalization, disincentives, 28; United 237, 240
States, 130, 134, 145, 147. See also Permanent residents, 19, 476, 483; Baltic
Naturalization; Naturalization, incentives States, 261, 282; Canada, 107, 115;
Naturalization, incentives, 17, 482; Canada, Israel, 402, 405, 407, 414; Japan, 434,
110; United States, 122, 131, 133, 155, 159, 435, 437, 445, 455, 458, 460; Lithuania,
166. See also Naturalization; Naturalization, 262; Russia, 184, 188; South Africa, 222,
disincentives 226, 230, 231, 235; United States, 128,
Naturalization oath, 14, 26; Australia, 38, 60, 131, 150, 157, 161, 167
73; Canada, 86, 114; Israel, 409; Lithuania, Peruvians, 453, 455
264; South Africa, 243; United States, 130, Pesarro (Goldstein) v. Minister of
133, 139, 141, 147, 147 Interior, 401
Naturalization requirements, 14, 26; Australia, Petrauskas, Valdas, 283
38, 44, 47; Canada, 85, 102, 111; Estonia, Pettai, Velo, 294
272, 287; Israel, 389, 409, 411; Japan, 442, Philippines, 48, 139, 453
464; Latvia, 268; Lithuania, 262, 264; Plant, Raymond, 254
Russia, 182, 202, 205, 208, 210; South Plessy v. Ferguson, 125
Africa, 223, 225, 231, 236, 241; United Pluralism, 29, 76, 156, 384
States, 120, 124, 130, 165 Poland, 200
512 I NDEX

Political participation, 10 Commonwealth of Independent States;

Political rights: Australia, 64, Baltic States, Soviet Union
254, 256, 258; Canada, 105; Estonia, 256, Russia, On the Citizenship of the Republic
293; European Union, 347, 358, 363, 369, of Tatarstan, 191
371; Israel, 414; Japan, 435, 457, 465;
Latvia, 257, 293; Lithuania, 257, 293; Safran, William, 255
Russia, 184, 189; South Africa, 221, 224, Sakoku-kaikoku (seclusion–open up the
234, 237, 240, 246, 247; United States, 119, country, Japanese), 454
151, 156, 157, 166 San Francisco Peace Treaty, 439
Polyethnic, 122, 127, 147, 166 Sassen, Saskia, 159, 490
Portugal, 364 Schuck, Peter, 28, 110, 125, 165
Postnationalism, 352, 375; United States, 141, Self-identification, 89
156, 163, 166, 167 Semyonov, Moshe, 397
Prodi, Romano, 373 Senegalese citizens, 229
Property rights: Latvia, 258; Lithuania, 259 Sephardi Torah Gardens, Shas Movement v.
Director of Population Registry, 401
Quebec, 107, 115 Shachar, Ayelet, 11, 15, 384, 483, 488
Shalit v. Minister of Interior, 399, 402
Race, 3, 15; Israel, 392; South Africa, 224; Shaw, E. Clay, Jr., 154
United States, 129 Sikakane, Mr., 238
Racism: Canada, 104; European Union, 372 Sino-Japanese War, 439
Rand, Justice Ivan, 105 Siqueiros, Jose Luis, 332
Raz, Joseph, 88 Smith, Lamar, 154
Reconstruction, 9 Smith, Rogers, 125
Refugees, 11; Israel, 391, 397, 404, 407; Smuts, Ms., 240
Japan, 449; Russia, 180, 203 Social benefits, 29, 476, 484, 488;
Regeneration, 83, 89, 115 Australia, 36; Baltic States, 254, 258,
Renunciation of citizenship, 27, 480; Canada, 259; Estonia, 259; Israel, 425; Japan,
86; Israel, 420; Mexico, 336; Russia, 179; 456, 462; Latvia, 258; Lithuania, 259;
South Africa, 235; United States, 130, 147 South Africa, 246; United States, 119,
Repatriation: Russia, 196; South Africa, 229 120, 126, 131, 133, 152, 154, 160
Riggs, Frank, 155 Social Dimension of the Internal Market,
Rights, 476, 483; Baltic States, 255, 293. See The (European Commission), 352
also Diplomatic protection; Due process Social security. See Social benefits
rights; Economic rights; Equal protection; Soshikaimei (adoption of Japanese
Freedom of speech; Fundamental rights; names), 445
Government employment; Human rights; South Africa, 3, 11, 175, 221, 384, 476,
Mobility; Political rights; Property rights; 484, 492; African National Congress
Social benefits (ANC), 238; citizenship education, 245;
Romanians, 181, 200 Defence Force, 225; Democratic Party,
Ruddock, Paul, 72 233, 238, 240; Department of Education,
Russia/Russian Federation, 3, 8, 175, 178; 247; Department of Home Affairs, 222,
Bureau for Coordinating Labor Resources, 230, 232, 234, 240, 242, 245, 247;
Migration, and Employment, 181; Freedom Front, 238, 244, 245; Gauteng
citizenship statute (1991), 179, 181, 191, Department of Education, 247;
193, 194, 196, 200, 212; concerted Government of National Unity, 227;
citizenship, 186; Duma, 199; “far abroad,” grants of amnesty, 222; ID document,
179; Federal Migration Service, 180; 233; immigration permit, 231–32;
legislative fiat, 179; Ministry of Internal Inkatha Freedom Party (IFP), 234, 242;
Affairs of the Russian Federation, 199, 207; liberation election of 1994, 221, 248;
“near abroad,” 176, 179; Office of the loyalty, 237, 248, migration patterns,
Procurator-General, 212; propiska 229; prohibited immigrants, 236;
(residency permit), 176, 213; Russians post-apartheid amnesties, 248;
(ethnic), 175; Russian speakers, 261, 269; post-apartheid legislation 221; Senate
Security Council, 199; state succession, 178, Select Committee on Health, Welfare,
200; Union Treaty with Belarus, 188; and Population Development and Home
Yeltsin administration, 179. See also Affairs, 245; Truth and Reconciliation
INDE X 513

Commission, 222; Union national status, Thornton, Margaret, 61

223. See also TBVC citizens Torres Strait Island people, 33, 40
South Africa, Aliens Control Act 96 of 1991, Transkei, 224, 234. See also South Africa;
222, 227, 231 TBVC citizens
South Africa, Bantu Homelands Citizenship Transnationalism, 355, 489; United States,
Act 26 of 1970, 222, 224, 228, 234 141, 156, 162, 165
South Africa, Bill of Rights, 246 Triangular citizenship, 10; European
South Africa, Citizenship of Transkei Act Union, 371
(1976), 228 Tshwete v. Minister of Home Affairs, 227
South Africa, Restoration and Extension of Turkey, 180; Turks, 35, 181
South African Citizenship Act 196 of 1993, Turkmenistan, 198. See also Central Asian
226, 227 Republics; Commonwealth of
South Africa, Restoration of South African Independent States; Soviet Union
Citizenship Act 73 of 1986, 11, 222, 226 Turner, Brian J, 356
South Africa, Status of Transkei Act,
224, 227 Ukraine, 180, 189. See also Commonwealth
South African Citizenship Act 44 of 1949, of Independent States; Soviet Union
222, 241 Umbrasaite, Erika, 279
South African Citizenship Act 88 of 1995, 221, Undocumented persons. See
222, 228, 232, 233, 248, 492 Illegal/undocumented immigrants
South African Development Community United Kingdom. See Britain
(SADC), 222, 229 United Nations, Convention on the
South Korea, 209, 439, 443, 446, 455, Elimination of All Forms of
458, 463 Discrimination Against Women, 449
Sovereignty, 7, 9, 93, 96, 489 United Nations, Covenant relating to the
Soviet Union, 7, 176, 196, 200, 393 Status of Refugees, 13, 450, 459
Soysal, Yasemin, 353, 355, 483, 491 United Nations Development
Spain, 343, 370; Spanish, 34, 354 Program, 277
Spiro, Peter, 147 United Nations Human Rights
Stateless persons, 8; Israel, 406; Japan, 451; Committee, 69
Russia, 203; South Africa, 235, 246 United States: 3, 5, 14, 19, 25, 36, 37, 76,
Stepan, Alfred, 279, 282 119, 306, 312, 325, 339, 383, 476, 484,
Stepanov, G, 203 492, 494; acculturation, 164; citizenship,
Stephen, Sir Ninian, 32 325, 339; Civil War, 9, 123, 129;
Stir-fry concept, 30 Commission on Immigration Reform,
Subjecthood, 6 167, 481; Department of Justice, 126,
Successor state, 176 132; economy, 312; Gettysburg Address,
Supranationalism, 4, 9, 310, 345, 352; United 166; green card, 131, 162; Immigration
States, 122, 167 and Naturalization Service, 16, 131, 135;
Sweden, 76, 355, 370 state laws, 152; War of 1812, 134;
Switzerland, 59, 75, 140 welfare, 312
Sykes v. Cleary, 60 United States, Declaration of
Independence, 166
Taiwan, 439, 447, 465 United States, Expatriation Act, 135
Tajikstan, 180, 198, 209. See also Central United States, Immigration Act of
Asian Republics; Commonwealth of 1986, 131
Independent States; Soviet Union United States, Immigration and Nationality
Taney, Chief Justice (U.S.), 124, 126 Act, 136
Tatarstan, 186, 190. See also Central Asian United States v. Wong Kim Ark, 124
Republics; Commonwealth of Independent Universal Declaration of Human Rights,
States; Soviet Union 181, 182
Tazdait, Djida, 349 Uzbekistan, 180, 212. See also Central
TBVC (Transkei, Bophuthatswana, Venda, and Asian Republics; Commonwealth of
Ciskei) citizens, 226, 234, 241 Independent States; Soviet Union
Temporary workers: Israel, 393, 425; Japan,
435. See also Migrant workers Vaitiekus, Severinas, 281
Terra nullius, 40, 42 Valery, Paul, 359
514 I NDEX

Value of citizenship, 477, 482; South Africa, Wiener, Antje, 367

232, 244; United States, 122, 132, 135, 161, Wik People v. Queensland, 74
165 Wilson, Justice (Canada), 107, 109
van der Stoel, Max, 266, 289, 292 Window policy, 268, 276
Vebers, Elmars, 285 World War I, 107, 109
Venda, 226, 234. See also South Africa; TBVC World War II, 3, 4, 12, 15, 33, 38, 67, 155,
citizens 266, 385, 435, 439, 448
Vietnam, 48, 214, 449; Vietnamese, 34, 181
Visa, 453, 466 Xenophobia, 229, 325
Vogel, Gredrich, 291
Yon fa, Ri, 458
Walzer, Michael, 92 Yugoslavia, 48, 200
Warren, Earl, 136
Welfare. See Social benefits Zangwill, Israel, 30
West Bank, 391, 407, 412, 425 Zappala, Gianni, 15, 27, 478, 479, 480, 481,
Wetston, Justice (Canada), 110–12 483
White, Byron, 160 Zemrido, Grido, 285
Whites, 12, 225, 235, 239 Zionist, 384, 387, 394, 399
Whitlam, Prime Minister (Australia), 39 Zolberg, Aristede, 494
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