The seminar was held on the 13th June 2023 with the two speakers leading the two sessions and eight panels - Magdalena Zabrocka and Shahab Saqib. The event focused on the concept of citizenship, its different faces, meaning and places within various areas of law, as well as relevance to selected legal and non-legal implications for global governance, among others. Participants were encouraged to reflect on deeper questions concerning the notions of citizenship and belonging as well as deconstruct certain status quo assumptions throughout interactive sessions. The two scholars, leading the interactive seminar, aimed to prompt reflective thoughts and different angles of looking at the same issue, including the practical policy-based perspective and the more philosophical approach to relevant theoretical elements. The objective was to identify selected clashes and tensions in the understanding as well as the application of the concept of citizenship within policy and governance as well as various areas of law – thus challenging the orthodox focus on the ‘public’ side of citizenship and exploring views and perceptions on the meaning and role of citizenship by fellow scholars from the ‘private’ realm, including PIL and family law.
Panels
The seminar was split into two sessions of four panels each, making up a total of eight panels, discussed in the following order:
- A Legal Status or a Bundle of Rights? Reflecting Citizenship in the Past, Present and Future within Legal Realm.
- The Why’s and Why Not’s in Light of the Non-Legal and Socio-Political Dimensions of Citizenship.
- States and their Citizens on the International Arena: A Relationship of Mutual Rights and Benefits.1 The Right to Nationality vs the ‘Right’ to Access to Citizenship.
- Law, Morality and Equality (or Equity?): Can There Ever Be a ‘Just’ Allocation of Access to Citizenship?
- Supranationalism, EU Citizenship and the Single Market: The ‘What, Who, and Why’ of Otherhood.
- The Conflict of Laws and Nationality: Beyond the ‘Public’ Notions of Citizenship.
- Belonging through Citizenship or Citizenship through Belonging? A Twisted Affair in Immigration and Bordering Practices.
- Accessible through Skills, Residence, Investment, or the Birth-right Lottery? The Sale of Passports: When Human Capital Equates Capital: The Meritocracy Behind it.
Key Themes
The definition of citizenship is debatable. The necessity to update earlier analyses of citizenship has been the subject of a thriving social and political science literature over the past 20 years. Further new conceptual and empirical analysis is required given the swift changes in citizenship practice while scholars should refrain from looking mono-thematically at citizenship. The concept combines the spheres of public and private, playing a key role in both realms. The seminar, therefore, opened the floor to multidisciplinary and intersectional discussions on this much disputed concept, bringing together scholars from different legal and non-legal areas of expertise.
The discussion started with an analysis of the roots of citizenship, including citizenship of ancient cities of Greece and Rome, through its development as a status for wealthy white and middle-class males of medieval European cities, to nowadays modern view of citizenship as often defined through the lenses of nation-state level and thus, linked to national sovereignty. Within the political community, citizenship codifies the bond and a bundle of rights and obligations between an individual and a country, but also between nationals of a state. Consequently, the discussion turned to the issue of the necessity of assuming modern state structure for third countries and abandoning their original organisational structures. Within such, the differences between imposition, assumption by necessity and assumption by desire as driven by states’ self-interest, were discussed. It was argued that what can be observed is adaptation by necessity simultaneous with the protection of identity through adaptation and development of robust modern structures to keep up with IR and global politics and hegemons in light of definitions of ‘statehood’ under emerging public international law in the 20th century, and the shifting parameters of how states gain power, recognition, and economic relevance on the international arena.
Both passive and active forms of citizenship were discussed before moving onto the issues of exclusion and inclusion. Discussants rightfully observed that conceptually, there cannot be inclusion without exclusion as the terms would be meaningless while theoretical considerations inspired by philosophical views on equality and the ideal world order of little to no borders should be critically contrasted with practical considerations and policy-based issues connected to the discussed concept. Thus, the role, functions (legal and policy ones), aims and objectives, as well as parameters of citizenship were discussed both from the domestic as well as international points of view. As such, links to PIL and family law were observed, going beyond the ’obvious’ public faces of citizenship. Furthermore, in the context of the EU, attention was paid to the notions of integration, assimilation, protection of European heritage and prescribed values under the TEU & TFEU, as well as the meaning of ‘deserving’ inclusion – is there an inherent right to access citizenship? The answer is no as human rights reach only as far as to ensure fight against statelessness and provide for the right to nationality. Consequently, Ayelet Schahar was discussed and the term ‘birthright lottery’ that she has introduced in her work. Some scholars pointed to the fact that it is not always lottery with some controversies around strategic moves in order to give birth in a particular question and gain citizenship by ius soli or other afore thought-through decisions. Participants proposed the use of the term ‘contingent lottery’ (self-contradictory upon reflection) when thinking of all the factors at play and decisions taken by parents, the effect of geography, race, country’s environment, religious background, gender, and many others.
Citizenship was further analysed as a relationship of mutual rights and obligations not only between individuals and their country, but also between states on the international arena, defining the scope of their responsibilities towards populations and some extra-territorial matters. The practical considerations of the need for citizenship or some sort of an alternative status or an organisational setup were contrasted with deeper reflections on the colonial times, status quo, the utopian idea of an international federation of states, and the possibility of an inter-state re-regionalisation as Mr Saqib described. The philosophical discussions further turned to critical thoughts on liberalism, some key historical commentators, the ideas of freedom and equality, cultural relativism, moral equality, moral imperialism, the idea of equal moral worth of all human beings, among many others. Then, participants moved to the issues of implementing such in everyday social and legal relations given the power relations and disparities identifiable in social relations. There is an argument that inequality is inevitable and therefore, re-organising international community and local societies in the name of equality is not possible. It is rather the continuous fight, pushing against those inherent structures creating inequalities, that should be at heart of relevant debates. Domination, injustice, exploitation, favouritism are natural occurrences within any society and cannot be avoided. Thus, one should look critically at the liberal hope of being in a better situation that we could be in otherwise – which clashes with the practical reality and viability. Lastly, Panel 3 was concluded with discussions on status equality versus substantive equality in the context of nationality and immigration practices.
The fourth panel prompted discussion on the question of whether there can ever be a ‘just’ allocation of citizenship and access to it and whether ‘artificial’ interference to advance perceived equality, would be truly just. The biased, subjective character of human interreference would most likely make it impossible to ensure the system gets any more objective or inclusive than the ‘random’ (to an extent) allocation present today, with a few traditional grounds of conferral of citizenship, including ius soli and ius sanguinis. What is justice and who, based on what, would decide on the matters of allocation of citizenship to selected destinations hierarchised by their desirability (see Kochenov and others’ Quality of Nationality Index (QNI)). Dependent on where one is born, their access to justice, fundamental rights and freedoms, treatment under the law, standard of living, and many others, would drastically differ. As Ms Zabrocka pointed out, such would be relevant in the context of discussions on reproductive rights and sexual health of women and vulnerable groups. Citizenship was argued to have inclusionary and emancipatory potential, however, simultaneously having an inequality dimension because of its inclusion/exclusion dynamic.
Different ways of acquiring citizenship were discussed before moving onto the problematic question of whether there is any way of providing a route to ‘equitable’ allocation. If so, who and why would be excluded if it is unrealistic to ‘include’ everybody and operate under the same set of laws, rules, and norms. Additional issue, in such context, panellists observed, would be the notion of cultural imperialism and imposition of standards. Alternatively, is it viable not to have ‘citizenship’ or an alternative status which covers the same rights, obligations, aims, functions from socio-political and legal realms? The scholars responded with a breadth of complex consideration, but ultimately the answer was: no one has yet been able to successfully argue a viable alternative and a truly possible solution. The dream of cosmopolitan international law structure governing a federal state society, remains nothing but a dream.
The fifth panel focused on the unique character EU citizenship, the issue of multiple demoi, and supranationalism. Participants discussed the internal market of the EU and four market freedoms, and their relevance to which definitions and considerations should be employed when analysing EU citizenship as a distinct concept and a ‘caricature’ of national citizenship. Further on, the issue of identification, integration, participation, and democratic input were discussed in light of the so-called ‘migration crisis’ in Europe. There seems to be an inherent difference between ‘I belong’ and the recognition of one’s belonging by third parties. Even when reflecting on the ‘genuine link’ criteria in international law, belonging seems to be a very loose concept with many layers, worth reflecting upon. Participants further discussed the meaning and relevance of ‘loyalty, subscription, commitment, identity', and what Ms Zabrocka called as ‘an intention to enter into legal and social relations’ with the state and its nationals by becoming one of the members of a polity within a country.
Scholars discussed the inherently derivative character of EU citizenship which could never be truly separate from the national status. In some instances, however, individuals may find what we call a ‘clash of identities’. Various integration theories were touched upon when commenting on the issue of the split of competence as well as cross-border matters and implications within the EU, such as investment migration. The debate was further continued in Panel 8, which covered various ways of obtaining citizenship. Participants reflected on the issue of ‘winning’ or ‘earning’ citizenship (which was distinguished from the notion of ‘belonging’) and its criteria.
The discussion highlighted key differences between capital and human capital as well as policy considerations behind the ‘passport sale’ with its problematic and arguably (un)meritocratic nature. Ms Zabrocka asked participants to think about towards whom states have primary duty of care and protection. If such is their nationals, then given inherent risks of CBI, are countries undermining their primary role by enabling backdoor entry through a corrupted corridor and ineffective security and background checks of the ‘new-comers’? Furthermore, Mr Saqib prompted scholars to reflect upon the limits of capitalism and the legal (and non-legal) policy considerations behind why citizenship should not be commercialised. Ms Zabrocka connected this to the discussion of CBI in the EU and that if EU citizenship (and access to desirable MS destinations) was to be advertised as nothing more but sellable goods, then such should be regulated at EU level while the monetary benefits shared among all Member States to which a successful applicant would gain access to.
Furthermore, the discussion turned once more to the issue of equality. It was concluded that investment migration highlights and capitalises on the existing inequalities, and the lack of ‘just’ allocation, being a perfect breeding ground for the exploitation of desirability of selected destinations, or their visa waivers with other states, and the poor living conditions, rule of law and human rights violations in others.
The sixth panel focused on PIL, the conflict of laws, and family law which later, interestingly, turned to the issue of strategic lawsuits (SLAPPs) and the problem of forum shopping when bringing oppressive lawsuits against members of a civic polity reporting on matters of public concern and relevance. Power relations, economic dominance, and hidden privilege were all discussed in light of bringing proceedings in another jurisdiction in order to ‘silence’ the defendant with high legal costs and the threat of lengthy, costly and burdensome litigation before even getting to the stage of proving the lack of merit behind a SLAPP. When Ms Zabrocka started the analysis of the interconnection between citizenship, capital and economic considerations, Mr Saqib prompted participants to reflect on the Third World’s critique of the dominance of Western laws. Such, however, met with more in-depth discussions on adaptation, state interest, hegemony, and trend-setting on the international arena. Is adoption of structures and laws, triggered by desire to keep up with the rest of the international community, the desire to be able to enter into relations and be seen as a valuable partner, or advance once status a natural occurrence (adaptation by necessity) or norm-imposition?
The seventh panel focused on immigration and bordering practices, naturalisation requirements, the concept of integration, and social cohesion, among others. Ordinary and discretionary naturalisation were compared, moving towards reflections on differences and interconnections between citizenship and ‘belonging’. There are different faces of belonging: legal, political, social, religious, cultural, economic, professional etc. However, what is national belonging and how is it relevant to citizenship conferral practices? There seems to be an extensive debate on why (why not) certain consideration should or should not be taken into account and define one’s membership in the exclusive club of citizens ‘who belong’.
Lastly, participants covered human rights concerns and observed that the protection of fundamental rights and freedoms happens predominantly at national level. International level is to set standards and promote good practices while facilitating conversations about them, such as in the context of investment migration. Nevertheless, international level should be distinguished from the supranational one. As access to human rights protections is through national courts, common standards regarding conferral of citizenship and some ‘good’ norms and practices should be prescribed beyond the domestic level. It seems that sovereignty and sovereign equality of states may be threatened by such common standard coming ‘from above’. On the other hand, one may argue undermining of countries’ sovereignty (in light of agreements concerning mutual recognition and acting in good faith) by abusing agreements and visa waivers to capitalise (as a third state) on enabling backdoor entry (circumventing ordinary immigration procedures prescribed by the contracting state) to third country nationals. Such, seems especially evident in context of the EU, Ms Zabrocka observes. Furthermore, in case of applicants purchasing a new passport with a brand-new name, the sale compromised the control that states exercise over their citizens who can hide behind a new identity purchased abroad.
Overall, the key themes seemed to centre around equality, access to citizenship, inter-state relations and legal considerations, the role and meaning of citizenship, structures and forces beyond the nation-state level, investment migration, liberalism and other applicable theories, inclusion and exclusion, power relations, integration requirements and naturalisation procedures, as well as the issue of ‘belonging’, among many others.
Speakers
Ms Magdalena Zabrocka is a doctoral researcher and a former faculty member at the School of Law, University of Aberdeen. She is currently taking up a post at the School of Law, University of Nottingham while she additionally teaches at the University of Essex Online & Kaplan Open Learning and acts as an Affiliated Lecturer at the Brunel Law School. Her core research focus concerns citizenship by investment (CBI) in the EU. Magdalena’s broader areas of expertise include EU law and international human rights while she has also worked extensively within the field of UK public law and human rights.
Magdalena’s most recent research related to SLAPPs and continued after her co-authorship of a study commissioned by the European Parliament Committee on Legal Affairs (JURI) on ‘The Use of SLAPPs to Silence Journalists, NGOs and Civil Society’. Magdalena is a member of the Anti-SLAPP Hub which she recently represented as a delegate, during the expert seminar on legal and economic threats to the safety of journalists organised by the UN Office for the High Commissioner for Human Rights (OHCHR). She is a visiting lecturer at the Faculty of Law and Administration, University of Gdańsk with her most recent guest seminar devoted to human rights dimensions of SLAPPs. Additionally, Magdalena acts as the PGR Associate Director of the Aberdeen Centre for Constitutional and Public International Law (ACCPIL), among other professional memberships.
Mr Shahab Saqib is an Assistant Professor/Lecturer at the University of Leicester and a Visiting Lecturer at SOAS University of London. He holds associate Fellowship of the Higher Education Academy (HEA) and is currently pursuing his PhD at King’s College London. In the past, he served as a visiting research fellow at the Munk School of Global Affairs and Public Policy at the University of Toronto. Additionally, Shahab is a registered attorney in the Lahore High Court Bar Association in Pakistan. He holds positions as a board member in two significant organizations focusing on diversity, inclusion, and anti-racism initiatives: UNITED for intercultural action and European Network against Racism (ENAR).
Shahab’s research expertise lies in critical legal studies, international law and the conceptualization of discrimination and equality through citizenship. He focuses particularly on the boundaries of belonging and the alienness of non-citizens in international human rights law, by criticizing how dissimulations in the framework of IHRL legitimise various forms of discrimination against certain racialised groups. Some of his recent publications include Shahab Saqib, ‘Racism as Citizenship Personified: Ghosts of Racial Discrimination in International Law’ in Mohsin Al Attar and others (eds), Emancipating International Law: Confronting the Violence of Racialised Boundaries (Oxford University Pres 2024) and Shahab Saqib, ‘The Tragicomedy of Race and the Classist Discourse of international law’ (2022) Symposium on Classism and the International Legal Profession, Opinio Juris http://opiniojuris.org/2022/12/22/symposium-on-classism-and-the-international-legal-profession-the-tragicomedy-of-critics-in-the-classist-discourse-of-international-law/
(Selected) Discussed Literature
- Anna Moltchanova, ‘The Birthright Lottery: Citizenship and Global Inequality - by Ayelet Shachar’ (2010) 24(4) Ethics and International Affairs 431
- Ayelet Shachar and others (eds), ‘Should Citizenship be for Sale?’ (2014) <https://cadmus.eui.eu/handle/1814/29318> accessed 14 May 2023
- Ayelet Shachar, ‘Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws’ (New York University Press 2003)
- Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press 2009)
- David Abraham, ‘Citizenship and Justice: Comments on Dimitry Kochenov’s Citizenship’ (2021) 18(4) International Journal of Constitutional Law 1515
- Dimitry Kochenov and others, ‘Dimitry Kochenov: Why We Shall Abolish Citizenship’ (2021) <https://revdem.ceu.edu/2021/12/04/dimitry-kochenov-why-shall-we-abolish-citizenship/> accessed 14 May 2023
- Dimitry Kochenov, Citizenship (MIT Press 2019)
- Hans d’Oliveira, ‘Golden passports European Commission and European Parliament reports built on quicksand’ (2023) <https://www.compas.ox.ac.uk/wp-content/uploads/WP-2023-162-Golden-Passports.pdf> accessed 14 May 2023
- Jo Shaw and others, ‘Soft Law and Citizenship Regimes’ (2023) in Emilia Korkea-Aho and others (eds), Research Handbook on Soft Law (Edward Elgar Publishing) (forthcoming)
- Michael Bloch, ‘The Crooked Politics of Political Membership Allocation: A Critical Appraisal of Ayelet Shachar's Birthright Lottery’ (2010) 3(1) Journal of Power 134
- Odile Ammann, ‘Passports for Sale: How (Un)Meritocratic Are Citizenship by Investment Programmes?’ (2020) 22 European Journal of Immigration and Law 309
- Peter J Spiro, ‘A New International Law of Citizenship’ (2011) 105(4) The American Journal of International Law 694
- Rainer Bauböck (ed) Debating Transformations of National Citizenship (IMISCOE 2018)
- Richard Bellamy, ‘Membership and belonging’ in Richard Bellamy, Citizenship: A Very Short Introduction (OUP 2008)
- Steve Peers, ‘Want to be an EU citizen? Show me the money!’ (2014) <http://eulawanalysis.blogspot.com/2014/01/want-to-be-eu-citizen-show-me-money.html> accessed 14 May 2023
- Tendayi Achiume, ‘Racial Borders’ (2022) Georgetown Law Journal 110(3) 445
- Harsha Walia, Border and Rule: Global Migration, Capitalism, and the Rise of Racist Nationalism (Haymarket Books 2021)
- Tendayi Achiume, ‘Migration As Decolonization’ (2019) 71 Stanford Law Review 1509
