Conclusions from Citizenship Today: Global Perspectives and Practices

April 30, 2001

On April 30, 2001, the International Migration Policy Program of the Carnegie Endowment for International Peace hosted a discussion regarding citizenship policy in liberal democratic states that have experienced high levels of immigration. The meeting also launched the publication of a new book from the International Migration Policy Program, Citizenship Today: Global Perspectives and Practices. The book's editors, T. Alexander Aleinikoff and Douglas Klusmeyer, and contributor Vicki Jackson. Aleinikoff is a senior associate with the International Migration Policy Program and a professor of law at the Georgetown University Law Center. Klusmeyer is an associate with the International Migration Policy Program. Jackson is a professor of law and associate dean of research at Georgetown University Law Center. Doris Meissner of the Carnegie Endowment for International Peace moderated the discussion.

Doris Meissner announced the debut of Citizenship Today, the second volume in a three-volume series called the Citizenship Project. The book, she observed, comes out amidst an explosion of interest in citizenship in the United States. There has a dramatic increase in demand for citizenship in the U.S.; in the last five years, more people have applied for and become citizens in this country than in the prior thirty-five years. More than three and half million people have recently become citizens in the United States, and most of them are concentrated in "global cities." The book richly sketches the foundation for understanding the issues of immigration and citizenship.

Alex Aleinikoff briefly explained the new book's inception and purpose. With the help of Ford Foundation and the Luso-American Development Fund (Fundação Luso-Americana para o Desenvolvimento), the editors have been carrying out a project looking at citizenship on a global scale. The first volume, From Migrants to Citizens: Membership in a Changing World (Washington, DC: Carnegie Endowment for International Peace, 2000), consisted of several monographs on citizenship law and policy in selected countries around the world. The newly published second volume deals with cross-cutting issues in citizenship law and policy. The third volume, not yet published, will contain a set of policy recommendations for liberal democracies built upon the theoretical and factual background of the first two volumes.

Focusing on the chapter he wrote with Aleinikoff, Douglas Klusmeyer discussed the issue of dual nationality. The incidence of dual nationality has been rising in recent decades, and this rise has generated controversy. At the center of the controversy is a paradox: many states have a tradition of intolerance toward dual nationality, but states in the last century have also created immigration and citizenship laws that have allowed a dramatic increase in the numbers of dual nationals. States cannot have it both ways.

In their chapter contribution, Klusmeyer and Aleinikoff reviewed the traditional objections to dual nationality and found that they boil down to two types: ideological and pragmatic objections. The ideological concerns focus on divided loyalties, particularly in the case of military conflict. Klusmeyer argued that this objection requires an analytical leap from a formal legal status to conclusions about an individual's personal allegiances and motivations. He also argued that all a state can realistically expect in terms of loyalty is that an individual obey the law. There is no evidence of a corollary between law breaking and dual nationality. The pragmatic arguments focus on conflicts between states regarding jurisdictional issues, such as diplomatic protection, and legal duties borne by individuals, such as military service. These can be serious problems, but they can be managed through such means as bilateral agreements.

In closing, Klusmeyer stressed that almost all policy concerns that have been raised about dual nationality rest on conjectures, sometimes very plausible ones, but ones that remain unsupported by any clear evidence. Despite having many decades of experience from which to draw evidence, opponents of greater toleration for dual nationality have never presented documentation of any trend in rising problems that dual nationality is supposed to cause. There is no pattern of correspondence between the number of dual nationals and the number of problems opponents of dual nationality fear.

Vicki Jackson, whose expertise is constitutional law and federal systems, had contributed a chapter on federalism and citizenship. The development of federal systems actually seems conceptually quite central to the legal foundations for a regimes of multiple citizenship, she observed, because what federal systems illustrate is how overlapping governmental authority can be exercised over the same territories and the same persons." Experience with the shared government power of federal systems provinces a basis for seeing a world with multiple citizenships. For example, Americans do not think twice about being a citizen of their state and a citizen of the United States; they easily accept that the state and national government have different responsibilities. A virtue of a federal system is that is allows affiliations to shift over time.

Jackson observed how the U.S. and other countries handle multiple citizenships within federal systems and found a great deal of diversity. Since the U.S. civil war, national citizenship has been primary. In other countries, such as Switzerland, until recently cantonal citizenship was primary. For long periods of time in Australia, the national constitution avoided defining who was a citizen and left it up to the states, partly to accommodate different opinions on suffrage for aboriginal people. On the other hand, some countries with federal systems have no concept of provincial citizenship, such as Canada and India.

Equality and identity are two fundamental issues behind the concept of citizenship. There is the idea that all citizens are equal in their relationship with the sovereign. On the other hand, citizenship claims are often tied to the concept of identity, especially in the case of multiple nationality. When law rubs too much against strong affiliations, it often becomes ineffective. Equality and identity can reinforce citizenship together, but they can also create tension between each other. For example, holders of dual citizenship have the option of exiting the country if a crisis occurs, and it may differentiate people from one another.

On the issue of voting, Jackson contended that states should allow dual nationals to vote in both countries of citizenship. On the other hand, over the long-term, states may not need citizenship in its conventional sense, based on the experience of federal systems. The concept of personhood may be important with law based on human rights rather than specific rights for citizens; jurisdiction could be based on residency. However, today citizenship is important; any post-national future is very far off.

After observing that there has been a lot of debate over these issues, Jackson cautioned against aggressively expanding multiple citizenship options or aggressively resisting it.

Aleinikoff described the upcoming third volume in the citizenship project, which will be out in late summer or early fall 2001. The next volume will focus less on academic arguments and more on straight-forward policy recommendations. Four international working groups studied four issues: acquisition of citizenship, dual nationality, political rights, and social rights. As to the first issue, Aleinikoff observed that traditionally differences among states in their policies governing citizenship acquisition have been classified according to two main system for acquiring citizenship worldwide: birth on a country's territory (jus soli) and birth to the citizens of a country (jus sanguinis). Irrespective of these differences, there has been an increasing trend around the world to make it easier for second and third generation of immigrants to gain citizenship, even in jus sanguinis states. For example, the German system, which used to only provide citizenship to the children of citizens, recently changed its laws to provide elements of jus soli law.

Recognizing this trend, the working group has decided that it is more useful to approach the issue of citizenship acquisition from a "generational" standpoint rather than by following the traditional classificatory scheme. It is recommending that states grant automatic citizenship to the third generation of immigrants (the children of someone born in the state); this prevents blocking successive generations from full membership in society. The group also approved some naturalization requirements as legitimate so long as they did not create insurmountable obstacles.

In view of the rising incidence of dual nationality, the working group responsible for this issue is recommending that states should not attempt to forbid dual nationality but should reasonably manage it. In practice, this means that states should not require people who naturalize to renounce their loyalties to all other countries. Many states already do not require renunciation, such as the United Kingdom and Canada. In the United States, if an American citizen takes citizenship in another country, they may keep their American citizenship, but a non-American citizen who naturalizes in the U.S. must renounce his or her former citizenship; Australia mandates the exact opposite.
In the areas of political and social rights, the working groups found many differences in the rights and benefits that countries grant to settled immigrants. They propose that states should strengthen and equalize rights and benefits available to all lawful residents regardless of citizenship, because extending rights to immigrants advances their integration into society.

In the area of political rights, the working group found that there has been an increase in immigrant participation in local areas. For example, European Union nationals who live in another EU country can vote in local elections; New Zealand allows immigrants to vote at the national level. The group is recommending that settled immigrants have the right to vote in local elections and at the national level in some cases.

Discussion

• Susan Martin, from the Institute for the Study of International Migration, asked how the existence of dual nationality affects international relations; as an example, she mentioned the increasing number of cases of U.S.-Chinese citizens and Chinese citizens who hold U.S. residency and green cards who returned to China and were arrested. She said that these problems require significant attention; you cannot simply dismiss the pragmatic problems.
  
  In response, Klusmeyer agreed that the potential problems that dual nationality raises should not be dismissed but questioned how broadly we can construe the implications from isolated examples. Citing the example of the longrunning German debate over dual citizenship, he suggested that there is good reason to be skeptical about the genuineness of their stated concerns used to justify restrictions on dual citizenship. Afterall, the German government tried for decades to deny that it was a country of immigration, when everyone knew, in fact, that it was. Isn't it more likely, he suggested, that German politicians raise the argument against dual nationality as a means to justify discouraging southern European and Turkish immigrants from having access to citizenship. There are tools available for states to deal with problems of dual nationality. Opponents of greater tolerance for dual nationality have often put forward plausible conjectures about potential problems, but they usually point to isolated anecdotal examples, such as the Chinese case. These are still important problems, but states have a trade-off to make; unnecessarily restricting access to citizenship hinders integration. States should take a more permissive stance toward dual nationality.
  
  Jackson added that Germany is very different from China, which shows that policy makers must be cautious about making global policy. However, she agrees that it is wrong to deny membership to a polity to successive generations. Dual nationality will increase, and that will increase conflicts in assertion of authority. States must work over time to develop ways to manage issues of jurisdiction.
  
  Meissner asked for examples of how to manage practical problems. Klusmeyer responded that the most common formula for dealing with such problems is an active/passive citizenship test based on the country of residence; he agreed that there are not many examples of bilateral efforts because states have not pursued it.
  
  Aleinikoff added that there are some treaties on military service duties for dual nationals. He said that the U.S. has many dual nationals, mostly due to the combination of jus soli and jus sanguinis. He asked Catherine Brown, from the U.S. Department of State, how many problems she deals with related to dual nationals? Brown asserted that the benefit of assimilation does not on its own argue for allowing dual nationality; there needs to be more analysis in the argument. She said she does see problems; for example, what happens if a person who holds United Kingdom and United States citizenship gets into trouble in Germany? Which country takes the lead? She said that the U.S. has an agreement with China which states that if a U.S.-China national enters China with a U.S. passport, they are considered a U.S. citizen and may apply to U.S. diplomatic missions for assistance. If that same person enters China with a Chinese passport, he or she is considered a Chinese citizen. The same applies to entering the U.S. She said that although it is a rare occurrence, there is also a question of what happens when a dual national assumes a position in a foreign government, particularly if that person is the head of state. For example, the U.S. will not allow someone who has U.S. citizenship to serve in another country's diplomatic mission in the U.S. However, 99 percent of cases are not problematic.

• An audience members asked what happens when a dual national becomes a fugitive in one country and flees to the other country of nationality. The audience brought up the example of Samuel Sheinbein, who took refuge in Israel after brutally murdering an acquaintance in Maryland in 1997. Israel refused to extradite him to the U.S. for trial because his father was an Israeli citizen, and he received a 24-year sentence rather than facing a life term in the U.S. (In 1999, Israel changed its law to allow for the extradition of Israeli citizens.) Aleinikoff responded that the problem in the Scheinbaum case was the lack of an extradition treaty with Israel; the same problem would have applied to a U.S. citizen who fled to Israel and was not an Israeli citizen. Catherine Brown commented that a problem is that many countries will not extradite their own nationals, and some countries even have constitutional bars against extraditing their citizens. Aleinikoff said that many countries will extradite their own citizens, and it is a case of forming bilateral treaties. Meissner asked how much of the problem is anecdotes? At what level do they bring the overall concepts into fundamental doubt? Has there been an increase in problems that correlates with an increase in cases of dual nationality? Brown said that there has been increase in such problems, but they reflect other factors other than just an increase in dual nationality. She added that it is not easy to manage these problems.

• Aleinikoff commented that gender equality norms has been a factor contributing to increases in dual nationality. Historically in many countries, a child of parents from different countries usually received only the father's nationality; now it generally receives both parents' nationality.

• Demetri Papademetriou of the International Migration Policy Program, re-emphasized Klusmeyer's original challenge to opponents of dual nationality to put forth evidence that dual nationality creates a pattern of serious problems. He does not feel that the anecdotes offered pass the threshold of posing a serious challenge to the proposal to increasingly permit dual nationality. It is necessary instead to deal with those problems by reaching necessary agreement between states and developing a body of law based on experience with these cases. One issue, however, concerns him: rising transnationalism. How should countries deal with the increase of active dual nationals, rather than more passive ones who reside primarily in one country. This issue will require better administrative structures.
  

• An audience member asked about Jackson's concept of "personhood." Jackson said that the U.S. Constitution's 14th Amendment includes rights reserved for citizens and rights reserved for persons. The rights for persons have played the most important role in the legal system. For example, the right to due process of law is not restricted to U.S. citizens. In international law, there are also laws which tell states that it is illegal to treat their citizens in certain ways because they are people are subject to human rights law. The European Union will not extradite U.S. citizens who may face the death penalty in the U.S. These examples show concepts of "personhood" taking precedence over citizenship. Jackson suggested that eventually the world may get to a point where personhood consistently take precedence over citizenship and voting becomes based on residence. Aleinikoff added that an undocumented immigrant arrested in the U.S. has some of the same rights as citizens, such as due process. He can imagine a world without citizenship someday but not yet.
  

• Another audience member raised the question of property qualifications for suffrage. Jackson agreed that in the early 19th century in the U.S., property ownership was often a requirement for voting, but by the early 20th century it was gone from national elections and almost completely gone from all elections by the 1960s. In the other Western liberal democracies she has studied, property requirements are now almost non-existent.
  

• Brown argued that the concept of being a citizen of a state (such as New York) is empty. The key to citizenship is not voting but the right to enter the territory. When dual nationals who live outside the country and have few ties, they still have the right to enter it. Jackson responded that citizenship includes the concept of equality. Nationality is slightly different; it means the right to return to the territory. The federalism structure is not completely analogous to dual nationality, but U.S. states do have differences in terms of the privileges given to their citizens, such as the right to vote in state elections and access to aid for higher education. Aleinikoff added that federalism is not a perfect analogy, but it opens our minds to a new perspective. He said that dual nationality may be analogous to a marriage with two sets of in-laws; the married couple must decide where to spend holidays, but that does not mean they are not loyal to both families.
  

• As a final comment, Klusmeyer observed that in considering the potential challenges that dual nationality poses to equality norms that it is important to keep in mind a basic distinction between formal and material equality. As an issue of material equality, consider the fact that someone in the U.S. can have a million dollars to give to politicians and interest groups to promote his or her political interests. This seems like a much more serious challenge than allowing dual nationals to vote in two different countries, which seems mainly to concern a question of formal equality.
  

• Jackson concluded that dual nationality will increase and reiterated Aleinikoff's example of a marriage with in-laws. She also added that policy makers must be cautious on the issue of dual nationality and not pursue or restrict it too aggressively.

Summary by Kerry Boyd, Junior Fellow in the International Migration Policy Program