Sovereignty Under Challenge

How Governments Respond

Nathan Glazer

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138514898
• eBook ISBN: 9781351488617
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Sovereignty-the authority of a state to wield ultimate power over its territory, its citizens, its institutions-is everywhere undergoing change as states respond in various ways to the challenges posed, from above and below. "Above" the state is the widening net of international institutions and treaties dealing with human rights, trade, investment, and monetary affairs; and "below" it are rising claims within states from long-resident groups discontented with the political order and from new migrants testing its authority. Sovereignty under Challenge deals with a range of such challenges and responses, analyzed in authoritative studies by leading scholars.

The introductory chapter sets forth the theme that sovereignty is asserted clearly, but often unpredictably, when governments respond to challenge. It suggests ways of classifying these responses as variables that help explain the changing nature of sovereignty. Part 1, "The Citizen and the State," treats the rising tide of dual citizenship and the concerns this arouses in the United States; the work of national human rights commissions in Asia; and the challenge posed to the state by the Falungong movement in China. The two chapters in Part 2, "The Government as Decision-Maker," examine Japan's response to global warming and the problems of the World Health Organization in orchestrating collaboration among Southeast Asian states in implementing infectious disease control. Part 3, "Sovereignty and Culture," looks at conflicts engendered by outside change on indigenous economic, cultural, and legal institutions in India, Fiji, Indonesia, and Malaysia. The chapters in Part 4, "Sovereignty and the Economy," analyze the economic and cultural instability induced by Chinese migration to Russia's far east; the impact on state sovereignty brought about by transnational regulatory campaigns and social activism; the question of indigenous land rights in the Philippines; and the impact of transnational corporations on information technology in Asia. A concluding chapter offers a global assessment of the current status of state sovereignty.

Part 1
The Citizen and the State

2
Dual Citizenship as a Challenge to Sovereignty

Nathan Glazer

Sovereignty, by its nature, is not the kind of thing that is ordinarily thought of as capable of being divided or shared. It implies exclusive control over a territory, and an exclusive demand on the political loyalty of subjects or citizens. There have, of course, been political condominiums in the past in which two sovereigns shared power over territory, but they have been few, and there are none today. And of course there have always been conflicts over the loyalty of subjects and citizens, but it is clear, and will be argued in this chapter, that recent social trends have made the potential conflicts over the relationship between sovereign and citizen more complex than in the past, to the point where many argue that the claim of the sovereign nation to the exclusive political loyalty of citizens has become near to meaningless. The argument over these developments today takes place among lawyers and academics and on the margins of public discussion; in time I believe it will become more central.

Sovereignty’s exclusivity is today invaded by two kinds of change, from above and from below. From above, sovereignty is contested and limited by an expanding realm of international organizations, treaties, obligations, and demands in which we find a steadily more legitimate and accepted interference with the exclusive role of the sovereign in the control of the national territory, its population, and its institutions. Sovereignty is also increasingly contested from below, by a steadily expanding self-confidence among subgroups or sub-territories in a sovereign state in demanding a degree of recognition and power that only a few decades ago would have been contradictory to the idea of national sovereignty itself. Today these demands are increasingly recognized—often with the support of those international organizations and treaties and regulations that impinge on sovereignty from above.

Dual nationality or dual citizenship is a challenge to sovereignty that partakes of both kinds of challenges, from above and below. It is to begin with a challenge to our conception of the exclusivity of sovereignty, which is well illustrated by the still-reigning popular conception of what citizenship or nationality means. (There are differences, minor, between the two terms “citizenship” and “nationality,” but both will be used interchangeably in this chapter to refer to the obligation to owe political loyalty to a political entity on the one hand, and the rights that belonging to that entity give to the national or citizen on the other. In the American context, all citizens are nationals, and all nationals, except according to legal authorities the inhabitants of American Samoa, are citizens. In other states, the distinction may be more substantial.) Citizenship means owing loyalty to one state, one sovereign, and it is defined most sharply in the oath that new American citizens take, an oath which has been prescribed in one form or another for naturalization in the United States since 1795, and which in the most absolute language renounces loyalty to any alternative sovereign to which that loyalty was previously owed. Its language should be kept in mind, because many of the disputes aroused by dual loyalty refer back to this oath and its meaning, and its language is today under attack by many experts in international law as no longer consistent with present realities. The oath reads, in its key parts:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, to whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution of the United States of America against all enemies, foreign and domestic; that I will bear arms on behalf of the United States when required by law….

What room after this oath then for dual citizenship or dual nationality, which means owing loyalty to more than one sovereign, sovereigns who may indeed be in conflict with one another? The oath, on its face, would seem to make dual citizenship impossible for the naturalized citizen. (A citizen by birth is not required of course to take this oath, and some authorities have argued that this introduces an inequality between citizens by birth and citizens by naturalization that should be corrected.) Until quite recently, any individual’s act casting doubt on his or her exclusive loyalty to the United States seemed, if one followed the law’s requirements, to lead to the loss of American citizenship. The afterglow of this determinative law of the factors leading to expatriation, which has been in the last three decades radically modified by Supreme Court decisions, may still be discerned on the American passport. A recent writer on the problem of dual citizenship notes, “The preface to my passport, issued in 1996, still declares:

Law of Citizenship: Under certain circumstances, you may lose your citizenship by performing any of the following acts: 1) Naturalizing in a foreign state; 2) taking an oath or making a declaration to a foreign state; 3) certain service in the armed forces of a foreign state; 4) accepting employment with a foreign government; or 5) formally renouncing U. S. citizenship before a U. S. consular official overseas.” (Smith, 2000: 144–145)

According to law, these are still considered acts which may put one’s citizenship at risk; but Supreme Court decisions have so modified their weight that, as we know from some widely noted instances in which naturalized American citizens have returned to their newly sovereign homelands emerging from the break-up of the Soviet Union and Yugoslavia to take up important posts, one can serve as a minister or even president in a foreign government without placing one’s citizenship in doubt. Certainly serving in foreign armies or voting in foreign elections risks nothing. It is understandable in the light of the oath and the passport that any simple and direct understanding of what citizenship means is clearly challenged by the widespread presence of dual citizenship in the United States today.

Yet by the nature of the case there are many millions of persons in the United States with dual nationality and dual citizenship. Their number is increasing rapidly primarily because of the scale of current immigration, and the laws of the countries of emigration. These may allow their citizens to retain their citizenship or nationality after they have become naturalized as American citizens. Some of these changes in the law regarding citizenship and nationality of major countries of emigration are quite recent, and have been adopted either because immigrants want to retain their nationality in their home country while becoming American citizens, or because their home countries consider it desirable they should maintain closer ties with their countries of origin. Many countries no longer demand the extreme renunciation of former loyalty of the type that is incorporated in the American oath of citizenship (this is true of Canada and Australia); others that previously considered such an oath of renunciation a definitive act of abandonment of one’s initial citizenship or nationality now accept that their nationals naturalizing in another country should continue to maintain the rights of nationality or citizenship in their home countries. Most significantly, this is now true of Mexico.

Even aside from any changes in law, the mere fact of immigration and giving birth to children on American soil creates dual citizens, with no conscious intention on the part of the dual citizen. Dual citizenship, owing to the way persons acquire citizenship, has always been an inevitable product of migration and movement, despite the traditional distaste for this status by international lawyers and national politicians because of the complexities it creates. Until recently, the United States tried actively, as we shall see, to reduce the number who held dual citizenship. There are three primary ways of acquiring citizenship in a state. One is by being born in the territory of the state, and this is referred to as jus soli—birth on the soil of the state gives citizenship. A second is by being born to nationals of the state—jus sanguinis, the law of blood relationship. A third is by naturalization—a person who has citizenship in one state as a result of jus soli or jus sanguinis acquires citizenship in another state through naturalization. If there was no migration between states at all, there would be no ambiguity in the citizenship status of any individual—jus soli and jus sanguinis would both give the same result, and no one, because there was no migration, would have to be naturalized.

But, of course, that is not the way things are, and particularly not for a country of immigration, such as the United States. Indeed all developed nations today, whatever their past histories and attitudes toward immigration, have now inevitably and unavoidably become countries of immigration as people from less fortunate countries stream across their borders, legally or illegally, as refugees or seekers of asylum or family members or, where that is allowed by law, as immigrants. Dual citizenship has always been a reality in the United States. It is now a reality in many more states, with its attendant complications. The most significant of these is what dual citizenship or nationality does to the traditional conception of the relationship between state and citizen.

Dual Citizenship as a Cause of International Conflict

Naturalization as an American citizen has always been relatively easy, and millions of persons have been naturalized as American citizens since the beginnings of immigration to the new United States more than 200 years ago (Ueda, 1980, 1994). In recent years, the numbers becoming naturalized has exceeded the numbers of immigrants, and has reached beyond a million a year. Americans have generally understood naturalization as a complete renunciation of past loyalty, nationality, and citizenship. Americans on the whole expect naturalization and assimilation from immigrants, rather than the maintenance of a previous identity and loyalty. Immigrants often report that Americans are surprised to discover they are not citizens, and, whether in an aggrieved or welcoming tone, will ask, how come you are not a citizen? Americans are, of course, aware that ties of blood and culture and political interest are not so easily cut, but they think so highly of the democratic traditions, international preeminence, stability, and wealth of their own country that they are often surprised at the strength of loyalties of immigrants from less favored climes to their own homelands. Until the last three decades, this assumption that immigrants should cut ties with their original homelands and should be assimilated politically and socially and culturally into American polity and society was hardly challenged.

In the nineteenth and early twentieth century, the issue of dual citizenship raised itself in the United States primarily as a problem that threatened to embroil the United States with other countries. England, the German states, and later Germany, Italy, and other European nations, took the position once a subject (a more suitable term at the time for these countries than citizen) always a subject. One cause of the War of 1812 with England was the impressment as sailors by British warships of American citizens who had been born in the United Kingdom but who as naturalized Americans, by our understanding, were no longer subjects of the British king but citizens of the United States.

Throughout the nineteenth century, the United States would become embroiled with other countries because American nationals who had returned to their homelands on visits could be conscripted for military service. The United States was obligated to protect its naturalized citizens, but this forced it to confront foreign nations who did not recognize that American naturalization ended all previous state claims to service from subjects and citizens. “The thirst for immigrants,” writes Peter J. Spiro in his authoritative account of the development of the law of dual nationality,

and the full legal equality enjoyed by naturalized citizens (including rights to diplomatic protection) all pointed to defiance of limits on the recognition of naturalization and the right of expatriation. The failure to protect citizens who returned for temporary visits to their homelands, only to find themselves drafted into military service, was consistent with neither principle. … The issue became an important one for recent immigrant groups; it was trumpeted in particular by James Buchanan, first as Senator representing a Pennsylvania populated with naturalized German-Americans, then as a Secretary of State, and finally as President. By 1859, U. S. authorities were more firmly demanding that foreign governments release naturalized U. S. citizens from service obligations. But most European states continued to deny a right to expatriation. … (Spiro, 1997: 1427)

But what was the United States to do when Irishmen naturalized as American citizens joined an Irish uprising and were tried for treason as subjects of the English king? “National outrage resulted, and Congress moved quickly to enact legislation categorically affirming expatriation as ‘a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and property.’” (Spiro, 1997: 1427–1428). (A hundred years later this has become international law, as part of the Universal Declaration of Human Rights [Spiro, 1997: 1430, footnote 81].) The conflict with England was settled shortly thereafter when Parliament recognized in a law of 1870 the right of British subjects to expatriate.

The issue continued to be troublesome in relations with other countries. The United States increasingly looked with disapproval on any naturalized citizen who maintained nationality in another state. Dual citizenship was condemned by presidents, courts, legislatures, and legal authorities as a pestilence in the relations of nations. The matter was important enough to be raised by President Grant in his 1874 annual message to Congress, where he spoke of the problem created by person(s) claiming the benefits of citizenship, while living in a foreign country, contributing in no manner to the performance of the duties of a citizen of the United States, and without intention at any time to return to the United States and undertake these duties, to use the claims of citizenship of the United States simply as a shield from the performance of the obligation of a citizen elsewhere (Spiro, 1997: 1422–1423).

Dual Citizenship as a Challenge to National Loyalty

In time a second issue in regard to dual loyalty became a greater concern than the situation of the individual citizen who maintained two nationalities and called on the United States for aid in the case of difficulties with his birth nation. This larger issue raised by dual citizenship was the problem of the loyalty to the United States of immigrants from countries with which we were in conflict or at war. The issue here of course was more than that of dual citizenship: It was that of dual loyalties, which did not necessarily cease when acquiring a new nationality or giving up an old one.

In two world wars, the U. S. government and many individual Americans looked with suspicion on the national ties of immigrants from countries with which we were at war. Enemy aliens were potentially liable to various restrictions. There were, however, so many “enemy aliens” in this country of immigration (consider the enormous numbers of immigrants we had in the United States during World War I from Germany and Austria-Hungary, and in World War II from Germany and Italy), that to treat them as potential enemies would have been very disruptive of the war effort itself. Further, it was widely believed that most European immigrants had given up their ties to former cou...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Introductory Note
• Introduction
• Part 1: The Citizen and the State
• Part 2: The Government as Decision-Maker
• Part 3: Sovereignty and Culture
• Part 4: Sovereignty and the Economy
• Conclusion
• About the Authors
• Index