When States Take Rights Back

Citizenship Revocation and Its Discontents

Émilien Fargues, Elke Winter, Matthew J Gibney

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032839196
• eBook ISBN: 9781000054996
• Edition: 1
• Topic: Law
• Subtopic: Comparative Politics
• Index: Law

When States Take Rights Back draws on contributions by international experts in history, law, political science, and sociology, offering a rare interdisciplinary and comparative examination of citizenship revocation in five countries, revealing hidden government rationales and unintended consequences.

Once considered outdated, citizenship revocation – also called deprivation or denationalization – has come back to the political center in many Western liberal states. Contributors scrutinize the positions of stakeholders (e.g. civil servants, representatives of civil society, judges, supranational institutions) and their diverse rationales for citizenship revocation (e.g. allegations of terrorism, treason, espionage, criminal behaviour, and fraud in the naturalisation process). The volume also uncovers the variety of tools that national governments have at their disposition to change existing citizenship revocation laws and policies, and the constraints that they are faced with to actually implement citizenship revocation in daily operations. Finally, contributors underscore the extraordinary severity of sanctions implied by citizenship revocation and offer a nuanced picture of the material and symbolic forms of exclusion not only for those whose citizenship is withdrawn but also for minority groups (wrongly) associated with the aforementioned allegations. Indeed, revocation policies target not merely individuals but specific collective categories, which tend to be ethno-racially constructed and attributed specific location within the international status hierarchy of nation-states.

International and interdisciplinary in scope, When States Take Rights Back will be of great interest to scholars of politics, international law, sociology and political and legal history, and Human Rights. The chapters were originally published in Citizenship Studies.

Conditional membership: what revocation does to citizenship

Émilien Fargues and Elke Winter

Abstract

The variety of contexts in which citizenship revocation is being discussed and applied confronts us with a complex map. Drawing on contributions at the crossroads between history, law, political science and sociology, this volume offers an interdisciplinary and comparative examination of this political instrument, revealing hidden rationales and consequences at the material and symbolic levels. In this introduction, we argue that the contributions to the volume expand the scope of the existing literature in terms of the social actors that are investigated, as well as the rationales for citizenship revocation that are investigated. We also introduce three levels of analysis according to which authors have explored revocation: conditionality, consequentiality and bordering processes. We then outline the contributions of the articles reassembled here at these three levels.

Citizenship revocation has been brought back onto the political agenda of many countries across the globe. Public debate on the need to revoke the citizenship of alleged terrorists took place not only in Europe (France in 2015, Turkey in 2016, the Netherlands in 2017, to name a few) and North America (Canada in 2014), but also in the Middle East (Israel in 2008 and, more recently, Bahrain and Oman in 2014) and the Southern Hemisphere (Australia in 2015). Debate on citizenship revocation is not confined to terror-related issues. After a number of failed attempts to legalise citizenship revocation in the United States (Sykes this volume), the Trump administration recently announced the creation of a ‘denaturalization task force’ to struggle against alleged fraudulent acquisitions of citizenship (Wessler 2018).

The variety of the contexts in which citizenship revocation is being actively put in practice and discussed as a potential solution to real or assumed societal ills presents us with a complex map. At a time when native populations often endorse citizenship revocation as a seemingly simple, effective and just means to get rid of those who are no longer wanted,¹ it seems all the more necessary to clarify the many issues that this policy instrument raises: how far can governments go in extending their leeway to revoke citizenship? What strategies do they follow? Do these strategies vary from one state to another? Are there limits to citizenship revocation that states have to obey? These are just some of the questions that this volume addresses.

In recent scholarship, the controversial character of citizenship revocation has mostly been discussed from legal and normative viewpoints. Legal scholars have examined whether citizenship revocation conflicts with specific rules that states ought to respect, such as non-discrimination. Macklin, for instance, has made the case that citizenship revocation discriminates between single and dual nationals (Macklin 2014). Indeed, statelessness as a result of citizenship revocation has been prohibited by the United Nations’ Convention Against Statelessness since 1961. This privileges those who – as single nationals – are in a ‘monogamous relationship’ (Rubinstein and Lenagh-Maguire 2014) with the state that they were born in. Only they possess a secure national membership that cannot be withdrawn. While this legal argument may be true for a large number of countries, the divisions that citizenship revocation draws between individuals may not be the same depending on the contexts in which it is implemented. Most importantly, the British case has shown that statelessness may not always be regarded as an insuperable obstacle to citizenship revocation. In 2014, an amendment was made to the British Nationality Act allowing the Home Secretary to strip citizenship from individuals who allegedly pose a threat to the ‘public good’ even though this results in statelessness. However, only naturalised citizens now face the consequence of statelessness, not British-born citizens (Mills 2016). Therefore, single nationals (depending on how they became citizens) are not necessarily protected from statelessness. In short, legal analysis is important, but a purely legal approach to citizenship revocation risks leaving aside sociological divisions (based on class, gender, or race) that often become entangled with the distinctions that law creates between citizens, but that sometimes only partly overlap with them.

Normative debates have focused on the circumstances under which citizenship revocation could be considered a legitimate form of punishment (Gibney 2013; Joppke 2016; Lavi 2011; Macklin and Bauböck 2015). Drawing on different conceptions of citizenship (citizenship as a contract, citizenship as an unconditional right), scholars have reached contradictory conclusions. Joppke (2016), most prominently, holds that there are circumstances where individuals repudiate their allegiance to the political community they belong to (which arguably is the case in ‘Islamist terror’). He argues that the reciprocal relationship between the state and these individuals is broken up in these circumstances, and hence it becomes legitimate to revoke citizenship.² In stark contrast, emphasising the responsibility that states have towards their citizens (including their ‘bad guys’) and doubting the effectiveness of the measure to counterterrorism, Bauböck (2015) maintains that the revival of citizenship revocation in the context of terrorism cannot be regarded as a legitimate form of punishment.

These are important questions, and this volume is indeed interested in understanding with which legal rules and normative values citizenship revocation is likely to conflict. It also aims to uncover which conceptions of citizenship drive policy changes in this domain (see Pélabay and Sénac, this volume). However, our goal here is neither to determine whether revocation is legal under certain national and international standards nor to debate whether it represents a just punishment. Rather, the contributions assembled here use the legal and normative controversies that citizenship revocation raises as a springboard to develop a discussion on the different dimensions of citizenship as a concept.

Drawing on Joppke (2007) and Carens (2000), we distinguish between three main dimensions of citizenship. The first dimension refers to the legal bond that ties an individual to a given state (citizenship in the legal sense of ‘nationality’). Other states recognise this legal bond, which confers rights and duties upon all the individuals who possess the same status. Second, citizenship can be also characterised as practices of participation in a political community. As Winter and Previsic remind us in this volume, some of these practices are identified as ‘good’ forms of behaviour in the community, while others are held as unacceptable and are therefore likely to give rise to sanctions (including citizenship revocation). Citizenship’s third dimension refers to identity or belonging. This dimension operates at the symbolic level. It links citizenship to the idea of the nation as an ‘imagined community’ (Anderson 2006). The chapters in this volume speak to all three levels of citizenship as they pertain to citizenship revocation. In the afterword, Pélabay and Sénac further explain that these three dimensions of citizenship can be, respectively, linked to different political theories (liberalism, republicanism and communitarianism) and used as analytical tools to investigate the ‘thinner’ or ‘thicker’ character that citizenship revocation gives to national membership.

In the remainder of this introduction, we first circumscribe the theoretical approach to citizenship that guides the contributions of this volume. We then distinguish between three levels of analysis in the ways in which citizenship revocation affects the three dimensions that are inherent to the concept of citizenship.

We approach citizenship as a mechanism of ‘social closure’ (Brubaker 1992) that not only differentiates between ‘citizens’ and ‘aliens’ but that also draws a line between ‘desirable’ and ‘undesirable’ citizens (Byrne 2014). The laws and practices defining citizenship produce such categories that often intertwine with divisions based on race, gender or class (Anderson 2013; Isin 2002). While citizenship rules and procedures are not necessarily path dependent in a deterministic sense, uncovering their historical emergence helps us to better understand how the boundary between ‘desirable’ vs. ‘undesirable’ citizens is conceived in a given national context today (Bertossi and Duyvendak 2012). Citizenship rules and procedures have both a material and a symbolic significance. They do not only have very concrete effects on people’s lives, but they also feed into societal norms and representations of otherness. Based on a principle of ‘exclusive inclusion’ that includes some individuals and rejects others (Turner 2014), citizenship can thus serve as a technique for managing the ‘undesirable’ subjects (see Troy, this volume).

The chapters in this volume investigate how the ‘exclusionary function’ of citizenship (Nyers 2009) plays out in revocation policies; they also locate this function within larger governing strategies. Identifying which governing strategies are at stake in revocation policies allows analysis of how they affect the three aforementioned dimensions of citizenship at the empirical and at the theoretical level. For example, the liberalisation of citizenship, which is seen as the main driver of policy changes over the second half of the twentieth century (Hansen and Weil 2001), is said to have transformed national identities into ‘thin and procedural forms’ (Joppke 2010, 12) and reduced the gap between citizens’ and foreign residents’ rights (especially with respect to social rights). At the same time – and in contradiction – a ‘renationalisation’ of citizenship (Joppke 2010; Mouritsen 2012) is said to have taken place where integration’ is seen as a condition of citizenship (and not as its consequence), and where ‘good citizenship’ is increasingly linked to the adherence to specific moral or cultural values (Pélabay 2017). As a result, we now have (more) reason to believe that citizenship matters not only in terms of rights and duties but also in terms of a common conduct or culture (see Sykes this volume) that newcomers are required to adopt in order to be considered eligible for citizenship. This points to the ‘promotion of a thick conception of membership, whether republican or communitarian’, that challenges the liberal branding of both contemporary citizenship policies and the states that implement them (see Pélabay and Sénac, this volume, 114). The chapters in this volume clarify which governing strategies apply to revocation policies. They show what consequences these strategies have not only for the people being targeted, but also for society at large. They also locate revocation policies within the rules, discourses and practices that govern migration and citizenship policies more broadly and are therefore able to identify logics of convergence and divergence.

Drawing on contributions at the crossroads between history, law, political science and sociology, this volume offers an interdisciplinary and comparative examination of citizenship revocation, which reveals hidden rationales and consequences at the material and symbolic levels. More specifically, the contributions presented here significantly expand the scope of the existing literature on citizenship revocation, in at least in three respects. First, they focus on a wide range of social actors, not only on national governments. They question the roles of parliamentarians and civil society in the reconfiguration of revocation policies (Winter and Previsic, as well as Sykes), the discretion that bureaucrats enjoy in their implementation (Fargues), and the protections that supranational institutions provide to individuals (Boekestein and de Groot). Second, rather than concentrating purely on citizenship revocation related to terrorism, the authors included in this volume also investigate other grounds of citizenship revocation (Fargues, Troy). Third, they put recent legislative changes and revocation practices into historical perspective (Irving, Troy) in order to identify continuities and/or ruptures with the past and to situate citizenship revocation within broader changes in citizenship policies.

Furthermore, the chapters presented here showcase a number of different methodological perspectives. Citizenship revocation is investigated on the basis of three levels of analysis: (1) conditionality, (2) consequentiality and (3) bordering processes.

1. Conditionality raises two main questions: what amount of discretion do governments have in their hands in revocation processes? Has the executive’s latitude been extended or limited in recent years and what have been the arguments brought forward to expand or constrain it?
2. Consequentiality has to do with the consequences that revocation has for people’s lives. It also relates to the different (material and symbolic) objectives that states pursue through revocation policies.
3. Bordering processes refer to the boundaries that revocation draws between individuals and/or groups and the categories it creates or perpetuates. We can investigate whether these categories are conceived politically, morally and/or culturally.

The chapters assembled here offer contributions at all three levels. First, as far as conditionality is concerned, the contributions demonstrate the high variability of the legal constraints that bind national governments either in the changes that they wish to bring to citizenship revocation or in the way that they implement this instrument. The limits that domestic and international law set forth in citizenship revocation (especially with respect to the prevention of statelessness) vary greatly depending on the specificities of national contexts and procedures. As has already been mentioned above with respect to citizenship revocation in the United Kingdom (UK), the prevention of statelessness is not necessarily considered as an insuperable obstacle to citizenship revocation.³ Moreover, as Fargues (this volume) reveals, the prohibition of statelessness does not apply solely to citizenship revocation based on national security concerns but also to citizenship revocation on grounds of fraud. Although statelessness as a consequence of fraud-based citizenship revocation is allowed by international law, states will sometimes organise the revocation proce...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Citation Information
• Notes on Contributors
• 1 Conditional membership: what revocation does to citizenship
• 2 Governing imperial citizenship: a historical account of citizenship revocation
• 3 Discussing the human rights limits on loss of citizenship: a normative-legal perspective on egalitarian arguments regarding Dutch Nationality laws targeting Dutch-Moroccans
• 4 The politics of un-belonging: lessons from Canada’s experiment with citizenship revocation
• 5 Denaturalisation and conceptions of citizenship in the ‘war on terror’
• 6 Simply a matter of compliance with the rules? The moralising and responsibilising function of fraud-based citizenship deprivation in France and the UK
• 7 The concept of allegiance in citizenship law and revocation: an Australian study
• 8 Citizenship revocation: a stress test for liberal democracy
• Index