Acknowledgements We would like to extend our gratitude to our Advisory Board for lending us their expertise: Piers Gardner, Monckton Chambers Professor Margot Horspool, Professorial Fellow at the Institute Professor Kim Rubenstein, Director of the Centre for International and Public Law at the Australian National University Professor Gillian Triggs, Dean of the Faculty of Law, The University of Sydney We also would like to thank our excellent team of interns, without whom this Report would not have been possible: Camilla Bernacchi Andrew Jillions Kismet Johnson Isobel M Reed Daniel Vasbeck Clare Williams Table of Contents Introduction International Instruments Affecting the Hallmarks of Citizenship .16 Citizenship of the European Union 71 National Reports 125 Australian Citizenship 125 French Citizenship .145 Spanish Citizenship .171 United States Citizenship .192 Rights of Third Country Nationals in Denmark 216 Citizenship Education: The Nordic Example .222 Selected Bibliography 232 Annexes .i © The British Institute of International and Comparative Law Introduction ’Since they properly concern duties, obligations, privileges and rights, discussions of citizenship necessarily proceed in a normative shadow.’1 Difficulty to define the notion of citizenship As a preliminary remark, it must be noted that the debate around citizenship is not facilitated as there is often little agreement among scholars over precisely how to understand the term ‘citizenship’ This is corroborated by the idea that though citizenship is often talked about as a singular concept, the term encompasses in practice a number of discrete but related phenomena surrounding the relationship between the individual and the polity.2 While absent in the terminology used by most legal systems, the dichotomy between nationality and citizenship in much of the literature surrounding the subject is of interest In this respect, it has to be noted that the concepts of ‘nationality’ and ‘citizenship’ are often distinguished The two terms reflect two different legal frameworks, although they are essentially the same concept: both terms identify the legal status of an individual in light of his or her State membership, but citizenship is confined mostly to domestic legal forums whereas nationality is connected to the international forum.3 It has been argued that: [T]he idea of nationality is used to connote the relationship between an individual and the nation, regardless of the legal citizenship held by the person A nation may be defined as a collection of people having some kind of corporate identity recognised by themselves and others, a history of association and a name […] By contrast, the status of citizen is used to denote the link between an individual and a State, a form of political organization with territorial boundaries which may encompass more than one nation (as in the case of the United Kingdom of Great Britain and Northern Ireland).4 In this sense, an individual may hold the legal citizenship of one State, but perceive her status as deriving principally from her attachments to a nation While not always the case, in the majority of references nationality is characterised as the outward-looking aspect of one's ties to a State By contrast, citizenship is characterised as the C Tilly, ‘A Primer on Citizenship in Theory and Society’, Vol 26, No 4, Special Issue on Recasting citizenship, August 2007, 599 – 602 K Rubenstein and D Adler,’ International Citizenship: the Future of Nationality in a Globalized World’, Indiana Journal of Global Legal Studies, 519 (Spring 2000) ibid H Hardy, ‘Citizenship and the Right to Vote’, 17 Oxford J Legal Stud 76 (1997) © The British Institute of International and Comparative Law inward-looking aspect of rights and responsibilities one exercises and performs within the society of that State In the renowned Nottebohm5 case, the International Court of Justice described nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’ Nationality is the legal expression of the fact that the individual, upon whom it is conferred, either directly by law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring the nationality than any other State However, this definition has its problems The absence of any clear legal or theoretical delineation separating nationality from citizenship has meant the interpretation of the concepts along some rather different lines Where consensus has occurred, nationality has come to mean the affiliation of an individual with a State from the external point of view of international law, while citizenship implies the internal host of national rights and duties incumbent upon the individual While Halsbury's Laws of England describe nationality as a term denoting the quality of political membership of a State (in itself a term that implicitly refers to citizenship), Close has defined nationality as ‘the external face of a complex concept which also possesses an internal face which is citizenship’6 For Shaw, the area between the dichotomy that characterises the individual-collective dualism and the multi-level non-state polity sees an interaction definitive of citizenship This latter can, however, also be characterised as an institution, a ‘dynamic patchwork displayed in the constantly negotiated and re-negotiated tension between identity and rights’7 Defining citizenship, Evans has stated that ‘the constitutional arrangements made for participation by a defined category of individuals in the life of the State’8 sum up the main characteristics However, given the ideal of access to fundamental rights by all, regardless of nationality or citizenship, plus the attribution of certain rights upon residence status, plus the dependence of citizenship on nationality in some cases, yet their respective independence in others, it becomes easy to see that one rule simply cannot fit all Citizenship as a relational, ultimately subjective concept is one that requires much more debate Of particular absence in current discourse on this topic is any discussion of the inherent internalisation of the public/private dichotomy within the individual, and the importance of this process in formulating notions of citizenship As such, any definitive conclusions cannot claim to have taken into account the whole picture th Nottebohm Case, (second phase), Judgment of April , 1955: ICJ Reports, at 23 Quoted in E Guild ‘The Legal Framework of Citizenship of the European Union’, in Cesarani and Fulbrook, Citizenship, Nationality and Migration in Europe, Routledge 1996, at 32 J Shaw, ‘The Interpretation of European Union Citizenship’, Modern Law Review, Vol 61, Issue 3, May 1998, 293-317 at 294 Evans,’Nationality Law and European Integration’, 16 ELRev 118 © The British Institute of International and Comparative Law Citizenship designates a set of mutually enforceable claims relating categories of persons to agents of government.9 ‘It has the character of a contract: variable in range, never completely specifiable, always depending on unstated assumptions about context, modified by practice, constrained by collective memory, yet ineluctably involving rights and obligations sufficiently defined that either party is likely to express indignation and take corrective action when the other fails to meet expectations built into the relationship.’10 ‘Citizenship represents cohesion in a world increasingly characterised by fragmentation’11 Dual nationality which violated the traditional notions of loyalty to a single State is one indicator of the emergence of postnational citizenship.12 It is obviously difficult to give determinate content to a common national identity in a liberal democracy as one of its core values is its emphasis on individual freedom of belief Current restrictive conceptions of citizenship have been explained by reference to two theories Firstly, a number of legal systems have failed to establish a system of differentiation between citizenship and nationality, either as theoretical or legal concepts As such, citizenship rights are often left indistinguishable from nationality rights, leaving the latter meaningless in the case of substantial expansion of the former A restrictive interpretation of what constitutes citizenship thereby avoids the uneasy position of granting de facto nationality in all but name This is interesting because of the inclusion within Union citizenship of certain political rights Indeed, Aron has argued that a ‘State can without self-contradiction grant aliens the economic and social rights it accords its own citizens and still refuse them political rights’ It does, though, seem incongruous that whereas a national of X can vote in X's elections while resident in Y, a national of Y cannot vote in X's elections even though resident in X and likely to be affected by the policies at issue Unless stated otherwise, the terms ‘nationality’ and ‘citizenship’ will be used interchangeably In the scope of this report, citizenship will be understood in its broader sense; that is, as legal status, rights and duties, political activity, but also as a form of collective identity and sentiment Traditional view – Citizenship as the corollary of the State ‘The first form of citizenship is linked to the city-state and showed the attributes of that sort of society – its small scale, limited membership, cultural homogeneity, opportunities for face to face C Tilly, A Primer on Citizenship in Theory and Society, Vol 26, No 4, Special Issue on Recasting Citizenship, August 2007, 599 – 602 10 ibid 11 K Rubenstein and D Adler (n2) 519 12 Y N Soysal, ‘Changing Parameters of Citizenship and Claims-Making: Organized Islam in European Public Spheres’, 26 in Theory and Society, 509-512 (1997) © The British Institute of International and Comparative Law participation in the political process, etc.’13 ‘With the growth of the modern nation-state citizenship has become large scale – it is the usual conditions of the inhabitants […] [t]he modern citizens have thus largely lost their rights to acquire virtue in the Aristotelian sense – their individual and largely passive contributions are submerged by the will of the majority.’14 Traditionally, citizenship is seen as the corollary of the State As Hanna Arendt declared, citizenship is an inherent national project.15 According to this theory, ‘any conception that is not framed by national boundaries is both nonsensical and a terrible mistake.’16 This idea is corroborated by the fact that there is no clear international law stating under which circumstances a State must confer nationality upon a person and when a person has the right to become a citizen In this respect, we must mention Brubaker, whose thesis on citizenship and nationhood is seen by many as a reference in the field Brubaker asserts that control over citizenship is ‘an essential attribute of sovereignty’.17 ‘Indeed, given the erosion of control of immigration through membership of the European Community, “[i]n the European setting, citizenship is the last bastion of sovereignty.”’18 He further argued that ‘citizenship is a powerful instrument of social closure’ at both the global and national levels At the global level, ‘shielding prosperous States from the migrant poor’ and at the national level, operating to distinguish ‘us’ from ‘them’ ‘Every State’, he writes, establishes a conceptual, legal, and ideological boundary between citizens and resident foreigners Every State discriminates between citizens and resident foreigners, reserving certain rights and benefits, as well as certain obligations, for citizens ‘The modern nation-state is in this sense inherently nationalistic Its legitimacy depends on its furthering, or seeming to further, the interests of a particular, bounded citizenry.’19 Therefore: There is a conceptually clear, legally consequential, and ideological charged distinction between citizens and foreigners Thus,’ [o]nly citizens have a right to enter (and remain in) the territory of the State [and] suffrage and military service are normally restricted to citizens.’ Further, it is not the ‘State’ but the ‘nation-state’ which is regarded as the primary 13 G Close, ‘Definitions of Citizenship’, in P Gardner, Hallmarks of Citizenship – a Green Paper, British Institute of International and Comparative Law, 1994, 14 G Close, ibid, 15 Quoted in L Bosniak, ‘Citizenship Denationalized’, Indiana Journal of Global Studies, Vol 7, 449 (2000) in H Arendt, Men in Dark Times, 1968 16 L Bosniak ibid 17 Brubaker, Citizenship and Nationhood in France and Germany, quoted in ‘Nationality, Citizenship and the Meaning of Naturalisation: Brubaker, the United Kingdom, EU Citizens, Third-Country Nationals and the European Union, R M White, N Ir Legal Q 288 (2002) 288 18 ibid 19 R Brubaker, Citizenship and Nationhood in France and Germany, Harvard University Press, 1992, quoted in C McCrudden, ‘Citizenship and Law: the Structure of the Green Paper Identifying the Hallmarks of Citizenship’, in P Gardner, Hallmarks of Citizenship – a Green Paper, British Institute of International and Comparative Law, 1994, 20 © The British Institute of International and Comparative Law political entity Any State ’claims to be the State of, and for, a particular, bounded citizenry [and further, it] clams legitimacy by claiming to express the will and further the interests of that citizenry’, and this citizenry is ‘usually conceived as a nation’…20 Inaccuracy of the theory? Emergence of the notion of postnational citizenship In the past few years however, some academics and scholars have announced the growing inadequacy of exclusively nation-centred conceptions of citizenship As Professor Thomas Frank argued, there are a few States in which a single nationality completely corresponds with the State According to his theory, the State comprises in fact a union of diverse cultural groups which have been compelled by external factors to unite nationally.21 Bosniak argues that ’the apparent oxymoronic notions of transnational or postnational or global citizenship challenge conventional presumptions that the nation-state is the sole actual and legitimate site of citizenship The presumptive nationalism that frames most approaches to citizenship has become inaccurate and the concept has begun to exceed the boundaries of the nation-state and is no longer unequivocally taking anchor in national political collectivities’ However, we agree with Bosniak when she affirms that postnational citizenship should be addressed as an aspirational claim rather than an actual fact This idea is corroborated by the fact that no one has elaborated a systematic theory of post/transnational/global citizenship, and the concepts are more often than not deployed in a rather casual way.22 The general trend in international law is that the question whether individuals have the passport of the country concerned is not decisive, at least not in relation with most of their rights This change is, no doubt, caused by the way in which general human rights instruments and discussions have influenced the discussions on the specific legal protection of migrants, as well as of members of national minorities and indigenous people.23 Various rights declarations agreed at supranational level over the past sixty years have increasingly led to the attribution of rights to the individual by mere fact of personhood That is to say, rights that were once granted by the State to a group privileged within its territory (the citizens) are now the preserve of all, and cease to be monopolized by States While the duty to uphold and protect such rights ultimately still falls on the State, this latter is duty-bound to recognise the fundamental rights of all, whether they ‘belong’ in the territory of the State or not Indeed, such fundamental rights, granted at the 20 R M White (n 17) T M Franck, ‘Clan and Superclan: Loyalty, Identity, and Community‘, 90 Am J Int’l L 409 (1997) ibid, Bosniak (n15) 23 M Van Den Bosch and W Van Genugten, ‘International Legal Protection of Migrants Workers, National Minorities and Indigineous Peoples – Comparing Underlying Concepts’, Int’l J on Minority & Group Rts 195 2002 21 22 © The British Institute of International and Comparative Law supranational level, are sufficient to curb State sovereignty against the aggrieved individual, assuming, as we here, that this discussion is based firmly in a western liberal democracy The extension of fundamental rights in international documents has, to a certain extent, brought into question the necessity of the nation-state and deriving concepts of nationality and citizenship These latter have previously been the sole means by which rights have been attributed and upheld Yet with the extension of rights to all persons simply by virtue of their existence, rights deriving from citizenship of a nation-state can be seen as duplicates of globally attributed, inalienable rights Coupled with the assertion of rights through movements across the globe, there is potential for the break-down of the nation-state at the local level to give rise to a postnational, suprastate nexus of relations, in which rights derive from the individual, rather than the polity While rights that are now defined at the transnational level have inevitably become more abstract, the identity that followed from associating oneself with a nation-state that granted and protected rights, still remains territorially bound to the State In other words, universal rights declarations have witnessed the decoupling of identity and rights This ultimately leads to the question of how we premise ‘belonging’ if all are entitled to the same rights, and citizens are no longer privileged ‘insiders’ As citizenship and the notion of ‘belonging’ is premised not only on identity with a particular territory, but also on the rights and duties of individuals within a collective identity, the apparent separation of the one from the other in law poses more questions that it answers The advent and growth of multi-level polities, of which the EU is a prime example, has seen great changes brought about by the sharing of sovereignty in the field of acquiring rights and defining identities Demands for rights and recognition extend beyond borders, breaking the previously intrinsic link between citizenship and nationhood Finally, the increasing discourse on global rights' advancement and protection, which focuses on the codification of human rights as a global organising principle, increasingly leads to the recognition of rights devolving from the person, not from the State International concern with the fundamental human rights of citizens is evident in a large number of instruments It could be said that economic, cultural and social rights, as for example the rights to health care, to education and to employment, conferred upon everyone, receive wide coverage not only by UN instruments but also by its specialized agencies, such as the World Health Organization, United Nations Educational Scientific and Cultural Organisation (UNESCO) or the International Labour Organization, respectively However, international instruments dealing with civil and political rights are less extensive, reserving certain rights, such as the right to vote, to hold public office, and to exit and enter, only to citizens This could be explained by the fact that © The British Institute of International and Comparative Law these rights seem to be more closely connected with the principle of territorial sovereignty and the fact that States are unwilling to renounce their discretion in regulating them With regard to citizens’ duties, the absence of their imposition in international law is remarkable In fact, only regional instruments deal with the duties every individual owes to the State and the society, including the duties to pay taxes and to pay national insurance contributions However, the imposition of duties has been described as controversial and potentially problematic because they may be used by a State to overcome individual rights when both duties and rights come into conflict Multi-dimension of the notion – Rights and duties and ‘feeling of belonging’ Citizenship in a liberal State embodies two relationships A vertical relationship runs between citizen and State, connecting the group of humans who can exact the highest protection from the State and who owe it the most onerous duties A horizontal relationship connects citizens themselves, developing a community of people who share loyalties, civic allegiance, and national character On a basic level, these relationships correspond respectively to the ‘State’ and the ‘nation’ that make up the ‘nation-state’.24 In this sense, encouraging naturalizations is a pursuit of the horizontal relationship, and hostility to dual citizenship is perceived as a devaluation of the horizontal nationality.25 When a sovereign grants full functional citizenship to an individual with a horizontal relationship to a different community, however, the individual's national identity is not necessarily the same as the passport she holds ‘In a world of increased migration, the emotional elements of membership need not be coextensive with the functional.’26 As such, the idea of ‘belonging’, or relying on one's citizenship rights, is bypassed and a hegemonic language for the legitimation of State, and suprastate action is constructed The past decades have been characterized by a continuing process of expansion of categories of rights pertaining to various cultures, and as such it may even be possible to argue that sub-groups within society play an increasingly important role in defining ‘belonging’ Hence while boundaries are constructed to exclusionary purpose by the polity, migration of workers and global fundamental rights' attribution work to neutralise that which such boundaries are erected to protect – i.e., citizenship status with all the rights and privileges that such entails Yet it remains ultimately within the sole competence of the nation-state to protect and uphold such 24 ‘The Functionality of Citizenship’, Harvard Law Review, Vol 110, No (June, 1997)1814-183 ibid 26 The Functionality of Citizenship’, Harvard Law Review, Vol 110, No (June, 1997) 1814-183 25 © The British Institute of International and Comparative Law