Citizenship with a vengeance

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Dauvergne, Catherine ^a,b  

^a Department of Migration Law ^*

^b UNIVERSITY OF BRITISH COLUMBIA   (Canada)

Author keywords

[No Author keywords available]

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EID: 34547449797     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1158     Document Type: Review

References (75)

1. This trend is canvassed in T. ALEXANDER ALEINIKOFF & DOUGLAS KLUSMEYER, CITIZENSHIP POLICIES FOR AN AGE OF MIGRATION (2002).
2. Much of this work can be traced to the influence of T.H. Marshall, whose seminal collection of essays, Citizenship and Social Class, is a touchstone for contemporary work. T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS (1950).
3. Other influential books in this area include WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995);
4. CITIZENSHIP AND SOCIAL THEORY (Bryan Turner ed., 1993);
5. SEYLA BENHABIB, CLAIMS OF CULTURE: EQUALITY AND DIVERSITY IN A GLOBAL ERA (2002).
6. A survey of this literature is presented in Will Kymlicka & Wayne Norman, The Return of the Citizen: A Survey of Recent Work on Citizenship Theory, 104 ETHICS 352 (1994).
7. The growth in work about citizenship has continued steadily since this survey was published. Some exceptions to the trend include KIM RUBENSTEIN, AUSTRALIAN CITIZENSHIP LAW IN CONTEXT (2002)
8. and T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE AND AMERICAN CITIZENSHIP (2002).
9. DAVID JACOBSON, RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP (1996);
10. SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996);
11. Linda Bosniak, Citizenship Denationalized, l IND. J. GLOBAL LEGAL STUD. 447 (2000);
12. YASEMIN SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL MEMBERSHIP IN EUROPE (1994).
13. This observation and starting point are taken up to different ends by Audrey Macklin in her contribution to this volume. Audrey Macklin, The Citizen and the Other: Considering the Heft of Citizenship, 8 THEORETICAL INQUIRIES L. 333 (2007).
14. This is one of the key contributions of ALEINIKOFF, supra note 2.
15. Linda Bosniak inquires into how citizenship is denationalized across a range of discourses and asks when and why this should take place. Bosniak, supra note 3. She notes that denationalization is least likely in legally bounded renditions of citizenship. Seyla Benhabib argues that the elements of citizenship are being disaggregated in a way that separates social membership from political membership and thus creates a space for membership without citizenship.
16. See BENHABIB, supra note 2.
17. Citizens of prosperous Western states have received attention and some assistance from their governments after being detained at Guantanamo Bay. On September 26, 2002, Mahar Arar, a dual citizen of Canada and Syria, was removed to Syria by the United States and reportedly was detained and routinely tortured for more than a year. The Canadian government negotiated his release and return to Canada on October 6, 2003. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Dec. 12, 2006), http://www.ararcommission.ca/eng/.
18. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 391-92 (2003).
19. Britain successfully negotiated for the repatriation of its nationals to Britain from Guantanamo in early 2005. Canadian Omar Khadr and Australian David Hicks remained detained. In 2004, David Hicks began the process of asserting his claim to British citizenship in the hopes of benefiting from the negotiated release. Mark Dunn, Lawyers Say It's Citizen Hicks, HERALD SUN, May 8, 2006, at 10 (AustL);
20. David Rose, How Ashes Triumph Could Save the 'Last Brit' in Guantanamo, OBSERVER, Sept. 25, 2005, available at http://www.guardian.co.uk/guantanamo/story /0,1577983,00.html.
21. Audrey Macklin, Exile on Mainstreet: Popular Discourse and Legal Manoeuvers Around Citizenship, in LAW AND CITIZENSHIP 22, 24 (Law Comm'n of Can. ed., 2006).
22. In the United States, the scrutiny of permanent residents from the Islamic Middle East was heightened dramatically following the events of September 11, 2001. In Canada, recent legislative changes have reduced rights for permanent residents being stripped of their status for residency violations or criminal activity. In Australia, permanent residency rights for some refugee claimants have been sharply curtailed since 2001, most strikingly by making it virtually impossible for those who arrive by boat to ever become full citizens.
23. I have made this argument in more detail in Catherine Dauvergne, Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics, 24 MELB. U. L. REV. 280 (2000).
24. In the United States, the requirement is five years residency with permitted absence of up to a year. In Australia the requirement is two years, and in Canada it is three years.
25. There is a language component in the United States, Australia and Canada. In each case, the standard is one of basic communication skills.
26. The knowledge requirement focuses on history, politics and citizenship rights. The United States and Canada both administer a formal written test at approximately a primary school level of difficulty. Some applicants in each country are exempted from this testing. In Australia, testing focuses on rights and responsibilities of citizenship and is administered orally, testing English language skills at the same time.
27. In the United States, status can be granted to both "refugees" and "asylees." Both categories follow the refugee definition set out in the Convention Relating to the Status of Refugees, ch. 4, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954).
28. This point is well made by Audrey Kobayashi, Challenging the National Dream: Gender Persecution and Canadian Immigration Law, in NATIONALISM, RACISM AND THE RULE OF LAW 61 (Peter Fitzpatrick ed., 1995). Kobayashi argues that refugee women are confined by the victimization they must portray to attain their status.
29. Michael Walzer's assertion of this view has been the most influential. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 31-63 (1983).
30. See also my discussion in Catherine Dauvergne, Amorality and Humanitarianism in Immigration Law, 37 OSGOODE HALL L.J. 597 (1999).
31. Some liberal thinkers have taken an "open borders" position, see, e.g., Joseph Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987);
32. Joseph Carens, Open Borders and Liberal Limits, 34 INT'L MIGRATION REV. 636 (2000);
33. Joseph Garens, Refugees and the Limits of Obligation, 6 PUB. AFF. Q. 31 (1992), but it is less prevalent than a closed borders argument. I have argued that the dispute between open borders liberals and closed borders liberals is not resolvable and is one reason for the intransigence of political debate about migration provisions.
34. See Dauvergne, supra note 18.
35. We owe the term "flexible citizenship" to AIHWA ONG, FLEXIBLE CITIZENSHIP: THE CULTURAL LOGICS OF TRANSNATIONALE (1999).
36. Ong has more recently written a companion study of the most disadvantaged migrants, focusing on refugees from Cambodia arriving in the United States in the 1980s. In AIHWA ONG, BUDDHA IS HIDING: REFUGEES, CITIZENSHIP, THE NEW AMERICA (2003), she makes the argument that economic globalization has contributed to deterritorializing citizenship. Her argument rests on contemporary social theory and a nuanced understanding of the making of citizen-subjects. 1 hope that my argument parallels the point she is making but with attention instead to the narrower realm of formal legal citizenship.
37. Kim Rubenstein, Citizenship in a Borderless World, in LEGAL VISIONS OF THE 21ST CENTURY: ESSAYS IN HONOUR OF JUDGE CHRISTOPHER WEERAMANTRY 183 (Antony Anghie & Garry Sturgess eds., 1998);
38. Kim Rubenstein & Daniel Adler, International Citizenship: The Future of Nationality in a Globalized World, 7 IND. J. GLOBAL LEGAL STUD. 519 (2000).
39. This argument runs counter to that of Rainer Bauböck, Why European Citizenship? Normative Approaches to Supranational Union, 8 THEORETICAL INQUIRIES L. 453 (2007) in this volume, and 1 encourage readers to consider these assessments side by side.
40. This is provided by the U.S. CONST, amend. XIV. See Joseph Carens, Who Belongs? Theoretical and Legal Questions About Birthright Citizenship in the United States, 37 U. TORONTO FAC. L. REV. 413 (1987).
41. Kioa v. West (1985) 150 C.L.R. 550 (H.C.A.).
42. Citizenship Act, 1948 § 10(2) (Austl.). In 2004, the High Court of Australia decision in Singh v. Commonwealth of Australia, (2004) 222 C.L.R. 322, confirmed the constitutionality of this change in citizenship law.
43. This case is discussed in this volume by Kim Rubenstein, Advancing Citizenship: The Legal Armory and its Limits, 8 THEORETICAL INQUIRIES L. 509 (2007).
44. Following approval of the constitutional change, Irish citizenship law was amended to provide that citizenship would be acquired by those born in Ireland whose parents were Irish citizens or entitled to be Irish citizens. See also John Harrington, Citizenship and the Biopolitics of Post-Nationalist Ireland, 32 J.L. & SOC'Y 424. Case C-200/02, Zhu & Chen v. Sec'y of State for the Home Dep't, 2004 E.C.R. 1-9925, was also part of the political backdrop to these events. Chen traveled pregnant to Ireland from the United Kingdom to ensure European citizenship for her child.
45. Bill C-18, Citizenship of Canada Act, 2d Sess., 37th Parl., 2002 (2d reading Nov. 8, 2002). This proposal has been floated by several recent governments, most recently in 2002. To date the measure has not passed through Parliament, primarily because it has never been a sufficiently high priority item for the government of the day.
46. Michael Martinez & Aamer Madhani, English Bill's Meaning Lost in Translation, Experts Say, CHI. TRIB., May 20, 2006, at 1.
47. See Australian Citizenship Bill, 2006, available at http://www.austlii.edu.au/au/legis/cth/bill/acb2006264.
48. Provisions Governing the Right to Vote of Italian Citizens Abroad, Law No. 459 of Dec. 27, 2001, Gazz. Uff. No. 4 of Jan. 5, 2002.
49. Id. art. 6.
50. Commentators argue that the overseas votes may have played a critical role in breaking a tie between Prodi and Berlusconi. Prodi won four of the six seats in the Senate, while Berlusconi won only one. The remaining seat went to an independent party. See John Hooper, A Triumph of Sorts as the Professor Beats the Clown, GUARDIAN, Apr. 12, 2006, available at http://www.guardian.co.uk/international/story/0,1751945,00.html;
51. Italy's Berlusconi Demands Election Recount (CTV News television broadcast Apr. 11, 2006), available at http://www.ctv.ca/servlet/ ArticleNews/story/ CTVNews/20060411/italy_election_060411?s_name=&no_ads=.
52. Barbara McMahon, The Expat Factor, GUARDIAN, Mar. 23, 2006, available at http://www.guardian.co.uk/elsewhere/journalist/story/ 0,1738183,00.html.
53. A Million Italians Abroad Vote, ASSOCIATED PRESS, Apr. 9, 2006, available at http://web.lexis-nexis.com/ universe/document?_m=898ee8fa6aOc6d41162bbdf6a65 7b292&_docnum=1&wchp= dGLbVlz-zSkVA&_md5=lfdadc743179ddalc4c3203 a2aa305f7.
54. See supra note 32.
55. The Good Friday Agreement (formally: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, U.K.-Ir., Apr. 10,1998,2114 U.N.T.S. 472, known as the Belfast Agreement) was signed by the British and Irish governments on April 10,1998 and was voted on by the people of North Ireland and the Republic of Ireland in a referendum on May 22,1998. The Agreement recognizes the right to self-determination of the peoples of North and South Ireland, lays out a political framework for this self-determination, and remains committed to a process of reconciliation in Ireland. See Desmond M. Clarke, Nationalism, The Irish Constitution, and Multicultural Citizenship, 51 N. IR. L.Q. 100 (2000).
56. IR. CONST., 1937, arts. 2, 3, read as follows: Article 2: It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage. Article 3: (1) It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. (2) Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.
57. There has been a strong shift in scholarship about "nation" over the past twenty years. While this term was first strongly associated with an ethnic coherence, ANTHONY SMITH, THE ETHNIC ORIGINS OF NATIONS (1986),
58. more recent work has argued that this coherence is constructed and not essential to nation, BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (rev ed. 1991);
59. WILLIAM ROGERS BRUBAKER, NATIONALISM REFRAMED: NATIONHOOD AND THE NATIONAL QUESTION IN THE NEW EUROPE (1996);
60. ERIC J. HOBSBAWN, NATIONS AND NATIONALISM SINCE 1780: PROGRAMME, MYTH, REALITY (2d ed. 1992). What is interesting about this shift is that the parsing of nation and ethnicity that is well established in academic discourses has not effectively penetrated popular or political discourse. It leaves "nation" as a term that is difficult to use with any precision at all, and in this way perhaps contributes to the academic turn towards "citizenship" as a discursive framing of membership, which, because of its legal formality, is a term within which formal precision is often argued against.
61. The Citizenship Act, No. 57 of 1955, §§7A, 7B, 7C, 7D.
62. Restrictions on ownership of agricultural and plantation property remain.
63. Anupam Chander, Diaspora Bonds, 76 N.Y.U. L. REV. 1005 (2001).
64. Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 1, created European citizenship in 1993. Since that time, commitments to strengthening it have been repeated, most recently in Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 2005 O.J. (C 53) l (EU), agreed upon in 2004.
65. SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996).
66. Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1 (entered into force May 1, 1999).
67. Presidency Conclusions, Tampere European Council (Oct. 15-16, 1999), available at www.europarl.europa.eu/summits/tam_en.thm.
68. This is even clearer in the articulation of the Hague Programme, endorsed by the European Council in November 2004, which picks up where the five-year mandate of Tampere ends.
69. Council Directive 2004/83, 2004 O.J. (L 304) 12 (EC); Council Directive 2005/85, 2005 O.J. (L 326) 13 (EC). The provisions calling for provision of legal aid in refugee appeal matters is to be transposed into national laws by December 2008.
70. Council Recommendation of 22 December 1995 on Harmonizing Means of Combating Illegal Immigration and Illegal Employment and Improving the Relevant Means of Control, 1996 O.J. (C 5) l (EU).
71. European Parliament and Council Directive 2004/38, On the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States Amending Regulation (EEC) No 1612/68 and Repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 2004 O.J. (L 158) 77 (EC); Council Decision of 25 June and 23 September 2002 Amending the Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom 2002 O.J. (L 283) 01 (EC); Council Directive 96/30, Amending Directive 94/80 Laying Down Detailed Arrangements for the Exercise of the Right to Vote and to Stand as a Candidate in Municipal Elections by Citizens of the Union Residing in a Member State of Which They Are Not Nationals, 1996 O.J. (L 122) 14 (EC); Council Directive 93/109, Laying Down Detailed Arrangements for the Exercise of the Right to Vote and Stand as a Candidate in Elections to the European Parliament for Citizens of the Union Residing in a Member State of Which They are Not Nationals, 1993 O.J. (L 329) 34 (EC).
72. While individuals may also be exempted from immigration law provisions, this is a routine matter on an ad hoc basis and does not shift the law. 1 have had a long interest in individual exemptions and have written about them in CATHERINE DAUVERGNE, HLJMANLTARIANISM, IDENTITY AND NATION: MIGRATION LAWS OF AUSTRALIA AND CANADA (2005).
73. When states grant temporary residency only, they undoubtedly intend this distinction to be meaningful. Nonetheless, overall trends suggest that temporary status is often convertible to permanent status and thus to citizenship. Distinctions between temporary and permanent membership are increasingly fictive.
74. I discuss these proposals in detail in my forthcoming manuscript CATHERINE DAUVERGNE, MAKING PEOPLE ILLEGAL: MIGRATION LAWS FOR GLOBAL TIMES ch. 7 (forthcoming 2008) ("Citizenship and the Advance of Exclusion").
75. See Adriana Kemp, Managing Migration, Reprioritizing National Citizenship: Undocumented Labor Migrants' Children and Policy Reforms in Israel, 8 THEORETICAL INQUIRIES L. 663 (2007) for a carefully nuanced case study example.