Who is The citizen's other? Considering the heft of citizenship

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Macklin, Audrey ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 34547482002     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1153     Document Type: Review

References (100)

1. LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP 2 (2006).
2. For further discussion of territoriality, see Linda Bosniak, Being Here: Ethical Territoriality and the Rights of Immigrants, 8 THEORETICAL INQUIRIES L. 389 (2007).
3. Linda Kerber also contends that "the ultimate 'other' to citizenship lies in its absence, in lack, in statetewness," although she arrives at this position via a different route and attributes to statelessness a somewhat different meaning. See Linda Kerber, Toward a History of Statelessness in America, 57 AM. Q. 727, 731 (2005).
4. Aihwa Ong, (Re)articulations of Citizenship, 38 PS: POL. SCI. & POL. 697 (2005).
5. HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (Harcourt Brace & Co. 1978) (1951).
6. ENGIN F. ISIN, BEING POLITICAL: GENEALOGIES OF CITIZENSHIP 4 (2002).
7. ARENDT, supra note 5, at 296.
8. Margaret Somers reconciles this apparent divergence between Marshall's and Arendt's accounts by developing the claim that "Marshall's priority of partaking in the social heritage and Arendt's ontological postulate of political belonging both make membership as citizens the foundationsl necessity, and right, of human personhood and identity." Margaret Somers, Citizenship, Statelessness and Market Fundamentalism, in MIGRATION, CITIZENSHIP, ETHNOS 35, 55 (Y. Michal Bodemann & Göçkce Yurdakul eds., 2006).
9. Linda Bosniak coins the oxymoronic term "the citizenship of aliens" to express the paradox, whereby aliens in fact do successfully claim rights associated with citizenship in its non-legal sense. BOSNIAK, supra note 1, at 2 passim. She also remarks that the focus on the denial of rights to status citizens often renders the critique insensitive to the history of systematic denial of citizenship status itself to members of subordinated groups in this country .... This account, furthermore, obscures the ways in which a lack of the status of citizenship itself, in the form of alienage, sometimes serves as a basis for caste-like treatment and discrimination.
10. Id. at 88.
11. In response to this objection, Bosniak replies that in practice, "many of citizenship's core attributes do not depend on formal citizenship status at all but are extended to individuals based on the facts of their personhood and national territorial presence." Id. at 3.
12. See generally RAINER BAUBÖCK, TRANSNATIONAL CITIZENSHIP: MEMBERSHIP AND RIGHTS IN INTERNATIONAL MIGRATION (1994);
13. THOMAS FAIST, THE VOLUME AND DYNAMICS OF INTERNATIONAL MIGRATION AND TRANSNATIONAL SOCIAL SPACES (2000). For a critical survey of the various meanings ascribed to transnational citizenship,
14. see Jonathan Fox, Unpacking "Transnational Citizenship," 8 ANN. REV. POL. SCI. 171 (2005).
15. ARENDT, supra note 5, at 277.
16. Id. at 279.
17. Id. at 299.
18. GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE 134 (1998).
19. Although it is tempting to evoke Agamben's bio-political "bare life" or homo sucer as the citizen's Other, doing so would distort Agamben's project in the service of what is (admittedly) a more conventional undertaking. Agamben's inquiry is directed at exposing how sovereignty, properly understood, inscribes "bare life" into political existence, and renders incoherent the very exercise of contrasting citizen and Other:It is even possible that this limit [expressed in the figure of homo sacer], on which the politicization and the exception of natural life in the juridical order of the state depends ... has now -in the new biopolitical horizon of states with national sovereignty, moved inside every human life and every citizen. Bare life is no longer confined to a particular place or a definite category.
20. Id. at 140.
21. Put in other terms, the other of Agamben's homo sacer is perhaps not the citizen, but the sovereign. Id. at 111.
22. MICHAEL WALZER, SPHERES OF JUSTICE 32-63 (1983).
23. The main exception is the European Court of Human Rights, a supranational tribunal that actually renders enforceable decisions.
24. Convention Relating to the Status of Stateless Persons, June 6, 1960, 360 U.N.T.S. 117.
25. Convention on the Reduction of Statelessness, art. 1, Aug. 30, 1961, 989 U.N.T.S. 175; European Convention on Nationality, art. 6, Nov. 6, 1997, Europ. T.S. No. 166; American Convention on Human Rights, art. 20, Nov. 22, 1969,1144 U.N.T.S. 123; Convention on the Rights of the Child, art. 7, Nov. 20, 1989, 1577 U.N.T.S. 53. Notably, the treaties dealing explicitly with nationality and Statelessness have attracted few signatories.
26. See Carol Batchelor, Stateless Persons: Some Gaps in International Protection, 1 INT'LJ. REFUGEE L. 232 (1995).
27. Convention Relating to the Status of Stateless Persons, supra note 17, art. 1.
28. See Niraj Nathwani, The Purpose of Asylum, 12 INT'L J. REFUGEE L. 354, 357-64 (2000);
29. Carol Batchelor, Statelessness and the Problem of Resolving Nationality Status, 10 INT'L J. REFUGEE L. 156, 171-74 (1998).
30. This exchange of protection for a monopoly on force is a classic rationale for entry into the social contract and the legitimacy of sovereign rule.
31. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 2545;
32. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 8791.
33. Ward v. Canada, [1993] 2 S.C.R. 689, para. 25. Recognition of refugee status neither blames nor penalizes states of origin, though some states certainly take umbrage when their nationals are recognized as refugees by other countries. After all, the process of determining the existence of a well-founded fear of persecution implicitly opens up to normative scrutiny the practices of other states.
34. To the extent that most stateless people identify themselves as possessing a national identity in the non-legal sense, one might suggest that the stateless person is, perpetually, outside the country of her nationality.
35. Quoted in Altawil v. Canada, [1996] 114 F.T.R. 241, para. 6 (Fed. Ct.).
36. Thabet v. Canada, [1998] 160 D.L.R. 666, para. 32 (Fed. Ct. App.).
37. Altawil, [1996] 114 F.T.R. 241, para. 11. This reasoning was followed in Thabet.
38. As a practical matter, it may be impossible to deport the stateless person for the very reason that no country will accept her; furthermore, States Party to the 1954 Convention Relating to the Status of Stateless Persons, supra note 17, may provide relief to a stateless person as well. My present point, however, is that these remedies are discretionary and do not acknowledge the persecutory dimension of a refusal to readmit a stateless person.
39. It is the singular irony of the Universal Declaration of Human Rights' solemn avowal that "everyone has the right to a nationality" stipulates no addressee. Universal Declaration of Human Rights, art. 15(1), G.A. Res. 217A (III), at 71, U.N. Doc A/810 (Dec. 12, 1948).
40. (2004) 208 A.L.R. 124 (Austl.).
41. A few months after the decision, Premier John Howard announced that nondeportable aliens would be released from detention on "removal pending bridging visas." Juliet Curtin, Never Say Never, 27 SYDNEY L. REV. 355, 370 (2005).
42. 533 U.S. 678 (2001).
43. [2004] UKHL 56, [2005] 2 A.C. 68 (appeal taken from Eng.).
44. See also Charkaoui v. Canada, [2007] S.C.C. 9, where the Supreme Court of Canada upheld the constitutionality of "extended periods of detention pending deportation," but acknowledged that particular detentions may, at a certain point, constitute "cruel and unusual treatment" or be "inconsistent with the principles of fundamental justice," thereby infringing the Charter of Rights and Freedoms.
45. Id. para 123.
46. ARENDT, supra note 5, at 278.38 The most recent production of statelessness that resembles Arendt's model transpired in Latvia and Estonia in the 1990s. The re-emergence of the Baltic states upon the dissolution of the Soviet Union stranded hundreds of thousands of ethnic Russians who were survivors and descendents of Stalin's massive population transfers in the 1940s. The initial citizenship laws drafted by the successor/restored states of Latvia and Estonia automatically extended citizenship to pre-1940 residents and their descendents. This effectively excluded ethnic Russians from citizenship, leaving them stateless. Russia offered to grant Russian citizenship to these ethnic Russians, but this would not secure their continued presence in Latvia or Estonia. The option of naturalization presented by Latvia and Estonia to these Russian speakers has been continually criticized for imposing language requirements so onerous that they are virtually unattainable for many ethnic Russians, given that Russian was the public language in the Baltic states throughout the Soviet era. Perhaps the most important difference between this phenomenon and that described by Arendt concerns the role of supranational political and economic institutions in leveraging human rights. Since the Baltic states aspire to membership in the European Union (and the anticipated economic benefits accruing therefrom), the Council of Europe and the Organization for Security and Co-Operation in Europe (OSCE) were able to apply pressure to Latvia and Estonia to ease the requirements for naturalization. Nevertheless, over a half-million ethnic Russians in Latvia and Estonia remain stateless today. In May 2006, the Council of Europe opened for the signature the Convention on the Avoidance of Statelessness in Relation to State Succession, May 19, 2006, Council Europ. T.S. No. 200, available at http://conventions.coe.int/Treaty/EN/Treaties/ Word/200.doc. The treaty supplements the European Convention on Nationality by imposing an obligation on successor states to grant citizenship to habitual residents of the territory at the time of succession if such persons would otherwise be rendered stateless.
47. Id. art. 5. Palestinians, the largest stateless population in the world, never possessed a Palestinian citizenship to lose.
48. The first two issues also emerged as particularly salient in extending refugee protection to women fleeing gender-based persecution, which is often committed in the private sphere by non-state actors.
49. WORLD BANK, 1997 WORLD DEVELOPMENT REPORT 158 (1997), quoted in Tara Magner, Note, Does a Failed State Country of Origin Result In a Failure of International Protection? A Review of Policies Toward Asylum-Seekers In Leading Asylum Nations, 15 GEO. IMMIGR. L.J. 703 (2001). The Failed State Index, produced annually by Carnegie Endowment for Peace and Foreign Policy magazine, defines a failing state as "one in which the government does not have effective control of its territory, is not perceived as legitimate by a significant portion of its population, does not provide domestic security or basic public services to its citizens, and lacks a monopoly on the use of force." Foreign Policy, The Failed States Index (May-June 2006), http://www. foreignpolicy.com/story/cms.php?story_id=3420.
50. In 1998, outgoing Colombian President Ernesto Samper made a startling admission of state failure when he called on Canada and European states to offer refuge to tens of thousands of Colombian civilians threatened with political assassination because the Colombian state was unable to protect them. Paul Knox, Colombian Will Ask Canada to Help Activists; Refuge Sought for Rights Workers, GLOBE & MAIL, May 27, 1998, at A1.
51. See, e.g., Immigration and Refugee Board (Canada), Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations (Mar. 7, 1996), available at www.irb-cisr.gc.ca./en/references/policy/guidelines/ civil_e.htm.43 For a description and discussion of the relatively narrow French and German interpretations,
52. see Catherine Phuong, Persecution by Non-State Agents: Comparative Judicial Interpretations of the 1951 Refugee Convention, 4 EUR. J. MIGRATION & L. 521 (2002).
53. Council Directive 2004/83, Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or Persons Who Otherwise Need International Protection and the Content of the Protection is Granted, 2004 O.J. (L 304) 12 (EC), available at http://europa.eu.int/ eurIex/pri/en/oj/dat/2004/l_304/l_30420040930en00120023.pdf. Article 6 of the Asylum Qualification Directives states that: Actors of persecution or serious harm include: (a) the State (b) parties or organisations controlling the State or a substantial part of the territory of the State (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm ....
54. See ECRE, ECRE Infonnation Note on the Council Directive 2004/83/EC, at 9 (Apr. 29, 2004), available at http://www.ecre.org/ statements/qualpro/pdf.
55. Id. at 7.
56. ARENDT, supra note 5, at 297.
57. 543 U.S. 335 (2005).
58. Id. at 352 n. 13.
59. Jama v. Immigration & Customs Enforcement, Civil No. 01-1172 (Dist. Ct. Minn. motion for release granted May 20, 2005); U.S. Immigration Spent 200K on Keyse Jama Deportation (Minn. Pub. Radio radio broadcast June 23, 2006), available at http://minnesota.publicradio.org/display/web/2006/06/ 23/jamaflight/. For a fascinating ethnographic study of Somalis deported from Canada and the U.S. to Somaliland,
60. see Nathalie Peutz, Embarking on an Anthropology of Removal, 47 CURRENT ANTHROPOLOGY 217 (2006).
61. Patricia Tuitt, The Territorialization of Violence, in CRITICAL BEINGS: LAW, NATION AND THE GLOBAL SUBJECT 37 (Peter Fitzpatrick & Patricia Tuitt eds., 2004). Tuitt makes the important and, in my view, accurate observation that even for those scholars, such as Giorgio Agamben, who claim adherence to a conception of the refugee that "exceeds its legal construction, the legal refugee haunts much work of this kind."
62. Id. at 39.
63. UNHCR, STATE OF THE WORLD'S REFUGEES 153 (2006) (emphasis added).
64. Januzi v. Sec'y of State for the Home Dep't [2006] UKHL 5, [2006] 2 A.C. 426 (appeal taken from Eng.).
65. HOMO (Relocation to Khartoum), Sudan CG [2006] UKAIT 00062 (Asylum & Immigr. Trib.).
66. Erika Feller, UNHCR's Role in IDP Protection; Opportunities and Challenges, FORCED MIGRATION REV. (SPECIAL ISSUE) 12 (2006).
67. UNHCR, supra note 48, at 154.
68. The Fund for Peace, Failed State Index 2006, http://www.fundforpeace. org/programs/fsi/fsindex2006.php (last visited Sept. 1, 2006).
69. The British Home Office also announced its determination to return failed asylum seekers to Iraq, even though the Foreign Office advises against travel to Iraq owing to dangerous conditions, and the Ministry of Defence must charter a special flight to effect the removal. Britain has rejected more than 90% of Iraqi asylum seekers since 2000, and Home Secretary, John Reid, warned that "To ensure the viability of this operation and in line with enforcement operational instructions, the Home Office may decide not to defer removal in the face of a last-minute threat or application to seek judicial review." Home Office Adamant on Iraq Removals, GUARDIAN WKLY., Sept. 8-14, 2006, at 13. Iraq ranked fourth on the 2006 Failed State Index. Each of the five countries with the highest number of IDPs also ranked among those designated as failed states. According to Internal Displacement, Global Overview of Trends and Developments in 2005, at 6 (Mar. 2006), http://www. internaldisplacement.org/8025708F004BE3Bl/(httplnfoFiles)/ 895B48136F55F562C12571 380046BDBl/Sfile/Global%20Overview05%201ow.pdf, the top IDP populations were located in Sudan (5.4 million IDPs), Colombia (up to 3.7 million), Uganda (2 million), DRC (1.7 million) and Iraq (1.3 million). These countries ranked 1, 27, 21, 2 and 4 in the Failed State Index.
70. Kerber, supra note 3.
71. A reasonable objection to this approach is that the focus on non-citizens excludes internally displaced citizens from the field of inquiry, thereby lending undue primacy to territorial location as a discontinuous form of displacement. 59 AMARTYA SEN, DEVELOPMENT AS FREEDOM (2000).
72. This refraining of citizenship also offers the possibility of dissolving the paradox of the "citizenship of aliens" (discussed supra note 8), once one accepts that the citizenship in question aggregates not only the attributes of membership in the state of alienage, but also those in the state(s) of legal citizenship.
73. Council Regulation (EC) No. 343/2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National, 2003 OJ (L 50) 1 (EC), available at http:// www.uvi.fi/download.asp?id= Dublin+II+asetus+eng;979;%7B8COEC6FC-E1894ED9-88C1-FC4132E6E978%7D.
74. Safe Third Country Agreement, U.S.-Can., Dec. 5, 2002, available at http://www.cic.gc.ca/english/policy/safe-third.html.
75. Canada and Australia operate points systems whereby entrants acquire permanent resident status more or less automatically. While the United States delegates greater control to private employers by tying permanent residence ("green cards") to a specific offer of employment, in practice, most skilled workers enter the U.S. on temporary employment visas and convert their status to permanent residence through employer-sponsored petitions. Britain and France are at various stages of initiating their own points systems, while Germany has introduced a system that operates similar to the U.S. insofar as skilled workers enter on temporary visas and become eligible for permanent residence after five years.
76. AIHWA ONG, FLEXIBLE CITIZENSHIP: THE CULTURAL LOGICS OF TRANSNATIONALFTY (1999). A notorious Canadian example is Conrad Black, the disgraced media baron who renounced his Canadian citizenship in favor of British citizenship so he could become a peer in the House of Lords, and explained his decision by declaring that Canadian citizenship "is not now for me competitive with that of the United Kingdom and the European Union."
77. Linda McQuaig, 1 am NOT Canadian, GLOBE & MAIL, May 26, 2001, at F4. With the possibility of criminal conviction in the United States presently looming before Mr. Black, he is attempting to re-acquire Canadian citizenship. Canada and the United States have a prisoner transfer agreement that enables Canadians convicted in U.S. courts to serve their sentences in Canadian prisons. The United Kingdom does not have a prisoner transfer agreement with the United States.
78. Some states (Canada, Germany) do not distinguish between citizens and permanent residents in terms of their ability to sponsor family members, while others (U.S.) give preference to citizens.
79. The same holds true for visa exemption.
80. Finland, Greece, Portugal and Spain recently announced their intention to remove remaining barriers to free movement for citizens of EU 10 states; Belgium, France, Italy and Luxembourg intend to ease certain restrictions. Germany, Denmark and Austria intend to retain their visa requirements for workers from EU10. In practice, Germany has issued 500,000 work permits to Eastern European workers since 2004. EU Labour Chief Calls for End to Labour Barriers, EXPATIC.A, May 2, 2006, http://www.expatica.com/source/ site_article.asp?subchannel_id=26&story_id =29696.
81. European Commission, Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of the Regions: Report on the Functioning of the Transitional Arrangements Set Out in the 2003 Accession Treaty (period I May 2004-30 April 2006), COM (2006) 48 final (Feb. 8, 2006), available at http://eur-lex.europa. eu/LexUriServ/site/en/com/2006/com2006_0048en01.doc;
82. see also Eur. Comm'n Directorate-Gen, for Econ. & Fin. Affairs & Eur. Comm'n Bureau of European Policy Advisers, Enlargement, Two Years After: An Economic Evaluation 79-85 (May 2006), http://ec.europa.eu/ economy_fmance/publications/occasional_papers/ 2006/ocp24en.pdf.
83. Patrick Wintour, Permit Scheme to Cut Flow of East Europeans, GUARDIAN UNLIMITED, Aug. 31, 2006, http://www.guardian.co.uk/ immigration/ story/0,1861634,00.html.
84. UNFPA, State of World Population 2006: A Passage to Hope 29 (2006), http://www.unfpa.org/swp/2006/pdf/en_sowp06.pdf.
85. I am not claiming that the existing sexual division of labor or the organization of the workplace are normatively justified. For an analysis of migrant domestic workers, see Audrey Macklin, Foreign Domestic Worker Surrogate Housewife or Mail Order Servant?, 37 MCGILLL.J. 681 (2006).
86. Omar Khadr has challenged the denial of consular assistance as a breach of his constitutional rights and a breach of the Canadian government's statutory duties. The litigation is ongoing. See Khadr v. Canada, [2004] 266 F.T.R. 20 (Fed. Ct.).
87. Under international law, states have the right to assert diplomatic protection of their nationals against foreign states; whether citizens have a right to demand diplomatic protection from their state of nationality is less clear.
88. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, G.A. Res. 45/158, Annex, U.N. Doc. A/45/49.
89. In the context of the "war on terror," the interventions of Britain, Australia and France on behalf of their detained nationals in Guantànamo Bay have been conspicuously more successful than similar attempts by the government of Pakistan. It must be said here that Canada's efforts in this regard appear less assiduous than those of other similarly situated states.
90. For other illuminating discussions of this phenomenon, see Catherine Dauvergne, Citizenship with a Vengeance, 8 THEORETICAL INQUIRIES L. 489 (2007);
91. Ratna Kapur, The Citizen and the Migrant; Postcolonial Anxieties, Law and the Politics of Exclusion/Inclusion, 8 THEORETICAL INQUIRIES L. 537 (2007).
92. Embassy of India, Persons of Indian Origin -Card Scheme, http://www.indianembassy.org/policy/PIO/Introduction_PIO.html (last visited Sept. 4, 2006).
93. IndiaDay.org, Dual Citizenship Now a Reality, http://indiaday.org/dual- citizen.htm (last visited May 16, 2004). The list of qualifying European states excludes those that prohibit dual citizenship.
94. Id.
95. Aihwa Ong, Experiments with Freedom: Milieus of the Human, 18 AM. LITERARY HIST. 226, 237 (2006).
96. Id.
97. High Commission of India, London, Promulgation of Citizenship (Amendment) Ordinance, 2005, http://www.hcilondon.net/Overseas-Indian-Citizenship/index. html (last visited Sept. 4, 2006).
98. ARENDT, supra note 5, at 287.
99. In fairness, the passport of a birthright citizen born abroad to a Canadian citizen would also list a non-Canadian birthplace.
100. Kandy Woodfield et al., Exploring the Decision-Making of Immigration Officers: A Research Study Examining Non-EEA Passenger Stops and Refusals at UK Ports 43 (Jan. 2007), http://www.homeoffice.gov.uk/rds/pdfs07/rdsolr0107.pdf. The authors of the report caution that the size of the sample group was too small to permit definitive conclusions about racism as a causal factor. Interestingly, there was no statistically significant difference in the stop rate of white and non-white Americans. Id.