Kickoff by Rainer Bauböck, co-director of EUDO CITIZENSHIP

June 5, 2010

As reported by EUDO CITIZENSHIP (see citizenship news on 23 and 27 May 2010), Hungary and Slovakia have both amended their citizenship laws on 26 May. In Hungary an overwhelming majority of parliamentarians voted for offering persons with Hungarian ancestry access to Hungarian citizenship without asking them to renounce their present citizenship and without requiring that they take up residence in Hungary. The addressees of this new opportunity are up to 2.5 million Hungarian linguistic minorities living mostly in Slovakia, Romania and the Serb province of Vojvodina. The Slovak law is explicitly a retaliation move. In response to the threat that the country’s largest minority could become Hungarian citizens, the Slovak legislator has abandoned its previous toleration of dual citizenship. Persons who voluntarily acquire another citizenship by naturalisation (rather than automatically by birth or through marriage) will immediately lose their Slovak citizenship.

These are the facts, but what is the problem? At least seven other EU member states have laws that resemble the new Hungarian one. They offer naturalisation to persons residing abroad if these individuals themselves or their ancestors had been citizens. Moreover, seventeen EU countries allow for endless transmission of their citizenship to persons born abroad to a citizen parent. If this rule had applied continuously to the citizens of the Hungarian half of the Habsburg monarchy, then the Hungarian minorities in the near abroad of today’s smaller Hungary would have been Hungarian citizens by birth. Eleven EU countries also have laws similar to the new Slovak one. They are broadly hostile towards dual citizenship and withdraw their citizenship from those who acquire another one. Take the case of Germany, where the liberal citizenship reform of 2000 introduced ius soli but also removed a previous ban on withdrawal of citizenship from any German national residing in Germany. As a consequence of the new law, at least 20.000 formerly Turkish citizens who had reacquired Turkish citizenship after naturalising in Germany were stripped of their German citizenship and voting rights shortly before general elections in 2005. Why should Slovakia not do the same with its ethnic Hungarians? Finally, both Hungary and Slovakia have ratified the 1997 European Convention on Nationality and have made sure that their new laws do not violate any of its core provisions. There is nothing in the ECN that would prevent Hungary from offering its citizenship to ethnic Hungarians residing abroad. And Article 7 (1) ECN contains a precise list of permissible reasons for withdrawal of citizenship that the new Slovak law complies with, since acquisition of a foreign nationality is the first reason listed.

The problem appears to be a political rather than a legal one. The new Hungarian government formed by Fidesz has played the ethnic nationalism card. This has been a long-term commitment of its leader Viktor Orbán. Already in 2004 Fidesz supported a failed referendum initiative to introduce dual citizenship for ethnic Hungarians abroad. Now Fidesz tries to win support among voters for the extreme right-wing and racist party Jobbik. The real surprise is that the defeated socialists also voted for the bill. And the most plausible explanation is their expectation that after turning ethnic Hungarians into dual citizens, the Fidesz government will soon also introduce absentee voting (see Mária Kovács’ and Szabolcs Pogonyi’s citizenship news on 25 May 2010). The socialists cannot hope to gain much support among this constituency, but they also cannot afford to alienate a large new pool of first-time voters.

The nationalist agenda of the Slovak prime minister Robert Fico is not so very different from that of his Hungarian counterpart Viktor Orbán. And Fico leads a coalition government that includes the ultra-nationalist Slovak National Party. Slovakia has always opposed Hungarian moves to strengthen its ties with ethnic Hungarians in its northern neighbour country. Now, shortly before general elections on 12 June, Fico seems keen to escalate the conflict.

The third party in this game are the political leaders of Hungarian minorities in Slovakia and elsewhere. Several Hungarian MPs in Slovakia have announced that they will take up Hungarian citizenship. If and when the new Slovak law is implemented, they would thereby cease to be citizens of the country in whom they represent the largest ethnic minority and could no longer run in future elections. Banning political leaders of a minority from parliament is not exactly likely to strengthen sentiments of loyalty among this minority towards the Slovak state.

This conflict must be puzzling for many academic scholars and migration think tanks that have advocated the general toleration of multiple nationality and have welcomed recent European trends in this direction as indicating a move from ethnic to civic conceptions of citizenship. Dual citizenship has been interpreted as a step towards postnational conceptions of membership and the opening of new spaces for free movement and multiple identities across the borders of sovereign states. So how can we make sense of this conflict where Hungary advocates dual citizenship on purely nationalist grounds whereas Slovakia rejects it invoking the same ideology?

Historians studying sending countries will answer that there is little new about the fact that multiple nationality can generate quarrels between states. Dual citizenship was, for example, a major source of conflict between the United States of America and European states until the Bancroft Treaties at the end of the 19th century established the principle of singular citizenship, which became later enshrined in international law in the 1930 The Hague Convention. Migration scholars studying sending countries are also aware of the fact that these tolerate dual citizenship in order to retain connections with their diasporas and do so often not only for economic motives, but also to please nationalist constituencies at home and abroad.

Yet international conflicts over dual citizenship of migrants have been largely overcome. Since states insist on their sovereignty in determining who their citizens are, they had to learn that their independently applied rules for birthright citizenship by ius soli and ius sanguinis inevitably produce dual citizens. Although many countries still insist on renunciation as a condition for the naturalisation of immigrants, this has become a largely anachronistic policy. So why should it not be acceptable to Slovakia that Hungary wants to turn its ethnic minorities abroad into dual citizens?

The reason is that dual citizenship has a different meaning for migrants who have moved across international borders and for minorities stranded in another states after a redrawing of international borders. In a migration context, dual citizenship means primarily an individual right of free movement between two states, whereas in the border-shifting context it can signal a lack of historical reconciliation with territorial changes. The rhetoric of building a larger nation beyond the country’s borders that we find also in emigration countries, such as Mexico or Turkey, acquires a quite different significance when the Hungarian government invokes it to exploit historic grievances towards its neighbours. The claim that dual citizenship will help to protect Hungarian minorities abroad is hypocritical. Instead, Hungary worsens their situation by creating a dilemma between emigration to Hungary and assimilation in Slovakia. The third alternative, a stronger recognition of Hungarian minorities that would transform Slovakia into an officially multi-lingual and multi-ethnic democracy is undermined by dual citizenship. Territorial minorities with neighbouring kin states face a choice of either conceiving of themselves as a diaspora or as ethnic minorities. They can see themselves as dual citizens of their country of residence and an external kin state who want to keep open the option of “returning” to the latter, or as minority citizens striving for cultural rights, territorial autonomy and special representation in their country of residence. There is an unavoidable trade-off between these choices. This was understood by Austria when it acted as a protecting power for territorial autonomy in South Tyrol/Alto Adige but refrained from offering the German speaking minorities in Italy Austrian citizenship.

Slovak worries about the Hungarian law are therefore understandable, but a law that deprives an ethnic minority of its birthright citizenship is politically and morally irresponsible. The problem is that it seems legally just as defensible as the Hungarian dual citizenship offer. The European Convention on Nationality permits withdrawal of citizenship from persons who voluntarily acquire that of another country (Art. 7(1)a) as well as from those who habitually reside abroad and lack a genuine link to the state concerned (Art. 7(1)e), but these two reasons do not seem to be combined. The genuine link of an ethnic minority with its country of birth and permanent residence thus does not protect its members from being deprived of citizenship if they voluntarily acquire that of an external kin state. The other important European Convention that one might expect to provide relevant legal norms, the 1995 Framework Convention on National Minorities, remains entirely silent on the question of citizenship affiliations of minorities.

In the absence of clear guidance through current international law, what are the principles that the political actors involved in a transborder conflict about dual citizenship should respect? There are two different concerns that can both be addressed by strengthening a principle of genuine link. The first one is with over-inclusiveness. Multiple citizenship ought to be granted only to persons with genuine links to several states. This principle would clearly condemn ius sanguinis transmission of citizenship across several generations born abroad or preferential naturalisation of persons residing permanently abroad whose ancestors had once been citizens. One might object that transborder minorities, such as ethnic Hungarians in Slovakia, still have a genuine link to their external kin state because of a shared language and an interest in external protection of their minority rights. Yet while these are relevant interests that ought to be taken into account, they should not determine who has a claim to membership status in a democratic state.

The second concern is with unjustified exclusion through depriving native-born residents of a citizenship that is clearly based on genuine links. The question is which criteria beyond those listed by the ECN should be considered as obstacles for citizenship withdrawal. Should, for example, a citizenship acquired at birth never be withdrawn? This would conflict with Art. 5 of the ECN that requires non-discrimination between nationalities acquired at birth and through naturalisation. It would also promote over-inclusiveness since persons born abroad who have acquired a citizenship by descent could then retain it for life and also pass it on to a next generation. A much more plausible criterion is permanent residence in the country, especially when the person concerned has also been born and raised there. The Germany conditional ius soli does not respect such a genuine link obstacle to deprivation, since it leads to automatic loss of German nationality unless a foreign nationality inherited at birth is renounced before age 23. An autochthonous ethnic minority, such as the Hungarian one in Slovakia, ought to be even more firmly protected. A state that hosts a national, linguistic or religious minority has a special duty to protect it that must at the very minimum include a citizenship guarantee. This principle, which is currently lacking in international minority rights instruments, would condemn the Slovak law just as much as Estonian and Latvian policies of imposing statelessness on large parts of their Russian minorities and offering them then naturalisation under conditions that were difficult to meet.

These norms can be derived from an interpretation of a genuine link principle for determining citizenship that is stronger than in current international law. If they could be coded in future protocols to the ECN or other similarly successful international conventions, this will not necessarily prevent nationalists like Orbán and Fico from provoking similar crises, but it would at least deprive them of any excuse that their policies are perfectly legitimate.

Developing stronger international legal norms is, however, no answer to the question how to resolve a current conflict. What is needed here and now is a political response that assigns ethical responsibilities to political actors while taking their legitimate interests into account. But there remains an apparent contradiction when addressing this task. How can one blame Hungary for its dual citizenship offer and simultaneously blame Slovakia for retaliating through a prohibition of dual citizenship? What this puzzle shows is that we should not only consider the responsibility of each state taken separately but see their actions as connected with each other. The Hungarian-Slovak conflict illustrates the extent to which citizenship policies of independent states have become interactive. Responsibilities for avoiding such crises as well as for resolving them depend largely on what other political actors do or fail to do.

The primary responsibility lies obviously with the Hungarian government. It ought to have refrained from abolishing a residence criterion for naturalisation of ethnic Hungarians and should now offer unconditional negotiations with its neighbours to deescalate the crisis. Such negotiations would have to include matters that all governments consider as their internal affairs: a strengthening of ethnic minority rights and the offer to modify adverse citizenship policies in return. A secondary responsibility lies with the political leaders of the Hungarian ethnic minorities. They should discourage their constituencies from applying for Hungarian citizenship and can demand in return to be included as full partners in negotiations among the states concerned. Such inclusion could help to break gridlocks between the state parties and to dispel the idea that these minorities are merely fifth columns of government sponsored pan-Hungarian nationalism. Finally, Slovakia should unconditionally retract the threat to denaturalize ethnic minority members and offer instead open talks about stronger minority rights if Hungary is willing to reintroduce a residence condition for access to Hungarian citizenship.

If all three actors behaved responsibly, the outcome of this crisis could still be a bilaterally agreed framework for the protection of ethnic minorities linked to external kin states that would serve as a model for other states and conflicts in the region. Since none of the three actors is currently likely to act responsibly, however, a fourth responsibility lies with the European Union. Even in the absence of any treaty competence in matters of nationality law, the presidents of the EU Commission, Council and Parliament could use their political weight to demand that both Hungary and Slovakia retract their laws and start to talk to each other. After initial reluctance to get involved and assertions by the Commission that questions of nationality should be decided by member states, president Barroso has changed his mind and “called on Viktor Orbán to discuss the measure with the Slovaks” (Presseurop, 5 June 2010). In spring 2009, the EU Commission had already voiced concerns when Romania offered its citizenship to Moldovans whom Romania considers former citizens of Romania (see EUDO CITIZENSHIP news of 12 May 2009). The Commission was worried that Romania might create large numbers of Union citizens who could move to any other Member State. The Hungarian law will not have this effect since the largest Hungarian minorities live now in EU Member States, but it provokes a confrontation between two Member States. EU politicians should by now have learned the lesson that nationalist citizenship policies can either affect all other Member States through opening backdoors for free immigration or unleash serious conflicts between neighbours.

There is no prospect for changing the basic architecture of EU citizenship that makes it derivative from Member State nationality. But it is time to start a serious discussion about minimal standards and good as well as bad practices in matters of citizenship.